A Note About Joint Representation Of Parties In Transactional Practice

You know, a LOT of lawyers don't understand basic transactional rules of representing multiple parties jointly. This post arises out of a transactional occurrence in my business life.

I sit on the Board of Trustees of a Creditor's Trust for a business that went bankrupt, filed for Chapter 11 protection, sold off it's assets to a new entity and left it's debts behind, as well as some cash to be divided amongst the creditors. That cash is currently tied up in a holding vehicle (an escrow) with several other non-creditor shareholders funded from the sale of an asset sold several years ago by the Bankrupt company and the other Shareholders.

The holding vehicle is currently in litigation by frivolous plaintiffs attempting to seek a payday. I call them frivolous because they've ALREADY had their suit dismissed 3 times for lack of being able to prove ANY damages (twice by the Supreme Court of Kansas on summary judgement) before finding a judge willing to give them an injunction.

The problem is that one of the other parties (another shareholder), for some reason that has not been disclosed to the rest of the parties, does not want to agree to release some of the funds, even though we are already 1 YEAR past the date when the funds were to be disbursed as detailed in the original agreement.

I asked the attorney for the Creditor's Trust (a shareholder) what the problem was, and got back a response that he didn't know, it was subject to attorney-client privilege. The privilege that he was being claimed was between the Shareholder's Representative's attorney and the reluctant Shareholder.

Privilege, in this instance, doesn't exist.

Model Rule 1.7, Comment [30] of the ABA Model Rules of Professional Conduct (2011) notes the following (in part):

With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

In Texas, the relevant portion of the Texas Disciplinary Rules of Professional Conduct is Rule 1.7 Comment 6, which states (in part):

In a common representation, the lawyer is still required both to keep each client adequately informed and to maintain confidentiality of information relating to the representation, except as to such clients. See Rules 1.03 and 1.05. Complying with both requirements while acting as intermediary requires a delicate balance. If the balance cannot be maintained, the common representation is improper. With regard to the attorney-client privilege, the general rule is that as between commonly represented clients the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

And, in Kansas, (where the Shareholder Representation is occurring) the Kansas Rules of Professional Conduct Rule 226 (1.7) Comment 30 and 31 state the following even MORE clearly (emphasis mine):

[30] A particularly important factor in determining the appropriateness of common representation is the effect on client-lawyer confidentiality and the attorney-client privilege. With regard to the attorney-client privilege, the prevailing rule is that, as between commonly represented clients, the privilege does not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.

[31] As to the duty of confidentiality, continued common representation will almost certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation. This is so because the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit. See Rule 1.4. The lawyer should, at the outset of the common representation and as part of the process of obtaining each client's informed consent, advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other. In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients.

So, right now I'm cranky that our attorney (the Creditor's Trust counsel) either doesn't know that the joint shareholder's representative's attorney is blowing smoke at him, or isn't willing to call him out on it.

The False Charge of Racism Against Republicans and TEA Partiers

In response to a post at the Liberal Blog Balloon Juice calling the Republicans and TEA Partiers "modern Negrophobists" because of our nearly universal collective yawn at President Obama's proposals of more of the same failed economic stimulus policies, and his new "Give'em Hell, Barry" Demeanor (a la President Truman), Professor Jacobson at Legal Insurrection put up a post in his "Saturday Night Card Game" series about the use of the race card for political gain that "The Negrophobia Card is played"

Ironghost, one of the commentators posted the following comment:

Until Republicans get out of the country clubs and into Black Communities and educate them about how Republicans really are, the race card will continue to work. All thoughts otherwise are cute dreams, but hopeless in the face of reality.

I posted most of the following commentary at Legal Insurrection, but it's important enough that I discuss it here as well:

Many of us are working in the Black and Low Income Communities, and that is why in large part this consistent race baiting on the part of Liberals and Main Stream Media Commentators against everything "anti-Obama" is failing to stick to those it is hurled against. Almost every week, I end up with someone different saying to me “I always thought Republicans only supported the wealthy and powerful. I didn’t think that a Republican would act the way you do; would support the ‘little guy;’ would nurture personal freedom, liberty and individual rights; etc....”

Now, I don’t correct them that I’m actually a Conservative, but the point is still the same.

Many of us are making inroads into the Communities that for years have been the bastions of Statism, in large part because Republicans abandoned them as part of the “welfare state” and everyone assumed that the votes of these communities could simply be “bought” by modern Liberal-Statist pandering.

Some examples from my family:

• My father sits on the board of the Rescue Mission of Syracuse, New York, and that organization has been making significant inroads into the homeless communities and low income populations, helping them to learn skills necessary to get jobs and lift themselves from hunger, homelessness and poverty.
• My mother picks up and delivers food for Caz Cares (the local food bank), in the town where my parents live.
• I volunteer teaching life skills to the Black Community, especially youth, in El Paso through a program run by a Black Church for at risk youth. Because I have backgrounds in Manufacturing & Finance as well as a Law Degree, I am able to teach about financial planning, budgeting, debt reduction, job interviewing, technical skills, and a whole host of other topics which are crucial to 15 to 21 year-old individuals to try to get them a chance at becoming financially self-sufficient.

It’s these sort of inroads to the Black and Low Income Communities which are rapidly eroding support for modern Liberalism (Statism). More and more, those communities recognize that the Liberals and the Democrat party have utterly failed them by simply throwing money at them, thereby creating dependence, without actually teaching the people of these communities how to lift themselves up.

When Republicans and Conservatives show up to help, while it is harder and we challenge the people we’re helping, at the end of the day the people find that they’re self sufficient, and no longer need help (or need a vastly reduced amount of it for only a limited period).

The minute you empower someone to break the chains of dependency (either upon the government or someone else) and further empower them with the abilities to support themselves they will flee from that dependency as far and as fast as they can. Somewhere deep down, there is an inherent pride that all individuals cherish in being able to say “I AM able to support myself; I CAN earn things on my own.”

A Brief Comment On The Language Of The Illegal Immigration Debate

The language of the debate over Illegal Immigration has been continuously evolving with each side attempting to frame the debate to sway the populace to their point of view.

The pro-open borders side is attempting to frame the debate as one encompassing all immigrants by saying that "the border has always been open" and calling those illegally in the United States simply as "undocumented immigrants." It's dishonest at best, but the pro-open borders supporters are hoping that those who went through legal means won't pay attention or will stay silent to assist their "undocumented" brethren. Further, they are now claiming that open borders immigration is a "natural right" which cannot be infringed by a government. This shows a staggering ignorance of history, as well as a level of hypocrisy that borders upon the obscene when you examine it in context with most of the other positions that individuals with these beliefs usually hold which would qualify as "natural rights."

The legal immigration only side of the debate has correctly attempted to limit the frame of the debate about those who are in the country illegally, and has properly praised those immigrants who followed the rules and immigrated through legal means.

On Recent Lies About Taxes, The "Afordable Care Act," and Other Entitlements.

For the most part, I don't want this blog to become about current events for a long, long time. Unfortunately every so often though a politician will say something that I find to be SO outrageous that it deserves at least a little bit of analysis because of the way it lies to or misleads the public. President Obama's recent demagoguery has finally risen to the level where my good conscience can no longer ignore it.

Rep. Paul Ryan of Wisconsin has put forth a budget proposal which structurally reforms entitlement programs which are in their current form unsustainable. These reforms are necessary to debt reduction, for without structural reform, these programs will eat up an ever increasing portion of the budget, until there is NOTHING left for ANY other program. The reductions amount to approximately $4 TRILLION in debt reduction in under 10 years, while lowering the top marginal tax rates to approximately 25%, which will lead to an explosion of consumer purchasing and small business formation and expansion. The reforms are fairly simple in concept, if complex in implementation, and most assuredly desperately needed.

The first is to change Medicaid for the poor into a block-grant system to the individual states, allowing them to structure changes as necessary to their individual circumstances. There is an example and precedent for this, being the Personal Responsibility and Work Opportunity act (aka Welfare Reform) of 1996. Welfare rolls decreased, costs were streamlined and yet, there were no excess lines at soup kitchens nor were there the sensationalized massive lines at homeless shelters. The Statists screamed bloody murder that it would throw women and children into the street. It was a sensationalistic LIE by the Liberal-Statists then, just like it is a sensationalistic LIE now. Will there be some individuals who will be cut off from Medicaid. Most assuredly. In all likelihood, those individuals should not be receiving Medicaid in the first place.

The Second change is to Medicare for the elderly, turning it into a system of subsidized medical care rather than a direct payment provider. This will mean that the seniors will be given a certain dollar amount in subsidy and can then purchase their OWN health care through whatever provider they choose. It changes from an open-ended commitment, which is a DIRECT CAUSE of medical cost inflation to a defined commitment which will then cause seniors to evaluate what services they want and need in a health care plan. That evaluation will, in and of itself, reduce medical insurance inflation costs, because it will restore market forces which have been sorely absent.

The Statists in the government object to the reforms proposed because they realize that once people have control over their own destiny, choices and spending habits, that the Statist loses power to control the life of the individual. They once again make sensationalistic claims that the poor will be denied medical coverage and the plug will get pulled on grandma because she can't pay.

IT - IS - A - LIE - MEANT - TO - KEEP - YOU - IN - FEAR.

In the written word, I can't say it any more deliberately than that. The Statists want the populace in fear and dependent upon the government in order to better control the populace. They believe this is part of the structure necessary to build Utopia, that everyone act in a structured manner and that liberty of self-choice be banished in the interest of "the collective good."

President Obama has stepped into the fray by condemning Rep. Ryan's budget proposal, and claiming that if the wealthiest amongst us, those who can afford to pay, are taxed just a little bit more, that everything will be fine, and no changes need to be made to the entitlement programs. It is IMMORAL to ask those top 1%, who are ALREADY shouldering a Total Income Tax Share of 38.02% to carry MORE regardless of if they can afford it. In fact, the top 5% of earners ALREADY pay for almost 60% of federal income tax revenues (58.72%). If anyone wants to be fool-hardy enough to argue that the top 1% have an Adjusted Gross Income higher as a percentage of wealth you need to be aware that the top 1% make 20% of wealth but, as stated above, pay almost 40% of federal tax revenue. This does not include FICA payments, where the top 10% pay almost 25% of that total burden as well.

Obama's argument is NOT about getting the fortunate few to pay "just a little bit more" but is entirely about redistributing wealth in the form of services and outright payments from those who have EARNED wealth to those who he feels have been denied wealth. If Obama wanted to be serious about funding, he would ask those in the bottom 50% of earners, who currently pay 2.70% of Total Income Tax Share and less than 30% of the FICA share to shoulder the burden they put on the government and pony up to pay for the services that they use. Anything less is simply theft from one group to give to another. The fact that Obama has gone into "campaign mode" by going and demonizing reforms that would shift a small portion of the burden of payment to those who make use of the services shows that he not only understands that this is base theft, but that he knows that if the narrative is anything other that "everything will be fine if we soak the rich" that he will lose BADLY in his reelection efforts.

Also, here we need to address another LIE of Obama, regarding the Affordable Care Act (aka Health Care Reform). During the debate, much fanfare was made by Obama that "If you like your plan, you can keep it." The implication was that the Act would not change the rules so radically that plans would end. In the time since the act was signed, literally THOUSANDS of companies have either ended their coverage, substantially raised their premiums or have threatened to do so and received "waivers" from the requirements in order to continue to provide coverage. The plans in question, called "mini-med" plans were high-deductible, low coverage plans, usually designed specifically to provide coverage to part-time workers. Some of the largest companies receiving waivers I'm sure you've heard of, including McDonalds, WageWorks, Inc., American Heritage Life Insurance, Local 25 SEIU, BCS Insurance, Cracker Barrel, Aetna and the NY United Federation of Teachers Welfare Fund. Had these "waivers" not been granted, over 2 MILLION people would have already LOST their health care coverage from the implementation of the Act. So much for the LIE that implementing the act would increase coverage and help keep premium costs down.

The final LIE that is important to address here is one of slight of hand that is also a part of the Affordable Care Act. The Act itself cut $145 Billion from Medicare Advantage over a period of 10 years. The Act on paper shows savings by "double counting" Medicare "savings" (read: reduction in payments) and moving them over to other health programs to fund health insurance for the currently uninsured. This year, when the first reductions were just about to come due to plans that were rated "average," (as opposed to highly-rated) Medicare got a very nasty letter from some of its providers stating that Medicare Advantage (the part that Seniors PAY out of pocket) were going to have to be increased SUBSTANTIALLY or services SEVERELY cut in order to not lose money. The Obama Administration acted quickly and lo-and-behold, decided to change the criteria for grading by grading on a curve and came up with a payment of $6.7 BILLION dollars (no one knows where from other than to say "the Medicare Trust Fund") to make "bonus" payments to the Medicare Advantage providers in order to prevent the increased premiums or service cuts from taking effect.

There is ONLY one reason for this to have occurred, and that is that Obama knows he would face a public rebellion from senior citizens against his plan if, after being assured that "costs will be kept down," that a massive premium increase suddenly followed just as those opposing the Affordable Care Act warned. What it means though is that Obama was not serious when he said that cuts to other programs would be used to fund the Affordable Care Act expansion of health care to the uninsured. Quoting the AP (which I am ALWAYS loath to do):

Still, the episode could be an early sign that Medicare cuts used to finance much of Obama's coverage expansion for the uninsured will turn out to be politically unsustainable, as have other efforts to impose austerity. For example, Congress has routinely waived cuts in Medicare payments to doctors.

If Obama manages to bamboozle the public into reelecting him in 2012 without electing a REALLY strong Conservative House and Senate (and I mean Veto-Proof), expect for all of this financial slight of hand to come to a nasty, quick end and, with no more political stake in the outcome, for brutal cuts, losses of insurance and premium increases to become the new normal.

The statistics and stories cited above can be found at the following addresses:
The Tax Foundation, Fiscal Facts No. 249:
http://www.taxfoundation.org/news/show/250.html

The Department of Health & Human Services:
http://www.hhs.gov/ociio/regulations/approved_applications_for_waiver.html

The Mother Lode
http://www.mymotherlode.com/news/health/753518/Obama-administration-eases-pain-of-Medicare-cuts.html

On the Origins of Law...

Continuing with commentary on Harry Hibschman's "What You Should Know About Law," after asking "What is Law" the next obvious question is "Where did Law come from?"

In the abstract, Hibschman contends that the earliest functionality of Law is nothing more than the natural rules governing what he calls "our animal ancestors." Hibschman observes the writings of Joseph McCabe from 'Man and His Submission to Being Ruled,' on the thought that

[n]atural selection has brought about a tradition of conduct of behavior. Those who do not live on certain lines or within certain limits perish. It is the unconscious law of the animal world, and it is to some extent incorporated in the organism.

McCabe, Hibschman says, claims that children "follow the ways of the parents through imitation or correction, and habits are formed for the individual that lead him to conform to custom." These customs, he continues, reach beyond the lowest savage level of humanity without society, long before the written word and possibly before the true advent of spoken language, and yet that is where law begins. Hibschman continues that out of ancient custom came both morality and law, which was recorded upon the invention of written language. Such is the common law, which the United States acquired from England, the principles and rules of which came "to England from Babylon, Palestine and Phoenicia by way of Greece and Rome so that our modern law has roots in over half the earth."

To that largely unwritten inherited body of law we have added legislation, but Hibschman asks the question that when we enact laws, do we really make them. Custom, Hibschman claims (at least in his time) is still a tyrant, and asks the reader to consider critically the thought that "when we think we legislate, we do naught but register in rigid form customs already approved by the social conscience." Hibschman concludes his thoughts on the origins of the law with a comment from Woodrow Wilson's "The State," where Wilson declared 'Back of the Must there is first an Ought.' Law, Hibschman says, comes from that Ought.

From my own experience in observing the change in culture in the last 80 years both historically and while I have been alive, I can entirely see Hibschman's point about children learning from parents and conforming to custom. It's an oft-used example from the 1990s era of welfare reform, but three generations of welfare recipients in one house is enough. Or, if you prefer another example, the cultural acceptance of divorce and the single parent household in the 60s and 70s has given rise to the proliferation of single parent households today, some from divorce others because they simply never bothered to marry. Further, I can even see how given enough numberless generations how observed custom would become ironclad in the force of unwritten law. Further, we see in several historical contexts how custom evolved fully into law.

The Old Testament Biblical accounts of Moses giving the Israelites "The Law" (the Halakha) in Deuteronomy was largely a codification and a reminder of the rules that Moses had given the Israelites upon the Exodus from Egypt, and then left a specific instruction that the whole body of laws was to be read to the entire nation every seven years by the priests of Israel, and every king was to write an entire copy of the law on a scroll as one of his first acts upon taking the throne (Deuteronomy 17:18-19)

Hammurabi similarly codified what must have been customary action during his reign from 1792 BC to 1750 BC. Hammurabi's organization of the law likely made the code itself more easily understood and by replacing custom with the power of the kingdom gave it force. Further Hammurabi made sure that the law was visible by writing it on a large stone monument (a stele) and putting it in public, so that anyone who was literate could read it for themselves in order to understand exactly what their rights were and what was expected of them.

Today, in the legislative halls of both States and the Federal government, there is no question that we have abandoned the slow petrification of the growth of custom into the stone of law for the rapid-fire legislative antics of bare electoral majority rule. No longer is there widespread acceptance of the need for customary action or societal duty to settle into the culture before its codification. No. Today it is merely "that is what 50.1% of the voting public wants" (not even the entire citizenry).

Sometimes it is even worse than that, when the legislators themselves take it upon themselves to legislate what they think we SHOULD want because it is "in our best interest," such as the recent Health Care Reform act of 2010, which even now 60% of the people disagree with, although for a myriad of reasons. At least with this body, we can recognize their disdain for the will of the public and vote them out of office for abusing the public trust, hopefully undoing the damage done in the interim period.

What should frighten the public even more than this shotgun approach to lawmaking is that usually less than half of the eligible population actually does vote on who their lawmaker will be, concentrating ever-more power into the hands of the few politically active at the expense of those who merely follow along.

The final idea that should further horrify the public is the expansion of the Administrative bodies which promulgate rules and regulations with seemingly no oversight from the elected bodies who have ceded them power. They act, often without mandate, review, or even direction other than "department X shall promulgate regulations for industry Y for the protection of the public." While they are required to have comment periods, they have the authority to ignore all public commentary and to act, and usually must be challenged through administrative processes before any court challenge may be mounted. Even then, the burden is VERY high on the party seeking to overturn the administrative rule. The administrative state, through its bureaucracy is accountable to no one but itself.

As with the definition of "what is law" from the last commentary, we have lost something in the change from a slow, deliberate codification of custom into law. While being able to change law quickly can have its benefits, either by banning a new custom from taking hold or when a particular law or action is seen as being incredibly destructive, the approach of "legislate first, deal with the consequences later" is itself destructive to the fabric of the nation and to the larger historical context of what the law should be.

What is law?

My wife knows that I have an interest in history, learning from the past, and seeing how culture changes over time, for better and for worse. She very thoughtfully gave me several of the "Little Blue Book" series that deal with topics in law, edited by Haldeman-Julius, for Christmas in 2009.

We'll be looking at them out of order from when they were published simply because from a topic standpoint, that makes more sense. The first of these is "What You Should Know About Law" written by Harry Hibschman which seems to have been published first in 1929.

Hibschman's first commentary is a question: "What is Law?" He answers in saying that

In one way it is a collection of rules regulating and protecting the life, rights and property of the citizen- a mass of principles classified, reduced to order, and made generally binding in a given part of the world through the expressed will and authority of the political entity.

Further, Hibschman says that there are 4 sub-parts in identifying "law":

A Law - a rule of action established or adopted by recognized political authority to enforce justice, to prescribe duty or obligation, and to protect life, rights, and property; a means by which certain social ends are attained.

The Law - the specific rule in effect in a given case.

Law - the aggregate body of rules defined above; but

Law is also used in the sense of principle; of a high standard of right or justice as something natural, unimpeachable, and ever operative; or of a philosophical concept, crystallized in the minds of men as a juridical absolute.

He concludes this portion of his commentary by saying that lawyers have an expression, referring to statute or decisions as "That is the law, but it is not law." This reflects the difference in conceptualization between the Roman law concepts of lex (the statutory body of written law) and jus (the entire body of of all law including natural rights).

In the intervening 80-plus years, the accepted legal definition of "law" has shifted from the high ideals of the early 20th century. Black's Law Dictionary, 8th Edition, (c) 2004, starts with this definition:

Law (1) - The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society; the legal system.

(2) - The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them.

(3) The set of rules or principles dealing with a specific area of the legal system.

(4) The judicial and administrative process; legal action and proceedings.

(5) A statute.

(6) COMMON LAW (law but not equity).

(7) The legal profession.

My first thoughts on seeing the descriptions side by side is that, in the intervening years, we have lost any discussion of law as a protector of rights. What appears to be gone from the overall discussion of what the law is, as Hibschman puts it, is the concept of the law being a high standard of right or justice as something natural, unimpeachable, and ever operative; or of a philosophical concept, crystallized in the minds of men as a juridical absolute. The current definition of "law" seems to speak only of force and power, but not of the protection of natural rights of the individual or of ordering of society other than through force. While there are then twenty-seven different sub-definitions located under different names, including natural law, divine law, moral law and common law directing the reader to other concepts the overall definition of law seems to be solely organized around authoritarian command.

The closest that the Black's definition gets to addressing the protection of rights by the law is an included note by Richard A Posner from The Problems of Jurisprudence p. 220-21 (1990), where he says:

It will help to distinguish three senses of the word 'law.' The first is law as a distinctive social institution; that is the sense invoked when we ask whether primitive law is really law. The second is law as a collection of sets of propositions - the sets we refer to as antitrust law, the law of torts, the Statute of Frauds, and so on. The third is law as a source of rights, duties, and powers, as in the sentence 'The law forbids the murdering heir to inherit.'

When we fail to have a discussion of the law as a source of protection of rights as well as the creation of duties and powers in the highest level definition of 'law,' we lose something more than a simple conceptual discussion. We lose the idea that the law is to be a protector of life, natural rights and property of the individual. Without providing this protection, the law loses its authority as a natural, unimpeachable, and ever operative method of enforcing justice, and merely becomes a cudgel for the authority of the day to to prescribe duty or obligation upon those subjugated to its power.

Fleeing From Utopia...

I hope that this blog will largely be about forgotten little quirks of the law and oddities that I have found. I expect that it will also become a commentary upon how a law system once easily enough understood by the common man has become a behemoth requiring you to consult someone with a 3 year post-college degree to engage in even the most routine transaction. However, I will likely touch on politics often enough that the reader should know where I stand.

The modern Conservative believes in the interconnection of free markets, private property, religion, tradition, authority, representative government, separation of powers, natural rights and ordered liberty. He is responsible for seeing to his own well being, the well being of his family and as a citizen to contribute to the well being of the community through volunteerism and good works. These concepts, developed through the human experience, promote The Civil Society.

The modern Liberal believes in the supremacy of the state (nation), as opposed to the classical Liberal who opposed authoritarian regimes in favor of personal freedom. Thus the modern Liberal is more appropriately now named the modern Statist. To the modern Statist, the imperfection of the individual and the allowance of personal pursuits via liberty impede the creation of the Utopian state.

The Statist's Utopia can and has taken many forms throughout history but all have the same flaw: that the Statist misuses the concept of equality.

The Founding Fathers (and by extension, the modern Conservative) understood equality to be the natural right of every individual to live freely under self-government, to acquire and retain the property he creates through his own labor and the leverage of his individual property, and to be treated impartially before a just law.

The Statist uses the claim of creating 'equality' to pursue uniform economic and social outcomes at the expense of self-government, individual property rights and individual liberty. Further, he believes that he can tame man's natural state of imperfection and through man's perfection can Utopia be achieved.

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. (C.S. Lewis). The Statist attempts to deconstruct The Civil Society and instead offers the tyranny of authoritarianism. They talk of individual rights, but promote collectivism. They talk of enfranchisement and suffrage, but promote judicial and administrative usurpation of the representative state. They talk of workers' rights but promote the heavy taxation and regulation of labor. This is not liberty.

The Statist portrays Utopia as a kind of heaven on earth, but has a high tolerance for the widespread hell of Statist-caused misery, believing it is the price humanity must pay to pave the way for Utopia, or believing that Statist caused misery is due to misapplication of Utopian ideals, poor performance of a particular regime or nefarious doings of perceived "enemies of the state."

The modern Conservative recognizes that equality is the equal opportunity before God, man and the law of the individual to prove unequal talent. He also recognizes the double meaning from the Greek that Utopia is both the good place and no place, for it does not exist. Nevertheless, the modern Conservative finds himself Fleeing From Utopia.

[Some concepts and language borrowed from Mark Levin's essays contained in Liberty and Tyranny: A Conservative Manifesto. 2009]