KLS Daily Take

A New Year of Transitions -2012

2012-01-02T09:43:00.000-08:00

The past year has had its more than fair share of challenges. For my family, health has been a major issue and as we suffer the temporariness of all that is, the battle continues and it is heart-wrenching. Suffering the passage of time and things brings with it certain boons as well. We start to recognize the value of contemplation and meditation. We start to recognize our position in history,within family and within the world. We start to recognize that we are forever in transition, and change is a habit that we need to adopt, before it adapts us (the latter can be a painful process).

So where are we today according to GDK? We are poised to better understand ourselves as we sit on this lonely planet in the cosmos (recently learning that there is hope of another such planet out there with living characteristics similar to ours). We keep pushing ourselves forward to create and deploy technologies to bring more of us closer together politically and economically. We are learning, sometimes the hard way, the real potential for climactic catastrophe, especially as it pounds against human development (Fukushima for instance). We are running out of energy to sustain us all as the human population sees no bounds. We are at a better place to understand how the social, the technological, the scientific, may conflate to create a space for a socio-economic network to connect us all.

What about finance and trade? We have had to confront the hard truth about the gap between reality and talk; paper is paper after all and we cannot be sure about what it purports to represent; and valuation is tricky if it is manipulated. Perhaps it is time to shift gear and make the rules simpler and accessible to the general public; perhaps popular movements like Occupy Wall Street ask for something when they ask for nothing; perhaps the gains toward popular politics in the middle east push political boundaries beyond their own through a global social network. There is a politics of finance and trade as much as there is financial politics, political trade, and a trade in politics/ideology. Developing nations will become developed superpowers, and superpowers will come full circle to understanding the value of interdependence - economic, cultural, and political. Developing nations have provided resources to the developed and now want to retain some for themselves as they seek to become manufacturing powers... but all are worried about being stripped 'dry'... and strategically that is the rub. What resources are left? greenery, water, timber, minerals... they belong to us all and do not need to be fought over; the demarcation line is not the border between countries - it is where my skin touches yours. This is how close we have become but refuse to acknowledge.

Are fraud and corruption things of the past now that whistleblowing is in vogue and wall street reform a ticket to political office? Fraud and corruption are a part of us still and require our vigilant attention. They are no different than lying and stealing... temptations each of us faces every day. The greater the purse at stake, the more chance a person or a group of persons or an institution will be tempted to shirk moral, if not legal, obligation for pecuniary gain. The fact that there is more social technology to warn others or tell on those who defraud others, may not affect the shaming impulse in quite the same way as litigation on behalf of those defrauded. In other words, despite the Dodd-Frank legislative reform incentivizing whistleblowing to the SEC, and the establishment of the SEC whistleblowing office, there have not been many actions, if any taken to date. The conclusion at this point in time is, we at KLS continue to provide a much needed service, and we even attempt to hold governments accountable. The false claims act cases that whistleblowers themselves may take, and gain government assistance to bring, supply another useful tool against fraud.

Some of the answer lies too in reconfiguring the power to frame the debate around issues of valuation so we can all start to participate in order to regain trust in a system of currency. How exactly are value and contribution/resources linked and what currency exhibits that tie? This is one project that I have taken on for 2012 in a multi-faceted approach. Within KLS, it involves outreach to clients to understand better how their various resources can assist in getting maximum recovery for investors while engaging in dialogue to assist the entire web of relationships regain the trust broken by fraudsters and power mongers.

If there is anything, there is hope that we will come closer to finding the answers.. but there is definitely much to do in 2012! I wish you all courage and the love that supports it, and the great deal of energy, and health, needed to elicit your full contribution!

Tipping our hats as he goes

2011-10-24T18:06:00.001-07:00

Steve Jobs left quite the impression on me and billions of us on this planet...his brusque management style; his intuitive genius; knowing the right remedy and understanding truly the problem that gave rise to it...perhaps actually creating the problem that preceded the solution he foresaw. Synching the world with his efforts based on his self-synching with a true and whole spirit, he created a magnetic resonance of hope. We can do anything, anything is possible with the self-trust needed to tap into our inner resources and imagination.

Invention, mass marketing of products that have become commonplace... who does that anymore? Products and inventions are the culmination of years of effort of a team of visionaries nowadays... It is surprising that we can owe such creation to one human being. But we have to remember on this earth today exist the Galileo's, Einsteins, Edison's, Curie's etc. all at the same time. Jobs reminds us with his legacy that if opportunity is provided to all, we can overcome many of the burdens that continue to plague us including those attributable socio-economic stratification. Jobs had the vision to see that computers would become a household appliance if not a workplace basic. I have lived through this evolution. Typing on a normal typewriter, I took typing in eighth grade in '75. Once proficient, I thought with my fingertips even back then through Wellesley and my first two law degrees. The modern keyboard really helps speed up thought and its reflection upon the white (or black if that's your preference) of the screen. I revelled in the PC when it came around in graduate school. What did everyone do before 'cut and paste'? Write much better out of necessity or much worse because of editing constraints? Now you can't get through high school without a computer, preferably a Mac, nevermind college.

Jobs also created and saw beauty in simplicity. Leave it to a complicated man to do that. The insides of his beautiful devices, the accessible and transparent programs were reflected in the aesthetic outside of the product. How to appeal to more with sophistication? Elegance for the masses...thin, metallic opaque, or white sheen envelopes over simple iconic clicks learned when accessing the ipod, the mobile music revolutionizer of our era. And this from a man who ate the simplest food, and lived in sparse surroundings based in some non-materialistic ethos (Hindu-Bhuddhist based) focused on the output of his efforts. It wasn't about the money... it's hard to create and do something beautiful if it is about the money after all. Note the cardinal temptation that has seized humanity in the course of this cycle of being. If we are about running after something, then we are hard pressed to create and we lose our beauty; that beauty that only shines through when we are driven to a purpose of whole-scale execution and we become execution itself. Delivering the ultimate product, one to be marveled at as much as it becomes a marvel. I look for that in the legal domain and keep working on it. In this field it is built on trust; client's trust in the delivery of the product and mutual trust in its deliverability and faith that the system will enable the just outcome for those that stand by right not might. So yes, Jobs is inspiring and can be applied!

Then there are those great movies... not just for kids, these technological pioneers transformed the screen into a 3D vision into which we all travelled willingly. Stories that anthropomorphized somehow more realistically the plight and emotional life of animals or toys suspending all disbelief and took us with them into another world. Perhaps these worlds really exist somewhere else in the surreal realm of the cosmic experience Jobs has now entered. Given his eternal drive and ingenuity, I am sure he continues to conquer...

An iconic legacy!

Ten years ago - 9-11

2011-09-10T18:05:00.000-07:00

Ten years ago .... That day, I awoke late, off to the 42nd floor of the Conde Nast Building from across the twin towers, in an apartment rented in NewPort, New Jersey. I was sleep deprived all the time in those days. Trying to tackle that second draft of a doctoral dissertation sometime between midnight and 7 or 9 am in the morning when work started again at Skadden, Arps. By the time I got outside my apartment building, evacuations in the buildings around me had already begun... I was late, it was after 9am.

I went straight into the subway station and had the choice of taking either train on most mornings (one went straight into the world trade center, the other to the 33rd street station). This morning I was told that I could not take the one heading into the world trade center. I saw shock on most faces around me, heads shaking, folks trying to figure out what was going on. I had no coffee in me yet (and I ran on it in those days)... but I quickly came to, perked up at the sounds of 'terrorism'. Thinking this was normal New York paranoia, I scoffed and started to ask questions... until screaming started and more bodies streamed into the subway, fearing that the roads outside were not safe. "Another plane", something serious was going on and people needed help. We were not safe. Planes had been flying into buildings. I could not make out if there were misdirected small aircraft (to my mind, these often crashed) that had accidentally fallen or exactly what was going on. As I pieced together the actual threat... I wanted to get on a train and get into work before I could not move anywhere. This was the last train that left that station to 33rd station. Once I got on it, the subways all shut down and nothing could go into, or come out of Manhattan.

When I got up above, complete pandemonium greeted me... people were running in streams through the streets, and lining up at phone booths. I began to cry... and flashed back to a childhood in which bombs went off all around and we huddled into bomb shelters in the backyards at home and at my Aunt's house in Jammu (in the midst of the India/Pakistan war over Kashmir). There was no way to make any sense of this... then or now. When I got to our building on 42nd street, an evacuation was already under way, but I went straight up to my floor anyway. I thought it was the safest place. Having understood better the threat and knowing that the two tallest buildings in the world had been slaughtered taking with them all they contained and all that surrounded them, I thought statistically, it was unlikely we would be hit... my assistant and others around us, were glued to news channels and tried to piece together all that went on. Soon we came to hear two more planes were headed for and crashed short of targets in DC. Brenda, my assistant, also a photographer, took the photos from our perch... while we all filed into a partner's office directly overlooking the tragic undoing/crumbling of the towers as each one slowly fell in a pile of smoke.

All air traffic had now been stopped everywhere. All flights canceled... no chances would be taken now till security could be assured. All planes were a danger. The second set of planes should never have taken off. But like me, authorities were having difficulty facing an invisible enemy. It was attacking without notice (allegedly, as it appears the CIA had some knowledge but like the SEC with Madoff and other cases, did not act on information). Suddenly there were some helicopters and jets flying outside our windows and we frightened that another one was coming for our building. We rushed to the windows to know the truth (prepared for anything on a morning capable of unimaginable atrocity). Fighter jets circled to ensure our safety and helicopters surveyed the city to assess damage and understand the state of the things.

I phoned my children who were at our home just outside Boston(having been sent home from school) with my mother who was minding them. Friends called from all around the world to check in and make sure I was okay. What became more apparent in these conversations was that there was a targeted attack with particular goals, the first two those towers. But others unfolding before our eyes.

That day, I grew more and more afraid for my children, because of the terrible realization that there was a Boston/New York connection here. These planes were the ones I was taking most every week back and forth between these two cities while I worked at Skadden. I remember Brenda and I looked at each other, and she indicated I could easily have been on one of those planes coming in from Boston. What was even scarier Osama Bin Laden's family apparently lived in and around Boston, and rumors of possible poisoning of water around Boston were circulating. My children were scared and I was not with them. Not a good situation. I stayed with a colleague that evening in Manhattan, we did not sleep. We were glued to the TV for news and went out to greet restaurant owners and others in the middle of the night... it seemed no one could sleep and everyone needed community. The stench from the explosions, the tragedy, the brutal attack/act filled the air, and worry, pain and sadness was palpable in all the spaces between.

At some point that night, I made a decision to leave, and not return to work until I was ready. I simply needed to leave. I thought it was not good for me to stay in this place, and that I must be with my children. So at noon when the subway opened up, I got on, and did not look back. I knew that roads heading out of NYC would be clogged. But I made my way back to Newport, NJ, and to the nearest rent a car and drove without stopping till I got home to our place (few people knew actually existed) surrounded by 8 acres of woods. And there, I felt safe and able to breathe again. And my children and I, and my mom talked and cried, and worried and pained together about this catastrophe. Knowing full well from our time in Kashmir, that these things, these terrible, irreconcilable things happen, across all borders, boundaries, breaching all of our understanding of security and trust. Kashmiri Pandits, and all real Kashmiris (Muslim and Hindu) had been violated by and dealing with these same mercenary forces of terrorism coming over and disrupting life and killing the Hindus (I lost 3 family members to this same hatred in Srinagar) and now it had made its way here to the U.S., a place we thought so removed from this violence, taxing imagination. How, when, why did this conspiracy start? Fundamental to human history and action are cycles. What cycle(s) of action and reaction did this shock belong?

I also understood in tearful frustration that no law firm, no lawyer, no law can stop this from happening. And if there was anything that began my quest to try to understand and learn why, how and what our regulating and enforcing systems of rules are about, it was the fact that I originated in the cradle of such violence in Kashmir. And here I was on the precipice of completing my doctorate but no closer to understanding how I could do something about it. The damage was done and being done all around me and I along with the world stood helpless against it.

I realized that in that most vulnerable moment, when all has been lost, we can only recreate and rebuild by regrouping into each other, into family and into community, with love and care, nothing else. One brick at a time, one namaste at a time, one handshake at a time, one hug at a time, the tears must be shed, and shed, so that changes can occur in each one of us, in our families and in our communities to help us deal with the shock of this horror. The ripples of that love and care will not only transcend and honor those lost, and the losses we bear, but also forge the foundations of a new transformative trust capable of rebuilding the systems needed to change the nature of humanity so that such hatred (an unnecessary crutch for our insecurities) is amputated from the wholeness of our being.

Creating Community in the Hospital Waiting Room

2011-03-28T17:48:00.000-07:00

My mother was in the hospital for almost four months - till late March. It has been, mildly put, a trying time. For a week, after her third brain surgery, she did not come to or respond. All boundaries were transcended in that time. Emotions, time, body, work, self, other, all were a blurr. All that counted was that she came to. In that time most of all, but other times too, close friendships and giving surfaced so easily between the families waiting in the hospital,for good news. There were four families in particular that were tough cases, three tumors and one stroke. Ours was a tumor. And it was ours, we carried it with our mother, grandmother, wife, sister. The family came together, unsure and awkward at first, but poised in moments of action.

So who was there, a Vietnamese man of 78, a Jewish Swiss fellow of 55, and a Phillipino woman in her early 70's. Both the Vietnamese man and the Phillipino woman wore papery thin skin, gaunt, their faces pushing forward pronounced cheek bones and eyes smiling filled with tenderness and worry all at the same time. The Vietnamese man, gentle and watery with his frailty, exhibited too a profound spirituality and empathic experience. The Jewish Swiss fellow, round and jovial with red hair and a balding head, wore a yamukah (skull cap) in black, and spoke with his heart. His wife had previously been operated for the same condition, brain tumor and he was a veteran. He lit up when he learned I had worked in Geneva at the UN. And then painstakingly, he confirmed for me the positive signs of my mother's responses to the operation when there was no way to know. And even after his wife had been discharged, he came back to check on me and to see how my mother was doing. By then she was responding verbally, Thank God. The Phillipino woman, gripped by the most difficult situation, her husband's ambivalent responses to treatment for his stroke, left her at times defeated, but her nursing background gave her the experience to persevere. She had been through this before, when one of her sons similarly suffered from a stroke due to an aneurism early in his life, and she had to care for him ever since.

Amazed at the resilience of the human spirit as I looked around me, I could not fathom how these people had been through what they had, supporting their loved ones, family members and others, day after day in a life that met with so many challenges. Was there so much love in this world? If there was, how did it elude the others? Those who took the wrong path, a path of treachery, betrayal, abuse, and criminality. It was hard to put both together on the same planet - these people of ultimate maturity, and those others who like children steal from others, or trample on their hearts and souls without care or regard.

Like them, I too would be tested. In those days and weeks when my mother's fate rested in the hands of the intensive care medical team, there were days when only tears would stream down my face, and I could not eat or sleep. But these great souls looked after me at night and during the day. Brought me food and drink, told me to sleep, and more importantly told me to smile, so that things could get better. Staying in the hospital day and night... I grew close to them and let their silence and talk nourish my spirit to a height I did not think possible. I let them lead me to a place of belief, shelter, and light where anything was possible, including the miracle of healing and strength that it was incumbent on me to transmit to my mother. In addition, hundreds of clients and colleagues wrote their prayers of strength too... an amazing testament to the kind of community that can develop not only around crisis, but around the empathic resonance of human bonds and ties that we all understand - that of mother and child.

The Commodification of Disaster

2011-03-27T19:34:00.000-07:00

A tsunami in Indonesia, earthquake in the Himalayas, a sheet of rock splitting open the middle of Haiti, the BP oil spill, and yet another quake creating Tsunami and nuclear disaster in Japan... the foundation to the risk that in legal doctrine is known as Force Majeure. It is either my imagination or force majeure is starting to hold a more coveted place in our risk management strategies when it comes to legal and asset management. Deal agreements of all kinds will and are being affected and should undergo some overhaul as we confront transactional disputes and cooperation alike moving forward. I am told the earth's axis is shifting, the planet rotates a bit faster, the day is growing, however infinitesimally, shorter. The plates on the earth's surface are growing somewhat closer together, adjusting to the changes set in motion, so to speak. Other plates are growing closer too... note the middle east uprisings. Political and social plates are sliding us to new terrain slipping tensions into new crevices and connection.

We humans are creators, mimicking the earth. Fictions unimaginable, sprout from our psyches onto a page, a structure, an institution, a piece of paper or metal printed upon, known to the world to represent a measure of worth that we all believe in, or at least, we are all suppose to believe in until that fateful moment we are overwhelmed by disaster. That fiction is money - currency - even gold, used to value a segmented series of actions, products, processes, services, commodities, resources. What happens to the value of oil when it is spilled? What happens to the value of micro-chips when the plant in which they are manufactured disappears? What happens to an entire industry, like the nuclear industry, when signs of its holocaust
are visible on the horizon? We have created markets which trace exactly what happens, which symbol -stock or other- representing that commodity rises and which one falls?

Humans need security and hence, covet stability and hate risk. Risk is not
rewarded unless of course you are able to predict it and can show such prediction by shorting the particular commodity or representation of the same. If the timeline of disasters continues, more and greater reward will bestowed on those who can predict. A new industry of seers will erupt as in the days of old. "Mad Money" is only the beginning. Religion - even newer kinds - may hold a stronger grasp on our hearts and minds. And what would become of the value of disaster itself within our current fictions? Think a little about Project Redd to undo decades of deforestation in the Amazon, or the staggered carbon pollution created by industrial revolution and its parade of development, and the new markets created in response. If India and China thought about it long enough, yet another carbon or development market specifically geared to their situation would sprout. We are valuing at least man-made disasters (even as we are making them) over a longer timeline quite highly... highly enough to form new markets of healing, kind of like the charitable markets of aids, cancer, malaria etc... in the pharmaceutical world that are double edged. The edges are helping a larger segment of humankind with the cure, and the nearer form of financial
commodification necessary to bring in the money close to the dichotomy between brand and generics. Disease is after all a form of disaster.

War is another form. Uprisings like those blanketing across the middle east present a case in point. These commodify the sale of consultancy in political arrangements, the support and identification of opposing parties, the formation of parliamentary and other democracies, the establishment of democratic constitutions. Political and violent upheaval, like the kind involved in the drug trade, assist us in commodifying arms and the black market of illegal substances, in some ways assuring the outlawed nature of both. South American and Mexican governments bandy about with American and Chinese supports, formal and informal of their politics, their illegal industries, and their corruption and illicit assets. The people in these countries cry out for stability in their currencies, government programs that might support their multitude of poor citizens. The instability created in these countries is in some cases temporary with a permanent structure that promises more freedom to the peoples being governed if not more prosperity. The prosperity for middle east people may in fact take longer as assets and resources are fought over on a higher political terrain between the strongest powers - the most useful and prized of these assets being oil not democracy. In other cases, the instability is more permanent as it sustains corruption in local governments while the stronger powers reign over the resources, distracting the locals with short term self- interest often at the expense of their own people.

In fact the commodification of disaster on the one hand belies an old tale, an old story in which disaster (in the guise of political upheaval) acts as just another distraction to enable the monopolizing of far away resources; and on the other infiltrates our risk adjustment analysis and increased need for in/reass/urance from sub-prime crisis to Japanese tsunami.

Conceptions of Belonging and Legal Relationships In a Changing World

2011-01-15T14:59:00.001-08:00

I don't know where my home is... in my mother's womb, in my self-created house, within my family unit, my academic or professional community, city, town, state or country? It is increasingly up for grabs as I connect to others far away and disconnect from myself and my immediate present through my crack-berry, telephone, computer. Confusion is resulting not only in my own life, but in the lives of my clients and colleagues. Non-US investors into world-wide ponzi schemes are connected to others thousands of miles away and to ostensible U.S. protections, protections that dissipate as soon as fraud and loss are uncovered. One kind of loss has a way of resulting in other losses...strangely enough, aspects of belonging we thought we had can vanish with the wind. But loss engenders human connection too, at least on informal levels. Formality does not appear to befriend loss... requiring the insertion of litigators; requiring changing interpretations of existing legislation in view of changed circumstance.

To me, home is a conception of belonging, a form of acceptance of self as is, recognizing its fragility, strength, and the weaknesses attached to a specific spirit embodied uniquely in one human form. Where do I feel I really belong? Does anyone really care what I believe about my own sense of belonging... care in the sense of validating that belief with some formal power within the larger community so that obligations and rights can issue from my own sense of belonging? Or must I be done to? I am born into a family, into a town or city, into a country and told what I believe and indoctrinated into the program of a specific country, unless of course, I am a military brat or have otherwise been carted all over the world through any number of scenarios mongrelizing my programming. I am allowed to cast a vote if I happen to be a citizen of the country I also happen to live in (a privilege I have not owned for some 17 years now) so I can impact the rules made by legislators at the various levels of my belonging.

Other conceptions of belonging (literature on the "commons") address the widening meanings of community and arguably widening rights or possibility of impacting those rules and rights but not necessarily the shrinking and loss sustained in self. As my sense of belonging changes, I lose parts of my self as much if not more than I gain. Take the role of technology I touch upon above. For that matter, consider how much more I touch cold hard steel and keys on a board these days than fruit, skin, heat attached to another human or animal... does that change what/where I may sense my belonging. I belong in my head much more than in my skin? How do I connect now? In the same way or differently?

I chat/skype/call with others far away and sometimes I conduct whole transactions with people I have never met... investing thousands of dollars with them, even my entire life savings, often counting on other espoused experts (advisers) to counsel me and tell me that my money is insured, protected by government agencies. Perhaps the dollars are the real connective tool, formal in the sense of trust represented by the guaranteed exchange, often even connected to the spiritual or a higher power (note 'in God we Trust' or symbols of monarchs and inspirational figures). Money lost and won, connects us to others across borders. Professionals too can be positioned to create communities and transactions in a positive way. I find myself for instance at the center of community creation through value based and integrating litigation that assists in the processing of grief and loss toward a place of hope and eventual recovery validating the experience of belonging of clients around the world connected by fraud.

There are rules that allow for these fraudulent transactions to take place, agencies placed in positions of oversight, managers emboldened by government backing and support because they have attracted the funds necessary to be considered significant. Technological advances in place allow these connections to take place, but also allow innocents to fall prey to sociopathic predators. The Madoffs and Stanfords of the world are phantoms devoid of spirit and heart, leeching off families, elderly and innocents for the sole purpose of sustaining themselves and their unending appetite for material gain. The widening of a heart based commons (which includes legitimate rights and obligations of law-abiding individuals and entities), based on these same technological advances supports these financial vampires' cross border empires too. Clearly I have a problem seeing such predatory behavior as some attempt at regulatory arbitrage. Any support of such criminal behavior by countries denying protections to innocent cross-border investors condones and creates pariah models for upcoming generations (perhaps we should take note of the increasing number of vampire based TV shows).

Inevitably and from the rooted outset, home represents stability, familiarity, a certain exchange of power and comfort too... and involves one's heart. Formal and informal rules are integral to the exchanges of the home. Home does not need borders... just as one's family can extend to close friends, lovers, close colleagues, and even pets... home can extend to all the places where close and significant ties and contacts have been placed. The trust placed in the extension into such significant ties warrants a mutual recognition and assertion of one's rights in those other lands.

Love and the Law - Celebrating Mothers!

2010-12-18T16:39:00.001-08:00

As we near the holidays, wish each other well, think a little more about giving and sacrifice, and the passage that the new year will bring, it seems appropriate to think back to when and where it all began - our mothers. We were all formed in the womb of her care (along the spectrum that that special care can connote for each of us, of course). The significance of those nine months and the birthing process is immeasurable; the later bonds created and dependence established - unfathomably formative of all other relationships; the further un/reliability exponentially impressed into personality, into the sense of in/security each of us projects and lives and experiences in life, work, and play. Mothers then, at least in part, create for us a system of familiarity, care, love, bonding and relating, if not so much more. Systems by definition are premised on a set of rules and so mothering is our first brush with the law. If we are lucky, these laws of our origin are the laws of love and compassion and not hate.

I have been blessed with understanding the law of mothering to include inner fortitude, complete sacrifice, equality, acceptance, such compassion for the other as to accept brutal punishment, incisive brilliance of the kind that beckons the stars to appear all along the profound and strategic cut created by her thought, love and unquestioned devotion, and finally the innumerable mistakes she has made so I could not forget the humanity of which the rest was born. In my turn I have tried to correct some of those mistakes, making others as a consequence. Letting her push me to be no less than my brothers and accept nothing I could not give in return; to think more of the possibilities born of my own imagination and the love fed me than the limited reality born of possibilities created by those who went before me. And with each passing year, to know that I will speak to her almost every day (or not if we do not get along), the ability to yell and scream at each other and to love each other in a glance, to cook with each other, to speak about anything and everything that concerns the world, the men in our worlds, our children - what has changed and what remains the same, to learn still from her how to run my business(es) for she has always harbored the entrepreneurial spirit without the opportunity to express it, except through me. And her earnest and forceful righteousness and sense of fairness; or inherent compassion and pragmatism at which I still marvel for I have seen it in few other people, except maybe my daughter, who so takes after her grandmother.

I have had blessings bestowed on me in the past couple of weeks of being close to the birth of a baby girl of a close friend perilously and prematurely born this week, and simultaneously hearing of the reappearance of a brain tumor in my own mother. You can understand as a writer I have no choice but to write this out. Somehow this young and old life are related through me and I can sense that each has an incredibly strong spirit - old and courageous. Regardless of age, these lives must be strong in the face of life’s physical limitations, and overcome the challenge their bodies present, the imperfect understanding of medical technology, relying on more than just science, but in addition on the energy of care and love their doctors, friends and family provide and focus upon them.

I think too about the fragility with which love comes and goes…the care, the patience, impotence and courage it demands of us in all moments but especially in moments of need, in moments of fear, in moments that most test our equilibrium…and it makes me question its rules. How can so much be expected of us? How can such complexity be formed in one breath taken in and expelled? What is a feeling when it is weak and then when it is strong? Can it be called by the same name? Is language the limitation, or the intellect’s ability to fathom emotion? Is there a rule to capture and govern that feeling to do our bidding so the complex rush is more palatable? Where will the caregiving courage come from to overcome this emotional challenge bred by the interdependence characterized by the closest and strongest bonds of mother and child? We are of course calling up our earliest and most primal self-sacrificial impulses, learned from none other than our mothers.

And whereas we take good care of babies, newborns even premature ones, bestowing on them the law of maternal sacrifice (whether it comes from Mom, Dad, or Doctor), how do we rate on this law of reciprocal sacrifice for our mothers? When it comes to pregnant women, we allegedly fare poorly in the U.S. behind countries like Serbia and Kuwait, for instance. “Marsden Wagner, former director of Women's and Children's Health at the WHO, writes in his 2006 book Born in the U.S.A. that "in the United States, at least half of maternal deaths are not reported anywhere ... and that with adequate medical attention, close to half of these women need not have died." (from the article “No Country for Mothers”; http://www.prospect.org/cs/articles?article=no_country_for_mothers). As for tumors and cancers, brain tumors are the tenth most common cause of cancer death in women in U.S.(http://www.cancer.net/patient/Cancer+Types/Brain+Tumor?sectionTitle=Statistics). That being said…statistics do not relate the exceptional character and spirit that forges forth from a deep survival instinct of which we may be intimately aware in our own families, in our mothers and daughters, nor do they express the spirit of our own loving energy to care and support recovery in those who require our sacrifice.

As we close this year then, perhaps we can all evolve in ourselves a deeper resolve to be governed by the law of sacrifice we have learned from that primal bond so we may celebrate and support all the mothers in our lives!

From abuse... toward a law of compassion

2010-12-06T17:45:00.000-08:00

Throughout his and herstory,in disparate ways we have witnessed through others and our own souls the abuse of power, a cycle perpetrated by those who govern, and sometimes simply by those who hold something over someone else - physical prowess, economic force, anger, innocence lost. That simple act of sadism (of which each of us is capable even as tears fall and there is recognition of the act exercised) in which one human being makes the decision, however conscious or unconscious, that it is appropriate to hurt someone else by misappropriating or injuring their wealth/property, their livelihood, their body, their emotions/heart or their mind requires in the perpetrator and victim, a multitude of formative actions and reactions. In cases of abuse of power by factions of a community against another, or even by entire communities against other communities, the multiplicity of such formation, requiring the sadistic leadership to prime and handle the conformist ripple to affect a community of aggression as we have seen in numerous genocides, slaughters, wars and conquests of varying types, is staggering.

All the more when these formative actions and reactions cause systemic ripples within our everyday institutions, sometimes institutions in which we seek most to place our trust, like police forces turned corrupt, or regulatory watchdogs like the SEC watching porn instead of acting in accordance with their mandate, or the media/press publicizing only opinions they support instead of required news unbiased and non-political. But where does all this start? How do we become part of some large conformist wave of abuse? What of our own agency in this? How many of us look around and really see what is going on and if it has gone awry? How many of us think before we act when we know we are acting not out of love, or business, or occupational mandates, but out of anger,or out of a sense of leverage over others out of some economic, occupational, regulatory, or other advantage.

The expressions of such abuse of power- the jailing of innocents/innocence, the ignorance of evil, the lack of accountability of governing institutions to their charges, corporate expansion that engenders illegal conduct victimizing the public at large including the government(s) chosen to represent it - speak volumes to the resonance of micro action at macro levels. There are examples at different locations on this spectrum between micro and macro...Only today I heard from a 70 year old taken for a good portion of her life savings by a financial advisor, who not only swindled her, but made her out to be the perpetrator so that she is in a battle with a large financial institution he told her he represented, and that institution has now bankrupted her... despite the knowledge the illegality was committed by the intermediary while the legal system inured to such tragedy processes what appears to be criminal behaviour. Another person related to me that a fund he knows is providing evidence in the investigation of yet another financial institution, and yet the media leak of this evidentiary cooperation has led it to lose customers who are confused about their lawful participation in catching culprits. We have all watched Madoff, Stanford and others commit their unfathomable frauds on the public. We have watched banks on which we relied shrivel up and die only to be picked up by others for nothing while the public continues to be serviced in the style to which it has become accustomed...and tidal waves of debt wash out the financial underpinnings of entire nations on the other side of the pond.

We also have been shaken not so long ago under the attack from above on the World Trade Center, running in the streets toward Times Square on that fateful day, not so unlike the uproar raised by another war in 1965...retreating into the bunker in the backyard...the bunkers transformed into ominously targeted skyscrapers in Times Square. The primitive anger, strategic economic upheaval, communal uprising, border crossings, human traffic/king, migrations, both organic and designed...the aesthetics of control, neat and efficient. Lest I forget corporate, personal, and national transgressions upon the only home we have, this earth. Where does it all take us? To a sadistic impulse driven by all that is taken from us; or towards the expansive impulse to reform, process, reflect, integrate, and move toward compassion not out of a political or punitive command, but from some place of foresight and reckoning? Do we seek instead to take care of ourselves, and others, perhaps? We judge ourselves after all when we judge another. What do we learn? What is the best law of compassion, perhaps compassionate accountability we can put in place to govern ourselves and our children?

Whistling while you work and getting paid for it!

2010-09-23T18:19:00.000-07:00

After a summer hiatus on my writing, I am itching to get back to the keyboard and blow! And just in time too... as you may have gathered from our KLS website, reform abounds. And the potential for successful communication of the messages rung at the bell of governmental ineptitude and incompetence, perhaps even distraction hangs in the air with the passing of the financial reform act. Chief among the sections of interest is one on Whistleblowers. Not only are rewards that will finally be paid underscored (so little has been previously paid out), for those assisting the SEC with its job in impugning those violations that lead to actions against their perpetrating institutions and individuals, the slate is drawn up with some of the process necessary to a successful resolution of such investigations in the interest of state and whistleblower alike. The rest is still to come in the form of rules to be drafted by the SEC. Whistleblowers whose assistance leads to an action against offenders stand to not only be respected and not ignored, but to gain 10-30% of the penalty meted as a reward. What is more, they are to gain special protections where they may experience retaliation if they are insiders within the offending institution.

What does this mean? The message has been transmitted that whistleblower tips and complaints are an efficient mechanism to trigger governmental action. Whistleblowers are deserving of special protections because they are inherently at risk from their employers and others for the courageous actions they shoulder in order to affect changes in individual and systemic offensive and illegal behavior. And it means much more than that too. Two parties that started out on opposite sides have been enmeshed in a dance that is finally provided the music to choreograph change that is real and tangible. Out of a cacaphonous display of disparagement and anger, and earnest structured critique from private and public quarters, now at least on paper, a possibility for transformation has emerged.

This movement toward joining what you cannot beat is the kind of awakening (modest for now until we see it in action and the reality sinks in) we push protagonists into experiencing if we are novelists - even more so when confronted by systematic public milestones of the lessons learned smacking us in both congressional reviews of the IG's reports, and in actions taken, however suspicious against larger institutions. The display is convincing indeed, but do we believe? Has the faith been restored? Only time will tell.

GDK.

The polluting spill... tapping into the unnatural and its financial consequences

2010-06-27T15:53:00.000-07:00

Just in case we were not fully steeped in the mire of human catastrophe with the undoing of our financial fictions, an oil company taps wrecklessly into a substrate that has been brewing a concoction burned to create heat, run our vehicles, factories etc and literally blows its top. In the process, the oil company may also have blown itself financially. It is small wonder that an exercise as unnatural, 'artificial', human-made as drilling thousands of feet to reach the muck that is also known as "black gold" causes the very human-made reactive phenomenon of lawsuits to arise. I am speaking of the BP oil spill, and referring now to the lawsuit filed by the New York Pension fund against BP for investment losses.(1.)
Tragedy is not profitable for almost anyone (I'm excluding those sent in to clean up), and a fiasco like this one is bound to rack up damages not only in favor of investors sustaining them, but nature, tourists, fisherfolk, millions of ordinary people who flock to the beauty of the Carribbean throughout the year. All of these are also investors, perhaps the more innocent ones since they did not necessarily seek to make money from the extraction that went awry.

Our planet has evolved over 4.6 billion years (according to various radiometric dating techniques) and its layers of evolution hold great mysteries stored like a library of information about what came before us and how it was assimilated into the mother from which it sprang. The BP oil spill is an interesting interchange of law and science/nature (not trying to conflate science with nature here, just suggesting that our study of nature these days veers to the scientific). On the scientific side, BP like other oil companies has been enabled by technology, also developed through scientific study, to extract part of the evolutionary core of our planet, part of the common patrimony of all humanity, I believe, for its own gain.

What is oil?

"In the leading theory, dead organic material accumulates on the bottom of oceans, riverbeds or swamps, mixing with mud and sand. Over time, more sediment piles on top and the resulting heat and pressure transforms the organic layer into a dark and waxy substance known as kerogen. Left alone, the kerogen molecules eventually crack, breaking up into shorter and lighter molecules composed almost solely of carbon and hydrogen atoms. Depending on how liquid or gaseous this mixture is, it will turn into either petroleum or natural gas. So how long does this process take? Scientists aren't really sure, but they figure it's probably on the order of hundreds of thousands." (www.livescience.com)

Much of what this earth has made, it has the power to unmake even while exploiting us as its instrument. Certainly, this substance and the layers that sit beneath us all, belong to all of us and have done so for thousands of years as the substance was percolating into its current state. What is more, the extraction subtracts a layer from under all of us. And when one of us messes up, it hurts all of us. It is for this reason, this universal impact caused by the reckless use of technology for financial profits that do their own kind of damage, such tragedy must exact steep financial and other penalties. Complete sanitation of the area impacted, specific performance restoring this area and space into its original magnificence, the people whose day to day lives and livelihoods are debilitated also made whole, perhaps even the fish and ocean life can be replanted to replace what has been lost.

For those of us not yet convinced that polar caps are melting and the need for green solutions to our burgeoning energy needs is urgent, we have found another reason to embark upon clean solutions. There is nothing like a dirty oil spill to help us understand that clean renewable resources like the wind and sun (even if initially expensive) are far more cost-effective in the long run. They ensure at least some possibility that our grand children will see an earth remotely resembling the one we have enjoyed. Cleaning up is necessary not only in the financial realm where a new ethic of clean hands must be regulated and sought, a clean earth fueled by clean energy must source our light!

1. http://news.yahoo.com/s/nm/20100624/us_nm/us_newyorkstate_bp

The Nature vs. Nurture of Economic Reform

2010-05-09T11:43:00.000-07:00

Left to its own devices,the economy like any other projection of human survival is based on the laws of nature (perhaps the jungle), but when reviewed and tempered with thought, reason, and the needs of humanity at large, we begin to nurture an integrated vision of what is required to control those natural instincts or impulses. I have watched with some curiosity and pride the recent hearings before the Financial Crisis Inquiry Commission. Elsewhere I have written and spoken of the cycles of economic exchange between laissez-faire and integration, and I see yet another great example of this integrative process through the adoption by the Obama and other administrations today, of taskforces and commissions created to study the various issues that underlie both the causes of the financial crisis and possible solutions to it.

In fact, there is little doubt in my mind that this an 'electrifying time' (as my mentor Martha Minow, Dean HLS, puts it) of nurturing oversight and involvement of certain democratic ideals. Where Obama insists on certain policies, he is checked left and right (the allusion is to political parties and to the randomness of critique as well). Note the ordeal overcome with regard to health care. Yet on healthcare, we did not see a wholesale passing of one vision, as some of us would have cared to see, but a hodgepodge created out of the democratic ideal, so that what was finally passed was created out of a cultivation of representative policy. I am still and will always be shocked by the outspoken natures, voices, wallets of America. But there is no denying the power that underlies the many faces of this democracy.

On the economy, we see some great minds and spirits take up their positions on this new Inquiry commission (not McCarthyist in the least) that earnestly asks to understand what went wrong and why; where the blame lies not to castigate and crucify but to figure out and build what is necessary, with a view to strengthen the system. There is an admission that we did not know what we were doing or getting into, and those who perhaps were in a position to predict, need to be restrained from crossing the lines of conflicting interest that may arise. In this, I remark upon that little piece of news that certain Republicans have called for an investigation of the timing of the SEC/government's investigation into Goldman Sachs' various conflicts and the large rewards emanating from one of their conflicting bets. This bipartisan effort insists we note that there are watchdogs of watchdogs of the watchdogs. In order to build confidence in a new regime, we must recognize that there is little chance now that we will not get it right.

In a study of the 'shadow banking system' former CEO's Cayne and Schwartz explain that there was no reason for Bear Stearns to go under when looking at their books so some elements in the market (possibly bigger fish than them) must have thrown them under the bus first (ate them up?) in a large shorting scheme. If you watched the testimony, did you not raise an eye and question it? What were the rules? Did Cayne and Schwartz not live by the same rules? Had they not shorted other smaller fish previously? And even when they were fighting for survival, did they not do others in? I am thinking about the investors, the small retail, consumer, investors... without whom no fish can gain any weight in this largest of American ponds. If anyone needs help and protection, it is these folks who are not in the same game as the sharks, barracudas, rays etc. I am speaking of guppies here! The ones who get swallowed whole but who sustain the system with their volume.

I am reminded of the sharks council in Finding Nemo: the sharks who attempt to curb their deeply imbedded natures by not eating the little fish, but lose all control at the first sniff of blood. Is it possible to control these large fish, and the instincts and nature upon which they have been built simply by erecting a new set of rules and regulations? Perhaps a short circuiting of the nature itself is in order? But then do we not want the natural instincts to continue their 'progression' and 'development' of the system and money-making? Do we want to simply curb some of the appetite or provide for a certain largesse given the larger humanity becoming involved in the system? Where multi-nationals are involved, employees and assets supported and sustaining the corporate body world-wide, what transnational reforms will refine and repair the engine to act and perform according to a value system that is both highly efficient, and at the same time, ethically responsible to all its constituencies.

Nature turns out to be mostly selfish in the interest of survival. It is nurture that incorporates the discipline of magnanimous humanity. You may not really learn about sharing until you get to kindergarten, even though you may have brothers and sisters at home. The fact is a family comprised of brothers and sisters can still live according to the laws of the jungle so as to not blunt the instruments of survival lest one or many of them do(es) not make it. The family in that regard is an incubator for honing our natures as we prepare for the outside world. Yet, togetherness bred within family (also the seed for community) comes out of a different impulse for survival, for example where group labor is necessary for common survival, and one that beckons feelings of gratitude, bonding, and love. In our communities through tools like schooling, these feelings are expanded to respect for others, service for the larger good, fairness, and justice, so that sharing of wealth and resources can take place. This ensures that some do not survive while others are left to die. Why? Because when that meteor hits your town, city or country, only your 'new found' brother or sister on the other side of the earth may be left to tell your story, by then - our story, to those who come after us! What story would you like them to tell?

The EU Currency Crisis - Uniting or Dividing?

2010-03-25T17:33:00.000-07:00

I use to love that song, "united we stand, divided we fall." I don't know if you remember it. The chorus continues 'and if we ever find our backs against the wall... we'll be together." Well it comes to mind now as I think about the Euro, that economic glue that is supposed to bind together tribes, more recently nation-states,that have traditionally been at war with each other through so much of history. When the economic crisis hit the world, my brother (the financial prophet whose counsel I take very seriously on such matters) indicated, if I didn't hear him wrong, that the Euro would be okay for a little while but pretty soon, the European Union (EU) nations would start bickering. Various countries within the EU would fare poorly and the rest of the countries would no longer want to carry them. In the EU's case, if that is what happens, a united Europe would fall back on the nation-state tradition to rescue it and go back to life as usual. Instead of 'falling' it would probably stand divided.

The EU has been an interesting and advanced experiment in learning what it means to live, relate, and try to grow together in close quarters as countries, cultures, languages collide but decide to provide the room required by respect for sovereign peoples. The Euro, the economic language crafted to facilitate exchange erasing borders between these countries, was a kind of half-way point between erecting a structure that envisaged one nation-state with multiple new municipalities (each previously a nation-state of its own) and the formal bi-lateral trade agreements that have been springing up in the last few decades around the world.

There is no question the EU form is cutting edge politico-international restructuring. And we are all still waiting with baited breath to see if this can work because we know that technology is pushing us closer together and we need to develop forms of co-existence that enable us to recognize our increasing interdependence, co-dependence, and dependence on each other. This much is true, even if we do not fall when divided, it is increasingly difficult for us to stand alone. Yet it would be paradoxical if the Euro, the very symbol of the glue binding these EU countries together in a new form of international unity caused the splitting up of its various constituent parts.

When we decided as a world to create and favor economic fictions that facilitate merchant trade over the barter system, or even over the idea that we would in fact eat what we killed, or farmed (cultivated), we were also thinking about getting closer to the many people we could not see with our own eyes as human populations grew and we invented new ways or found our long lost brothers and sisters in distant lands who introduced us to new ways of making and then earning our daily bread, rice, noodles etc. We also found the people who represented the products that others may have created but did not travel the oceans to sell -- brokers, merchants, traders, intermediaries... the beginning of white collar business. Into all of this, the idea of one form of value to ascribe to all products and goods exchanged could not be avoided and 'gold' was the easiest, most common and highest form of currency for such exchange. Since then the American dollar has been accepted as such common currency, the standard bearing value that every national currency compares itself to.

With the unification of the European nation-states and the development of a common EU currency, some of us have been allowed to dream a little of that time when the world will join in one economic effort, albeit loose-knit, joined by that certain economic thread that allows individuals to encounter each other in a world marketplace as fluid as an internet chatroom or a skype line. What is interesting is that communication technology is a more literal form of getting together. When I talk to my clients over skype from their offices or homes thousands of miles away, either we have a good connection and we are able to communicate, or we cannot and then we try again as long as we both have the intention to do so. Not so for an economic currency, another tool to engage in exchange. The Euro is not just a symbol of the European Union, it is a common form of valuing the various economies of the EU. As such, it can be the tool that divides; that makes some people, even entire nations, feel they have less than their EU neighbors and for those neighbors to feel they are better, greater, and to see clearly that they have more. You don't have to be an EU nation to go through that experience. Our economic fictions have facilitated our exploitation of our distant brothers and sisters for our own gain, and then to use that gain to belittle, exoticize, and 'colonize' those others. It is just a little less palatable to treat our neighbors that way when we have come to adopt them into our own tribe... hence, creating an expectation that we intend to take care of them when the going gets rough.

It is a test of the underlying connection, symbolized by the Euro, as to whether in this time of need for countries like Greece, Italy, and Spain, the EU finds itself as one or many. Perhaps the EU can retain its unity without the common currency ... certainly the U.K. has fared no better; even with its separate pound, it has a lot in common with its poorer EU cousins these days!

Management, Supervision, and Representation

2010-03-06T08:11:00.000-08:00

There is a definite link between management, supervision, and representation, in a variety of settings. Recently, I have adopted a number of new roles, and in doing so adapted my prior learning to current surroundings. I notice in having done so, I now maintain and manage a business, supervise other attorneys, staff and their work even as I engage in many other tasks myself including client engagement, discussions, and input. In some ways these roles require the same skill sets, in others, completely different. But there is a link between them and it is important to define this link even as I come to better understand each of my new roles.

Reflecting upon these roles could significantly help me become more efficient, feel better or worse about the job I am doing, and bring to light the actual contribution I am making to those I supervise, and represent, and in turn, their contribution to my practice, business, and my own learning. I am certainly not alone in this position. Most corporate, legal, financial, and other managers are similarly placed. But this kind of self-review is more difficult when you are creating a new system from the ground up, and aside from colleagues in other firms or consultants or family and friends or client feedback, you are alone.

The trick to good supervision and management, I think, is to feel less alone. Listen well. Hear both compliments and criticisms from others for what they are. Keep your eyes and ears on the ground and keep your focus; and correct, correct, correct constantly. Correct yourself, correct your attorneys and staff and supercede if and when you have to, liberally. In the end, you have to trust your instincts to guide you in everything even those matters that may be new to you, because it is you who is ultimately responsible for your files, your clients, yours and your firm's reputation. You are more apt to make the correct tactical decisions (with the right team behind you) because you are taking the risks, big and small, everyday; no one else. A couple of instances in my litigation cases have already taught me that.

Obviously it is important to treat your attorneys and staff well. You rely on them and they need to know that you do so in order to rise to the level of responsibility you expect of them. Trusting them to do their job, will instill in them greater scrutiny of their own work, and greater respect for your critiques, comments, and suggestions. As with my children, a mutual respect and love enters the picture because of the kind of intimacy a small firm creates. I tend to applaud good and great work, and depending on the personality of my attorneys and staff, criticize openly or tacitly so they recognize the kind of expectations raised by the situation. A glass half-full person, I am more apt to see myself as blessed at the end of the day, no matter what a particular moment may have brought on during the day. And my attorneys and staff are reminded of this. Although they are counted on to do their jobs in a formidable manner, an error will not end anyone's life. We are on the path to learning and growing everyday. None of us is perfect; of that they will remind me as will others. However, because of such expectations I am apt to recruit only the very best and the brightest.

As for representation of clients, it is not dissimilar in nature to the above. There are elements of supervisory control that are required but also, a depth or intimacy without which you cannot gain client trust, to know the story as necessary to optimally represent that client. I have previously intimated that my goal with clients is growth -- theirs and mine. We teach each other to align to the quest and to provide the other with the tools necessary to reach our common destination. Clients can also vary. Some want more control over the process of representation, and a good deal of contact, and some less. This variation is often based on personality, but sometimes also on the specific needs of the situation. Litigation clients can, for instance, be very perturbed by the circumstances giving rise to the litigation and call for a good deal of closeness so that I can understand the story and situation quickly. Corporate clients sometimes have a transaction that needs to be completed yesterday in which case, learning the clients objectives is key but a good amount of independence may be required to complete documentation. Others are looking for long-term growth through relationship development and partnership.

Management of the business on the other hand, is more objective and independent of the interpersonal. Unlike supervision and representation, the feedback is clearer. Tracking informational, financial, and marketing data, is detail oriented administrative work. However, common elements surface -- the ability to delegate, supervise, keep focus akin to a supervisory mandate and the element of intimacy that comes from looking at details repeatedly, to see if there is improvement in the way attention is paid to them.

If this blogpost appears dry, it's because it is. There are so many aspects to practicing law and starting a new law firm and they are not all exciting in the way we tend to think of headline cases. Creating a sustainable law practice is a commitment day in day out and requires the kind of passion necessary to attend to the details of management, supervision, and representation. This is only possible with constant focus, the creation of trust and intimacy, and a commitment to learning with eyes wide open.

The Real Value of Olympic Gold Medals

2010-02-15T18:27:00.000-08:00

Bilodeau won Olympic Gold and I am celebrating! He is the first Canadian olympic gold winner to do so in Canada... I cannot imagine how he feels but I know that I am there with him both in pride and in joy for his accomplishment. There are two main feelings this elicits for me: 1. national pride and what I suspect is the ultimate in belongingness that he must be feeling accomplishing this feat on home ground; and 2. joy at the groundedness with which he humbly accepts his accomplishment -- attributing his success to his teammates and to his brother who suffers from cerebral palsy and who will never have the opportunity to strive physically for the kinds of challenges Alexandre can.

On the first, national pride: this is a strange one to explain for someone who considers herself fairly international. I have previously spoken of the globalization of our myriad communities into a planetary amalgam and I sense its impact on my very international identity. Yet, there is no denying the welling up of emotion at the utter triumph of any individual working their 'b...' off and getting that which is so fitting and deserved on the one hand, nor the over the top joy that he is a fellow national. Canada does feel like a tribe that has adopted me and one can feel a true debt to countries that decide to accept one after birth in a different country because they do have the choice of rejecting you when you apply for citizenship. But it is not just that. Canadians don't gloat... they don't shout their accomplishments from the rooftops because of some aspect of their cultivated nature (it appears to be a bit more ingrained that culture). Canadians tend to accept accomplishment and triumph in an understated way and let others rejoice with them without making them jealous. They are simply sophisticated and classy in that sense, for which they are of course, loved, globally. There is no country on earth that will not accept and adopt Canadians as their own because of this quality... unless of course the people are completely crazy. In fact Americans even adopt Canada and Canadians, by extending their mantle to that country everyday.

Second, perhaps even more poignant is Alexandre Bilodeau's balanced view of his accomplishment in light of a different perspective. His brother, who suffers from cerebral palsy is not necessarily less fortunate than he, but he will certainly not have the opportunity to ski and feel what his brother feels when he is out there on skis. This is not to say that he cannot feel the focus of working hard or 'zoning'. But there is so much that his brother gains today in addition to his personal feelings performing his sport. He gains the recognition of his peers, the admiration of his country and its citizens along with those of the world. Alexandre is on the top of the world in his sport and right now all eyes are upon him.

However, even as his triumph is buoyed by the energy of the world's focus upon him, he is able to remain balanced by the support provided to him by his brother, who he rightly wants to bring on this journey of triumph with him. Family is after all the other level of belonging and support without which our success would be greatly challenged. Family starts it all and sometimes specific family members -- often siblings, spouses, and certainly supportive parents can make a world of difference between success and failure in our ventures, projects, and goals, as much as we may claim to rely entirely on ourselves.

What this gold medal represents is the gamut of emotion each of us engages in our quest for something good and fantastic to our imaginations but still allowed into our dreamworlds. That treasure chest on the pirate ship, paradise island, the perfect house or car, but even more accurate, writing the perfect story, painting the vision imprinted on the heart, meeting the one meant for you alone and keeping him/her, making that elusive but magnificently huge deal, landing that big case and 'winning it', or for you sports buffs, the perfectly hit 9 or 18 holes in the perfect or 'good enough' circumstances to be perfect, never mind the perfect tennis game or set, just the perfect few ground strokes (boy, I set that bar low!)...etc. We know that each and any of these objects or goals is not attainable without a great deal of struggle, years of hard work and preparation to get there and having a chance at shooting for that dream come true. Each one of us has wanted it at one time or another. Some of us have given up along the way. Some of us have sacrificed too much to get there and realized they shot for the wrong dream. Some of us still keep trying and will never surrender.

If there is anything the Olympics and the yearning they engender for those gold medal moments stand for, it is the hope that each of us can fulfill our own spirit; that each of us can shoot for that quest for all that is good in us and triumph just as it has in Alexandre Bilodeau attaining with it that sense of family, national, and global belonging, acceptance, and recognition! Even when not all of it can be perfect, the Olympics can reassure each of us that we deserve to complete the true potential of our essence and fulfill our dreams!

-- GDK

A day to make strides - January 18

2010-01-18T18:25:00.000-08:00

Today we celebrate the confluence of spiritual and legal rhetoric in the service of human rights. Martin Luther King Jr. (picking up where Mohandas Gandhi left off) is honored for striding for one's beliefs -- using passive resistance not taking up arms against our enemies and oppressors. Mandela too deployed this powerful tool in the service of his people against the South African government. Understanding the underbelly of humanity, they lead the way against colonial and racial oppression by their example of non-violence.

As great orators and politicians in their own right, these leaders mobilized large groups of people at a time when twitter, facebook, email, blackberry and smart phones did not exist. Pioneers of the grass roots movements, they had to convince through cogency, urgency, and the sustenance of defeat that they would not surrender. Initially only those closest to them would hear them out, and then slowly others began to realize the powerful meaning behind their actions of resistance. It was this example not of glorious battle and purple hearts, but their adherence to the principles cradling humanity in compassion, equality of opportunity and consideration, that they were worth following. Much like 'cool hand Luke' they took one punch after another, till they earned their stripes and the respect of the people they sought to lead, almost inadvertantly realizing the stature being bestowed upon them.

It is interesting too to understand that our current forte in marketing to the masses misses that grass roots appeal that can only come from doing not saying. What was this doing they did? These leaders realized that they had to take the punches and make themselves vulnerable in a way that frightened the people they sought to free from bondage. People could actually look at these leaders as the experimental but lived fantasy of a life first resisting the idea of oppression and then living a life free of it. Not unlike the experimental fantasy of flying finally lived by the Wright brothers, success involved a lot of hard knocks, literally. For as they lead others, they encountered the hand and club of the oppressor. Many of their followers died in that march for freedom, whether it was against the oppression of foreign colonization, or of racial segregation. Mandela actually fought both at the same time in its most ingrained form -- apartheid, and gave up twenty-five years of his life to imprisonment at the hands of his oppressors.

Where law and politics meet humanity, we must leave the classroom. We can bring the books with us to guide us, but we must count on our hearts to tell us the truth. It is a dark road through the brush that no one has dared to hack. To make way for a different consideration of the situation and to bring people along, the fight must be real and it must affect many. There are real fights in this world. There are situations that are being taken as normal but they are not normal. There are situations that many people know are not right, but because they provide comfort to some people with power, influence and money, others will not speak. Today these struggles are being taken up in many fora - personally in the home, politically in various agendas for change and reform, and legally as some of us fight for truth and justice. Today is a day to celebrate all such struggle and to support it if you have a chance!

Google gets it right today - Happy New Year! Dream A little.

2010-01-04T19:15:00.001-08:00

It is another January 4th, a day to celebrate the birth of Sir Isaac Newton, and to dream as we begin another year. Typically we are also back to work after the celebrations. As you Google, an apple falls down to remind you where you are -- on this earth where gravity can be perceived. You are not on the moon or the outer heavens, where your dreams may reside, but here among the trees, mountains, lakes, and cities of this planet. Newton brings you back down to earth just as that apple served the same purpose for him as he was dreaming away under an apple tree. More of us more often should find ourselves under a tree (maybe not a coconut tree), we are liable to hit upon a good idea.

As we embark on a new year, we can take note of the fact that we must both dream and keep our feet on the ground in order to correctly implement the ideas we originate. Dreaming is important because it connects us to our hearts. Unless our hearts have been terminally or fatally wounded, we can connect with ourselves deeply and create both the food and the thought that can light at least a generation to do good and serve humanity. But this is not enough, we must also locate ourselves on the ground and find ways to implement our ideas. There is no better way to put our ideas into practice than to practice them ourselves if at all we can. There is also little getting away from the fact that we will each of us make mistakes in doing so. But with some diligence and time, we will be able to break new ground with each new year as it renews our hope in life's changes and in our capacity for growth.

Just as an apple, fruit of a tree nourished by the love of the earth, and the dreams of the sun and clouds poured upon it, falls from the branches to be enjoyed by others below, our ideas can be enjoyed only when they have a practical use and nourish or serve others or the earth itself, now that this planet appears to need our help. This metaphor can ripple on infinitely of course, for we too are both like the apple -- as our ideas are made real through application, and its seeds bearing trees of their own -- sometimes sprouting an entire industry with one idea.

Shiny red and juicy, we ourselves are bound up with all the possibilities of a gift wrapped tight and surrounded by a hundred bows and ribbons beckoning each other's anticipation at what lies beneath. But consider for a moment that each of us is a very special package that itself changes depending on how it is touched, considered, taken in, respected, abused, maligned, or depended upon, relied upon and simply, made to feel. This brings in a highly important aspect of our ability to do anything, to dream, to create, to perform, to be good to one another, to be responsible etc. As much as we would love to take for granted that we could create apples like the apple tree, we are forced to deal with human dynamics and acknowledge we do not live in social vacuums of our own making.

This great complex of human relationships can exact a heavy toll on the creative possibility of each of us. How shiny is our package after all, how vulnerable is it to the acid rain others may pour on us? How much respect do we each and all of us need to be our best selves? There are about seven billion of us on this planet; every genius who has ever existed in human history is on the planet now, my older brother tells me. We know this because the total number of earth's human inhabitants totals as many humans as have lived throughout human history. How do we allow the genius in each of us to shine through? Without hurting other geniuses? Yes we have rules, regulations, and legal systems to protect and enable. But at the basic level, we must count on each other. So much happens in the private realm that is not regulated and cannot be regulated and requires each of us to grow and mature so that we can "see" each other a la 'Avatar' (yes I saw it over the holidays).

With this new year, as each of us tries to do our best to dream and fashion the change we want to develop in our lives, perhaps we need to be mindful of the change we can enable in those of others. Perhaps our dreams are not diminished as others are allowed to explore and implement theirs.

Philosophy, Logic and Imperfection

2009-12-15T20:07:00.000-08:00

Someone I respected a great deal once told me that I am not a 'philosopher.' And they were right. I am not, at least not in the western sense of the word. Maybe also not in that sense of the word that says that I must speak to your mind only according to a certain logic, without which I cannot make 'philosophical' sense. If it means 'the love and pursuit of wisdom by intellectual means by moral self-discipline and observation of lived reality,' then that is the kind of philosopher I would be happy to be. As for logic, some of the people I admire most have also told me 'you have your own logic.' They meant it in the best sense, because when you use tools you have learned as just building blocks, and then integrate them into yourself, you create something different from what exists. If it is a regurgitation, you may be good... but you have not made it a part of yourself, and no mastery exists.

I grew up in a very smart home (no, not the kind with all the monitoring technology), brilliant brothers and mother, all more logical than I, but wonderful teachers. My father was/is a mathematician. And a certain rigor was commanded by the learning of that subject in our home. Along with this went much philosophizing about almost everything, a cultural necessity in a Kashmiri Brahmin home -- the relation of what we would read in the 'Gita' to daily life lived in a setting so far from all that was familiar and known: family, environment, our 'habitat' I want to call it.

Math was formative as was its logic. My father is very fond of the history of numbers and we grew up with these stories. The stories of discovery and pursuit of mathematical truths were as important as the discovery itself. Much like the admiration a disciple may have for his martial arts master, we were taught to revere the pursuit of learning, and in the case of math, the discovery. And so I remember the fibonacci sequence and other answers discovered that could not be contained. I think this aspect of mathematics fascinated me the most; that math was able to admit its own limitations in a sense, when it was overcome by nature, and nature's patterns. The most amazing numbers are those with no end!

This is what is amazing about life too. The decisions we take, the choices we make when they are made according to nature's plan... that is, from our own natural strength, albeit aware, still innocent and full of hope. It is in these moments that fascinating discovery can and does take place. It is in this place that limitations cease and infinity begins. It is where the heart, mind and muscles sense each other quickening with the pursuit of something necessary to the spirit, to the simple but full living of one's own life.

Infinity also is a place of so called 'imperfection.' The pattern of petals on a flower, or leaf arrangements on a branch, or even the ratio of parts of a human body known as the 'golden ratio.' It is infinity we really strive for, and yet in our drive for patterns we also conform. For humanity as a group must have a certain order also. Someone else must study these patterns to find the golden ratios in conformist behavior and human groupings. Why can we, human communities and patterns of conformity, not be like the petals on a flower or a leaf arrangement, after all?

Therein lies the tension: we strive for patterned order while seeking to breach the limitations of the stability and structure created. It is this story that we both repeat and love to tell in what we term the 'progress narrative.' What would be the point in telling the story if we did not feel that we had 'evolved' or gone beyond where we had previously been. Some say that after a war or invasion, it is the victors who write 'history.' And so whoever tells the story, also must make themselves look good, as having created something better than those who lost the battle. It is a bit of 'rubbing it in' to be sure, but that is not how our children will necessarily read it, we think. The ones who come immediately after us, for whom we have created the world we bring them into, and who benefit from our counsel as they grow up, will only embellish our story. If we are smart, we worry about 10 generations later for the real judgment when the 'revisionist' version is written.

Much of the law and legal structure come out of these stories of push and pull. The law is written and then rewritten, sometimes because there is a real need for order, sometimes because there is a real need to show that those who govern really can and do command the order we seek, or represent a 'new' order. An important part of law then is publicizing it, telling the story of it, even writing it out and plastering it in the village square so everyone can read it and know what the order of the day or year is, and who the governors may be.

Currently, it is a change in regime also, from republican to democrat. An ideological difference but one that is difficult to demarcate by simply changing laws and increased regulation. Where the content and substance changes, it is easy to see that a change has occurred. In the case of a simple increase in regulation over the same terrain it is more difficult to tell that change will mean a difference in the order or patterns of behavior created. For the latter, we really require implementation and enforcement. With enforcement of laws, the governing order incentivizes and penalizes a certain conformity in behavior, creating beautiful or ugly patterns. Where disorder reigns, we tend to be aesthetically offended: as in the financial crisis, and the rampant criminal behavior unlimited by regulation or by its enforcement.

It is these patterns I study and rely on in my paper on a new International Financial Tribunal because even as I and others seek to respond, it is important to be aware that we are pieces of a puzzle, hopefully ones that fit into the sweet albeit far from neat pattern of infinity breeding ideas of goodness and 'gold' (in the best sense of that word).

Of Womanhood, Strengths and Challenges

2009-12-13T11:29:00.000-08:00

This past week I was invited to speak at the Hague about my proposal for a new international finance court as a response to the enormous changes in the global financial system. The resulting complexity for transnational claimants has made litigating within national parameters increasingly difficult and limited. More than once other speakers remarked to me that the debate over the making of international law in this domain of finance would shift simply because the person making the contribution, namely myself, was different from the others. One fellow participant at the conference said, "You are a woman of diversity... India, Canada, the U.S. from a very different background. This will alter the discourse." I think there is some truth to this.

The definition of gender roles at this critical point in human history is important for law and human relationships and culture. There are cultures that are reactively calling us back to strict adherence to such roles, as in Islam. There are more secular cultures that assert the equal right of women to all experience and authority, and also accept gay and lesbian relationships at par with heterosexual ones although the members of such unions may be avidly religious. In most part, there exists some increased understanding and acceptance of women as different in their own right. I will come back to what I mean by this last statement.

Differences between men and women have been debated throughout time, as various agendas for labor distribution, location of power, misunderstandings and scholarly curiousity have played out. Carol Gilligan's and others' ground-breaking work on the difference in thinking between little boys and girls, has spilled out into a recognition perhaps that women contribute differently in both form and content. Little boys it was claimed in that small study are more outwardly focused and aggressive, where little girls are more empathic approaching each problem set from a place of understanding and inclusion as opposed to adversarial attack and separation. Clearly much can be gained by allowing both men and women to approach each problem to devolve a more holistic solution. Although to the contrary, segregating the sexes based on what are already seen as strengths and weaknesses of each gender may dampen competition between the sexes, given that predominantly men and women mate and make homes together. It makes things easier to have different roles, no?

However, if women approach problems differently, they change the dynamic of the subject, and the manner in which the subject itself may be handled. That is the problems that we have to solve themselves may be different if women contributed to their formation. Do we really need more problems? Some formed by women and some formed by men? No. The point is men have determined the parameters of content and form of problems todate. The combined effort may make for fewer and different problems, maybe easier problems?

This also directly impacts women's self-definition. I want to say that women themselves have a difficult time with self-definition. If the only way they have known themselves is by mainstream definitions provided from a male point of view, then all they can be is different from men. A quick example from my children's early life. They used to share a room, two bunk beds, between the ages of 2 and 4 and 7 and 9. We had to move because they were driving me crazy; they wouldn't stop fighting. (We lived in a 2 bedroom apartment.) Mostly they were fighting about self-definition because they shared this room for too long. They had adopted roles, only one of them could be good at any particular thing. If my son was smart in school, my daughter had decided she had to be stupid. If my son was good at the piano, then she could not be and so on. Now none of this made any sense... she was brilliant in math, and she had an avid interest in music, and got a rousing ovation playing the piano at 3 years of age... so clearly something she could have kept doing but she would not. Within a semester of our move, I was able to see the difference. Not only did the fighting abate, but they could inhabit the same interests again. Not all would overlap, but now I could be reassured that it had more to do with their own strengths and interests and less with asserting difference from the sibling.

There is danger then in heeding too strongly Gilligan's thesis of difference. One wonders if it is not overly deterministic by and of difference between the sexes. Certainly, there are ways in which men and women are similar in their thinking too. We are human after all. We have occupied different roles through much of history because of convenience and culture perhaps? Misogyny or misunderstanding? The physical power differential? The occupation of different roles in the distribution of labor for so long that it forms us as different? The biological differences etching a different emotional and empathic sensibility? All these are possible origins.

But a different viewpoint from the mainstream can originate from other minorities also. Of course, women are not a minority. They mostly form a majority of the population in most nation-states and globally. Yet they are construed as minority because they do not determine the mainstream. This brings us to the other question: which men, if it is men, get to determine the mainstream viewpoint? Those that own the educational system, media, money (we are back to that), governing bodies, financial institutions? Does it stand to reason that the longer you have held power over governing bodies and finance, and the economic system (sustenance for the world's people) the more power you may have over how that power should be relegated between men and women, or between men of a certain race, creed, religion, or class over other men and women of other races, creeds, classes, religions?

Maybe. I can only ask the questions. The answers as someone else has said more eloquently 'are blowing in the wind.' Maybe the answers don't really matter. Maybe the making of harmony from difference is more important. Being a second child, I would opt for the latter. A firm believer in the integrative thesis (no surprise to anyone) let's go back to what difference I or other women can make to international legal discourse. First, we do tend to see the problem differently from men. For instance, whereas my colleagues see the need for international arbitration for the financial services industry specifically and only from the viewpoint of standardized master agreements crafted by ISDA that will require interpretation in a transnational setting, they miss completely the extent to which global finance has transcended borders and affected people, not just the institutional parties to ISDA agreements, but the world at large that has been invoked as investor, backer, client in multiple jurisdictions by legitimate and scamming financial institutions alike. Maybe it is not about building a tower, but about seeing the interweaving web created by the global financial system. We live on a globe, a sphere, and money like a neural synaptic connector has come to affect us all, a spark that is lighting a contagion of branches through the net. I cannot see the response as an assembly line tower, but view it as a comprehensive, culturally adjusted and systemically integrative institution.

I am also responding from my point of view as lawyer for investors in various international financial frauds, in international transactions at large, and of course, fraud investigators. So both the problems I define from my observations, and the responses to them, are apt to be contextually based. And most significantly, they will be contextualized within the experience set of my own herstory of life as an Indian, Canadian and new American immigrant.

There are deeper issues about constructions of property as determinative of gender hierarchy which I will not go into here. These issues are directly related to the ways in which legal systems may have perpetrated the subjugation of women and minorities generally. The main point I want to make is not so much that there is a purpose in what I am doing and contributing but that we are at a critical time in our history that enables more participation in legal discourse generally, from lawyers, scholars, and lay people alike. Diversity of all kinds is necessary to achieve solutions going forward that will assist humanity deal with the kinds of social, biological, and financial strife that are bound to increase with the burden of sustaining billions on the planet for the first time, the ravages of global warming (whether it is of our creation or natural), and increased health risks.

Since I am a woman, I can say that it is an unprecedented time after a long silence for women in my family to contribute 'publicly.' However, it is also a time of some challenge. There is stigma attached to divorce in the Hindu family, especially in a Kashmiri Brahmin family. Single parenting by women and men,is known of course, even in situations where the parents are together formally. The leap from married to officially single, however, has been lived with difficulty by others in the west and fewer in the east, unless forced by circumstances. Yet I note that there is bias in favor of seeing couples even here in the west, whether the couple is talking to each other or not, or whether the couple is married or not. So stigma prevails even in the west.

Both men and women appear to have difficulty determining their roles in this transitional space in which new culture is being written and the synchretism of such different cultural underpinnings takes place in the global flow. Just as we see bowls of curry apple squash soup, we see Caribbean, Indian, Finnish American families at the table for Diwali, Christmas, and Hunnukah. We are melding into each other like a thousand tributaries of the same vibrant river heading into the large ocean that created us. Whether the 'wisdom' uttered comes of woman, man, child, dark, light, freckled, rich, poor, middle class,of whatever cultural affiliation, let's hope we make it possible to hear it, recognize it, and heed it!

A Wink and a Nod, Ethics a Year After the Confession

2009-12-10T19:45:00.000-08:00

This has been the year of appearing to do justice. But, the issues remain, the questions left unanswered. A man named Madoff, ending not so differently from the way he began -- a self-interested insecure youngster who wanted to make money and would do whatever it took, ended up knowing he had to bring about his own demise so he could retain a status claimable by an exaggerated infamy.

All it took was cheating and lying to all who would listen. Once the money was made, they not only listened, they sold their trust and with it their ethics and their ideals. A wink and a nod, and it was understood that if you had the golden contact you would easily make a good, if not great rate of return. This was the case for the inside club. Those who are not seen as innocent investors: Shapiro, Chais, Pikower and others in the U.S. and abroad. There is a second tier who made handsome returns but not quite as much as the hundreds and thousands of percent these insiders 'earned' by feeding the braincenter.

Ponzis are an affinity fraud. 'Affinity' is a natural attraction, liking or close feeling of kinship according to the Merriam-Webster. But 'affinity' also fits neatly into the narratives and the oppressive grand narratives of culture of which Lyotard speaks. Criminality or greed can find that level of trust, or natural bonding that comes from the sharing of a human impulse grown strong by the making and hording of money. It is the same story of money-making told over and over by not just the Madoffs and their cronies but by the grander ones within the capitalist ideal: those who smuggled liquor during prohibition, discovered oil, and even discovered 'new lands.' Whereas financial and natural tsunamis do not discriminate, hitting all pro rata, capitalist affinity or 'cronyism' is only for the 'select few,' who will not tell on you, even when that number grows to thousands.

Significantly, Madoff was a mere symptom of the times: times that unveiled the Petters, Stanford, and hundreds of others crawling out of their caves of muck, reduced by the shame of loss (for the greedy, can there be a greater shame?). We can ask now if this ebbing of the tide has extinguished 'their kind.' Have there been enough jail sentences some ask? Has regulatory reform secured the perimeter? Will the 150 years received by Madoff deter others? Will this gunning down of scams, and financial giants lead to a return to the good? Has justice been done or is it at least on the right track?

I don't think so. I still see all around me the signs of aggressive as opposed to conservative action by financial institutions. Some are in trouble and thereby distracted for a little while. But those who have power, have redoubled efforts to self-gain on the backs of consumers and investors who continue to pay in their stead. Bail outs and support of mismanagement could not have helped. These actions may have simply prolonged the pain for all of us. Madoff in the end, like Martha Stewart may merely be a visible celebrity sacrifice for others to stay in the business of greed.

I had occasion to speak with an EU Central Banking leader on my travels who claimed the industry is not interested in reform. He claimed it is instead in denial. This I found hard to believe. Surely, an unprecedented downturn and exposure of the absurd risk profile of financial institutions globally must have taught them a lesson? Surely those with power and money realize the gross consequences of their breach on billions of people relying on their wisdom? Has the discrepancy between wisdom and those with money and power made justice unattainable? Are money and power so conflated now that neither wisdom nor justice can pry them apart? Is power only a term denoting self-interest and self-aggrandisement? In other words, is there no one around to hear the plea of those without millions to their name, in losses or gains: the ordinary, or not so ordinary whose cares may carry them to interests other than the commercial and the monetary?

If not, then how did it all start? What do our children learn in school? What do they learn at home? If their parents' securities' operations are investigated by the SEC and then shut down, must they long for the same treatment, hoping they too will be caught and repeat the familial program? Or is it a challenge to the youngster, to make sure it does not happen to him, that he will overcome this governing agency's power and avenge his parents' shame? How many new Madoffs are growing in the inadequacy and insecurity of average students afraid to attempt the accumulation of real wisdom and the dismissal of a call to artificial wealth?

Further still, what of universities? Given the rampant commercialization of almost every aspect of endeavour, from art to dance, finance, law, politics, and even education, shouldn't every college student have to take an ethics course? How many of them will sell out their ideals? Do they not deserve some grounding in decision-making that elicits healthy skepticism and a penchant for all that is good and 'human.'

Dec. 11, 2008, I learned some incredible truths about the world I live in. I cannot claim to have been sheltered all my life. I grew up early in the middle of war, my birthplace a battlefield in more ways than one. I did not come into the world thinking all was rosy. Every bit of poetry spoken from my lips and brushstroke of wisdom penned by my hands have been deliberate acts of reclamation of what I feel I was not allowed to have or experience. Transforming the world around me has been the only song worth singing.

However, the reality of survival digs deep into the sides of one's lungs and we breathe it in even as we take a walk up the mountain of green pines and maples, smelling the alleged scent of purity. Never having sensed the invasive stab at our ribs, we have been polluted by the fiction unknowingly. This alien sensibility we have attempted to overcome all our lives in a quest for transcendance not to the other, but to ourselves, our real selves in a place with no worry, no fear, no torture, no grief, brings us back and we cough it up and out. Deceit, fraud, hurt and tragedy compose that pollution and the fiction of the system in which it breeds.

In its place, don't we all deserve to experience the transcendent self? Isn't that what we learned in the second world war. What was the point of the Universal Declaration of Human Rights? There are no vermin among us. We have together created this world, the financial system and its various incarnations, the constitutional systems (we see evidence in California as it looks inward to its own 'Madisons' and amends its constitution 500 times), the economic systems, the social systems, and the start of it all, the family. We have killed millions of our own in one genocide after another, trying to get something right, or maybe trying to get something terribly wrong. And it is painful to acknowledge this for some of us who choose to see the horror.

I wonder when we will overcome ourselves and choose instead to help rather than hurt, to share rather than take, to learn rather than obliterate. In this age when barriers have been broken by the internet and mobility, I am reminded of the concept of sovereignty and territoriality, a projection of individual need that attempts to respect the other, and I wonder even as we yearn to communicate and hold humanity in our arms, do we not desperately need such respect individually and globally? The community we seek and create informally and formally helps us to better understand ourselves, but it also helps us hurt each other. It is a double-edged sword and with it law must in parallel be double-edged.

There must be ways to infiltrate the speed of innovation and activity of hurt we as humans are able to cause and create, with boundaries (individual, national, and along the spectrum in between) through the teaching of law and ethics at levels and in ways we have yet to conceive. Or where conceived, then in ways yet to be enforced. There is probably no better time to insert the random and the diverse, even taking the risk of welcoming the peripheral good.

If we take Dec. 11, 2008 as a day to mark our own support of a system of corruption and greed flagrantly thrown in our faces by those who have to confess it for us to know what we have done, then perhaps today, a year later, we can stand up and say we see what we have done, and we will do our best to change it!

Traveling and learning about healthcare

2009-12-10T15:54:00.000-08:00

Travel is a great way to understand better how others think. I am on my way to Paris and Amsterdam right now...writing on the plane, one of my favorite spots for this exercise, even in the midst of turbulence we are currently encountering. Knowing how others think and what they believe is a great way to understand the limitations and challenges of one's own cultural make up. As I keep intimating, law and culture are inextricably linked.

So on the way to the airport, my cab driver volunteered a lecture on what ails American politics. He called himself a libertarian, and believed America had lost its values. Although he was not a fundamentalist, he believed some faith was important in one's life to steer the course. He also believed that government had gotten too big. He was not in favor of current health care reform even though he had not had health care for years he said, "can't afford it." "Then doesn't the current health reform make sense?" I asked. He did not think so. He was afraid he would be covered but that the government would then be able to decide every aspect of his health needs, and he would have to either wait for the kind of care he needs or have to go to Alaska to get the right doctor because the government would want to make sure health care was equally distributed throughout the US.

I wasn't really sure what he was getting at. It appeared to me that either he was scared government would be able to take over health care entirely because it would be the cheapest option (and then why wouldn't everyone switch if it was the cheapest); but then answered him with his own argument, "because it is not the most effective option as you claimed."

At the same time he had solutions of his own, namely 7 percent of our income should go to health care and save us the hassle of all these choices. But good local healthcare should be provided and the insurance companies would still be able to survive because we would need catastrophic coverage, a serious illness for which extra coverage would be required. I asked if he did not think this sounded eerily like the current government option? He didn't think so.

For my part, I told him that I really needed government healthcare when I got to the U.S. as a single parent of two, studying and raising my kids on $12K a year for a number of years. The kids were young and didn't need much, but they did need healthcare. Having just arrived from Canada, it was the most foreign thing for me to contemplate having to pay for health insurance. What was more of a shock was the cost of health care, in those conditions it was completely unaffordable. $500 a month for family healthcare, was the average income for an entire year for families in other parts of the world. I could not imagine how this made sense when all each of us needed was a check up once a year... of course with young children you cannot take a chance. They catch everything being exposed to other children all day long.

I recall talking to someone randomly at microcenter about this topic back in those early days of my arrival. I could not understand the great vehemance with which that other average American approached the idea of universal healthcare, as a government takeover. As a Canadian, I had become accustomed to some sense of governmental care as a normal part of adulthood. But in the U.S. I was quickly learning, self-sufficiency in rhetoric, culture and law was up and coming. Unbridled and unleashed ambition, entrepreneurship, creativity and innovation was more than encouraged, it was fed through cultural nutrition. As such, challenges were taken with responsibilities by Americans. With the risk of failure, or 'no healthcare' came the possibility of great reward and more choice and self-sufficiency. This was a fairly extreme stance for Canadians, who tend to live more balanced lives. Although interested in the upside, most work and go to college closer to home, eat well, live well, worry less, and of course, they all have health care.

Interesting...I thought, on the bright side, clearly health care is now a work in progress here after decades. There is no getting around thinking about the options! Paradoxically, despite his lament my cab driver was a living tribute to the fact America has not lost all its values. Through the entire cab ride, he attacked and pontificated about the policies of his government. At the very least, participation, free speech and thought were alive and well!

turkeys, eagles, and letting go of things

2009-11-26T08:22:00.000-08:00

"You can't soar like an eagle when you are surrounded by turkeys" (Harry Markopolos, Senate Banking Hearing, Sept. 10, 2009) except on Thanksgiving! In India, we don't have thanksgiving, partly because we give thanks everyday. I remember going to the local temple everyday... and being surrounded by the blessings of thought, reflection, and community prayer. In Canada, thanksgiving takes place on U.S. Columbus Day and the turkeys do come out much like American thanksgiving; a harvest festival involving pilgrims and natives thanking nature for that year's bounty together, from what I understand.

I am still new to American culture, having become an immigrant only recently and many of the rituals appear foreign to me. The values around the idea of giving thanks however, is one that resonates deeply. The idea of assisting those who do not have, or thanking those who have made great sacrifices for our comfort comes naturally to most of us. Indians for instance hold great honor in welcoming anyone in need into their homes and feeding them any day of the year. This is particularly important because part of the culture requires Hindus to give up their status and belongings and seek enlightenment at some point in their lives.

The need and importance of a Thanksgiving day is underscored by its contrast to consumer culture in a land of plenty. Here few people starve and pray for daily bread as they do in some lands, even though there is enough food to feed all 7 billion of us. The lack of food that does develop has little to do with availability and more to do with hoarding behavior.

Attachment disorder is a significant aspect of hoarding behavior. We have seen so much hoarding behavior of late, from the extreme frauds of the Madoff type to the squandering of immense wealth at the expense of the common American by large institutions and government. It is interesting to note that those with OCD (obsessive compulsive disorder of the Madoff variety) are also prone to hoarding:

A psychology professor at Smith College estimates that 2% to 3% of the population has OCD, and up to a third of those exhibit hoarding behavior (Cohen, 2004). This appears consistent with 2% of the world's population holding 50% of its wealth.

The 3-part definition of clinical hoarding is as follows:

1.The acquisition of, and failure to discard, a large number of possessions that appear to be useless or of limited value (Frost and Gross, 1993).
2.Living spaces are cluttered enough that they can't be used for the activities for which they were designed (Frost and Hartl, 1996).
3.Significant distress or impairment in functioning caused by the hoarding.

Hoarding has three components:

1.Acquiring possessions compulsively - compulsive buying, or collecting free things.
2.Saving all these possessions and never discarding.
3.Not organizing and maintaining all the saved possessions. (http://www.squalorsurvivors.com/squalor/hoarding.shtml)

I am surprised by the 2-3% figure as what I see around me appears to show a greater amount of hoarding behaviour. There is so much on TV and in the media that suggests the push toward acquisition, although most of it also pushes toward discarding what is acquired so that more can be acquired and then discarded. I suppose what is most suggested is temporary attachment to things acquired. In some ways this could be a profound message. Some of the oldest principles and values espoused by humanity stress the temporariness of all we experience and an acceptance of this temporariness. The study above appears to suggest that OCD type attachment to possession comes from an insecurity in the person stemming from a lack of attachment to the real. Hence objects and possessions and even money can act as a substitute for real attachment to people such as parents or other loved ones etc. One would think also that such hoarding behavior may also show up in extra-marital affairs, because of the inability to truly attach. All are antithetical to the messages of Thanksgiving.

Giving thanks and the experience of gratitude involves attachment. And attachment to other people, animals, even the earth in a profound way is a remarkable attribute of human experience. It is because of a deep attachment or love for what and who is important to us that we also can let them go. This letting go is different from the discarding of things that every advertisement beckons us to do. True attachment is important to meeting up with that expansive sense of attaching to the larger universe, in line with the Hindu aspiration of enlightenment. What are we talking about? It takes a little love in one's life. Without real love and the creation of such bonds, it is hard to give thanks.

It is no wonder that when we think about holidays like thanksgiving, we think about family and being with those we love. The sense we have of being showered with blessings enables us to give love to others who may not be as fortunate, or who may simply be situated differently (if we don't want to pass such self-absorbed judgment on the state of others in a different economic, health, ability, or opportunity bracket).

So if you are walking about on this holiday and not OCD (or if you are afflicted with this condition try to get over it for a few days of the year) go out and spare some change for those in need, maybe even give away a few things to someone who could really use them!

-- GDK

Parenting and the Culture of Governance

2009-11-23T21:02:00.000-08:00

I can remember my grown children as babies. Cute, curious, full of energy, exploration, and playfulness. They have not changed a great deal, somehow managing to retain their essence in spite of what the world and their parents have thrown their way. I still want to protect them, and refine the value system they have cultivated through their upbringing and the cultural attributes I hold dear as they go off and explore their world further.

I realize that many parents around me do not adopt the same stance. Even their Dad tends to be less protective, letting them figure their own way earlier and having different expectations of their self-sufficiency.

This tension between self-sufficiency and protection often conflated with cultivation of culture or particular values is seen in the legal system and the making of laws also: from inception within the political and legislative process to adjudication and enforcement. This tension within the legal system just like within two sets of parents comes from a difference in cultural precepts and sometimes even personality types. Perhaps we can liken the latter to partisanship?

We play out, in and through the rules we create, much of the drama of the parent-child dynamic because governance itself invokes care taking and care giving between the larger whole or body politic, the structures it creates, individuals, communities, and the many governing structures whose role it is to provide such care.

I use the term 'care' as an ideal, of course. How many of us do not often feel neglected? We want our government to care and implement caring actions, but there are seldom enough resources. Our government like many parents is over stressed, out of time, out of money, or can't make ends meet -- all of which leaves little room or sentiment to provide the care required.

But one day, one of my children or one of your children may occupy a governing role within the larger care-giving institution, or government. The structures and institutions we have created are all peopled by individuals not so long ago children. And in that view, we can understand that these institutions we have created have within them a microcosm of all the pushes and pulls of conformity, power, service, play, sloth, perfection, mediocrity, and curiosity to which their members may be susceptible, just as they were in the school yard.

I realize that inadvertently or intentionally it appears I have made a judgment that the parents or teachers are missing in that school yard. I think sometimes that is true or it feels that way. But even when that is true we have the larger structures or institututions that make up the government to provide us with the sense of stability and security we expect from parents. Those institutions are founded upon certain basic rules we deploy to guide our sense of freedom and limits. Where rules and laws are made or changed, processes involving time, deliberation, participation of experts and interested parties, as well as institutional reflection will assist with the stabilization of governance and the invocation of change.

So in the wake of destruction to our security and confidence caused by the financial crisis, it is useful to ponder these dynamics also. While the financial crisis toppled markets and destroyed investor confidence in the very idea that we can be secure in our economic and financial system, we still depended on the weight, solidity, reflection, and participation of our legislative processes and governing structures.

We had confidence in the deliberative processes by which we usher in changes in rules, paradigms, and systems in this country. It is for this reason the quick passing of the bail out packages caught me by surprise. I cannot pass comment on the real necessity of those actions to the economic system on which we have come to rely. I don't count myself as one of the insiders to that story.

I do know there was another level of confidence those actions threatened - confidence in our governing institutions and processes. Even if we will eventually be glad our government took the steps to protect us and perpetuate the value system we choose to live by, our security was undermined anyway. It didn't feel like we, as individuals and communities, were being protected. Instead, it felt like institutions that were grown up enough to take care of themselves were coddled at our expense.

Of Hearts, Communities, and Transformation

2009-11-19T19:01:00.000-08:00

It was not so long ago, although it seems like another life now. I was riding a Tanga (horse drawn carriage) in Srinagar as a young girl. I remember the bus from the city of Jammu to Srinagar in Kashmir... a perilous journey from which many did not return. Buses skidded down the slope of the mountainside to the Chenab River below. I could see them from the window seat in the bus, wondering if we would make it through to the city where my family waited for me, not knowing if and when I would arrive with my mother and brothers. Those images and experiences are etched in my heart.

Integral to those images is the notion of rapid change and immense possibility for transformation. I was a girl in a city on this planet who had ridden in a horse drawn carriage as the main mode of transportation and within a few years, reunited with my father in Montreal -- in a different world, with a car of our own, a Buick Lesabre as our main mode of transport. Add to this the dazzle of electric lights I first beheld on my journey to the west. From east to west the sun rises, and I too had risen to know these lights and this difference. A young heart carries the color of passion, of future hope and potential, of imagining never-ending possibility.

I have described a part of my core, so you literally have a sense of where I have come from. Often I hear from someone or other, that some change that we may hope or long for is not possible in our lifetime. And even to me it may seem impossible, yet there is always that flicker of doubt in my heart that colors that determination. "Nothing is impossible," it whispers. Time, after all, is itself a fiction we protect to support our own limitations.

What has this to do with the law? Everything. The structure, order, and rules by which we seek to govern ourselves, are often the slowest to change. However, even these frameworks for governance can change at a rapid rate in the right circumstances. They change with the advent of a social or human connectivity that did not previously exist. Sometimes such connectivity has taken the guise of religion, a faith, belief, or ideology that links people in different lands and across borders. Sometimes such connectivity arises out of the faciliation of mobility, such as the airplane, or train. Sometimes such connectivity arises out of communication devices. The printing press, telegraph, telephone, and internet come to mind. Obviously the confessions of a Ponzi-schemer can also unite many.

Scholars have stated that we imagine our communities into existence. The printing press for instance has been attributed with the development of the nation-state because of the connectivity it established within a certain territory through readable pages multiplied easily. Now the internet has revolutionized communication such that communities can develop around every topic of conversation, often called 'chat rooms.' The informal but widespread structures sprouting up all around us in networks of connectivity may inspire us to rethink fairly quickly the kinds of community frameworks that make the most sense. In turn, more ad hoc and informal rule-making appear likely.

However, one aspect of such rule making will prevail and that is transparency. There is a larger public domain than ever before just as our population itself is busting at the seams, having reached unprecedented numbers. We have kept pace and developed means to record all activity. Each of us can have his/her own public and public persona. In fact, privacy itself will become increasingly prized as it will be nearly impossible to find. We are proceeding at a fairly quick pace toward a world community and inevitably, world governance , as scary as the prospect may appear to some. Not surprisingly given my own trajectory, I imagined it as a 12 year old in Montreal, only a few years after making my way to the new world. Now I cannot believe how quickly we are racing toward it.

Money, Ethics, and Law Firms

2009-11-14T10:57:00.000-08:00

Today, I feel like starting an experiment. I need to find out how many of the people I am dealing with are honest and intend to handle ethically the 'money' situations that come their way. (It is often unclear what the law requires in each situation, but ethics invoke at least an element of moral right that we can talk about together. This is a better gauge right now as I try to ascertain how much of my public engages in or at least attempts to engage in right action, even if it is individually, and variably defined, culturally). This applies to my clients, affiliate law firms, collaborative law firms, friends, colleagues etc. Let me be clear, I am not casting stones... he who throws the first, right? That would be fairly arrogant. I am just trying to learn.
The experiment is this: I would like clients to think for a few moments what my services and time are worth to them and pay what they like. If ethical considerations were at work, I think no one would be trying to take advantage of me, and they would be paying as much as they could afford. What do you think?

In money, we have constructed a tool for communicating mutual and one-way obligation with one another. Such notions as reciprocity, self and generic worth and value are all mixed up with money. As long as a certain level of comfort can be guaranteed by our country's economic conditions, and our currency retains a certain value, we can intuitively ascertain and apply a monetary value to our sense of the worth of the effort we put into our work, our relationships, our homes etc.

Money may have nothing to do with effort. Some of us come into a boat load of money and do nothing to earn it. Others work their hands and other body parts off, but somehow don't see any of it. Supposedly money begets more money, sometimes money also is lost because not everyone is above board. There is a premium on acquiring as much money as possible while doing the least amount of work. Why is that? Theft is incentivized directly. You steal, you keep and you see what you keep, no commissions and little competition (at least one of my clients would say I am being naive).

However, what is not taken to heart is: where do the thieves think they are going? We all have 80 years or so to live. And none of us is taking it with us where we are headed. It won't be needed over that border. No matter what kind of insurance we have, there is no guarantee that all our money will not be lost. None. Something may happen and we may finally see that our money is worthless to satisfy our deepest desires and wishes, even without being visited by a large meteor or tsunami. You store away or work endlessly to accumulate wealth over the course of 20 years and come to see that your kids have grown up without you. As a result, when you are older, they are not there for you, just as you were not there for them. You are a millionaire a hundred times over at the age of 55. What a great situation right? But you are hit by a cancer that cannot be cured and oops, there is nothing you can do. Suddenly, there is no way to pursue the legitimate right to enjoyment for which you have worked so hard. And you don't know how your money can help. It can't, in most cases. Sometimes, money does buy hope and opportunity.

I have also seen that something strange can happen when people get a little more money than they "really" need. "Greed". Something also happens when people have too little money, and want to find a way to get enough, theft. Somehow the latter situation is easier to understand. Isn't it? There are ways then in which money due to our association of it with concepts of 'worth' and 'value' can be used to compensate ourselves and others for deficiences, real and made up. Instead of addressing questions of reciprocity, obligation, worth and value for what they may really be, we conflate them with money and lose sight of the real context of those issues and questions.

I am not trying to write a sermon here. I am just trying to understand how to get on in the world. I am a lawyer. I have started a new law firm, and this brings some growing pains and money is an issue, of course. But I am also a mom of two formidable individuals, who I helped grow (a social service to be sure), have grown a host of clients (many of who are my best fans, another social service) and a number of friends, even boyfriends and fiances (another social service!). Do I bring these experiences with me into the services I provide? I have an hourly rate of $600 which when compared to my plumber in times of emergency ($210) doesn't seem too steep. In an emergency, who would you pay more, your lawyer or your plumber? Maybe it is more of a toss up than we would care to admit. The analogy is painfully pertinent. We all can study the law. Lawyers are not Gods, as some pretend to be. The law applies to us and is a tool for the people. You should know the rules that govern you and your relationships. Similarly, those pipes are in our house -- we should know how to fix them when something goes wrong. How can we live in a place we don't have the tools to repair or change to do our bidding?

Here is where another element enters the picture, time. Time is money, we are told. It turns out that world wide studies show that folks who go to college and put in that 3 or 4 years to get a degree earn much more than those who don't. So the time you put into getting that higher education is worth it, so to speak! Once you get to graduate school, law, business, Masters, Ph.D., it would make sense that having spent the additional time may also mean greater income, or it may justify that extra few hundred on your hourly rate. How about if you have 5 graduate degrees? Do you maybe reach a plateau somewhere? Maybe that plateau exists at your own sense of fairness. Does the wisest and smartest person in the world charge an outlandish amount? She could. But what would that say about the wisdom and ethics she is espousing? You can see hopefully, where I am going. (Go back to where we are not taking it with us.)

This is an earthly dilemma, some tell me. It is based in the market. There is such a thing as market value that we hold as the standard to help us determine the worth of our qualifications and wisdom. It may have little to do with our own reality. It is a more 'objective' and 'independent' barometer of value. Yet, this value, as we have recently seen in the financial crisis, may be skewed, as it certainly is, by a systemic fiction (subprime, derivatives). How and why do we then apply it to all we do in life? All those social services I was referring to. What if I don't want to put a money value on them? Does it mean I get taken advantage of? And if you take advantage of me, is there a money value I can place on your newly created obligation to me? Do things like guilt and shame have a money value too. Sometimes these are more powerful and valuable tools than money.

There are two situations that have prompted these inquiries and the experiment I related above. One, I have embarked on this new terrain of contingency work in which I don't charge clients up front and I get paid when a recovery comes in. Sometimes, I charge up front fees to cover some expenses, but ask for a portion of the recovery as well. The theory behind this work is that you are logging your hours and upon recovery you show the work, time etc. you have put in and the contingency covers (if you are lucky) all the time and expense put in on behalf of clients and even a certain portion of equity. Most clients like this situation as they should. They don't have to pay while you take a risk that you will succeed in providing them with relief and at that point, you, as their partner, have earned, maybe more than earned, your keep. Contingency fees can run up to 40% of recovery as a result. So you are a real partner with your client. You just need to make sure you have enough financing to keep yourself and your staff paid while you work for umpteen years at a time. This is the market... it takes no account of your special circumstances. Some lawyers have gone bankrupt in this process, never able to recover. One would think that clients would be well served to make sure basic expenses are covered if they are real partners and believe that this lawyer has knowledge that serves their interest, but where there is competition, clients don't have to do so. They may not take the time to understand the specific wisdom, or special experience/expertise of the lawyer in question.

Two, even in non-contingency work, clients and others who don't pay when they are obligated to do so is a recurring nightmare of those in any business. I am already seeing the repercussions of it. Yes, collections agents have approached me. These folks keep saying for months that they will pay, but don't. They don't provide any conditions to be fulfilled in order to allow the payment to come forthwith, they just don't respond and don't pay. When does one stop providing service? What if it is an intermediary counsel who owes you your part of the retainer fees? He is your partner in the case but clearly holding onto your money in his own firm's bank account. Clients are clients, but lawyers can be susceptible to greed too. There are ethical rules governing lawyers' conduct with client funds in some countries, but not all. As the communication and common work increases across borders, more concert in such rules must be in the offing. But the implementation and enforcement of such rules, is the real difficulty.

We all have a moral compass, and we know right action. It is acting on our moral compass that is of real value for clients and lawyers alike.

Feeling light with the weight of your hope...

2009-11-09T19:48:00.000-08:00

There are so many cases yet to come against deep pocketed defendants in the Madoff and other frauds. These are not easy cases. And I am stunned, as I review the case law, by the imbalance in favor of powerful institutions who have the resources, not only to protect their interests with legislators and in the courtroom, but also in their initial due diligence when soliciting client funds. We as consumers and investors in these institutions, have come to expect such diligence on our behalf because of their size, breadth, and resources, and by their easy access to cross-border funds. No less when these institutions have betrayed their capacity and ability to sustain such costs with both personnel and finance in brand names, we as consumers have come to respect and affiliate with the level of expertise they flaunt through millions of dollars of marketing. Where are the ethical standards that would inform the sweeping actions of such institutions when they gather funds, if they will justify their actions at the expense of the very clients who have supported their aggrandisement through the years?

There has clearly been a discrepancy between the message marketing has produced and reality, otherwise we would not be at the low point in investor confidence around the world that we see today. The global financial crisis, and serial fraud have brought home a message of shame within the financial services industry. The stain of this shame will be hard to remove. Here liability is the issue. Without the sense that such powerful institutions are subject to independent judicial review, how do we tout the rule of law throughout the world as a plausible and necessary ideal?
Right action, and independent review must start at home and the U.S. must set an example of reform that will ripple the principles this nation holds dear throughout the world.

In the hope that the investing consumer can still find justice in the courtroom, my small law firm has started on the path of holding financial institutions liable. At the same time we are busy with the prospect of serving those we believe deserving of our service, time, and at the risk of exposing sentiment... our devotion. We do devote ourselves everyday to the pursuit of what is most right, to support others who are on this quest for those injured by fraud, by flagrant abuse of power, and by the systemic failings to which all of us are vulnerable as actors and recipients. Change cannot be effected by wishing it, it requires the effort of our hearts and our hands! In our case, both are full!

We, like our clients, are hopeful that in the end, those same financial institutions will thank us for increasing investor confidence, and one day with the change in this tide, providing them with more clients based on the raising of the ethical and legal standards in the services they provide to consumers.

GDK.

Holding the Government Responsible?

2009-11-05T19:45:00.000-08:00

Not so long ago, I was consulted by a colleague at another firm, as to what I thought of their claims against the SEC in the Madoff case. I stated that it is difficult not in some way to hold the SEC responsible for the mess and tragedy that has resulted in the Madoff case but that I would wait to see what the SEC IG's Report held in terms of evidence. I think now that I have reviewed the complaint of my esteemed colleague that I was misunderstood.

Can the SEC be held accountable? Maybe. The current complaint is one that has a very steep uphill to climb. Perhaps there are arguments held in sleeve to surprise the formidable adversary. I will certainly be waiting to see what these may be. But as far as I can make it out, the issues of discretion and negligence pervade the case-law, most of which appears well-settled. The most difficult aspect is the tying up of lack of discretion and judgment to the kinds of duties exercised and the ways in which these duties are exercised in the performance of functions at the SEC. The problem is that the very discretion of staffers is what opens them to assaults of negligence and incompetence. The legal web of sovereign immunity is fairly tight on these issues. I am sure those more knowledgeable than myself would find many other situations in which the SEC has been negligent if not downright captive, including one of my clients. It is at best unclear that the SEC/US Government would be held liable in all these instances.

This being said, the question of holding one's government 'accountable' and 'liable' may be two different things. It is one that requires careful thinking about the policy behind statutes created to except the SEC like other government agencies from liability that other ordinary citizens and entities are open to sustaining.

As many of you know, I propose to hold the SEC (certainly past incarnations and administrations of the SEC) 'accountable' for the immense tragedy, domestic and cross-border caused in the wake of the Madoff fraud. The reason I make this distinction is that liability will take a decade to parse out, and the investors and customers of Madoff from as far away as Japan, many of whom did not even know that their money was being funneled to this one mastermind, are older citizens of the world who were trying to put their hard earned money into a safe investment and now find it lost. From my many discussions with investors close and far, it is clear, not one of them wants to wait to get their money back. Could a lawsuit against the SEC, especially one with some real teeth win? Maybe, but who wants to wait? All I hear is that investors and customers alike want to hold the government accountable... it is the meaning of accountability and expedited investor recovery that really interests me and I believe, most investors!

Why is that? It is because of a belief I hold dear. The law is a vehicle to assist and serve those in society come to a quick resolution of their claims. It is not for some of us who have had the privilege and opportunity to go to law school to stroke our egos or perfect our philosophies at the expense of our elders who have been traumatized and shocked by the betrayal of the financial system generally and by the immense impact of this specific fraud. In a situation such as this, where a government agency could have facilitated an earlier discovery and potentially prevented the tragedy (not unlike Katrina) some 16 years ago, the agency must be held accountable and do the right thing! And I for one, will give it every opportunity to do so.

GDK

Launching a firm and new beginnings - Awakening!

2009-10-18T18:33:00.000-07:00

It occurs to me that we lawyers have the good fortune to be in constant contact with beginnings. Without being too cliched about the inception of a law firm, starting out is rife with opportunity and possibility. It can be a very heady feeling for almost every adventurer.... but lawyer? Lawyers have to deal with possibility and opportunity at every turn with a new client, new case, new transaction, new venture. Yet lawyers and lawyering are about promoting and establishing a sense of security and stability for clients... The appearance of justice being done is as important as the fact that justice is actually done, we are repeatedly told. And so, over time, principles of law, briefs in cases, clauses in contracts are akin to the well-worn rubber of tires over-used and now liable to slip at the first sight of drizzle on the pavement. Appearance can, you see, be just that...artifice, the look and feel of stability without the real underpinning of thought, time, imagination, pooling of resources and training acquired by all of us lawyers in law school, but long ago surrendered for the security of a specialty, expertise, and the power provided by a few choice clauses of which we are king or queen. Nowadays we expect only clients to come to us for those special needs and we refer other clients out. The law has gotten complicated and unwieldy. No, not really. The law still has a firm foundation and base to provide, but the application of it to an infinite number of branches above its roots, is starting to look more like the building above is much taller than the base can support? Each area of the law has sprouted new legs, and inhabits a large domain of its own, no matter how small an area it may be. Some legal fields overlap with others and force such attorneys into other industries and even other legal domains, but this is the exception. This means that in order to do a good enough job, lawyers must restrict their focus and professional training out of law school to one or two areas max.

And so, the law has become more constrained and restricted as a profession. Why should accountants have all the fun? Actually, the above analysis could probably be used on the acccounting profession as well. Hence, the slippage in that profession has lately been glaring. What is responsible for this focus? Specialization: supposed attention to minutaie, and expertise in one small domain, that in fact ends up providing the opposite result of rampant and unchecked corruption that no attention to minutaie has been able to prevent? I think there has been so much needless complication, and so much rise in cost of legal services that it does not make sense to charge clients to do the kind of thinking that is really necessary to do on every line of every contract as we once use to do. At $400 to $1200 an hour and sometimes more, how can one justify taking any longer than absolutely necessary to a client, unless the client is a large multinational, who is doing very well. Even in the latter case, that client most likely has an in house legal department for this type of work, figures out what contract language works for it, standardizes the same and starts doing as many deals to make as much money as possible and necessary as quickly as possible. Often it is the outside counsel that are brought in to do the more complicated legal thinking in situations not previously visited by in house counsel. Cross border issues are one such area. I know I routinely help out with this thinking and with contract language in this area. But I don't stop there.

I refuse to work with clients, unless the work involved is meaningful and in some ways even, inspiring. This may surprise lawyers especially. But even contract law, when it is done on behalf of companies that have the right attitude and want to change something either about themselves or the world we live in, from innovation in industry to innovation in communication and community can be inspiring. Choosing then to live with clients that are trying to find creative solutions to their problems, to the problems of their own or other communities, aligns with my vision of how to use all the resources in my tool box, from my six degrees (including 5 law degrees), to my experience as a lawyer on four continents to better lives and serve others while increasing my own vision of client needs' and legal services at large.

Starting out with each client then becomes a fascinating amalgam of opportunity and possibility for both the lawyer and her clients. My current situation of representing Madoff investors is no exception. Each investor is someone who I represent, not just as a lawyer, but as an advocate. I believe in recovery as a just cause because I know the context and the very different situations in which they find themselves. In the representation of businesses, there is much more advisory work relating to positioning of the product or service so that it optimally serves the community(ies) of users. As outside general counsel one becomes an integral part of the thinking machine of the company and its growth, be it through preventative compliance related work, or through business acumen and imagination, or through an acquisition strategy, or even litigation with appropriate ethical guidelines in play. As a litigator, the lawyer is much more specifically in a representative capacity for the client with regard to a particular issue. In some very famous cases, we have seen that lawyers can come to defend or struggle on behalf of countries, and entire communities in a role as advocate because a just solution cannot be found in a courtroom only. The powers that be and decide the fate of that community are larger and more politically based.

I was talking about beginnings and lawyering... about possibility and opportunity and the ability to use all one has in terms of resources. Now there is nothing wrong with going into the law because you want to do a specific job well. But I would ask everyone, not just lawyers to do what they are most passionate about and what most ignites them to use all of their capacities. Without passion, no matter what you are doing, you will not be awake doing it. That may be the most important thing of all... being awake on the job. I think right now clients have been paying lawyers and accountants that have been asleep at the job. Look around you as to what has happened around us with the financial crisis. This is of course not deliberate, it is systemic and systematic, a regurgitated impact of specialized complication, a kind of legal and legalized derivatives from which law firm machines can also be sustained just like so many other machines they must serve. Note this is a generalized comment without specific instances and take it for what it is. But I ask us all to think about how much sleeping our work requires us to do; and how little questioning our work requires of us.

Awakening to what it is you are doing can awaken you to what really needs to be done in new and different ways of your own creation. This requires actual input from you. You will keep using the ways you have been trained, almost by rote, to apply to the problem, but you may also open up to ways that a detective might by taking in every single relevant fact of which you are able to obtain knowledge. Then of course, you may not be the person most suited to attack the problem as you have now conceived it and may have to get help, and or refer the matter out, but you will be thinking on your feet based on present knowledge, fact and application of your training... that in itself is an adventure!

GDK

Nobel prize and its meaning

2009-10-10T22:37:00.000-07:00

President Obama won the Nobel Peace Prize and I heard some remarks about this. "What did he do," were the comments and thoughts I heard. I then read his own remarks at hearing of the news and they sounded right. It is not so much what he did do, but what America did in this election and in setting the platform for change that it has set with this administration that warranted such acknowledgement.

This administration is not getting everything right and perhaps in specific instances that can be disturbing. But I don't imagine anyone gets everything right, certainly not an entire administration... not by a long shot. What impresses me is the intention I hear beneath the rhetoric. The intention is right, in fact it is right on with what I consider all that is good and right. That is often hard to say much of the time when I hear words over the media. Now you and I may not agree with all that is on the platform, but you must give credit for effort. This President is trying really hard to get accomplished what he has said he would. Nine months in... you may not want him working on health care...but he said he would and he is. He appears to be working on the economy also.

Again, he may not get everything right.... but in my books he is getting an A for effort so far.

Is that what the Nobel is for.... no. I think the Nobel is not for great diplomacy either. I think the Nobel is for an amazing thing that happened in America recently that said something to the world about what was possible, but appeared impossible to the world. A man, born to an American woman but the child of a Kenyan man and an American woman, travelled to other countries, spoke other languages, learned about the world, worked very hard, and got himself educated, and sought to serve the public and ran for the senate and then for the presidency... and the American people chose their new leader based on merit, and that leader rose and keeps rising to the challenge and this must be acknowledged. I know I was stunned by it...as much as I hoped for it, because it makes possible for so many of us to do so many other things that we thought were denied to us because we are of color, or a woman, or any number of characteristics that may be used against us as a way to deny us the responsibility and power of our own merit.

There is no question that the world has gained from the example set by America and a new era has been ushered. We do not have many prizes to acknowledge this type of pathbreaking accomplishment... I guess the Nobel is one such.

GDK.

Let's try again - a little humour - humanity in the law and getting to know each other.

2009-10-08T22:52:00.000-07:00

I got no response the first time so let's try again. I will give you a little more of me, let's see if you have something to give back.

I have never written a blog before. So, this is really an attempt to figure out what this new interactive form of communication is all about. I have read other blogs and they usually seem to have a specific topic and discuss different aspects of that topic. I suppose I could do something like that but for me it seems too stiff and defeats the point of the medium. This is not a newspaper article although I know it will be very informative at times once I get going. This is not an essay - that's been done, and keeps being done in other venues. This is something between a chat room (never been to one but I imagine it to be extremely interactive kind of like a busy sauna where people actually talk to each other instead of avoiding eye contact and any other kind of contact unless you are watching one of those movies with tough older corporate moguls who use the sauna for a power talk and big decision making) and a thought-piece, sometimes an article, with many authors.

I am one of those people who think that writing should involve the writer, in this case, many writers. For instance, I am a big fan ofP.J. Coetzee in Diary of a bad year or Slow Man... He is someone who does that better sometimes than I could have conceived of it in my fantasies. At the very least, I could invoke the post modern somewhat forced habit of establishing subject position. But like Coetzee, I think this is a bit passe. We really must move on and into the very real fusion of self in writing and law which is more "integrative," or "integrationist." Perhaps it will lead to more "integrity" in my writing, in my thought, in the way I practice law? If there is anything mildly appealing in form or substance here, and you are persuaded to ever return to further partake of my ramblings in this blog, and become remotely close to a regular, you will see me often come back to this theme of "integration."

Today, I want to tell you that the idea of writing a blog came to me from a movie my daughter and I went to see recently, Julie/julia. [For the blogger in that movie, blogging changed her life in almost every way. She became truer to herself every single day as she wrote and also better and more expanded as a person than she was the day before. What a goal!] In any case, my daughter and I were suppose to be accompanied by my son as well, but he was otherwise occupied. All three of us were very excited about the prospect of this film but the origin of this excitement did not occur to me until this minute.

When my children were fairly young, say 6 and 8 or in that range, I would impersonate Julia Child for them from her TV show as if I was actually on TV making a souffle or some recipe of hers. I did it because I thought she was funny, but I exaggerated her every action so as to elicit from my children the reaction that I knew would give me great pleasure and the incentive to keep going. My kids didn't just think I was funny. They were rolling on the floor, pangs of breathy screams emitting from their mouths that refused to close, as another make believe souffle plummeted and had to be trashed with the exclamation, oops! "Well you know we all make mistakes and you musn't be too hard on yourself," I would end.

I am not sure my kids ever saw the actual Julia Child TV show. We didn't have a TV while they were growing up. But then again, they would have been hungry for this curious appliance in any hotel room we may have visited on vacation. So there is a chance they did. Given the running Julia routine I had perfected with them, interest in the film was only logical. There may have been other incidental benefits too. My son, a senior at College now makes the best truffles from scratch this side of Belgium (I kid you not), and my daughter is an unabashed comedienne. I guess Julia had quite a profound impact on us.

It should not be surprising that as I become an empty nester, I am choosing to hold onto some special memories and weave out my takeaway from the movie that paid homage to her and her legacy. All good stories, and perhaps arguments too, have the thread of care, understanding, and even compelled curiosity that sews the hem of their beginning and end and sometimes the many pockets of memory in between without which continued enjoyment of their making would be lost. As I look back at that special time with my children, I am reminded that it would not have come back to me in this moment unless I was at a good place now. I love to write and this blog will give me a forum to grow my penmanship and thinking in the bright light of your glare.

What more could I ask? To speak of the law, and maybe its purposes. For instance, are we as lawyers coming close to answering the call of service the law demands of those privileged to serve? Is there any humour in service? "You've got to serve somebody," croons/rasps Bob Dylan. The work on the Madoff case makes me think a lot about service. I see so many people, not just myself give of themselves to help the devastated. Of course everyone wants recognition and compensation, but they also just want to help create a better way forward.

There will be so much to talk about with you, serious, funny, imaginative and fantastic. The law is capable of all this and more because it is an extension of human interaction, community, and all manifestations of the human mind, heart, body, and soul. And the point to this story... in case the story needs another point, is that the law starts with you! Hopefully an integrated you!

I am going to stop there for today. I was intentionally short yesterday and intentionally long today to see if giving you a little food for thought may start a conversation.

Jump in anytime.

Starting the Conversation....Investing, law, and fraud.

2009-10-05T19:16:00.000-07:00

Dear Investors:

I am attorney for Harry Markopolos, the whistleblower in the Madoff case. I am an attorney with 22 years of experience in three different jurisdictions. I have recently launched my own law firm because I want to practice a different kind of lawyering, one that is open to a variety of experience in society and brings to bear my own amalgam of knowledge from a variety of cultures and laws. To effectively learn from the public's experience is essential to the way I want to practice law, and current technology enables this possibility. And so I am creating this blog to provide myself and you the public with a forum for our conversation.

I am not providing legal advice in this blog. Nor will I interact with any comment received in an attorney-client form or relationship within the blog. If you are a client and want to speak to me there is a confidential forum for our interaction on my website. You can also email me or call me. This is a forum for conversation with you the public; a way to provide you with resources, information from experts, my associates and colleagues, other law firms, finance and investment consultants, and government leaders from around the world who are trying to transform the current malaise.

I also want to use this as a public forum to air my thoughts and discuss issues relating to the law, and its transformation as we encounter others across borders, in other marketplaces, living through the same hell or heaven and places in between we may be experiencing. I want to think and talk about the repeated slaps of fraud and betrayal investors have recently experienced around the world. I am interested in the way investors may be dealing with such situations, partly of course because I have taken on some of these cases and I want to expand my analyses beyond the purely legal. I want to gain from your insight into what you may think is or is not related to the law in the situations with which you are grappling. Even investors who have not personally encountered fraud are skittish about the market and more distrusting of institutions and advisors. For me, it is important to have a sense of the situation from your point of view.

Without your input, a conversation will not occur. So I ask you to talk to me, and I will respond.