A Round Tuit (3)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.



In a fit of morning-after regret, Hofstra University freshman Danmell Ndonye filed an accusation of rape against four men with whom she'd had consensual sex. The police and district attorney were quick to charge the men and jail them, publicizing their names and pictures as widely as possible. When it came to light that one of the men had recorded the sexual encounter on his mobile phone and Ndoye was confronted with the evidence, she admitted that her allegations were lies and the prosecution quickly fell apart.

Surveying the smoking ruins of a case which had promised to be a high-profile boost to her re-election campaign, Nassau County (NY) District Attorney Kathleen Rice had to decide whether to prosecute Ndoye for her false accusations. Instead of following the evidence, she chose to test the political winds, delaying her decision until, as Scott Greenfield described it, she could determine "which direction will get her the most votes, and the least criticism." One one side, the evidence of Ndoye's falsehood was incontrovertible; on the other, domestic violence activists argued to Rice and to the local press that prosecution of this false claim would somehow deter truthful accusers from reporting the crimes committed against them.

Rather than prosecute Ndoye with the same publicity and vigor as she had prosecuted — or would that be persecuted — the four young men Ndoye had accused (and thereby implicitly publicize her error and the police's in hastily trying the accused in the court of public opinion), Rice sought to make the whole matter go away quietly. She announced her decision not to prosecute Ndoye, but did so after business hours on a Friday, expecting that the friendly local newspaper would find something else to report or the public would lose interest in the case over the weekend. On Sunday, Greenfield noted the vague criticisms of that decision leveled by Rice's campaign opponent, Joy Watson, in the local press and attempted to keep the issue in the public's consciousness; his efforts prompted Watson to comment at Greenfield's Simple Justice blog and that comment, reproduced by Greenfield the next day, made clear how cooperative the local newspapers had been in watering-down her views for the DA's benefit.

Come Tuesday, the adverse public reaction to Rice's attempt to sweep the matter under the rug had not abated. Rice's explanations for her decision were increasingly hollow — she now claimed that in addition to encouraging reporting of (ideally, true) sexual crimes, the non-prosecution allowed all the facts of the case to be publicly known. Greenfield was rightly dismissive:

While it might be worthwhile to parse Rice's explanation in further detail if it truly bore a connection to her decision to decline to prosecute, there is little to suggest that it's anything more than an effort, in the face of public outrage, to re-spin the move..

"There is no doubt that this is not a politically popular decision," said Rice.

Every once in a while, the public will surprise a politician by recognizing their position as fundamentally irrational. It doesn't happen often. The problem now is that Rice's new strategy, that the courts couldn't be trusted to be as tough on crime as she is, makes no more sense than not prosecuting an admitted false rape accuser because it would dissuade true rape victims from coming forward.

If Greenfield was unequivocal in his criticism of the politically-motivated decision not to prosecute a false rape accusation, Patrick of the Popehat blog was just as clear in condemning the many who leapt to defend the recently-arrested convicted rapist Roman Polanski. Some falsified the facts of Polanski's case and guilty plea; some excused the crime based on the length of time since its occurrence (conveniently ignoring that the delay in sentencing resulted from Polanski's flight following his plea); some seemed to offer no rational basis for their defense of Polanski other than the facts that he is famous, his victim is not, and Polanski has sometimes demonstrated talents apart from drugging and raping thirteen-years-old girls. Patrick put things into proper perspective:

Let me be blunt. Polanski is a child rapist. But these apologists, too, are sick freaks. Given their moral sensibilities, I would no more let Patrick Goldstein or Joan Z. Shore be alone with my kids than I would Polanski. Among the sick or stupid ideas such people are willing to promote to defend Polanski are the following:

1. That it is morally acceptable to gloat over the fact that a rape victim does not want the perpetrator tried, even when she specifically says it is because she can’t bear for her family to be dragged through the mud.
2. That the victim’s mother fed her to Polanski to promote her career — as if this is a morally significant mitigating factor, as if it in any way excuses the conduct.
3. That the victim — who, in her grand jury testimony, referred to the act performing cunnilingus as “performing cuddliness” — was a sophisticated seductress.
4. That it is irrational or vengeful to pursue a child-rapist for 32 years, because moral responsibility for rape has a shelf-life.
5. That it is irrational or vengeful to fail to forgive a child-rapist, and excuse him from legal consequences, when he previously experienced great hardship.
6. That living a life of luxury in France is a great hardship. (For people with normal moral sensibilities, to whom rape is not properly classified as “sexual liberation,” I grant you it might be.)
7. That Great Men of letters exist on a different plane, and that right-thinking people overlook their peccadilloes.
8. That opposition to drugging and having sex with 13-year-olds — let alone raping them — is a sign of Puritanism.
9. That the Fugitive Disentitlement Doctrine, which generally prevents fugitives from litigating their cases in the forum they fled, is somehow unfair.
10. That a trial judge is bound by the deal a defendant cuts with the prosecution.

Politics Daily columnist David Gibson wondered whether those apologists would be so quick to defend "Father Polanski":

There is the obvious parallel to the cases in the Catholic Church, which have rightly scandalized the public and the media. Prosecutors and plaintiffs' attorneys have been dogged in pursuing these cases -- whether out of concern for their careers or for justice -- and the outrage was so widespread that the State of California created a one-year window in 2003 during which the statute of limitations on abuse crimes by Catholic priests (and others) was lifted. That meant the victims of men who were often long dead could finally get their day in court, or find some sense of justice and closure -- and for cases that were no more egregious than Polanski's abuse of Geimer. Polanski is alive, at least.

Comparisons are by their nature invidious. But what if Roman Polanksi were wearing a Roman collar? Would "Monsignor Polanksi" receive the same considerations? As Father Thomas Reese, a Jesuit, writes at the Post's "On Faith" site, "Imagine if the Knights of Columbus decided to give an award to a pedophile priest who had fled the country to avoid prison. The outcry would be universal." And rightly so, as Reese says. But Polanski gets an Oscar in absentia in 2003 and earns sympathy because he can't receive it in person.

When a woman makes a false rape accusation but escapes liability due to the prosecutor's political sensitivities and when a convicted — and admitted — child rapist and international fugitive is loudly defended by his admirers in Hollywood and abroad, one can say with some certainty that the scales of justice needed a bit of rebalancing this past week.



Still in the criminal justice trenches, fighting the good fight, were more than a few legal bloggers. A couple found time to write intensely personal, compelling accounts of their efforts.

Norm Pattis shared his thoughts and fears while awaiting a jury's verdict with his client:

The jury has been out for the better part of two days now. They are considering four charges: murder, attempted murder, assault in the first degree and criminal possession of a firearm.

....

We are hopeful, but scared. The stakes are enormous and everything in my client's life depends today on the decision of twelve strangers now locked for a couple of days in a small room. The jurors will return to this pressure cooker today, and the judge will no doubt turn up the heat by [instructing the jurors to continue deliberating]. I am glad I am not a juror.

The result of those deliberations — to convict on some but not all of the charges — was ambiguous. Pattis wrote:

Yesterday the jury decided that it could not decide what happened as to the murder. It also decided that it could not decide whether there was an attempted murder. No verdict means a mistrial. The state can now bring him to trial all over again, at least as to the murder.

The jury convicted my client of assault in the first degree and the firearms count. It also found facts sufficient to enhance the penalty by five years. We expected to lose the firearms count, and hoped for acquittals in the remaining three counts. It did not happen. Did we lose?

I say we did, and it hurts.

....

Some friends have congratulated me on the outcome. "Great job!" one wrote. Staring down murder and attempted murder charges in a case where apparently unarmed women were shot point-blank by a much larger man is not easy. But it does not feel like a win to me. Those taunting me for failing have found their mark. I am an easy bleed, I am afraid.

Jeff Gamso discussed his thoughts about the self-doubt and brutal introspection in which all good criminal defense attorneys engage, and none more so than those who defend capital cases:

I was in a waiting room across from the death house at the Southern Ohio Correctional Facility. My client had just been executed, killed by the state of Ohio. I hadn't represented him at trial, hadn't been the one, as we say in this business, to put him on the row. But I hadn't gotten him off, either. And now he was dead. I wasn't a witness to the killing, but I'd seen the body in the body bag wheeled out of the death house and into the hearse.

And the family came up to me, not all of them and not together, but one at a time, his mother first. It was like a mantra as one after another said

You did all you could

Meaning it for comfort. Meaning that it was all that could be done. Meaning that some god had chosen and I should know that I'd tried my best and they appreciated that. And I said to each of them, "Thank you." Because what else can you say. But you know, there's no comfort in those words.

It's not that they're empty. They're meant sincerely, the motive is pure and the sentiment is all positive. But that's from the speaker.

At your end, when your client has just been murdered and you've been powerless to prevent it, the only answer is that if this is all I could do, then I'm not good enough. And if it wasn't all I could have done, then I'm neither good enough nor diligent enough.

Stung by an undercover investigation which revealed the... um, seedier side of ACORN, the now-discredited group turned to the courts, filing a claim alleging illegal wiretapping under Maryland law by the investigative filmmakers. The suit seems like a poorly-advised strategy; it's unlikely to repair the political damage which caused the federal government to cut-off the group's taxpayer funding and is unlikely to mitigate the damage ACORN has suffered in the court of public opinion. Exposure of the group's tax-avoidance advice to supposed pimps, prostitutes, and child traffickers, all funded by the taxes paid by more honest folk, tends to raise one's ire (assuming one is of the latter persuasion rather than the former).

As Ken explained in the Popehat blog, the claim makes little legal sense, either. The principal objectives ostensibly sought by ACORN are generally precluded by existing case law, which tends to indicate (as many have observed) that the claim was likely filed to harass the filmmakers and the conservative-leaning website which broadcast their findings. In other states, so-called Anti-SLAPP laws penalize such claims when they are, as appears to be the case here, brought to chill public debate and criticism. In a follow-on post, Ken discussed the somewhat diluted Anti-SLAPP law in Maryland and wasn't optimistic that it would provide much meaningful relief to the defendants:

In short, Maryland’s anti-SLAPP statute sucks. It seems likely that it was rendered substantially useless by the pro-plaintiff-attorney legislative forces that opposed it. It might provide a procedural vehicle for Breitbart et al. to raise First Amendment issues, but it isn’t the killshot that it could be in some states. Too bad. I really love California’s anti-SLAPP statute. Winning one, and watching your opponent realize he will be paying your fees, is one of the great pleasures of First Amendment law.

ACORN and its backers sorely need to be taught a lesson; pop singer Lily Allen just learned a somewhat lesser one.

Allen decided to take to the blogosphere to argue for tougher copyright laws and tougher penalties for those who infringe them in trading digital music. She got off on the wrong foot by copying without attribution comments made by Michael Masnick, a respected authority on copyright issues writing at the Techdirt site. When the plagiarism was called to Allen's attention and Masnick's, he was philosophical; she was defiant. When Masnick noted that at her website Allen had also posted "mixtapes" of music she liked in violation of the very copyright laws she argued should be strengthened to benefit her business interests, she was defensive. Masnick, in a lengthy post, sought to use Allen's copyright transgressions as a "teaching moment" to illustrate the absurdity of current copyright laws and of efforts to enforce draconian penalties for their violation:

If you truly believe that regular uploaders should have their internet access taken away, why not make an example of yourself? Why not take away your own internet access for a year to prove the point? Or do you not think the laws you want to apply to everyone else should apply to you?

Again, the whole point here is that what you did was entirely natural and made plenty of sense. Lots of people do it today. They do it because they love music. There's nothing wrong with that, and you know it (or, apparently, knew it at one point in the past). And, there are many ways to take advantage of that fact. Just as 50 Cent does. Just as you did. Going to war with the fans who made you who you are today, in part because of your own infringing behavior, just doesn't make any sense. You keep saying that file sharing harms artists, but it existed five years ago as well, and didn't harm you. It helped you. So why would you want to take that away from everyone else?

Allen's response was to delete her entire blog, claiming that it had been abused. Masnick chided her, "Lily, it's not abuse if we're just asking you to rethink your positions that appear to not be particularly well thought out."

The Allen-Masnick kerfuffle caught the attention of widely-read Boing Boing blogger and author Cory Doctorow, who made no secret which side had his support:

It's tempting to count coup here and write Allen off as a hypocrite, but there's a more important story here. Allen just hasn't thought this through. Copyright is problematic for everyone: musicians, fans, bloggers. The absence of clear affirmative rights to make personal copies, to share with your friends, to copy for the purposes of discussion and commentary (as opposed to the fuzzy and difficult-to-interpret fair use guidelines, which have been further confused by the entertainment industry's bold attempts to convince us all that they don't matter and can't be relied upon) means that we're all in a state of constant infringement.

A law that no one understands and no one abides by is no law at all. Parts of copyright -- the right to regulate how commercial licenses with industrial entities work -- are really important to me and to all working artists. But if we continue to try to expand copyright to cover everything, every interaction that involves a copy (which is every interaction these days), then the broad consensus that copyright is nonsense will continue to grow, and we'll lose the good stuff as well as the ridiculous stuff.

For his part, Masnick continued demonstrating why his writing concerning copyright is worth plagiarizing in the first place; he noted the entertainment industry's convenient flip-flopping about whether their works are owned (and thus capable of being "stolen" like physical goods) or licensed and explained why the distinction is critical to make. If you've not yet bookmarked Techdirt and started reading Masnick's writing regularly, do this now so that you may speak authoritatively about critical intellectual property issues at your next cocktail party.

There was a passing of the torch this week at Law.com's Legal Blog Watch. Carolyn Elefant stepped down from the blog after (she reckoned) approximately 1,680 posts over the past three-and-a-half years. Her co-blogger, Robert Ambrogi, wrote that "what I didn't fully appreciate when we started out was just how good a writer she is. Through reading her posts, I believe, I learned how to be a better blogger." In introducing himself to Legal Blog Watch's audience, Elefant's successor, Bruce Carton, recognized that he has big shoes to fill: "First off, let me just say that I know this won't be easy." Best of luck, Bruce.

Finally, I want to mention a guest post at Mark Bennett's Defending People blog this week. Bennett's friend, Josh Reiss, wrote that his wife, Anh, has a blood cancer called Myelodysplastic Syndrome and needs a bone marrow stem cell transplant. He and others have established "Team Anh" to promote more widespread registration for bone marrow donation. In reading his post and the information at the Team Anh and DKMS Americas sites, I learned how simple (and painless) both the registration and donation processes are. Bone marrow donation registration is one of those "I know I should do it" things which I somehow have never found the time or will to do. I'm grateful to Mark and Josh for prompting me to finally do it; my registration kit is on its way. Please take a look at Josh's post and get registered. Like me, you probably already understand the need and want to help, but were just waiting for a "round tuit". These folks have them to spare.

Vegas, Baby, Vegas!

The ads say that what happens in Vegas stays in Vegas, but word was bound to get out about this week's Blawg Review #231, hosted at the Legally UnBound blog. Kael Garvey, the blog's pseudonymous Vegas-resident proprietor (none of us use our real names when we go to Vegas) takes us on a tour of Sin City and the best legal blogging of the past week.

Garvey very graciously opens with some flattery for last week's Blawg Review, hosted at Unsilent Partners by Mike Semple Piggot and me. I do feel the need to correct him on at least one point, however. He refers to us as the Blawg Review "establishment"; technically, Mike is anti-establishment (Blawg Review or otherwise) and I'm too flaky to be established as much of anything. Thanks, though.

Highlights of Blawg Review #231 include celebrating innovations in the desert and innovators in the law, covering The Juice in the system and juicing the system, and appreciating lying and gambling for their strategic values. If you're not too hung over after leaving Las Vegas, next week's Blawg Review #232 will be hosted by Susan Cartier Liebel at Solo Practice University.

TGIS: Thank God It's Schadenfreude! (238)

This week's joy in the misfortune of others comes courtesy of Hit & Run (from Thursday, September 24; link good at time of posting):

New York City Mayor Michael Bloomberg has a salty tooth. According to The New York Times, Bloomberg liberally salts his pizza, throws so much salt on his morning bagel that "it's like a pretzel," and "likes his popcorn so salty that it burns others' lips." In a sane world, no one would care about such trivia. But in a world where paternalistic busybodies like Bloomberg tell people how to live their lives and do not hesitate to use force (in the form of smoking bans, cigarette taxes, and trans fat prohibition, for example) when scolding fails, the mayor's eating habits are newsworthy. The Times rightly perceives a contradiction between the mayor's salty diet and his administration's campaign against salt, which has included "asking restaurants and food manufacturers to voluntarily cut the salt in their dishes by 20 percent or more, and encouraging diners to 'shake the habit' by asking waiters for food without added salt."

The Times also suggests there's a tension between the city's rule requiring the prominent posting of calorie counts on restaurant menu boards and the mayor's fondness for hot dogs, fried chicken, cheeseburgers, and "burnt bacon and peanut butter sandwiches." The mayor's aides emphasize that he makes up for his overindulgences by cutting back the next day and manages to keep a trim figure

[Previous TGIS]

War! What is it good for? Absolutely... well, quite a lot, actually.

Mike Semple Piggot and I host Blawg Review #230 at our joint Unsilent Partners blawg. It is a respectful tribute to tomorrow's United Nations International Day of Peace:

Officially of course, we’re against war, as it’s undeniably destructive to humans and their works. Peace is a much more palatable concept until one realizes that there are certain conditions which should not be allowed to continue in peace and certain people with whom one can not reason peacefully. At that point, humanity is characterized not by the avoidance of war but by a willingness to accept the burden of war and seek to resolve otherwise intractable situations as humanely as possible. War is certainly not the answer to every international problem, but there are some things that are worth fighting for. Who understands that better than soldiers and lawyers?

Thus, while 21 September is officially the United Nations’ International Day of Peace , we’ll leave the encomia of peace to others and offer a brief but heartfelt appreciation of war here at Unsilent Partners. Notwithstanding, as this has been designated a day for international ceasefire, we promise not to shoot anyone until tomorrow morning.

When I said "respectful" I meant, of course, "disrespectful". Kael Garvey will host Blawg Review #231 next Monday at the Legally UnBound blog. I'll return with another Round Tuit post here at Infamy or Praise next week on Wednesday.

TGIS: Thank God It's Schadenfreude! (237)

This week's joy in the misfortune of others comes courtesy of CNN (via Boing Boing) (from Monday, September 14; link good at time of posting):


[Previous TGIS]

Harvard's not the douchiest, but still douchy enough for Blawg Review.

Harvard alum Barry Barnett hosts this week's Blawg Review #229 at his Blawgletter site on the anniversary of John Harvard's death. Right off the bat, we learn a few things about Harvard, including that he had no involvement with the founding of the university which bears his name and that he spelled his name with only two a's, unlike Haaavaaad University does today.

Barnett notes that Harvard Law School suffered a bitter defeat recently to Duke Law School in a contest to determine the "Douchiest Law School" in America. Tough loss there, Harvard. Take some consolation, however, in the fact that you and your notable alumni will always be douchy enough for inclusion in Blawg Review. Barnett's Blawg Review is understandably Harvard-heavy, but he does gather some of the best legal blogging from last week, regardless of writers' alma maters. Highlights of this edition include letting animals enforce their own rights, treating McDonald's like clowns in India (Ronald McCurry, anyone?), and turning law school gamers into law firm apprentices.

For both fans of the "Round Tuit" posts, there will be no Round Tuit here today; Mike Semple Piggot and I are already gearing up for our joint turn hosting the carnival of legal blogging, next Monday at our Unsilent Partners blog. Round Tuit will be back here at Infamy or Praise the Wednesday after next.

TGIS: Thank God It's Schadenfreude! (236)

This week's joy in the misfortune of others comes courtesy of BBC News (from Thursday, September 10; link good at time of posting):

Broadband promised to unite the world with super-fast data delivery - but in South Africa it seems the web is still no faster than a humble pigeon.

A Durban IT company pitted an 11-month-old bird armed with a 4GB memory stick against the ADSL service from the country's biggest web firm, Telkom.

Winston the pigeon took two hours to carry the data 60 miles - in the same time the ADSL had sent 4% of the data.

....

According to Winston's website there were strict rules in place to ensure he had no unfair advantage.

They included "no cats allowed" and "birdseed must not have any performance-enhancing seeds within".

The firm said Winston took one hour and eight minutes to fly between the offices, and the data took another hour to upload on to their system.

....

Hundreds of South Africans followed the race on social networking sites Facebook and Twitter.

....

Meanwhile Telkom said it could not be blamed for slow broadband services at the Durban-based company.

[Previous TGIS]

A Round Tuit (2)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.


The blogosphere is a sociable place and the legal end of the neighborhood is generally no exception. Hop around from blawg to blawg and you're certain to see many guest posts from writers not normally associated with those blogs. For those unfamiliar with the common practice of guest blogging, in general the keys for using posts written by others are to 1) identify the writer and 2) secure the writer's permission to use the post. If you fail to abide by these simple rules, you are 1) misrepresenting others' work as your own (or at minimum failing to give proper credit where due) and/or 2) stealing. If you are a practicing attorney, this demonstrates that you are 1) an asshat and/or 2) an unethical attorney. If the content you're taken is that of the widely-known and well-respected Texas criminal defense attorney Mark Bennett, you are 1) stupid and 2) stupid.

Some months back, Scott Greenfield was displeased to discover that his RSS feed was being "scraped" and reproduced by an outfit called USLaw. When confronted by Greenfield, USLaw behaved unprofessionally; their unsatisfactory response prompted Greenfield to reconfigure his feed to offer only partial posts. While this is entirely understandable and part of a Greenfield post beats a dozen posts from most bloggers, the change was not in Greenfield's interests or his readers'; it was a necessary but regrettable response to unprofessional behavior. For what it's worth, while it was well beyond fair use for them to reproduce the posts as they did, USLaw didn't represent Greenfield's writing as anything but his work. USLaw behaved unprofessionally, but they were not obligated to do otherwise. As far as I can tell, they are not practicing attorneys; although they operate in the broader legal internet space, they are not legal professionals bound by codes of ethical conduct and subject to discipline for unethical behavior.

Without excusing USLaw's conduct, what's been done by attorney Melina Bennighoff or on her behalf by a marketer is much more objectionable. As Bennett explains, Benninghoff scraped posts from Bennett's blog and others' without those authors' consents and reposted these on Benninghoff's blog. It is noteworthy that the reposted items are identified as "by benninghofflaw". A cursory search online revealed that Benninghoff has also set up several Twitter accounts with false names and pictures to drive traffic to her singularly ridiculous blog and boost her position in search engines.

What this boils down to is a practicing attorney lifting copyrighted content from other sites and presenting it as her own work for commercial benefit. That she may have hired a marketing consultant who has done these things in her name and for her benefit may be meaningful to some, but it shouldn't matter; attorneys are, and should be, ethically responsible for their own actions and those of their agents. As Bennett notes:

Melina Bennighoff is suffering from one of two indistinguishable conditions: either she has hired a legal marketing “expert”, or she is absolutely batshit insane. No sane and ethical lawyer would possibly think that what she’s doing is a good idea, but when you outsource your marketing you also outsource your ethics.

If that seems appalling to you, you're not alone. Brian Tannebaum found that, nearly as quickly as her online transgressions were publicized, Bennighoff's blog and Twitter presences were yanked from public view. He properly holds her responsible for her marketer's activities on her behalf:

Ms. Benninghoff is yet another criminal defense lawyer whose internet presence is nothing more than other's writings. Not a single blog post is hers. Her twitterstream, is not her talking to others, it's just repetitive posts linking to stuff she hasn't written.

I know how this happens.

Lawyers desperate for business meet internet marketers desperate for business. The lawyer says they have no time for twitter or blogging or any other internet marketing.

Not a problem. Some tech scum can aggregate stories and blog posts written by others so it creates "content." Then, the links can be auto tweeted, and the lawyer has to do nothing.

It's disgraceful.

Scott Greenfield suggests that, as it brings our profession into (greater) disrepute, the theft of online content is particularly reprehensible when committed by legal professionals; notwithstanding, as he points out, it's a much more widespread problem — the ease with which content can be stolen has given rise to a sense of "geek entitlement". He writes that naming-and-shaming is an imperfect remedy, but an appropriate and at times effective one:

We can shame them by making sure that as many people as possible are aware of the fact that they haven chosen to engage in unethical, scummy conduct. We can undermine their purpose by using our page rank to surpass their page rank, so that when they not only obtain no benefit from their sleazeball tactics, but our perpetually held out to ridicule for what they've done.

It's possible that Melina Benninghoff doesn't even realize that she's become the butt of some very harsh criticism. It's possible that she allowed some ignoramus to have his way with her lawyer marketing strategy. But this remains her responsibility; Responsibility is what being a lawyer is all about (and no, it's not about making lots of money so you can achieve work/life balance). Whether she actively or passively failed to take responsibility for her online presence, she remains responsible. That's one of the burdens that comes along with a law license. Too hard to do? Tough.

If Benninghoff is a real lawyer, then she will profusely apologize to Bennett, and everyone else she's harmed. She will admit her wrong and acknowledge that she has wallowed in the gutter. She will learn from this egregious wrong. She will no doubt be given a stern lecture, but will ultimately be forgiven, for she is but one of a multitude of bone-headed lawyers who have been taken in by the culture of legal marketing and social media that has undermined what little remains of the integrity of the profession. In other words, she's neither alone nor special.

Jeff Gamso shares Greenfield's concerns about the effects of this sort of activity on the profession's image generally, and he minces no words in expressing that:

There are any number of reasons, some of them good, why people don't trust lawyers. And when we're out here on the web, when we lay ourselves out, reveal our beliefs and attitudes, our passions, our concerns, we open ourselves up.

And then the Melina Benninghoffs come along. She's an ethics complaint in waiting, a disbarment to come. She's a liar and a thief. Even if she's a great litigator (and it's hard to imagine that she is), you shouldn't hire her. You don't want her in your corner.

But if she has an enemies list, it'd probably be an honor to be on it.

Confronted by Bennett, Benninghoff's marketer, Wayne Conley, responded unconvincingly and set-up a fake Twitter account using Bannett's wife's name. At Legal Blog Watch, Carolyn Elefant wrote about the whole sorry affair, calling it "Law Firm Marketer Gone Wild". She advises that, "The moral of the story. Be careful -- very careful -- of who you allow to market for you online. As this incident bears out, bad publicity is NOT always better than no publicity." Bad publicity travels far and wide online, and quickly. More than four thousand miles away, British legal blogger Charon QC wrote, "Frankly, I am appalled by this – it is a form of highway robbery and when done by a lawyer blogger it is pretty piss poor."


I'm an admitted fan of Google's book scanning and indexing efforts. Even I'm a little concerned though, about the proposed settlement being hammered-out by the company. Deven Desai notes that "the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question." He explains why that should concern us:

It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others.

....

[I]n brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals.

....

Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.

Back in July, law librarian Mary Minow expressed serious reservations about the lack of reader privacy protections in the settlement; Peter Hirtle reports that Google has since issued a new privacy policy for its Google Books project. He notes that the new policy meets current guidelines but is nonetheless criticized by some:

Google is more than compliant with current library standards for 3rd-party privacy protection. EFF argues that "Given the important free expression interests at stake and the long history of protecting reader privacy by libraries and bookstores, readers need a durable guarantee of protection enforceable by a court." No library has been demanding such a guarantee before now. One has to wonder if the current criticism of Google wouldn't be better directed at libraries and their privacy requirements when working with outside vendors.

Writing for EFF (the advocacy group Electronic Frontier Foundation), Cindy Cohn points out that many aspects of Google's new policy are aspirational rather than binding commitments and that its recourse to limited state laws on this subject are inadequate both for domestic and international readers. She writes, "We're pleased that Google is taking these good positions, among others, on issues we raised during our discussions with them over the summer. But to do right by readers — and the authors and publishers who stand with them for reader privacy — Google needs to do more."


If you spend as much time watching and listening to Major League Baseball broadcasts as I do, you've probably heard their "no rebroadcast, retransmission, blah, blah, blah, account of this game, express written consent" nonsense so often that it really no longer registers. The effort of one consumer blogger to get express written consent allowing him to provide an account of a game to his buddy was met with some confusion (but no consent) from Major League Baseball. Mike Masnick wrote about the request and MLB's ongoing copyright overreach:

Now, obviously, this is a bit of a joke (and a funny one), but it does highlight a rather serious problem. Copyright holders are pretty regularly claiming significantly more rights than they actually hold over content, and many people simply assume that they can do this. This leads to them to think that they don't have basic rights concerning not just "fair use" but stuff that is obviously not covered by copyright, such as an "account of this game." There really should be sanctions against such copyfraud.

Eriq Gardner doesn't necessarily disagree with Masnick that "there oughta be a law", but he can at least suggest a motive for MLB's position: "MLB's claims of authority over the "account" of a game could be obsolete, but with the development of instant-media technologies, it probably wants to stake its ground just in case."

This week's SCOTUS arguments in the Citizens United campaign finance case were very ably previewed by Lyle Denniston. I remarked on Twitter that this post demonstrates again that Denniston is simply the best Supreme Court reporter around today. Full stop. No "amongst bloggers" or "apart from [insert print journalist name here]" caveats needed. Denniston explains the significance of this case:

[T]here has been fundamental disagreement on whether the various curbs on corporate political activity, often reinforced, have been effective, or whether corporations have easily found ways to evade the restrictions. That disagreement still looms in the background of the Citizens United case.

There are two other layers of disagreement in that background. One is over whether it makes constitutional sense to treat the spending of money as “speech,” and the spending of money on election campaigns as “political speech.” But that is a disagreement outside the Court; it is clear that the Court regards such spending to be speech that has at least some protection under the First Amendment. The Citizens United case may determine how much.

And the other layer of disagreement is whether corporations are entitled to some of the same protection, under the Constitution, as real people: in other words, should they be treated as “persons” who actually have constitutional rights? Once again, that appears not to be open to doubt within the Court. The origins of the notion that corporations are “persons” with constitutional rights are somewhat obscure... but the Court does not question that they are persons in a legal sense. The coming decision in Citizens United will accept that as a premise for whatever rights corporations are found to have as political financiers.

....

What apparently is not at stake (unless the Court ultimately speaks very broadly in favor of corporate “political speech”) are laws that bar corporations from donating their money directly to candidates — the type of ban in effect for more than a century. The restriction now in dispute — lesser, but still resented by many corporations and their defenders – forbid them from using corporate money to advocate, independently of any candidate organization, the election or defeat of a candidate. That is what is called “independent spending” on campaigns. The Supreme Court has upheld that kind of ban — at least when applied to corporations. Two of the Court’s most important precedents that did so must now withstand fresh scrutiny.

Dan Hull observes:

[I]f you are outside counsel, or even inside counsel, and "do" litigation, you are presented with all manner of improvements and changes a good client can and should make to its operations right away.

Like now.

Now, before the next order is received, before the next shipment is made, before the next employee termination, before the next disposal of that residual waste from day-to-day operations.

But how many of us--outside counsel, and even GCs in litigation management and oversight--don't say or do anything, or simply put it off, because we think it's not part of our "litigation" job?

Or we think it's a problem we'll mention to the polite transactional and tax lawyers down the hall--the ones the client has used to plan and grow for decades--when and if we get around to it? But we never do take action on it. It becomes a well-meaning "things-to-do" note made in the excitement of the beginning of a fight.

Litigation often hands you the chance to add long-term value immediately--and solve an operations problem before you finish the barest outline of the Answer or Rule 12 Motion.

As an in-house attorney, I've been fortunate to work with some great outside counsel on various matters over the years. These folks are all highly-educated, intelligent, experienced, professional problem-solvers; the best of them aren't busybodies but they also aren't shy about making the sorts of suggestions Hull outlines. It's true that not every suggestion is pure gold and few outside counsel understand our business so well that they can adequately consider all that their suggestions would affect. They shouldn't worry so much about that. Leave that evaluation to us. Outside counsel should just understand that if they spot an issue affecting a client's longer-term interests, they shouldn't hesitate to point it out or, better yet, suggest a course of action.

Where does one go to recruit that kind of attorney? Hull has often blogged about the difficulties he's faced in finding the sorts of young lawyers his firm and his clients need and deserve. Hull's co-blogger, Rob Bodine, writes that "graduates of elite law schools are less satisfied with the long hours associated with those jobs, in part because they view them as mere stepping stones towards their actual target positions. Nevertheless, large law firms cling to the policy of preference for the elite graduates. Should they?" He suggests that firms need to focus some attention on finding quality "grunts" at non-elite law schools.

Nothing is certain except death in Texas.

Law is Cool founder Omar Ha-Redeye hosts Blawg Review #228 this week. Highlights of this edition include a bitter interview of an asshole from a douchy law school, networking in good times and bad, and debating the role of the government from Obamacare death panels to Texas' death penalty. Barry Barnett will host Blawg Review #229 next week at his Blawgletter site. Barnett advises that the theme will be "Something about John Harvard, an English pastor and namesake of Harvard University." By the time he posts next Monday, Harvard's eponymous law school might just be the Douchiest Law School in the country; regardless, win or lose, they made a strong showing, of which I'm certain old Johnny would've been proud.

TGIS: Thank God It's Schadenfreude! (235)

This week's joy in the misfortune of others comes courtesy of Legal Blog Watch (from Tuesday, September 1; link good at time of posting):

If experience is the best teacher, then Denver immigration lawyer Ravi Kanwal certainly knew his stuff when it came to representing illegal aliens. You see, Kanwal was himself in the United States unlawfully. Problem is, he never told anyone about his status. Not his clients. Not the immigration judges he appeared before. Not the federal immigration authorities he worked with.

Somehow, Kanwal's unlawful status came to the attention of immigration authorities. On July 8, the Executive Office for Immigration Review, a division of the U.S. Department of Justice, suspended Kanwal from practice before immigration tribunals.

....

That was not the end of Kanwal's troubles. His case also made its way to Colorado's lawyer disciplinary authority. On July 21, the state's presiding disciplinary judge suspended Kanwal from the practice of law in Colorado for one year and one day, effective Aug. 5.

[Previous TGIS]

A Round Tuit

My grandfather was an industrious sort. He used to say that he'd get some task or chore done when he "got around to it"; he'd then reach into his pocket to produce a wooden disk the size of a half dollar with the word "Tuit" written on it and excitedly bustle us off to do whatever it was that needed doing.

I thought of that recently as the to-do list grew at the office, my motivation to do my weekend chores waned, and my writing slowed to a trickle. Fortunately for us in this modern age of international commerce, Round Tuits can be had for a small charge. The above image is of a coaster-sized Round Tuit offered by the well-known online legal gift shop Carbolic Smoke Ball Co.

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it. Now that we have a (virtual) round tuit, I thought I'd take a moment to share a few posts worth your attention mid-week.


Eugene Volokh and Douglas Berman reported a recent decision by the North Carolina Supreme Court in Britt v. State, concerning the right to bear arms under that state's constitution. Volokh notes that "since this is an interpretation of the North Carolina Constitution, the decision is final, with no basis for further review by the U.S. Supreme Court...." Because the state's constitutional language parallels the Federal Constitution, Berman took the opportunity to consider a few possibilities:

1. Does this ruling automatically extend to all other NC felons who can show a "history of respect for the law [and] the absence of any evidence of violence" in their lives? My guess is that a lot of drug and drunk driving felons might reasonably make such a claim; but do they need to go to court to get a formal ruling that they are like Britt?

2. Because Britt had his civil rights restored under state law, he is no longer prohibited under federal statutory law from possessing a firearm. But can this ruling help NC felons who don't have their civil rights restored if and when they get charged in federal court with felon-in-possession under federal law?

3. Will any lower federal courts be moved by the bold and clear assertion in Britt that the NC blanket ban on felon gun possession is "an unreasonable regulation, not fairly related to the preservation of public peace and safety"?

Lacking the intellect to reason through those excellent questions, the first thing which came to my mind was that old joke about a fellow who misread the Second Amendment and took a load of weapons to the forest to arm bears. Rick Horowitz was perhaps thinking along those same lines when he recalled his father's saying, "If worms carried shotguns, robins wouldn't eat them. "

It's been said many times that bad cases make for bad laws and, as Horowitz notes, a couple of recent bad cases are likely to make for more bad criminal laws in California. An incident in the Central Valley in which a ten-years-old boy shot his father prompted calls for increased criminal penalties, particularly against younger offenders; in Northern California, the revelation that a convicted sex offender had imprisoned a girl for eighteen years after kidnapping her at age eleven threatens to derail efforts to release non-violent offenders and ease the state's prison over-crowding. Horowitz is particularly critical of the state's Republican legislative minority's efforts; he writes:

Forget that our laws are already among the most draconian in the nation and that therefore California leads the pack — competing even with other countries for the lead — in locking up its citizens. Forget that most of the laws do not and cannot actually achieve their desired goal. Forget that all this is the primary reason California is going broke and unable to fund important social programs (like schools).

....

Comes the cry from Repugnicans, this case is proof that our laws are too lenient. We need tougher laws than those already bankrupting California. We should not be letting prisoners out early. We need to lock people up longer. Hell, if you commit a crime — Repugnicans don’t seem to care how trivial — you should never get out of prison. Ever. As in “E-V-E-R” for the rest of your natural life. The Taliban got nothin’ on California Repugnicans.

Kevin O'Keefe urged lawyers to "seize the moment" this week, suggesting that the present technological and professional climate offers unique opportunities to those willing to take a chance:

At some point in your life guys, you need to make a move. You need to go for it. No one is going to come along and hand you the type of clients you want so you can do the type of work you dream of. Luck is the residue of planning, hard work, and moderate risk taking.

You're so fortunate that at no time in the history of the legal profession has it been easier to get what you want.

....

Seize the moment. There's never been a better time to do so.

Do it for yourself. For your family. For your employees. For the people you can help. And for the image of our legal profession - we need a few caring champions.

The curmudgeons amongst us might mutter that the present economic climate just means that many of us have little left to lose in a risky new endeavor. Everyone's right. Perhaps a few people just needed to get a round tuit? If by "a round tuit" one means developing basic lawyering skills and refocusing on client needs, Brian Tannebaum tends to agree. He writes, "There will always be some form of BigLaw. Big companies can't have the law firm of You and Your Partner, P.A. handling the hundreds of legal matters that they face. But what will change, is that Big Company will no longer tolerate BigLaw's big billing and the use of one too many associate on their matter. The winners here are solo and small firm lawyers, if they play it right and get back to basics[.]" A good place to start developing one's skills would be Matt Kaiser's new Federal Criminal Practice class at Solo Practice University.

In a series of posts (here, here, here, and here), Ken of the Popehat blog reminds us of the uncertainty of life. His home in Southern California is threatened by the massive Station wildfires currently burning near La Canada. He writes of "the taste of ash" with which he and his family have lived for nearly a week now. Last Saturday, he told us that things were "looking grimmer":

The Station Fire in La Canada Flintridge, the town where I grew up and the town next door to us in La Crescenta, is out of control, 5% contained at most. The winds are blowing towards us today, the heat is scorching, and the dry brush of Angeles Crest is strong fuel. The day started in a dim haze of smoke and ash, and throughout the day the great malevolent plume, looking like a mushroom cloud, has roiled and turned shades of coffee and chocolate as it has found rich veins of fuel. Huge swaths of the mountains, typically covered in tans and army greens, are denuded. There are now evacuation areas west, east, and north of us. The nearest mandatory evac area is about 8 blocks north, the nearest voluntary area about four blocks north. Could the fire get to us? Possibly. If it did, it would be catastrophic in loss of homes — on the order of the Oakland fire some years ago.

As the fires moved closer, his family and many of their more valuable possessions were moved to relatives' homes nearby but out of the path of the blazes. Finally, on Monday, Ken wrote that he had received a mandatory evacuation order from fire authorities. Many firefighters from my area have been dispatched to Southern California to assist in the efforts there; if I was a praying sort of fellow, my prayers would be with Ken and his family right now.

Perhaps "carpe diem" means finding joy where one can, as Norm Pattis has. He wrote this week of "the joy of hate mail":

I hate to say this, for fear of what it will attract, but anonymous hate mail is good for the soul. I get a piece from time to time. Receiving it is sort of like an atheist's trip to a confessional.

....

But I thank the hateful writer. This past weekend, I have reviewed my hate list. There are folks on it who have vowed to kill me. We keep a list of threats in the office in case I turn up missing. And I am painfully aware of cases on which I could have done a better job. I am also aware that there are times when a client would be better off with a different lawyer, or, perhaps, with medication and a psychiatrist.

Am I perfect? Nope. Not even close. But that doesn't mean I will give up trying. So how do I do it? I pick up my bed each day and walk toward the brightest light I can find.

New York State Judge Sol Wachtler famously opined, "Any good prosecutor can get a grand jury to indict a ham sandwich." Oddly enough, a few years after saying this, Judge Wachtler was himself charged with extortion, interstate racketeering, blackmail, and other crimes; he served nearly a year in a federal facility. As this is a family blog, I'd like to note for the record that the sandwich pictured above is an unindicted ham sandwich; he may not have much bread, but his father was a hero.

What do wealthy drug dealer Zhenli Ye Gon and former Senator Ted Stevens have in common? Both could afford to pay hundreds of thousands of dollars to have their attorneys and investigators work tirelessly to uncover prosecutorial misconduct in their cases. What do middle- and lower-class defendants and ham sandwiches have in common? They cannot afford these costs and are particularly vulnerable to unscrupulous, unchecked, and unpunished prosecutorial behavior.

Mike Cernovich discussed the inequities of the present system:

[I]n the majority of cases, no one will ever discover prosecutorial misconduct. Without a private investigator or a client capable of paying for around-the-clock research, how can the missing evidence be found?

....

Equal justice under the law is a constitutional requirement, not a privilege one purchases for six-or-seven figures. Yet, as most high-profile cases of prosecutorial misconduct show: Only the rich are finding the hidden evidence.

Cernovich proposes that the open files policies in place in some jurisdictions be expanded to all jurisdictions and cases; such laws would require all documents collected by prosecutors to be turned over to defendants' counsel, rather than leaving to prosecutors the decision whether particular documents are exculpatory in nature. He urges that prosecutors caught cheating be "named and shamed" and that matters involving misconduct be routinely referred to bar associations for disciplinary proceedings.



There's not much more odd these days than what one sees on "reality" television. Ryan Roberts highlighted a failed entrepreneurial effort on a recent program and emphasized to other start-ups that when intellectual property is central to the business, it must be transferred to the company:

After the break, all the investors pulled their deals off the table. Without the intellectual property, there was no business. The investors (rightfully) assumed the patent was owned by the company.

....

When starting a company involving intellectual property, you must transfer the IP to your startup. For example, if the intellectual property is developed prior to incorporation, you can transfer the IP via the founder’s stock purchase and tech transfer agreement.

Eric Turkewitz was concerned this week about one end in particular — his wife's. She injured her coccyx at a Delaware waterpark and Turkewitz considered the various assumption-of-risk and liability issues involved:

[I]t would appear that (under New York law) this would be a particularly troublesome case to bring due to assumption of risk. Except for that part about Jungle Jim's failing to track the injuries that take place on the attraction. The failure to track makes it impossible to determine if this attraction at Jungle Jim's has more injuries than others.

Most people, I think, when going on a roller coaster or water park type ride, make the assumption that it is the fear of injury and death that provides the fun, and assume that actual injuries pertain mostly to those with cardiac conditions or pregnancy. There is also some jostling to be expected, and the odd bruise here and there.

But if the ride repeatedly causes injuries, is that something "commonly-appreciated" or a danger that is readily apparent from the sport or recreation? This could, conceivably, crack open the liability door, though that could take substantial work if records aren't being kept.

And what is the law in Delaware where this event happened? While I assume it is similar to New York, I'm not a particularly litigious person, notwithstanding my career choice, so I'm not going to find out. I assume anyway that after a few weeks my wife will be fine. Even if the liability door was open, I would reject the case based on these injuries.