Lawyer Advertising I read in the October 1 News some rather disturbing comments made by Robert Rush, a member of the Bar Advertising Task Force, relating to a suggested amendment to Bar rules prohibiting direct mail to criminal defendants for a period of 30 days. I was deeply disturbed by his comment that “there isn’t anything bad that can happen to you in a criminal case that can’t be undone by a competent attorney.” That is akin to saying you don’t need to have an attorney review a contract or release before signing it. I am concerned that fellow members of the task force may not understand how very critical it is to have representation immediately after an arrest. The comments reflect a misconception of what really happens in the early days of a criminal case. Let me give you several specific examples of how a delay in hiring an attorney can adversely impact a criminal defendant. In a multi-defendant homicide case, or in a multi-defendant felony murder case, generally there are varying degrees of culpability. In the first 30 days before the filing of the formal charge, a competent attorney may convince the prosecutor to either drop or reduce the charge against his client in return for cooperation and testimony. If successful, this negotiation may result in a client’s status changing from that of a defendant to that of a cooperating witness. This negotiation may also result in the filing of a lesser charge, such as second degree murder or manslaughter. Literally, immediate efforts by competent defense counsel in some cases make the difference between life and death sentences. Similarly, in most multi-defendant drug conspiracies, and in drug trafficking cases, there are minimum mandatory jail sentences. Often, the only way for the client to avoid the imposition of a lengthy mandatory jail sentence is to provide “substantial assistance.” In multi-defendant drug conspiracies and drug trafficking cases, a competent attorney, in the first few days following the defendant’s arrest, may be successful in negotiating his client’s “substantial assistance” in return for a reduced charge or a reduced sentence. This window of opportunity closes quickly. The unrepresented defendant is at a tremendous disadvantage, in that other co-defendants who are represented by competent counsel may offer their client’s cooperation first. In these cases, the result is that there is often a race by the various defendants to obtain a “substantial assistance” agreement. A delay in hiring counsel can result in a defendant coming in last in this race and receiving a mandatory sentence where otherwise he may have received a substantially reduced sentence or no sentence at all. After a defendant’s arrest and before the filing of the formal charges (usually in the first 30 days), quite often the defendant is subjected to additional interrogation. In the real world, the un-counseled confession is difficult, if not impossible, to overcome. It cannot be “undone.” The right to counsel is not just a token right. It is an important constitutional right. A Bar rule that would delay and prohibit attorneys from advising defendants of their constitutional rights for a period of 30 days has serious constitutional implications. The Bar rules presently require direct mail advertisements to be submitted to the Bar for approval. If, in fact, it is an approved communication and contains no impermissible content, then why delay its transmission for 30 days? Hindering or delaying a defendant’s hiring of counsel serves no legitimate purpose and, in many instances, results in irreparable harm to the client. Direct mail advertising by criminal defense attorneys serves a valuable purpose. It encourages clients to compare qualifications and experience. Often, it advises them of rights that may be inadvertently waived. It provides to the client a broader selection of attorneys. Contrary to the conclusions reached by some members of this task force, it provides a valuable service. The passage of Amendment 3, in my opinion, reflects the negative opinion of the general public against what they now perceive to be the “greedy lawyers.” In my view, this is in part due to the saturation of television advertising of some personal injury firms. Direct mail to criminal defendants, on the other hand, is the least offensive and the most informative of all forms of advertising. It reaches only those people who have a genuine need at the time. Peter D. Aiken Ft. Myers December 1, 2004 Letters LettersGay Adoption Overturning the ban on gay adoptions is important for two reasons: 1) it is in the best interest of children awaiting adoption in Florida; and 2) it is in the best interest of the membership of The Florida Bar. Overturning the ban is important to children because there are currently thousands of children languishing in foster homes, awaiting adoption. Many of these children have special needs, and are overlooked by heterosexual couples who are looking to complete a “perfect” family. The Florida Department of Children and Families will tell you that gays and lesbians have already taken many of these children into their homes as foster parents. However, adoption would allow these families to receive governmental recognition in areas such as Social Security and inheritance, and complete these families as deserved. Overturning the ban is also important to members of The Florida Bar. Gay and lesbian members with biological children are unable to allow life partners to adopt their biological children, in the event of their death. Despite the fact that this life partner may be the only other parent the child has known, under the current law a heterosexual stranger is preferred to an existing gay or lesbian parent. In a similar situation, a gay sister or brother is prohibited from the adoption of a niece or nephew, despite the fact that this may be the only family member available for, or capable of, adoption. This law destroys families, including members’ families. Opponents of overturning the ban will not be able to articulate a scenario under which keeping the ban in place will protect a single member of The Florida Bar. Instead, quite the opposite is true. Please also keep in mind that overturning the ban on gay adoption does not mean that gay and lesbians are automatically able to adopt children. Instead, it would just make gays and lesbian eligible to adopt, after going through the same application process that everyone else is required to go through. Patrick C. Howell Maitand On graduating from law school in 1975, I was encouraged and enthusiastic to join the ABA, a voluntary organization with a long, distinguished history of assistance and advancement of lawyers and the profession. I served on committees and remained a member for 26 years. Over that time, the ABA developed into a body that adopts and advocates positions on a plethora of disputed, political, social, economic, military, international, and religious issues. This is done, all the while taking and using the assessments of professional dues from its members, and even though on particular issues, the stances advanced by the ABA are inconsistent with the views of the large numbers of its members. That the ABA appears to regard itself as possessing independent authority to formulate, enunciate, and advocate positions on such issues is an affront to its members who hold different views, and to those members who desire for the ABA to serve its members in their labors in the legal profession, not to champion partisan positions on disputed issues. With cowardly timidity, in silence, I hung on and hung in. Meanwhile, other lawyers, with far greater stature and courage than I, long ago acted on their discernment and principles, and resigned. With some sadness and chagrin at myself, eventually I shook myself from my coma-like slumber, and followed their lead. Now, The Florida Bar, a mandatory body for licensure to practice law in Florida, proposes to surpass the ABA, grinding salt into the wounds of members who neither agree with, nor wish for, The Florida Bar to take and advocate a position on such issues — most recently homosexual adoption. It is flatly unacceptable for a professional body, purportedly devoted to the goal of improving the legal profession and assisting it members, to interject itself — with the compulsory membership and financial resources of those members — in urging particular positions on contested issues about which those members themselves have clashing points-of-view. I never desired to join the camaraderie of licensed attorneys in Florida for the requisite, organized body to advocate, articulate, and urge positions and political action on such issues, as if it spoke with authority and approval of its membership. The astonishing fact is that, although there are ample organizations and bodies for each of us to join, contribute, participate, and advocate; that is neither enough, nor acceptable, for those who wish not only to capture The Florida Bar to their viewpoint, but also to push and coerce those who disagree into accepting the promulgation of that viewpoint from the mouth of The Florida Bar itself. The result is that the Bar organization becomes the vulnerable mouthpiece for whatever point-of-view can wrest control of the organization. As an individual attorney, I am a follower of the Son of God, committed to practicing law in a way that uses intellectual acumen and professional skill to pursue “justice, mercy,. . . faithfulness,. . . and the love of God,” as He instructed. Matt. 23.23 and Luke 11.42. I have strong, solid positions on many issues. Doubtless, there are others who take opposing positions. Nevertheless, I do not expect – or desire – The Florida Bar to be an advocate or spokesman for the truths of the Christian faith. Neither can I accept that The Florida Bar has any business being an advocate or spokesman for positions that are repugnant to those truths. Our cherished constitutional freedoms allow us, individually and collectively, to speak and write our viewpoints, to advocate and promote our positions, in the unrestrained competition of ideas and expression. We neither need, nor have any right, to seize independent, professional — and compulsory — organizations like The Florida Bar to do that, however. Let lawyers be lawyers; and if they also want to be a gay lawyer, a secularist lawyer, an atheist lawyer, or a Christian lawyer, they have the freedom to do that, without securing the imprimatur of the mandatory Bar. Russell W. LaPeer Ocala Post election media assessment is declaring that it wasn’t just about economics, and only to some extent, was it about the war against terrorism; but, rather, the outcome hinged upon family values. The moral conscience of America has opened its eyes. Gay adoption, abortion, victim rights, and the panoply of other moral issues are now substantially influencing the voting public. The pendulum has passed its liberal amplitude and is now on its return swing toward equilibrium. Political parties will adjust or face destruction. The Florida Bar, however, is not a political party. It must not lobby the cultural sentiments of its lawyers even if that persuasion would represent the majority of the membership; to do so would destroy the efforts of generations of lawyers. I agree with David Young’s letter of November 1. Those who would lobby the cultural issues “should not involve the rest of the lawyers who are constrained to be members of The Florida Bar in order to practice law.” When the morass of public opinion has nothing to do with fundamental, constitutional rights, The Florida Bar should hold its tongue and await the decision of the people. Even if the majority of the membership believes a constitutional right is at issue, The Florida Bar must take care to speak only to the Constitution and not seek to represent the moral opinion of its members. Craig S. Dyer Ft. Lauderdale Regarding recent letters in News, it appears that some members of the Bar advocate a policy that places political ideology, personal fulfillment of gays/lesbians, and administrative convenience ahead of the social welfare of Florida’s children. While the majority of those who write to oppose changing F.S. §63.042(3) bases its opposition upon the divisiveness of the issue rather than upon its merits, proponents of gay adoption implicitly associate those who advocate the status quo with unenlightened, knuckle-dragging Neanderthals. Yet contrary to what proponents of gay adoption would have us believe, the body of scientific literature that examines how children fare in gay/lesbian households reaches different conclusions regarding this issue. Could it be that the American Academy of Pediatrics and other publications have agendas of their own? Research indicates that a married man and woman raising children together best ensures the welfare of the children. The God-given mother/father relationship is the proven framework by which relationships among mothers, fathers, and children are established and maintained. Current law is consistent with the cumulative experiences of Western civilization and the beliefs of all major world religions. The fact that single parents may legally adopt is no reason to change the law and use Florida’s children in a grand social engineering experiment. Moreover, the fact that a child is “welcomed into a loving home” does nothing to ameliorate possible long-term effects of abuse, neglect, or abandonment — a fact to which DCF case workers would attest. Gay couples are inherently unstable because there is no marriage relationship. Since Florida does not recognize same-sex “marriages,” gay adoption cannot provide the stability and support that children need. However, altering §63.042(3) and implementing an “individualized assessment of all prospective adoptive parents” will surely result in increased instability and litigation — and who could possibly be in favor of that? Peter J. Sziklai Ocala December 1, 2004 Letters read more