25 November 2009

A Round Tuit (10)

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.

Greg Beck reported this week that the Florida Bar has settled a lawsuit brought by the Public Citizen group; under terms of that settlement, the Bar will retreat from its prior position that sites, including Avvo and LinkedIn, which permit clients to comment on listed attorneys constitute attorney advertising and are thus subject to Bar scrutiny. Beck notes:
The settlement provides that the Bar will treat lawyer profiles in online directories as information that the client has requested, thus exempting the profiles from stringent rules against client testimonials and past results. The Bar will also review its lawyer advertising rules regarding Web sites maintained by lawyers and recommend changes to the Florida Supreme Court.
Brian Tannebaum, who often defends Florida lawyers in advertising-related disciplinary proceedings, applauds the settlement as "a good step back":
I have said, and strongly believe, that The Florida Bar has gone over the top in advertising regulation. I think they've gone so far into regulating every aspect of advertising that they don't know how to get out of it. The premise is clear: The public is stupid and must be protected. They cannot see through ads that proclaim the lawyer is the "best," and may find themselves disappointed if they hire one who talks about "past success." Thus, the Bar must protect the consumer from themselves. It amazes me that the public doesn't even realize that the Bar rules are aimed at their stupidity.


This truly, is a victory. How anyone could think that a client, a real client, would put a lawyer in jeopardy by writing online that they were happy with the lawyer's services is beyond the pale. We complain that the profession has lost it's luster, that lawyers are no longer looked up to in society. Yet when a client of a lawyer wants to say something good about the lawyer, there's the Bar to run in and say, "no, can't do that."

I commend the Bar for settling this case in a manner that allows the consumer to speak, and exempts the lawyer from discipline for that speech (I can't even believe I'm writing that sentence. To think that the Bar would discipline a lawyer for the words of a client is shameful.)
Josh King, who is Avvo's General Counsel, was understandably positive about the prospects for online directories like his own following the settlement:
What’s great about this settlement is that it goes beyond the obvious – that lawyers can’t be held responsible for reviews left for them on Avvo – and sets forth the principle that directory profiles are information provided at the request of a potential client. Such communication is exempt from the vast majority of Florida’s attorney advertising rules, including limitations on testimonial advertising and referring to past results. Result? Florida lawyers need no longer worry about consumer opinion or otherwise-truthful information that appears in their Avvo profiles. We congratulate all of the parties involved on reaching this commonsense solution.
Of course, Avvo and LinkedIn are only two examples of social media-enabled sites wherein attorneys have begun to interact with one another, their clients, and others. Twitter, another very popular forum, recently updated its privacy policy and Venkat Balasubramani read it so that we don't have to. He provides an outstanding overview of the many changes and helpfully compares Twitter's new privacy terms to Facebook's:
As far as volume, in comparison to Twitter's policy, Facebook's policy reads like a (painful-to-read) epic saga. This is partially due to the fact that information sharing and interaction on Facebook is more complex, but Facebook's policy is simply impossible to read and digest in one sitting. The two policies are somewhat similar in their approach, although Facebook differs in that users don't make their Facebook data "public" in the same sense that Twitter users do. Of course, Facebook has a bit of a history of advertising initiatives and pitfalls that probably prompted the additional complexity. Facebook's policy has some interesting tweaks such as a "memoriam" for Facebook users where friends and relatives can post items about a deceased person. Also, Facebook has a deletion policy, which I didn't see in Twitter's privacy policy. (Deletion policies will become increasingly important as people try to obtain information (deleted by the user) from social networking sites in the context of litigation.)
It's certainly worthwhile for those of us who regularly use the Twitter service to understand how it works on the surface and behind-the-scenes. Knowing this, however, is not the same as knowing how to use Twitter effectively. Bruce Carton suggests that the Securities and Exchange Commission might not quite have a firm grasp of what it's doing Twitter-wise. He notes that the Commission regularly updated its @SEC_Actions account before abruptly discontinuing it at the end of September (the account has since been deleted):
I reached out to an SEC spokesperson about this yesterday (who I will not identify because I don’t think this person really thought this through). But the response I received was that the SEC was “focusing on our investor education, news, and jobs Twitter feeds for now.”

I don’t want to get off on a rant here, but to me, that is kind of like saying you’re not using your left turn signal while driving because you are “focusing” on the right turn signal, the gas pedal and the brake. That is to say, with about .0000001 percent additional effort, you could keep posting the SEC enforcement actions to @SEC_Actions and “maintain focus” on the other feeds. Of course, that’s just my opinion. I could be wrong.
For now at least, participation on Twitter is generally voluntary, unless you're in Nassau County, New York. Scott Greenfield relates a recent incident there wherein thousands of people showed up to see a singer's appearance at a local mall; the police were concerned about crowd control and ordered a record company executive to post an update to his Twitter account asking everyone to leave. When he refused, he was arrested for not performing what Greenfield termed his "duty to twit":
There appears to be absolutely no legal basis whatsoever to support the prosecution of [record company representative] James Roppo, whether one believes the police that he's a terrible man for failing to do as they told him or not. There simply isn't any duty to twit, nor any argument to support the allegation that his failure to do as he was told by police violated a duty imposed on him by law.


[T]he police cannot manufacture a duty to act, upon pain of criminal liability, just because they want to. It doesn't matter whether the twit would have helped or not, whether the situation is dangerous or not. The police sought to impose a duty on Roppo to twit as he was told. No such duty exists, and criminal liability is imposed for an act, not an omission. Even in Nassau County, which has long had its share of twits, even before twitter was invented.
Eugene Volokh also considered the unusual order, arrest, and prosecution:
I take it that the real premise of the prosecution is likely to be not a general duty to help the police on demand, but rather a specific duty to help the police solve a problem for which you were in part responsible. And in fact there is a criminal law doctrine that says that even though it’s generally not a crime to refuse to help someone escape danger, it may be a crime if you caused the danger in the first place.

This is especially clear if you were negligent in creating a danger, but some courts even take the view that this is so if you created a danger nonnegligently. If, for instance, you (1) hit someone with your car — perhaps even nonnegligently — and (2) you then negligently or deliberately fail to help him, and (3) this failure causes his death, then you might be liable for negligent or deliberate homicide. And that would be so as a matter of traditional common-law principles, even without a specific hit-and-run statute.

At the same time, while this might justify the criminal nuisance charge or the endangering the welfare of a child charge, it’s not clear to me that the failure to help the police constitutes obstructing governmental administration... especially if the prosecutor can’t prove up either of the other two crimes, so that the prosecution rests solely on a failure to help the police.


There’s also the question whether the First Amendment, which generally protects people against compulsions to speak, also prevents the government from ordering Roppo to publicly exhort people to do something.
It's a brave new Avvoing, LinkedInning, Twittering, Facebooking world out there for attorneys, and not all of them are comfortable with these newfangled technologies. Dan Hull is one who recognizes his own technological limitations and those of some of his fellow Baby Boomers:
[H]ating computers is hurting me--and wasting the time of others who I demand do it for me....

Gen-Y and Gen-X are very right about one thing: many Baby Boomers really are babies, and often arrogantly helpless cretins, about Tech. We are above it, we think. Well, we are not above it. We cannot be.


The tools of the digital world--creation, management, storage, retrieval and shipment of documents--may not make the work product better. But it does make work easier. The over-45 crowd must stop relying on younger people to do that work. And we must quit whining about Tech, and having to learn it. We cannot afford to be above it any longer.

Boomers, to be sure, are still digitally-challenged--and under-performing on Tech. We are too content to be able to turn computers on and off, send and receive e-mail, and use search engines. We were the first generation to grow up with TV--why can't we take the next steps?

So it's not enough. I promise to learn more. Anybody with me?
Hull's words are true enough, but it should be conceded that a lack of knowledge about new technologies and how to best use them isn't peculiar to the Baby Boomer generation. As Scott Greenfield noted this week, after a blogger asked him to take a look at (and link to) a group blog to which she and other young attorneys and MBAs contribute. He was distinctly unimpressed:
The latest post was by Keyana, who describes herself as "an aspiring criminal defense attorney" who has "not begun practicing law yet." One might suppose that either or both of this factors might influence her to remain silent. One would be very wrong. Not only does Keyana feel the need to express her thoughts, but on a subject of some significance. Her post was entitled, How Attorneys Can Represent Their Guilty As Charged Clients In Good Conscience.


Criminal defense lawyers hear the question posed at cocktail parties all the time. It's a great way to chat with nice but clueless people who find our work "fascinating". What it isn't is a "tough question." Not for a lawyer. Not for a criminal defense lawyer.

If anything, it's a Rorschach test. If you have to ask the question, then you shouldn't be a criminal defense lawyer. Probably not a lawyer at all. And if it troubles you, then perhaps a career in waste management would be best.


The "young professionals" want a forum to promote themselves publicly, and there is certainly no shortage of social media gurus telling them that this is the wave of the future, the way that the un- and under-employed can showcase their talents. But these same "young professionals" incautious, opining on subjects they don't as yet understand. In the world of the Slackoisie, ignorance presents no problem. They are entitled to opine, right, wrong or otherwise, and others are obliged to forgive them their ignorance.

We're not their mommies and daddies. They are no longer being graded by their lawprofs, where a well-written but wrong answer will net them a passing grade. By making the decision to post your thoughts publicly, you invite public scrutiny. Do not expect a pat on the head when your thoughts are wrong. Do not expect to be forgiven your error because you're a "baby lawyer." You are a lawyer. You are expected to either get it right or demonstrate sufficient restraint not to post. You do not get a free pass. Those days are over.


I'm chastised by commenter, third year lawyer Olga Wayne, for writing this post, told that I should be "ashamed" of myself, told that there were a thousand others things I could have done if I didn't like Keyana's post. While true, it's irrelevant. This post isn't about liking what Keyana had to say, but about making a point about public posting by young lawyers. If they don't know what they are talking about, they shouldn't post.

More to the point, Olga, a fairly typical representative of the Slackoisie, argues that my post is inappropriate (and I am a laundry list of bad things, from thin skinned to pathetic) because it fails to meet with her approval. This is a critical lesson for the Slackoisie, and for Olga in particular, who otherwise grasped nothing from this exercise. No one, but no one, in the big, real world needs to meet with your approval. That you would even consider your sensibilities so significant is sheer narcissism, which unfortunately is epidemic amongst the Slackoisie. The recurrent theme of entitlement amongst children, that their opinions are paramount, is a very dangerous thing.

It's time that young lawyers, whether 3 minutes or 3 years out of law school, learn about the responsibility that comes from expressing themselves publicly. Someday, you may well prove yourselves to be brilliant and accomplished lawyers. Until that day, be cautious about what you post publicly. If you don't know what your talking about, or you don't grasp your relative place in the world, control the impulse. It may result in someone, like me, writing things about you that you would prefer not be written.
John Kindley was, well, more kindly disposed toward Keyana's post, suggesting that the newbie's conception of "a criminal defense attorney's role is not that far off from Greenfield's and that "Scott overreacted to someone else’s broader understanding of an abstract word ["justice"] that by its nature lends itself to differing understandings." Jeff Gamso disagreed with Kindley's comments nearly as much as he did with the original post which Kindley defended; he deconstructed Keyana's response to the "cocktail party question" and believes that she's fundamentally wrong on key points:
I've had moral dilemmas as a criminal defense lawyer. I've had them as a parent. I've had them as a citizen. I've had them as a human being. I've yet to find that the solution to a moral dilemma is to "adjust my moral compass." One sets it for honesty and integrity, then goes forward.

But that's not her plan. That's not where she thinks a lawyer's "moral compass" may point. She thinks that before she actually does legal work, she must adopt the morals of a lawyer which are something, er, other than moral.

So let me offer one answer to that cocktail party question:
I defend people. Some are factually guilty. Some are not. None is legally guilty until that's been decided by a judge or jury. I am neither. I'm an advocate.

I stand up for my clients because someone should. I hold the government's feet to the fire because someone must. To do those things only for those I believe to be innocent (and who am I to judge?) is to say that those believed guilty, truly or falsely, deserve nothing and no one.

In my world, that's not so. My world is not so cruel. My world does not so parse. And my world does not predetermine.

Unchecked, the government will abuse the innocent as readily as the guilty. Unchecked, all distinction except power fades. The guilty as much as the innocent, perhaps more, need and deserve an advocate. We are all, as Sister Helen Prejean likes to remind us, better than the worst things we've done.

To deny one is to deny all.

We here in the United States are eager to begin our Thanksgiving holiday, but our friends in the United Kingdom won't be joining us. It seems that those hardworking Brits forgo Thanksgiving and several other holidays, including Presidents' Day and Independence Day. To each his own, I suppose.

While American legal bloggers will be comatose for the next couple days, having gorged themselves on turkey and trimmings and been lulled into a stupor watching the Detroit Lions and Dallas Cowboys games, British bloggers will shoulder our load. They made an admirable start on it this week.

Charon QC (Mike Semple Piggot) reported a new ruling which held that Britain's intelligence services could withhold evidence from civil plaintiffs alleging that those intelligence services tortured them or were complicit in their torture. He called this ruling "another nail banged into the coffin of liberties":
The ruling is worrying for it’s potential scope. The Guardian notes: “The only occasions when evidence and allegations have been withheld from defendants and their lawyers have been in cases directly linked to “national security” – for example those involving deportations. But if today’s ruling stands, MI5, MI6, the police and other state institutions will be able to withhold relevant information from any civil action, for example for claiming compensation for wrongdoing.... [Justice] Silber was not asked to consider the particular facts of the Mubanga case but to set down a principle. He argued that it would be better for “special advocates” to decide, in secret, what information in the hands of the government and its agents should be disclosed. However, he agreed that the issue raised what he called a “stark question of law”.

I have not had a chance yet to read the judgment in full... but it is worth extracting another quote from the Guardian report pro tem...
Clive Stafford Smith, director of the legal charity Reprieve, said: “When the history books are written, the darkest chapter of our current times will not be torture, but the seeping evil of secrecy, where the ‘national interest’ is conflated with ‘national embarrassment’, and ultimately anything of which the government is ashamed, from parliamentary expenses and working up to torture, becomes secret.”
Surely, no government would wish to abuse the spirit and intendment of this ruling? Would they?
Injustice seems to be the order of the day in that green and pleasant land. Recently, Paul Clarke was prosecuted and jailed for possessing a sawed-off shotgun; so far, so good, yes? What is troubling about Clarke's case is that, having found the gun in question discarded in his garden, it was Clarke himself who brought the weapon to the police station, whereupon he was arrested for possessing it. In a lengthy post, blogger Jack of Kent (Allen Green) explains the "anatomy of an injustice":
What should the Police have done?

In 2002 (and thereby before the Criminal Justice Act 2003), the Home Office published formal guidance to all Police Forces on how to deal with firearms offences.

This guidance is still available on the Home Office site and presumably is still in force.

Chapter 25.5 of this guidance provides sensible advice for Police Officers when someone turns up at a Police Station to surrender an illegal firearm.

"Anyone surrendering an illegally held firearm should be questioned discreetly with a view to establishing its history but, unless circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen), the person handing it in should not be pressed. The emphasis should be on creating an environment in which people hand in illegally held firearms."


It is for the Crown Prosecution Service to decide whether to prosecute. Such a decision should always be taken on the basis of the public interest.

As the version of the facts provided by Mr Clarke is the only one at play here, the decision that the public interest required a prosecution seems in need of an explanation.

This is particularly so when the combination of a strict liability offence and a minimum custodial sentence means that the decision to prosecute is in effect a decision to impose criminal liability and at least a five year sentence.
Green proceeded to reprint in its entirety a series of questions and answers posed by him and responded to by the CPS. He concludes, "[T]he worrying aspect of this is that the decision to prosecute was based on what appears to be a subjective reaction to the only evidence available: Mr Clarke's own version of events." In addition to commending Green's extraordinary reporting efforts on a case which has gone largely unreported by the mainstream press in Britain, Alex Massie wrote:
At the very least, however, all parties may agree that this case, and others like it, demonstrate some of the problems with creating strict liability offences and, even more so, with mandatory minimum sentences. Since, alas, these latter help make politicians seem "tough" on crime we ought not to expect any reduction in their use.
A desire to appear tough seems to be behind the government's recent support for a "three strikes" law which would bar repeated copyright infringers from the internet. Geeklawyer is unequivocal in his condemnation of the proposed law:
No, the Government has decided to disconnect alleged file sharers from the Inter­net. The implementation details are not known but if current behaviour seen employed else where by the music industry is followed their will be much injustice. Purveyors of software snake-oil will be seen selling packages supposedly proving who downloaded what when. Some of these packages can work but many are dri­vel: in the past pensioners with no computer have been accused of file-sharing as have networked printers.

The consequences can be severe. In Finland Internet access is now a civic right. For many the Internet is as important a household service as electricity or sanitation: Geeklawyer often strongly considers what the broadband is like when deciding where to live. If a family’s kids download MP3s the whole household will be blocked from Internet access. Collective punishment. All of this is based on no proven harm, at least none apart from the Music and film Industries telling us that the sky is falling down. To call this a disproportionate and draconian response is almost under stating it.

Jordan Furlong considered this week the disconnect between academic success and success as a practicing attorney:
Law schools don’t assess students in terms of their likely success at the bar. They assess them the same way schools everywhere assess all their students — by the satisfactory achievement of knowledge standards, usually expressed in written form in short-term exams and long-term papers. In the same way that IQ tests measure only the taker’s ability to score well on such tests, so too do good marks in law school only measure one’s ability to complete law school courses to the school’s satisfaction. It has nothing to do with whether you’ll be a good lawyer someday. This is not a secret and it’s not a novel discovery. But the idea that law school achievement augurs professional success remains the fundamental assumption underlying law school, and the bar has accepted it for decades. It’s time for that to change.

The problem with using a law degree as the de facto qualification to seek admission to the bar, and the disconnect between the priorities of academia and the practicing bar, have never been so clear.


The bar’s role is to ensure that its members receive the best training available, in order to ensure the durability of professionalism and high-quality service to clients. I think that obliges the bar to look long and hard at the law degree and decide whether a three-year program over which the bar has no control is an appropriate prerequisite for practice. If the answer is yes, then the profession should quit complaining about what law school does and doesn’t do — lawyers don’t run law schools, and if they don’t care to create an alternative, they have nothing more to say on the subject. But if the answer is no, then the profession is obliged to come up with a prerequisite that it believes does provide appropriate preparation for admission to the bar, over which it does exercise an appropriate degree of control, and for which it bears complete responsibility (at considerable expense, I might add).

Should that come to pass, law schools will suddenly face competition in the lawyer training marketplace. And they’ll face a choice themselves: to maintain their current focus and perhaps risk a massive decline in enrollment and tuition, or to re-engineer themselves and compete directly with lawyer-operated training centers. That’s not a happy choice, and I don’t wish it on the schools gladly. But if and when the bar decides that it can no longer responsibly delegate the first three years of legal training to completely independent third parties, then that choice will arrive. This is a difficult but necessary process we can’t put off any longer.
If the various bars were to establish lawyer-operated training centers, would those centers rely upon the Socratic Method? Ilya Somin has criticized the "one size fits all" approach to teaching recently and the Socratic Method particularly; this week, he writes that accepting this form of teaching simply because it's traditional is unjustifiable:
In any event, the tradition-based argument for the Socratic method fails even on its own terms. It ignores the fact that virtually every academic discipline other than law has a long tradition of not using the Socratic method. That includes professors who teach courses on legal issues in political science, economics, history, and philosophy departments. Similarly, the Socratic method isn’t generally used by law professors in other countries, including other Anglophone common law jurisdictions such as Britain, Canada, and Australia. There is no reason to believe that either non-law classes in the US or legal education abroad suffers because they don’t inflict SM on their students. Nor is there any significant movement to adopt the Socratic method in any of these other academic departments and foreign law faculties. Relative to the traditions of most of the academic world, the widespread use of the Socratic method in American legal academia is an outlier. That doesn’t by itself prove that the Socratic method is wrong. But it does suggest that it can’t be justified merely on the basis of tradition.
My own dim recollection of the Socratic Method in law school is that it was a challenge — if I was prepared, it was an opportunity to understand the material better and to show off a bit; if I wasn't prepared or misunderstood the material, it was an opportunity to discover how excruciatingly slowly time can pass. Many times, it was like a game, trying to hold my own in a battle of wits with a professor (or trying to avoid playing at all). Sometimes, the practice of law is like a game as well, and not always appropriately so. Gideon discusses how his role as a public defender obliges him to play a "game of numbers" with his clients' lives:
What do we do when “put numbers” on a case? We assign an arbitrary value to the actions of one person, usually against another. What’s taken into account? The injury, society’s view of the heinousness of that act, the loss to the victim, the propensity of the offender to offend again and rarely the person who committed the act. But it’s still arbitrary in the end. Because they’re just numbers to us. None of us – the judge, the prosecutor or me – have to actually do the time. It’s easier to say “20″, when you don’t have to worry about what it really means.

It’s a struggle, honestly. A struggle between my acknowledgment that society has to exact its revenge for crimes committed against it, my duty to my client, my pragmatism and ultimately my utter horror that we are about to deprive someone of their freedom for any period of time.

I have a really difficult time telling a client to accept a plea offer that involves any jail time, let alone numbers in double digits. I do it, because I would be a lousy lawyer if I didn’t. But every time I hear a number, or utter a number, all I can think of is if I had to do that time: the things I’ve done over that time span going backwards; the things I will do going forward. And then I look at the man sitting in front of me and realize that there is no hope. That we’ve treated years of his life like chips in a game of poker. They wanted 5, I offered 3, we settled for 4.

There has got to be a better way.
Widely-respected blogger Anne Reed went to the dogs this week. Dogs... and cats and assorted other creatures great and small. She announced on her blog that she was starting a new role as Executive Director of the Wisconsin Humane Society. She will wind-down her legal blogging and legal practice and leave the world of lawyers fighting like cats and dogs to enter the world of cats and dogs fighting like cats and dogs. Eric Turkewitz spoke for many of us when he wished her well:
Anne had a great perspective on juries and the selection process, on studies about how people (and groups) think and many a tip on how to approach the actual trial of a case. It's clear that the legal blogosphere loses a terrific voice as she closes down Deliberations.

I'm likely not the first, and certainly won't be the last, to wish her all the best in her new endeavor. I'm also probably not the only one to wonder if she will blog about the experience of morphing from a career in law to a new area.
Douglas Berman noted that President Obama's first presidential pardon is for a Thanksgiving turkey:
As regular readers know, I am a lot more than a "little bit disappointed" about President Obama's failure to make any use of his historic clemency powers. The Obama Administration has obvious spent a lot of time and a lot of political capital seeking to ensure that suspect terrorists at GITMO get treated fairly, but it has yet to find the time or the inclination to make even a single symbolic gesture toward justice or mercy for the thousands of low-level non-violent federal defendants who can make a strong case for clemency attention.

Perhaps someone needs to start a new advocacy campaign with this slogan: "President Obama, justice and mercy should not only be for terrorists and turkeys."
As I mentioned during the Bush Administration years, I am not a fan of the traditional presidential turkey pardoning; one look into a turkey's beady eyes is all it takes to realize that given half a chance, he would kill each and every one of us because he hates our freedoms and our way of life. Oven or deep fryer, I encourage all Americans to do their patriotic duty this week, even if our so-called "leaders" will not.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Columbia University, a.drian (Flikr), and Paris Odds n Ends Thrift Store.

1 comment:

Anne Reed said...

Colin, thanks for this kind mention, and for all you've done for me and other legal bloggers. I think a shelter blog would be great, don't you? There aren't many that go beyond event notices and available-for-adoption posts, and it's a fascinating, difficult area. We'll see how things go, but I'm hoping.