Monday memories

Now, I admit, you may be of the opinion that a blog that has only existed for just a bit longer than 2 years probably has no business trying to recycle past posts as flashbacks or memories or what-have-yous.  But, I’ll make you a deal:  you start your own blog and you get to do whatever you want on that one.

A few events that have been prominently in the news in the American South, including in my own city, have led me to want to re-post something I wrote back on May 18, 2015 and that, perhaps, you didn’t read when I first wrote it.  The fact that today is Memorial Day has also provided additional “synergy” for my decision today.

The events and the topic are: Confederate memorials and the efforts in New Orleans and elsewhere to take them down.  The most recent news item that has prompted me to decide to re-run today something I wrote two years ago is this news out of Alabama that the Alabama legislature has passed a bill to make it illegal to take down a Confederate monument.

If you are looking for an even longer, and admittedly more eloquent and better read on the overall issue, I would commend you to the transcript of the speech given by the Mayor of New Orleans earlier this month which you can find here.

If you are just looking for the “how could there ever have been a legal ethics component to this topic” piece, I am pasting below my piece, originally published here on May 18, 2015, that was titled “Things I Don’t Understand” below (and that you will be shocked to learn also involved an Alabama law).  And if you are among the few who read this piece when it was first posted, and are reading today, thank you for your patronage!

(I will also add that this re-posted pieces is actually as much about “click-bait” headlines as anything else and, thankfully, those are not something that we have any reason to continue to worry about either:

I was not born in the South but have lived here for the overwhelming majority of my life.  I’ve never understood, however, the uniquely Southern interest in the history of the Civil War.  And, I don’t mean just at the role-playing levels of Civil War re-enactment events but even at the more subtle levels at which it is fervently studied but not seemingly for the purpose of trying to learn lessons from history to avoid repeating history.  It has always puzzled me that anyone would present that time period in American history as anything other than the darkest time in the history of our nation and something for which we should be ashamed and reluctant to speak about it unless absolutely necessary.  But that’s just me, your mileage may vary.

So when I saw this headline at the ABA Journal online “Lawyer removes Confederate flags from civil war cemetery, sparking calls for disbarment,” I thought for certain that reading it would leave me overwhelmed with more sentiments I cannot understand.  But having read it, what I really cannot understand is why the ABA would present such a misleading title.  Having now read the news sources to which the ABA Journal links (the most thorough of which seems to be this one), none of them really contain anyone willing to actually call for the lawyer’s disbarment.

And, of course, no one should.  Even if you have a problem with him removing the flags and want to go so far as to raise questions about whether the conduct is in violation of the Alabama law regarding real and personal property in cemeteries and graveyards, it is difficult to get to a disciplinary violation from there, much less one for which disbarment would be in order.  Alabama, like Tennessee, has a version of RPC 8.4 patterned after the ABA Model Rules that treats the commission of crimes by lawyers even when not acting as a lawyer as grounds for discipline if the criminal act is one “that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”  Comment [2] to the Rule does the best it can to try to stress the point that lawyers, like all other human beings are personally answerable to criminal laws, but “should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.”   This most certainly is not that.

I think the “click-bait” nature of the ABA Journal’s headline comes closer to being “conduct involving . . . misrepresentation” that would run afoul of RPC 8.4(c) then the removal of flags, bagging them up, and leaving them at city hall to be picked up by the owners comes to being a violation of RPC 8.4(b).

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