03 February 2010

A Round Tuit (17)

A Round Tuit

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 Ghost Writer

Though it's been discussed before, the practice of ghost-writing legal blog posts received fresh scrutiny this week, thanks to a number of prominent bloggers. The rise of marketing-driven legal blogs has, somewhat predictably, prompted a similar rise in the number of individuals and companies offering to write posts for those blogs for a fee. In some instances, those posts are attributed to their true authors and simply hosted on attorneys' blogs; in others, posts are truly ghost-written — that is, written by one person and falsely represented as the work of another.

This severely undermines the value of a medium predicated on authentic, unfiltered, and unmediated communication. Notwithstanding, it seems safe to venture that a firm's or attorney's blog need not be written solely by those attorneys to be valuable, both substantively and in terms of marketing value, and ethical (provided that the contents of posts do not comprise legal advice offered by non-lawyers or other matters which run afoul of ethics rules). Whether posts are valuable is largely a subjective question; whether these are ethical is, or should be, a more objective inquiry.

For many leading attorney-bloggers, the ghost-writing issue is a clear-cut one, even under existing ethics rules. Mark Bennett was at the center of the ghost-writing discussion this week. He characterizes false attribution as simple and unethical marketing deception:
Holding someone else’s resume, face, or results out as your own in marketing your practice is fraudulent. No ethical lawyer could possibly think that any of that would be okay.

So how is it okay for a lawyer to hire a ghostwriter to write his blog?

When a client hires a lawyer, more than the results or the face or the résumé, he’s paying for the lawyer’s knowledge, intellect and heart—attributes that good writing reveals and ghostwriting falsifies.
Jenni Buchanan, who writes as a ghost blogger for a number of attorneys, defended the practice:
The ethics of having a ghostwriter in a field that is still in many ways expected to be transparent is something that I discuss with each and every one of my clients; that is why some of my clients choose to have my tagline at the bottom of each post that I write for them, and every client of mine knows that I expect them to read and approve every post that appears on their blog. Personal and professional responsibility is not something I neglect or take lightly.
While some of Buchanan's clients do attribute her posts to her, Bennett pointed out that others amongst her clientele do not. In response to Buchanan's request for Bennett to remove references to those of her clients who have attributed her work to themselves, Bennett (and others) suggested that her claims about the solid ethics of ghost-written posting are not convincing even to those who've used her services:
Blogging is not so novel that there are no precedents.


It is very important for the discussion of the ethics of lawyers using ghostbloggers to be conducted publicly, in full view of those who might be affected by lawyers’ marketing choices—not only the clients whose fortunes and futures might be at stake, but also the lawyers whose reputations are at stake. You take professional responsibility seriously, but your clients are the ones with their licenses and their reputations on the line.

It is crucial that those with ultimate legal and ethical responsibility for online marketing (the lawyers) realize that they have some skin in the game. Some lawyers feeling that it is okay to have a “front man” causes many of the problems with unethical online marketing: they trust a non-lawyer to do it for them, and wind up paying for spam, splogging, or ghostblogging.
Scott Greenfield wrote that many attorneys have been seduced by marketers' promises of returns without effort and have failed to appreciate the import of their decisions to claim others' work as their own simply because it's done for marketing reasons:
[I]gnorance isn't a defense to unethical conduct. To claim ownership of something that's not yours is to lie.


That lawyer marketing has become the overarching purpose seems to trump all considerations of integrity when it comes to social media. That lawyers have adopted the methods of used car salesmen to try to get warm bodies in the door, and can justify it as necessary to hop aboard the speeding marketing locomotive of blawging so they aren't left in the dust, is simply goofy. It's hype, pure and simple. Stop allowing yourself to be played for the fool, and don't sell out your ethics in the process.
Brian Tannebaum was as direct as anyone in calling-out those attorneys who use ghost-writing services and claim that doing so is either ethical or that the ethics rules are murky on this issue:
It's amazing to me that there is even a debate as to whether "ghostblogging," the art and science of paying for blog content written by someone else and pretending as if it's your own, is ethical.

It's not. End of debate.


The argument that lawyers want to "educate the public" about their practice, and "don't' have time to blog, is a total bunch of crap. If a lawyer wants to educate the public about their practice, that's the purpose of a website. If a lawyer doesn't have time to blog, the best way to resolve that, is not to blog. A blog is a collection of thoughts tied into news. Not to today's lawyers it isn't. To today's money hungry shill parading as a "lawyer," a blog is a way to get good placement on Google, and therefore not having time to write just means paying someone else to write.

Ghostblogging is fraud.
Jamison Koehler disagreed that the ethical implications of ghost-written attorney blogs are so cut-and-dried and questioned the propriety of publicizing the names of attorneys who represent ghost-written posts as their own:
I don’t agree with [Mark Bennett] on this one, or with Scott Greenfield who joined the fray with his own post. Greenfield suggests that, as a newcomer to the blawgosphere, I may be naïve.


Maybe so. And, yes, I am a newcomer. But I am against this type of public humiliation, or “cyberbullying” as someone has termed it. I also do not agree with Bennett and Greenfield that using a ghostwriter is necessarily dishonest or unethical. For one thing, I think they underestimate the sophistication of most people using the Internet. Most people visiting a lawyer’s website will be able to distinguish between the canned language of a hired writer and the distinctive voice of a lawyer, such as Bennett or Greenfield, writing for himself.


Policing the blawgosphere and calling out specific lawyers on what are still debatable ethical issues seems to me, as I wrote on Greenfield’s site, paternalistic and futile. ...people are going to do what they are going to do. And I’m not so sure that is always a bad thing.
Responding in comments to Koehler's suggestions that legal blogging norms have changed, Greenfield wrote:
We get to pick and choose which trends are worth following and which should be fought. Watching lawyers turn themselves into used car salesmen, or perhaps streetwalkers is a better analogy, is a trend worth fighting. We may not win, but I would rather lose fighting on the side of honor and integrity than sit out the fight scratching my head.
In another comment, Bennett defended not just that fight but also his, Greenfield's, and others' decisions to conduct it publicly:
Whether ghostblawging is unethical may well be debatable, but I am still waiting for the counterargument that takes into account lawyers’ special responsibilities. Using a ghostblogger is (by definition) claiming as one’s own intellectual property that is not. Using a ghostblawger is billed (by those hawking the service) as a way to increase credibility. All analogies to fields other than the law fail because a) what we are selling is our very capacity to think and express our thoughts; and b) we have ethical duties that nobody else has.


Whether lawyers should publicly call out other lawyers who are cheating (ethical violations) or polluting (aesthetic violations) on line is a question that wouldn’t suffer from public discussion (five-word answer: general deterrence requires hurting feelings).


Anyone who thinks linking to a page of testimonials is “cyberbullying” is—with all due respect—a damn fool.
Greenfield also defended the public debate of the ethics of ghost-blogging and those attorneys — names named — who participate, suggesting that those attorneys who seek to promote themselves through blogging without facing any criticism for their more questionable practices have chosen the wrong medium:
The real problem, I suspect, has far less to do with the definition of cyberbullying than it does with the concept of blawging itself. For lawyers who believe that the primary purpose of a blawg is marketing, the idea that their effort to enjoy self-promotion, to garner public attention, to achieve business success via a blawg, is a two-way street is deeply disturbing. They want to be able to gain the benefit without any risk of peer review, or peer criticism.

Jamison Koehler calls is "public humiliation," which is quite revealing. Is it humiliation to be questioned, challenged or disputed? Once you put your voice and reputation online for all to see, you invite others to question your statements and conduct. No one makes you go public, but having made the choice to do so, you cannot cry foul when your subjected to scrutiny.


There's no right to enjoy the benefits of public self-promotion, assuming there are any, with impunity. When you put yourself out there, you invite scrutiny. If you can't take it, then you've come to the wrong place. Your peers may adore you or think you're dumb as dirt, not to mention unethical, deceptive and scummy. That's the risk of going public.

If you don't believe you deserve the negative reaction, then engage the criticism, fight back and let your ideas win the day. That's how we survive in the blawgosphere. That's how we survive as lawyer. That's how peer review works. That's how it should be.
I recognize that where marketing value was once incidental to authentic blogging, for many attorneys now staking-out their place in the legal blogosphere, marketing concerns predominate or even preclude authentic blogging; nonetheless, I agree with Scott Greenfield that though the tide may be turning, the continuing struggle against marketing-driven blogging is a worthy one.

I recognize that blogging is a time-consuming activity which is sometimes difficult to maintain against other commitments and in the face of occasional criticism; nonetheless, I agree with Brian Tannebaum that attorneys who cannot be bothered to blog authentically should choose another medium, such as a static website, for their communications rather than creating a blog which can be only fraudulently represented as their own.

I recognize that as attorneys, we are often too quick to sacrifice collegiality for antagonism and quiet persuasion for public excoriation; nonetheless, I agree with Mark Bennett and many, many others that ghost-written legal blogging is an unethical practice which should be highlighted rather than hidden, and that discussion of the ethical and other concerns implicated by attorneys representing others' posts as their own for marketing gain should be done publicly, with those attorneys' names named.

If the ethics of ghost-blogging are indeed debatable, let's not shy from conducting that debate openly.

Who Dat Nation

As Ron Coleman noted recently, each year around Super Bowl time the National Football League comes up with a new and different way to give itself a black eye by overzealously protecting the Super Bowl name and other trademarks along with its claimed copyrights associated with the game itself. This year, they've outdone themselves in their efforts to claim the "Who Dat?" phrase used by the New Orleans Saints and their fans.

While the phrase does seem to be inextricably linked with that long-suffering team and its rise in fortunes since its facilities, city, and fans were devastated by Hurricane Katrina, as many have pointed-out it's by no stretch exclusive to the Saints franchise. With their "Who Dat?" grab, the NFL managed to antagonize the fan base of one of its Super Bowl participants and the politicians elected by those fans, and to amuse the hell out of the rest of us.

Kevin Goldberg described the league's counterproductive cease-and-desist threats to local vendors offering "Who Dat?"-themed merchandise:
A couple of days ago we ran our annual alert about the fact that some folks – large professional sports organizations in particular – seem to be trying to take control of our language by registering as trademarks just about every word or phrase in sight . . . and then telling us we have to pay to use those words and phrases. For those who may not have believed us, check this out: reports out of New Orleans indicate that the NFL is claiming that “Who Dat” – long the catch-phrase of the Super Bowl-bound (oops, make that Super Bowl ®-bound) Saints, and before that a staple of minstrel shows and vaudeville acts back into the 1800s – is a registered NFL trademark.

According to those reports, the NFL has gone after local Big Easy tee-shirt vendors, trying to get them to stop selling their own home-grown “Who Dat” tees. Seems a bit heavy-handed, particularly in view of the hard times folks in N’awlins have suffered in recent years. (That’s what Senator David Vitter thought, at least. He fired off a letter to the NFL advising that he is printing up, for sale, a bunch of tee shirts emblazoned with the message “WHO DAT say we can’t print Who Dat!” His message to the NFL: “Please either drop your present ridiculous position [asserting control of “Who Dat”] or sue me.”)

“Ridiculous” seems about right to describe the NFL’s practice of going after local business owners for something like this. That’s especially so when any rational person would understand that this is one of those situations where you're better off cultivating support for one of your more hard-luck franchises, even if it costs you a few bucks here or there.
Milord Keshishian (who has, incidentally, my new favorite lawyer name [you had a good run there, Judge Learned Hand]) reported the political reaction from Louisiana Senator David Vitter:
After local merchants complained, it became an issue ripe for Congress. Louisiana Senator David Vitter wrote the NFL Commissioner urging him to "drop this obnoxious and legally unsustainable position and instead agree that 'Who Dat' is in the public domain, giving no one exclusive trademark rights." Sen. Vitter makes valid trademark points. First, the NFL can't prove ownership via first use because "Who Dat" was "first heard in New Orleans minstrel shows well over 130 years ago" and "St. Augustine High School in New Orleans" used it prior to the NFL. Second, there's wide spread use by others and lack of enforcement because "Who Dat" "has become part of New Orleans and Louisiana popular culture." Finally, as for fair use, Sen. Vitter challenges the NFL to sue him because he's printing t-shirts with "WHO DAT say we Can't print Who Dat!" for widespread sale in commerce.

The NFL has only now -- apparently after Senators intervened -- realized the public relations blunder, chalking it all up to a "significant misunderstanding as to the scope of the [League's] trademark enforcement efforts."
Kevin Underhill reported the NFL's swift retreat from its indefensible IP position:
On Monday, the NFL backed down and said that it would not object to shirts or other gear that were not presented as official Saints or NFL products, even if they use the team colors, the fleur-de-lis or the phrase "Who Dat." The bickering lasted about a week and included lots of grandstanding by Louisiana politicians eager to pander to citizens of the Who Dat Nation, many of whom likely have dual citizenship and voting rights in the United States.

Louisiana Attorney General Buddy Caldwell said that he had spoken with the League's general counsel about the matter, and that he was ready to declare victory. "They've conceded and they've said they have no intention of claiming the fleur-de-lis, which would be ridiculous, or the 'Who Dat,' which would be equally ridiculous," Caldwell said in an interview, apparently taking the position that the League's claims were ridiculous.
Elie Mystal has seen this IP-related shortsightedness from the league first-hand (and nicely manages a Waterboy shout-out):
Back when I used to practice law, I had the opportunity to do some low-level IP work for the National Football League. As Biglaw work goes, it was pretty fun. And I remember the staff lawyers at the NFL as a very nice and engaging group of men and women.

But sometimes, the IP gurus at the NFL really know how to act like an immense turd in a punch (super) bowl. Remember when the NFL cracked down on the “unlicensed” use of the term Super Bowl? Then there’s the NFL’s ongoing ridiculousness with American Needle. For the overlords of a sport that claims to be “America’s passion,” the NFL has a curious way of crushing the life out of anything that could even slightly siphon a dollar away from their clever system of unlimited revenue potential and fixed labor costs.


For those who haven’t had the pleasure of taking in a football game at the Superdome, the full chant goes: “Who dat? Who dat? Who dat say dey gonna beat dem Saints?” So let’s be clear — the NFL claims it owns a chant of ungrammatical pidgin English that can’t even be pronounced properly without using a Bobby Boucher accent. The NFL doesn’t have what they call “the social skills.”
Although the NFL's abandoned its ill-considered "Who Dat?" position, the league still has its pre-Super Bowl headaches. For one, there's a Florida group's distribution of thousands of flyers around the Miami area publicizing Super Bowl halftime performer and The Who guitarist Pete Townshend's 2003 brush with child pornography charges; Douglas Berman quotes a New York Post article:
The group put together a flyer that features a photo of a smiling Townshend under the headline "Sex Offender Advisory," according to Gawker.com. The leaflet, which was distributed to some 1,500 homes in the Miami-area this week, warns: "Townshend is a British citizen who was registered as a sex offender in his home country in 2003, for an offense related to child pornography. He will be at large in Miami ... when he arrives to perform at the Super Bowl with his musical group known as 'The Who.' This is a community notification distributed in the interest of public safety."...

The NFL has not commented on the campaign.
Perhaps Townshend and his bandmates can prevent this adverse publicity from tainting their Super Bowl performance by changing their name to The Who Dat?

Odds n Ends Shop

After police photos of teenager Nikki Catsouras' gruesome death in a car accident were leaked by California Highway Patrol officers, there was understandable and appropriate public condemnation of those officers' actions. That we were offended by this outrageous breach of the public's trust is clear; whether the Constitution is offended is less clear. A decision by a California appellate court both clarifies and muddles the situation. Mike Cernovich explains that the court has in effect granted a new right to privacy to a dead person at the expense of First Amendment protections for the living:
The Catsouras family sued the CHP officers for invasion of privacy and intrusion into seculsion. They claimed that a dead person had a right to privacy. Shockingly, they won. Catsouras is a disastrous opinion for the First Amendment.

Legally, the opinion goes through all of the right law - and then ignores it. The Court of Appeal recognizes that under California case law, only the living may sue for an invasion of privacy. The Court of Appeal also recognizes that in analogous situations, the dead have no rights. For example, the living cannot defame the dead.

One cannot, then, question the intellectual integrity of the Court of Appeal. They are unafraid of saying, "Here is the path of law. We're going to take the law on a different path." The Court of Appeal opinion is honest, but incorrect.

Now, some will say that I've mischaracterized the Opinion. "Mike," you might say, "the Court of Appeal did not hold that the dead have a right to privacy. Instead, the Court of Appeal held that the surviving family members have a right to privacy on behalf of the dead."

Yet your characterization fails, because a third party cannot have a right greater than that of the first party.


The CHP officers did not lie, cheat, or steal. They revealed true facts about a dead person. A living person has a First Amendment right to speak truthfully - about the living and the dead.

Now, courts will often apply some balancing test between the right to privacy and the First Amendment. Even so, how can the balance be tiled towards the favor of a dead person. Again, Nikki Catsouras is dead. The CHP officers are the living. Catsouras elevates the dead over the living.
In a second post, Cernovich discussed the court's error in disregarding the defense that the officers' transmission of the unaltered photographs was truthful speech:
[T]he First Amendment guarantees us the right to speak truthfully about whatever we like. We may not lie, and we may not like fire in a crowded theater. Otherwise, though, we are free to say what we will.

Recognizing that the CHP officers forwarded unaltered photographs, the Court of Appeal still ignores their First Amendment defense. The Court acted as a super-censor: "Here, the picture painted by the second amended complaint is one of pure morbidity and sensationalism without legitimate public interst or law enforcement purpose." Slip op. at 17.

Where is the "sensationalism" exception to the First Amendment? The First Amendment provides that "Congress [and the States, vis-a-vis the Fourteenth Amendment] shall make no law ... abridging the freedom of speech []." Even morbid and sensational speech is protected.
Scott Greenfield agreed with Cernovich's assessment that the court's First Amendment conclusions were faulty. Noting the old adage that bad cases make for bad law, he wrote that the real shame of the decision was that the court could have remedied the violation in Catsouras without trampling the First Amendment:
As disgusting as these photographs, and the actions of the CHP officers may be, there is no First Amendment exception that precludes them from protection.

But that's not the end of the story, as far as I'm concerned.


The officers involved possess a First Amendment right to free speech in their individual capacity. They are human beings, and as such have all the rights and protections the Constitution provides to each of us. This is true even if they don't happen to afford other human beings the full panoply of rights in the course of their employment, an issue for another day.

But when they put on the uniform, the shield and strap on the weapon, they do not do so in their individual capacity, but by authorization of the State. They take on a separate and distinct role, that of a police officer, a government official serving in a delineated capacity. Just as they can't pull out their gun and shoot someone who personally annoys them, their ordinary human actions are constrained by their official authorization and limitations. Each police officer may only have one physical body, but there are in essence two people there, one of which is a State actor.


Mike's fear, that some reduced value "sensationalist" speech will come back to haunt all of us, blawgers included, strikes me as very real.


I would distinguish the roles, and hence the protection, offered by the First Amendment, leaving individuals with the full protection they were meant to have while stripping the government, and its officials, of protection for abusing their positions. The government doesn't need free speech protection. It has the guns.

There was no need to craft an exception for sensationalist speech that will likely inure to our detriment eventually just to find a way to make these two CHP miscreants liable. There was a better way.
Whether it's protecting (or not) the privacy of the dead or the sensational and morbid speech of the living, the Constitution can occasionally be a wet blanket, as Gideon explains in discussing a proposed Tennessee law which would make it a felony for defense counsel to make "unproven insinuations" about victims:
The irony of this all is that it is prosecutors who far more often commit egregious acts during the course of trials. It is prosecutors who engage in misconduct impropriety more often than defense attorneys. Yet, prosecutors are immune from civil liability.

Police departments cannot be sued unless there was no probable cause for an arrest. The so-called “forensic experts” in child sex cases can coax a victimization out of a rock, yet there are no consequences for them when the “allegation” is later proven to be utterly false.

No, it is everyone’s favorite punching bag and scum of the Earth, the criminal defense lawyer, who must expose himself to criminal liability for doing the very thing that the Constitution mandates: defending the accused.

It’s not like there aren’t avenues for discipline of defense lawyers who engage in offensive behavior: prosecutors and judges are free to file grievances if they think the lawyer has crossed the line: this results in suspensions and disbarments.
Jeff Gamso agreed:
It would be unconstitutional because it would violate the most fundamental of all rights afforded to criminal defendants: The right to present a defense. Oh, and it would be a hell of an infringement on free speech, too unless it was mighty carefully circumscribed.
In one of the most complete and persuasive legal analyses I've seen recently, Carl Gardner explained why the "revival" theory propounded by Lord Goldsmith during the recent hearings in the UK on the legality of the Iraq War is correct, despite strong criticism from some authorities. I'll quote just a bit of his lengthy post, but this is one which merits your time to read in its entirety:
I agree with what Lord Goldsmith said was the legal justification for war. Member States were always authorised to use all necessary means to restore peace and security in Iraq. The authorisation was suspended; but on condition Iraq verifiably disarm. Its repeated material breach and failure to take its final opportunity meant it was lawful for Member States to use force on the basis of UNSCR 678.


Had the Security Council united to give Iraq a clear ultimatum in a “second” resolution (there were many resolutions about Iraq’s disarmament in truth), as Britain wanted it to, then the UN’s authority might have been upheld without political division – maybe even without war. Of course it didn’t unite, and didn’t agree to do anything, primarily because of the unwillingness of France, Russia and China. In judging the subsequent actions of countries like the US, Britain, Spain, Italy, Australia, Holland, Poland, Denmark, Japan and South Korea among others, I prefer to read the background UN resolutions in a way that favours the enforcement of international disarmament obligations – and permits their multilateral action; it is surely a mistake, and arguably even a betrayal of the UN ideal, to read them in a way that requires minimum respect from aggressors for the UN’s united will, and maximum respect from members for its culpable inaction.
Equally illuminating was Gardner's discussion of the topic with Charon QC that same day. In his introduction to the podcast, Charon wrote that "There are few supporters of the revivalist theory put forward by Lord Goldsmith at the Iraq Inquiry hearing today – but Carl Gardner is one lawyer who does."

Finally this week, I'd like to mention Robert Ambrogi, who's announced his departure from Legal Blog Watch:
This has been the greatest gig I've ever had as a writer. For four years, every other weekday (more or less), I have posted here. Our assignment, broadly speaking, was to cover the legal blogosphere. Other than that, we had free rein. Although our posts are edited, we are never censored. My first post was on March 20, 2006. When my long-time partner in blogging here, Carolyn Elefant, left in September, she estimated that her posts added up to a total of some 1,680. Given that I kept at it a few more months than she, I'll estimate my total as north of 1,700.

But over the four years I've been doing this, the blogosphere that we set out to cover has exploded like a supernova. When I started, the number of blogs to track was manageable. Now, it could easily be a full-time effort to keep up. My RSS reader shows some 500 feeds I try to follow.

Beyond the sheer number of blogs is the ever-higher bar they set. So many legal blogs produce so much high quality content that it is difficult to know where to begin and where to end in reading them. As the overall content of blogs has improved, so has the competitiveness among bloggers to be first out of the gate on a story -- us included. With all this, legal blogging could be a full-time occupation -- and in fact it now is for some.

For the legal profession, these are all good things. Blogging has come into its own and lawyers are the beneficiaries. But for this particular legal professional, the race to keep up with blogging began to compete too aggressively with my other work. Our assignment to cover legal blogs got only harder every day. Even though I was being paid to blog, it was only intended to be part-time and I wasn't about to abandon my day job or the clients who see fit to hire me. Something had to give.
I share the sentiments of the more than two dozen folks who wished him well in the comments to his farewell post. In large part because of Ambrogi's tireless efforts, Legal Blog Watch has been an invaluable resource for those of us within the legal blogging community as well as those who follow it. That he's leaving to devote more attention to his own blogging and writing is some small comfort, but without question his voice at Legal Blog Watch will be missed.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., wikimedia.org, whodatnationmember.com, and Paris Odds n Ends Thrift Store.

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