Tuesday, July 07, 2009
"Sotomayor & Associates" ... meh, who cares?
Nothing has happened since May 26 to make me change my initial take on Pres. Obama's nomination of U.S. Circuit Judge Sonia Sotomayor to fill Justice Souter's seat on the Supreme Court. (That take, in short, was this: Obama would never nominate anyone of whom I approved, and Judge Sotomayor, if confirmed, will vote the same way as Souter has, but be no more effective than Souter was (and perhaps less so) at swaying the Court's swing vote, Kennedy, in close cases. Republicans should use every opportunity to demonstrate how disastrous it is for the country and the Constitution to have liberal Democrats like Obama in a position to pick politically liberal and judicially activist SCOTUS Justices. But expecting to defeat Sotomayor's nomination is unrealistic unless something big and new comes up from her past, and I'm very grateful Obama didn't nominate someone who'd be much more effective.)
Now it appears from a NYT story that between 1983 and 1986, on behalf of some friends or friends of friends, Sotomayor wrote a few wills, incorporated a few businesses, or helped skim the closing documents for a few condo sales under the exaggerated firm name of "Sotomayor & Associates" while she was really a full-time employee of the Manhattan D.A.'s office or another law firm.
I agree with my blogospheric friend and fellow lawyer Andrew McCarthy that it doesn't take a sophisticated legal analysis for anyone, lawyer or layman, to recognize that claiming to be "Sotomayor & Associates" — when you really don't have any associates — is stupid and misleading. It ought not be done. (On this topic more generally, see also Eric Turkewitz, Jim Lindgren, Glenn Reynolds, John Steele, and the Washington Times,)
I very, very seriously doubt, however, that lawyer Sotomayor's transgression in exaggerating the size of her firm ever actually misled anyone. As small potatoes go, this one is pea-sized or smaller. And as misrepresentations with disastrous public consequences go, this one is utterly microscopic in comparison with, for example, almost any one of Obama's presidential campaign promises, or his own claims to have had significant experience to prepare him for that office.
(Personal disclosure: My own solo law firm — likewise an unincorporated sole proprietorship whose name is only a d/b/a (albeit one duly registered with Harris County) — is carefully designated "Law Office of William J. Dyer" on my letterhead, pleadings, website, and elsewhere to avoid implying more than one regular place of business, more than one lawyer, or any incorporated status that would potentially limit or complicate my personal liability for debts of the law practice. It's a traditional name, but terribly stuffy and boring. I'd rather simply use "Dyer Legal" to correspond with my business internet URL, but the State Bar of Texas — for reasons that are entirely opaque and directly contrary to the square holding (at footnote 12 & accompanying text) of at least one federal district court opinion adopted by the Fifth Circuit — considers that to be an impermissible "trade name" which might mislead the public into thinking that I'm making some representation about the quality of my legal services as compared to other lawyers, which Texas lawyers are forbidden to do. I think state bars in general, including my own, have historically done pathetically bad jobs of preventing genuinely misleading information about lawyers and their services from being spread in the marketplace. I also think that they've almost completely defaulted in their obligations to instead ensure that meaningful and accurate information — information which would help promote informed consumer decisions, and which would tend to drive out misinformation — is constantly available to the public in usable forms. There ought to be no commercial market for an advertising-sponsored legal information-gathering and -distributing service like Avvo.com, for example, because state bars, individually or (better) collectively, ought to have already done all that and more, and have done it much better, via the internet. Which is to say, on this set of legal ethics/public interest issues, I'm a self-interested, grumpy curmudgeon, but not entirely a traditionalist. I do care about these issues, in other words, but I don't think they matter much in the context of the Sotomayor nomination.)