07 April 2010

A Round Tuit (26)

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.

Turkewitz the Jester

April Fool's Day is hardly my favorite day of the year (that would be Saint Swithun's Day). While I prefer it to Saint Patrick's Day and Groundhog Day, I like it somewhat less than Christmas or Thanksgiving. Regardless, I like that April 1 is the one day each year when we accept that everyone can be a little foolish and much of our fun is in guarding against others' pranks. After all, creativity and humor shine brightest when these are undimmed by one's own gullibility. Fortunately, enjoy it or don't, this atmosphere of dishonesty and distrust persists only for a day; on April 2, things return to normal for another year.

Unless the next guy is Eric Goldman, I'd say that I love a blogger's well-executed April Fool's Day prank as much as the next guy. Year after year, we see many folks play little jokes here and there, and though a few attempt to pull off a large-scale prank, most fail somewhat ingloriously. As for those few who do succeed, it's a wonderful thing to witness.

On April Fool's Day, Eric Turkewitz reluctantly announced (since word was already trickling out) that he would be winding-down his much-praised New York Personal Injury Law Blog to start work as the White House's official legal blogger. He explained that his coverage of various legal issues had attracted some attention from White House Counsel Bob Bauer, to whom the new official legal blogger would report. Turkewitz wrote:
My appointment, which I hope will become final in the next few days, will clearly toss me into the political fray as I venture a bit more into political issues, an unavoidable circumstance given the nature of the position. Whether I am ready for prime time or not after 3+ years of blogging remains to be seen, and I fervently hope that I don't step on the wrong toes.


To the political bloggers that have already started to send me stories: Please stop. My gig hasn't started yet and I'm already being swamped. That which is relevant today may have no relevance in two-three weeks time, and I'm also going to have to port much of this stuff to a new account that will be subject to federal record-keeping rules. Logistics can be a pain and I don't have help yet, so please bear with me.
By the time I saw the post, three hours behind things out here on the West Coast, Turkewitz had already updated it a couple of times and included links to other bloggers' posts, adding to the appearance of a breaking news event which was slightly out of his control. Blogging from the right on the political spectrum was Patrick of the Popehat blog, who was dismissive of the Obama Administration's appointment of a personal injury trial lawyer as its spokesman on legal issues:
I’ve encountered Turkewitz on the web in the past, and even linked to him. He’s a skillful lawyer. He’s an entertaining blogger. He’s probably a decent man, despite the damage he has wreaked upon America’s already overburdened insurance industry. But as the White House’s new “public voice” on the law, I predict Turkewitz will be an unmitigated disaster.

First, he’s a security risk. Those who follow legal blogging have suspected for some time that Turkewitz was in talks to take such a position. He’s hinted as much on his blog (which went strangely silent a week ago), on Twitter, and in comments at others’ blogs, where he suddenly ramped up the pro-administration rhetoric, even rabidly defending his future masters’ attacks on the auto industry in the (now infamously debunked) California Toyota accelerator case. Typically, a man who has been offered a sensitive government position doesn’t let the world know it while he’s being investigated by the FBI. What will Turkewitz leak the next time the Obama administration vets nominees for the Supreme Court, as is widely expected to happen this summer if John Paul Stevens retires?


[W]hy has the White House chosen a medical malpractice lawyer to speak for it on legal issues? Is this some sort of payback to Fred Baron and the rest of the plaintiffs’ trial lawyer bar? Is this evidence of some new “health care reform” initiative for the benefit of lawyers who prey on the medical profession? To my knowledge Turkewitz has never practiced as a constitutional lawyer. Why has the White House (Obama is also a lawyer, heavily indebted to the trial bar for his election) chosen this man, who is no more qualified to speak about the Constitution than the Geto Boyz, to be its voice on issues such as free speech, national security, and the constitutionality of the health insurance mandate?

This is just the tip of the iceberg where the White House’s new law blogger is concerned. Eric Turkewitz has maintained a public voice for years. Expect Republicans, and others who care about the dignity of the law, to dig up far more as Turkewitz becomes the administration’s new mouthpiece.

It’s a shame. A White House law blog could be a great idea, a tool to engage with citizens about the part of their government many understand least. But to put it in the hands of a character assassin like Eric Turkewitz? Rather than “Hope” and “Change”, this looks like business as usual for Washington.
Orin Kerr was also asking questions:
I looked into the story, and it’s legit: According to folks I talked to, there’s no small annoyance that Turkewitz himself leaked the story on his blog, but he is indeed going to be the first White House Law Blogger. (And I suppose you should expect a blogger to leak that kind of a story — it’s a pretty bloggy thing to do.)

A few quick thoughts:

1) Does the White House really need a law blog? The White House already has a general blog, but my best sense is that no one reads it. I realize that the White House can do what it wants, but it strikes me as a bit creepy that the White House would hire a law blogger to try to influence the blawgosphere. I realize I’m on the libertarian side, but this strikes me as an area that the private sector can handle pretty well. Or so it seems to me, at least.

2) What about Marty Lederman? With all due respect to Eric Turkewitz, the Obama Administration has already hired a great law blogger: Marty Lederman, formerly of Balkinization. I don’t think Turkewitz can hold a candle to Lederman when it comes to blogging about the Executive branch: I’m a bit disappointed that the White House picked Turkewitz for the spot over Lederman. (I suppose I’m not surprised, though: Lederman was very critical of the Bush Administration, and the Obama folks may fear he would train that same critical eye on them. Better to pick someone with less experience in criticizing the Executive branch for an internal blogger.)
As Kashmir Hill drew more attention to the Turkewitz appointment in Above the Law's "Morning Docket" post, the commentary continued elsewhere. Scott Greenfield wrote that he was "jealous" of the opportunity Turkewitz had been offered but cautioned that while he seemed prepared for criticism from outside the Administration, the politics within the Administration were as likely to be his undoing:
It's not going to be all peaches and cream, however. I've heard from an old pal inside the White House press secretary's office that they are none too pleased by the newest member of the administration. They are scared to death that they now have a loose information canon on their hands after reading his body of work. They probably don't realize that Turk couldn't think of anything else to blog about, now that his usual staple of fantasy baseball, personal injury law and Findlaw masturbation are off the table.

It seems that the core problem is that the enlistment of Turk as digital law flack for the administration puts him outside the grasp and control of Robert Gibbs, the President's press secretary and secretarial school namesake. As any good PR pro knows, you can't control the noise coming from those outside your grasp, and when it comes to the dissemination of information, there's nothing more important than control..

The equation, I'm told, is that because "law blogger" includes the word "law", Turk will be under the watchful eye of the White House Counsel rather than the press office. I guess the word "blogger" didn't match any word on the current White House press secretary's grocery list.

But Gibbs isn't fooled. He knows that blogger means that Turk gets to spread information, and information (even about law) comes back to him. This is being seen as a seriously mess by the Gibbs folks, enough so that Gibbs would pull his hair out if it wouldn't impair his otherwise stylish coif. The message sent to me was that Gibbs wants Turk to quietly go away, as if it never happened.
Political blogger Doug Mataconis also anticipated a backlash against the appointment of a medical malpractice trial lawyer:
My first thought is this; given the rancor that was raised during the health care debate about tort reform, is it really politically wise for the White House to hire a medical malpractice attorney as their official legal spokesperson to the world ? It seems like they’ve just handed yet another issue to the Republicans for the fall elections at at time when they can’t really afford to do so.


If you think Justice Alito was upset when Obama called out the Supreme Court at the State of the Union, just wait for the reaction when Turkewitz rails against SCOTUS for it’s decision in the Chicago Gun Case in June on the White House website. I doubt Chief Justice Roberts will be inviting the President over for coffee after that one hits web.

For a White House that is supposed to be both tech-savvy and politically-savvy this strikes me as an incredibly stupid idea.
By mid-day, however, cracks were starting to show. Ashby Jones smelled a rat and called his sources at the White House; one, Ben La Bolt, e-mailed back that it was an April Fool's joke. Of course he would say something like that, contended Turkewitz, playing his trick for all its worth:
Politics can be a funny thing. As noted earlier today at Simple Justice, a source inside the Press Secretary's office had already said that they were irritated that I would be working for the office of the WH counsel and not be answerable to the press office.


So I guess I'm not surprised that the press office gave that comment to the WSJ. Before I even start, they are already trying to squeeze me out.


So, to my friends that were concerned I've lost the gig, rest assured that I will be showing up for work shortly at the White House. Except, of course, for those times I'm able to telecommute from New York. And yes, I will expect LaBolt to buy me a beer as payback for talking out of school in his too-quick, and uninformed, response to the WSJ.
It's to Jones' credit that he bothered to try to confirm Turkewitz' story; I suppose that sort of professionalism is why he's working for the Wall Street Journal and not a third-rate outfit like the New York Times. J. David Goodman wrote earlier in the day about Turkewitz' appointment only to sheepishly (and somewhat bitterly) retract it later:
Note: an earlier version of this column had an item about a blog post by a personal-injury lawyer, Eric Turkewitz, announcing that he had been appointed the White House law blogger. Blogospheric chatter indicates a high likelihood that this post was an April Fool hoax. Mr. Turkewitz declined to give us a straight answer on this score, so, pending callback from the White House, we've taken the item down.
The Gawker blog took particular delight in noting the next day that Turkewitz' prank was only only one of two times on April Fools Day that "the nation's paper of record" was taken in "hook, line, and sinker". For his part, on April 2 Turkewitz was happy to detail how the elaborate prank was pulled-off with the assistance of a number of bloggers and to give credit where due:
The basic idea was this: A bunch of law bloggers would try to punk the political bloggers, whose reputation is to grab any old rumor and run with it. Fact checking hasn't always been the strong suit of this community.

But the political bloggers, to their collective credit, didn't bite, despite wide dissemination of the story. Not on the right or the left. Instead it was the vaunted New York Times that ran with the story without bothering to check its facts. The Times, of course, had no sense of humor about it when the angry phone call came to me a couple of hours later.

Here's how it played out: Knowing that the premise of me getting such a gig was, shall we say, a tad far-fetched, I enlisted some heavy-duty muscle to give it credibility. Without others watching my back, I knew the ruse wouldn't get off the ground.


The underlying idea was to give people second thoughts about the story's legitimacy, because practicing lawyers would never set themselves up to be skewered like this and have their Google reputations trashed for years to come.


But the political blogosphere, as I mentioned earlier, never bit.

Perhaps one reason (aside from it being a silly endeavor), is people love to expose a ruse, making it more difficult to pull off on such a high-profile day. Even before I made it to the office, the ABA Journal had very strongly hinting at a stunt. Their post is time-stamped 6:46 AM CDT. Ouch. They even gave a run-down of my a prior April Fools hoax I ran regarding fantasy baseball and judicial recusals. It was almost like they were waiting for me.

By 1 pm, Ashby Jones at the WSJ Law Blog was emailing me, trying to get me to 'fess up. Seems he had called the White House for confirmation. (See: White House Hires Personal Injury Lawyer to Launch New Blog.) He conceded "we were had" and was, to be sure, a terrific sport about it when he tried again (this time by phone) to pry the secret out of me. The White House, he said, claimed it was an April Fool's joke. The WH was apparently ready for this because, by 9 a.m., I already had hits from the service provider "executive office of the president usa" as well as the "us department of justice."

But the New York Times didn't bother to fact check. Not with me. Not with the White House. And not with Google, which already had the stories from both the ABAJournal and the WSJ by the time they ran the story at 2:05.


At 4:45, I received a phone call from an infuriated "Andy Newman" from the New York Times demanding to know if this was an April Fool's joke. Unlike the classy Ashby Jones, Newman had zero sense of humor and demanded that I answer "as an officer of the court" or he would pull the post down.

I tried not to laugh, and told him that due to concerns in the White House about me jumping the gun on the story (as per Orin Kerr's post @ Volokh), I really shouldn't say anything and would clear it up tomorrow. This clearly wasn't good enough for him as he hung up on me, and down came the NYT post. The Times, I guess, doesn't like being punked on April Fool's Day.

Next time, perhaps, they will fact check April 1st stories involving small-time law bloggers suddenly becoming White House law bloggers. Next time.
Proving that even the best pranksters are not immune from being pranked themselves, Turkewitz posted later that he thought his trick had fooled the proprietor of a professional listserv into announcing his appointment to a list of "thousands"; in reality, the announcement went to only two — a friend who congratulated Turkewitz and Turkewitz himself.

All in all, Turkewitz' effort on April 1 was the sort of bizarre episode which for sheer amusement value could never be surpassed. Well, not until later that week anyhow.

Two days after the prank, noting that "April Fool's Day isn't for everybody", Jack Marshall, criticized Turkewitz' April Fool's Day prank as a breach of legal ethics rules:
[A]nyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun”…yes, even on April 1.... No doubt about it, the Times was fooled, and should have checked the story. Then again, lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct,
Scott Greenfield was amongst the many who saw that Marshall had missed the point entirely:
I am a huge proponent of ethical behavior by lawyers. But I am not a proponent of those who would impose bizarrely unrealistic and simplistic ethical proscriptions that would strip lawyers of their human nature, not to mention their freedom to have some fun. No one was harmed, nor was there any potential for harm. It might be argued, as did Eric Goldman in reaction to the Turk's prank, that it doesn't help the credibility of the blawgosphere to engage in practical jokes like this, but that's a pragmatic argument. I disagree, and suggested that Eric needed to lighten up, but I can't fault his reasoning.

That Jack Marshall may not have found Turk's prank funny is another matter. I did, but humor is personal and not everyone finds it in the same place. But his complaint isn't that the joke was lousy, but that it was unethical. That's a horse of a different color. Marshall, whose bio says he's a graduate of Georgetown Law and a former criminal defense lawyer, is the proprietor of a business called ProEthics, Ltd.,
an ethics training and consulting firm based in Alexandria, Virginia. The firm emerged to counter the widespread belief that ethics had to be boring and technical, and stands for the proposition that most people are engaged by ethics and care about the resolution of right and wrong when the issues are discussed directly and dynamically.
It's unclear what makes Jack Marshall an ethicist, beyond the same qualifications that make someone a social media guru. But if one is going to set oneself up as an authority on a subject like ethics, then it's incumbent upon such an expert to do a far better job of thinking than appears here. Of course, if Marshall is only posting these provocative half-baked accusations to draw business to his ethics consulting firm, well then, maybe his superficial and mistaken opinion on the Turk's prank can be better understood.
Eric Turkewitz has written often on ethical issues and set out, point by point, how far off the mark Marshall's accusations were:
Rule 8.4? OK, let's run that one down. Rule 8.4(c) states that "A lawyer or lawfirm shall not...engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

Marshall claims that there is no exception for humor. I disagree. More importantly, I believe that the courts will stand behind me. And that is based on the recent legal battle over New York's 2007 amendments to our attorney ethics rules in Alexander v Cahill. As it happens, I've written plenty of posts about this ongoing legal struggle over what can, and cannot be used in legal advertising.

And one of the things that the court had to decide was whether deliberate misrepresentations by a lawfirm were ethical when done with humor to make a point.


An April Fool's prank that can be immediately debunked with a single phone call or email is not one that could hold up for more than a day and not one that could be taken seriously.

Moving one step further along, though it really isn't necessary, the April Fool's hoax has a role in social commentary in that it was designed to root out people that act on a serious news story without fact checking. I wasn't expecting The Times to fall for it, of course, but I did think that others would and that there was a good point to be made about people rushing to fall for stories, even on a day when they should be on the lookout for such things.

Thus, Rule 8.4 cannot be read in a vacuum. The claim by Marshall that "there is no April Fool's Day exception" would seem to be pretty clearly wrong. There is an exception, and it's called the First Amendment.

So, leaving aside the easy responses one might have to those that would criticize an April Fool's prank such as the one I pulled with my co-conspirators, it would seem that, on the law, the First Amendment rules the day.

And the rules also wouldn't apply here because the hoax wasn't pulled in conjunction with the representation of any client. Thus, if you make the April Fool's joke an ethical violation, then so too are misrepresentations surrounding surprise parties, Santa Claus and The Tooth Fairy.
Marshall chose to dig a little more and educate the hoi polloi about the true meaning of April Fool's Day and why the First Amedment can be so darned unethical for attorneys:
[S]peech may be protected by the Constitution, but it may also be an ethics rules violation. A focus on what one can do is often the calling card of someone with a busted ethics alarm. I’ll stipulate: yes, April Fool’s stunts are protected speech, and yes, no bar association will waste its time going after a lawyer who perpetrates a web hoax. As it says right in the Rules, however, these are ethical guidelines for how a lawyer is supposed to behave, and not every violation is going to incur Bar discipline.


Defining what is unethical is my business, and part of it is making people focus on common practices that are unethical in principle. Web hoaxes do no good, and much harm. They are per se irresponsible, as the fact that the New York Times reported a false story because of Turkewitz’s hoax demonstrates. I pointed out the fact that this hoax was doubly unethical because I felt it made both that point and this one: lawyers are held to higher standards of honesty and trustworthiness, in their professional lives and in their personal lives. A lot of the public doesn’t know that, and a lot of lawyers don’t know what it means. It means, among other things, that lawyers writing on legal blogs are violating those professional standards when they set out to use lies to “trap” bloggers they don’t respect—even under the juvenile cover of April Fool’s Day.


April Fools Day is designed for individual practical jokes, not mass deception and political dirty tricks. The New York Times believed Turkewitz’s claim that he had been designated official legal blogger for the Obama Administration because the #1 newspaper in America can’t ethically play tricks on its readers.... Adults, professionals and people intent upon doing their jobs right don’t pay much attention to April Fool’s Day, so they are the ones most likely to be fooled. Lawyers like Turkewitz are obligated to be on the side of these people, not working against them.
I'm pretty certain that the New York Times believed Turkewitz' claim not because they're "the #1 paper in America" and because they "can't ethically play tricks on their readers" but because they didn't bother to fact-check a story when others managed to. While Marshall's humorlessness and cluelessness are undoubtedly amusing, these were hardly benign accusations he directed at Turkewitz; Mike Cernovich did a fine job of explaining why this is a serious matter which deserved serious responses from legal bloggers:
Lacking a sense of humor is not a sin. What Mr. Marshall did next, however, is the worst thing a person can do: He levied serious accusations against Mr. Turkewitz.

Jack Marshall, who teaches legal ethics seminars, accused Turkewitz of professional misconduct. For those of you who aren't lawyers, it's hard to appreciate the seriousness of these accusations.

Accusing a lawyer of professional misconduct is similar to accusing someone of a crime. A lawyer who commits professional misconduct can lose his law license. Without a law license, a lawyer cannot practice law. All of those years of education and work go down the drain. Being found to have committed professional misconduct - in real-life implications - is the equivalent of being convicted of a felony.

Nevertheless, Jack Marshall levied these most odious accusations. Lacking any gravitas or appreciation for the seriousness of his false accusation, Marshall ranted and raved - like a pro se litigant.

He has yet to cite any case or State Bar Opinion establishing that playing an April Fool's Day joke is professional misconduct. Instead, he is trying to rely on himself as an authority.
In the face of criticism and without meaningful support for his claims, Marshall... established the official rules of April Fool's Day:
1. April Fool’s tricks are not for professionals to play on those who depend on them, trust them, or otherwise rely on them for information or services, unless there is a special relationship as well. The risks of harm and abuse are too great.

2. If the joke is intended to do any kind of tangible harm, including causing anxiety, public embarrassment, expenditure of time or third party consequences, it is unethical....

3. April Fool’s Day should not be used as an excuse for harassing enemies, adversaries, or anyone who would not regard the joke as well-intentioned.

4. The April 1 joker must be reasonably certain that the joke will not affect untargeted third parties who are beyond his ability to contact or relieve.

5.There must be reasonable presumed consent to be pranked. If someone has stated in the past that they do not like being the butt of jokes, or if there is reason to believe he or she will not appreciate the joke, then it is unethical to make such individuals a target.

6. If the joke involves making someone believe the ridiculous, the prankster has an obligation to make the falseness of the story apparent after the initial deception. If this is impractical, then it is fair to give some notice....
At this point, I realized that I — and Turkewitz and Greenfield and Cernovich and many others — were had by a pranks master. No one could seriously establish rules like these; no one could be that pompous and self-important. Marshall had us all going this week. Turkewitz' little stunt was cute and all, but only Marshall managed to keep his prank going for more than a day and in the face of considerable scrutiny. Well played, sir; well played indeed.

The Defenders

The recent Supreme Court decision in Padilla v. Kentucky was an unusually divisive one amongst the criminal defense bar, or at least that portion whose comments were solicited by general news media. Amongst the many defense counsel who blog, the responses were somewhat more thoughtful and measured, albeit hardly uniform. Gideon applauded the decision, which held that where a guilty plea would have consequences for a defendant's immigration status, defense counsel must advise their clients of those consequences prior to the plea; he noted that his own state, Connecticut, and others already require this by statute:
There may be some who throw their hands up in the air at yet another thing the defense attorney has to do or learn. In a lot of situations – and I’m looking at you, public defender offices – the sheer volume of business is such that it’s hard to keep up with changes in substantive criminal law, let alone familiarize oneself with the immigration consequences.

I don’t think that’s a legitimate complaint: for one, the defense attorney is already ethically and morally bound to advise the client of all matters that are relevant to the client’s decision to plead guilty. I’m sorry to say that our role as counsel is not limited to just the criminal arena. The consequences of a conviction extend far beyond the local penitentiary these days. Housing, immigration, child custody are all consequences that stem from the fact of a conviction and are all issues that are important to the client.

It helps to think about the kind of lawyer you want to be. Do you want to be a lawyer who does the bare minimum and relies on the judicial dam that stems the tide of ineffective assistance of counsel claims? Or do you want to feel good about yourself when you go to bed at night, knowing that you’ve accurately and honestly helped someone make a decision that will severely impact their life?

And how difficult is it, really? The big ones are no-brainers: robbery, murder, assault, rape, kidnapping. All will result in deportation. The drug offenses are where it’s difficult. But if that’s your stock-in-trade and you don’t familiarize yourself with the immigration consequences, you will lose business or gain a bad reputation. It’s that simple. Even simpler, call an immigration attorney. Every single reputable immigration attorney I know will gladly take a few minutes of his or her time to give you a rough approximation of the consequences, if any, of the plea and even tell you how you can structure the plea to avoid deportation (if possible).

The effort required to discover this pertinent information is minimal and you owe it to yourself and your client to make it.
Mark Bennett noted that until the Padilla decision, Texas courts went through the motions by giving their clients a one-size-fits-all disclaimer about immigration consequences:
Texas courts advise defendants pleading guilty that their plea may result in adverse immigration consequences. Until today, that’s all that has been required by the law. Thorough and competent criminal defense lawyers would determine the immigration consequences and advised their clients of them, but not all criminal defense lawyers are thorough and competent, and it’s much easier to get the Padillas of the world to plead guilty if you gloss over those nasty consequences.

The gloss is no longer enough. Now, if the law clearly requires deportation, the law (and not just ethics and conscience) requires the lawyer to tell the client. It’s about damn time.
Carl Folsom suggested that the added complexity for defense counsel will be minimal and summarized the new state of the law:
[T]he duties of defense counsel regarding immigration consequences can be summed up as follows:
  1. Know whether your client is a noncitizen (I added this one, but it seems like counsel should not be able to “fail to investigate” a client’s immigration status to get out of the duty to inform them of immigration consequences).
  2. If the deportation consequences of certain offenses are clear (read the removal statute), advise your noncitizen clients of the deportation consequences for the criminal charges they are facing (e.g., does the charge make deportation presumptively mandatory?);
  3. If deportation consequences are not clear, advise the noncitizen clients that any criminal charges may carry adverse immigration consequences.
Jamison Koehler admitted his own limitations and wrote that for himself and others who have avoided an in-depth understanding of the somewhat arcane immigration laws and policies, Padilla will make their lives more difficult — at least for a while:
I have always struggled with immigration law. Fortunately, when I worked at the public defender’s office in Philadelphia, we had a couple of lawyers on staff who did nothing but immigration issues. Whenever you had a client facing potential immigration problems as a result of criminal charges, you would consult one of these lawyers. They would tell you exactly what you had to do. And then you did it.

The unfortunate consequence of all of this was that I never really had to learn immigration law on my own. I became dependent on the advice of others.

I knew this was a problem when I launched my practice last fall. With no one there to spoon feed me things, I realized I would have to educate myself. So I consulted immigration lawyers. And I took a continuing legal education class that promised to teach me this. It didn’t. The problem is, you have immigration lawyers. And you have criminal defense lawyers. And neither side really seems to understand the other. The CLE course I took was attended by criminal defense lawyers. But it was taught by immigration lawyers. We spent the whole session talking past each other.


It’s not that immigration issues are suddenly more important to criminal law. They have always been important. The difference is that, following Padilla, criminal defense lawyers will now be much more atuned to the potential immigration consequences of a criminal conviction. And, as Mark Bennett put it, “it’s about damn time.”
Scott Greenfield wrote that Padilla changes little for criminal defendants. Before the decision, courts were responsible for advising defendants about the collateral effects of a guilty plea, in order to ensure that such pleas were knowing and voluntary; Padilla shifts that responsibility to defense counsel who, he notes, are less well-equipped to predict what immigration consequences may flow from a guilty plea:
There was never any question that immigrants should be advised that a plea of guilty to an "aggravated felony" had immigration consequences. The question was who was responsible for doing so. The wrinkle in this case, of course, was that Padilla had been affirmatively misadvised that his plea would not have consequences, which every defense lawyer should know was dead wrong.


As argue, the court, in taking the plea, provides a laundry list of rights and impacts that affect the defendant. This should be among them. Now, it's not. Now, it's another burden on defense counsel. But the Supremes went a step farther in Padilla, not merely requiring defense counsel to be responsible for advising the defendant that it may have consequences, but advising the defendant of what those consequences will be. And getting it right.

Clearly, a good lawyer will advise his client of these things, regardless of whether the Padilla decision forced the burden upon him. He will do it because his duty compels him to serve his client, and no defendant can make a knowing decision to plead guilty without understanding everything, including immigration consequences, it entails.

What's unclear, however, is how the court could impose a burden on defense counsel to predict the future, and in a different legal specialty no less.

How does one distinguish between knowns and unknowns? The answer invariably comes afterward, when an immigration judge or court decides. It is true that most felonies will result in near certain deportation or removal, and it can't hurt to inform the defendant that their plea means they're out of here. But it still won't necessarily be accurate. And the fault for inaccurate advice falls on the criminal defense lawyer rather than the court because, well, it's always easier to lay blame on the lawyer.

The decision also holds an interesting tangent in its discussion of collateral consequences, where it suddenly blows the smoke away from the legal fiction that separates criminal from civil consequences.
Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it "most difficult" to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982).
Yup, it is most definitely "intimately connected." And isn't that precisely the same for civil asset forfeiture? And doesn't that reasoning extend to habeas corpus as well? The false dichotomy between civil and criminal proceedings and penalties is a foundational legal fiction, used to deny the full panoply of rights assured the defendant by the Constitution whenever it makes the government's job easier. The Supremes have now pulled back the curtain and shown it to be a fraud. Just as immigration consequences, though given the name "civil" and collateral, are now part of the bag of duties of criminal defense counsel, let's keep that ball rolling to all the other fictional proceedings that are equally a part of the criminal process but hidden behind legal fictions.
In another post, Greenfield pointed out that the substantial variations in criminal laws and procedures from one state to another makes determining federal immigration consequences that much more hazardous:
The problem is that prosecutions and cops in other jurisdictions work off of a NCIC rap sheet, It's maintained by the FBI and is intended as a cross-jurisdictional source of criminal history.

The problem with NCIC is that it's notoriously wrong. Bad information goes in and never comes out. Nor does the good stuff, like a case being dismissed, manage find its way into the report. And of course, it offers no explanation as to the meaning of its contents, so that it's thrown in the face of a defendant, defense counsel and a judge in some faraway place, to be interpreted in a vacuum and left to the participants, unaware of what they are looking at or dealing with, to dispute. As everyone knows, you can't cross-examine a piece of paper, so the NCIC wins. At least for the moment.

The penal schemes of different states vary widely. The New York scheme, to the extent described here, is somewhat complicated and sufficiently strange so that it doesn't strike outsiders as obvious or intuitive. When it conflicts (and it often does) with their own interpretation of law, other jurisdictions tend to throw out those parts of the New York scheme that don't conform to their way of doing things. Like the "violation" denomination, the dismissal and nullity aspects, all vital components of the New York scheme but either ignored or rejected by courts in other states trying to make sense of a defendant's prior criminal history through the prism of their scheme.


Even if the lawyers could predict the future accurately, cover every jurisdictional quirk across the country, and, ultimately, leave their client in a state of confusion based on the variety of possibilities arising from the potential understanding/misunderstanding of New York law, would it [add to a defendant's] intelligent decision making or just confused the heck out of him? It's just not that simple. Few things are.
While guilty pleas and their consequences garnered more attention this past week, owing to the Padilla ruling, Gideon began another conversation which explored the "presumption of guilt":
It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt....

It’s all a lie. A big, bold-faced, wool over your eyes lie.

The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.

From the absurdly low standard of probable cause needed to arrest a citizen, to the pitifully slanted pre-trial proceedings, to the trial itself, the presumption weighs heavily against all those who have been charged with a crime.


Take it a step at a time: the State (or prosecution, if you prefer) has already made up its mind about the defendant’s guilt. They’re initiating a criminal prosecution. In their mind, they’ve already convicted the defendant. That’s the hand they’re playing from. “Why should I believe your client?” “You think a jury’s going to buy that?” “Oh, that’s his alibi?”

Skepticism and disbelief reign supreme. We have to prove to them that their initial assessment of the defendant’s guilt is incorrect. The burden is shifting.

The media coverage, if any, is almost always slanted toward the prosecution. Unbiased, non-sensationalist reporting is almost non-existent. The press plays a subtle role in shaping the opinions of the jury pool.

But there’s always the trial, you say. A determination of guilt or not-guilt to be made by a jury of “peers”. All 6 or 12 of them are indoctrinated about the presumption of innocence and all vow to uphold the State to its burden.

I have come to believe that that is hogwash. Jurors are smart enough to know what to say. They’ve also been reading the same newspapers and watching the same news. There’s still this cultural divide between “them” the defendants, and “us” the jurors. Someone’s been arrested and is going to trial? Well, there must be something to it or why else would the State waste its time?

The presumption goes to the State. If the State, in its benevolence and infinite wisdom has decided to pursue this matter, then, well…

If you had a client in whose case you believed the State’s evidence could not sustain the burden, would you dare rest without putting on any evidence? Do you have that much faith in jurors?

I have this belief – it may be a naive belief – that most trials are won not because the jury upheld the presumption of innocence, but because the defense overcame the presumption of guilt.
Jeff Gamso added emphasis to Gideon's post:
Every criminal defense lawyer knows he's right. Although most won't admit it publicly, everyone in the system knows he's right.

Once a person's charged (really, once the person is a serious suspect), the person is presumed guilty. You need to start with that to understand. But then you need another piece. Because even when we win, the person is presumed guilty.* The taint remains.

It doesn't matter how we win (or it it's "we" or what's generally thought of as a win). The presumption of guilt remains.
Whether jurors are conditioned to favor presumptions of guilt or, as has also been suggested, lack the attention spans and reasoning abilities to digest complex criminal trial arguments, few in the defense bar would favor doing away with juries in criminal trials. In Britain, there is no movement to reduce juries' roles in criminal trials generally, but there was recently an extraordinary occurrence which does not bode well — a criminal trial held without a jury for the first time in more than 400 years. The four men on trial were convicted and sentenced by a judge alone at the end of March. Charon QC wrote that in the week following, calls have already started for bench trials in more criminal cases:
Predictably, it did not take long before a copper... popped up to tell us all that it is time to have Judge only trials. No doubt, those who wish to be Home Secretary or Secretary of State for Justice / Lord Chancellor on May 7th will be salivating at the prospect… CUT (costs) and BURN (Villains).

Andy Hayman was Assistant Commissioner for Special Operations at the Metropolitan Police. He has managed to persuade The Times to give him some air time – perhaps it was a quiet news day? – to tell us….

Twelve good men no longer guarantee truth

As crime gets more sophisticated, sometimes the jury system will not be able to cope.


So? Some cases may well be complex – is that a reason to chop the jury? He also tells us that unless we have served on a jury we cannot possibly know how difficult it is and that he has spoken to a lot of jurors...”most describe mixed feelings when the summoning letter arrives in the post. They feel proud to have a chance to fulfil their public duty but also dread being selected for a case that may mean a year swallowed up, poring over complex, and in some cases, distressing evidence.”

I can only assume that Mr Hayman has served on a jury in such a complex trial and he appears to be unaware of the rule that Jurors are not supposed to discuss what happens in the jury room with anyone… or has that gone by the board since those dark distant days when Professor Smith and Professor Griew wrote about Criminal Law in their respective textbooks? I cannot imagine that he was talking to jurors before the trial… well… perhaps such is imaginable but, one assumes, did not happen.

I repeat … I am not a criminal lawyer – but the fair number of criminal lawyers I have spoken to are very much in favour of the jury. Certainly, there is the well known aphorism that if you are innocent go for trial by judge alone and if guilty…try your luck in front of the jury.. but that is an aphorism and not a factual observation of scientific study supported by clear evidence.

I’m with the criminal law experts on this. We have to retain trial by jury, we have to watch mission creep and we certainly do not need to hear from policemen who should have no part in the criminal justice system following investigation and arrest.

We are not a Stasi East German style state yet…despite the best endeavours, it would seem, of some on both the left and right…. and we certainly do not want to become one.

Odds n Ends Shop

As my in-house practice primarily concerns intellectual property, I keep an eye on "best practices" kinds of posts and articles about managing patent, trademark, and copyright assets. With a few noteworthy exceptions, most of these are geared toward greater emphasis on protecting assets vigorously, early and often. It's refreshing, then, to see in quick succession a few posts from respected authors and blogs counseling otherwise and emphasizing that focusing on IP protection can be, on occasion, akin to losing the forest for the trees. Eric J. Heels (fun trivia fact: the "J" is for "Jiggy") advised us to stop wasting our money on patents:
Attention People of Earth:

Patent law is currently broken. Especially software patent law. A pending Supreme Court case (Google Bilski for more info) may fix it or make further break it. In short, you can expect to pay more for, wait longer for, and get less from your patents than you would have 5 or 10 years ago.
Cost – At my IP law firm, the average cost to file a patent is $11.5K. This represents about half of the overall cost of getting a patent. File it for $11.5K, finish it up in a few years for another $11.5K, total cost $23K. (There is a large standard deviation. Two thirds of our patents are filed for between $7K and $17K, so you are unlikely to pay less than $14K or more than $34K.)

Time – Your patent will be pending for years, 5-6 years for software patents. Your patent will likely be pending before you need to make the decisions about filing foreign patents. In most cases, your patent will be pending long after the product (that is the subject of the patent) has reached the end of its lifetime in the marketplace. In some cases, the patent will be pending long after the company (that owns the patent rights) has been sold or has gone out of business.

Rights – Less than 50% of filed patents will issue, so your chances of getting a patent, starting out, are less than getting heads in a coin flip. If your patent is a combination of previously existing elements, then the chances are closer to five percent that a patent will issue (Google KSR for more info). Is your invention above average? Are you an above average driver? Note that 80% of people surveyed answer "yes" to the second question, but 37.5% of them are wrong.

In most cases, filing a patent application is a waste of time and energy. Especially for startups. Your money and time would be better spent hiring programmers, marketers, and a sales force.
Marketer James Mahoney had a message for those trademark attorneys who fret about "untrademarkable" names concocted by marketers:
It's time to let you in on a dirty little secret: we don't care about trademark stuff. At least not a lot of the time.

Now before you break out the smelling salts, or the torts (aren't they little tasty cakes, by the way?) or something to stop your palpitating hearts, let me explain a little further.

For big stuff, like our own trademarks or ones we think will really get us into trouble if we violate, then we do pay attention and we do care. Ditto for new things we come up with that we think will have some durability. That's a key distinction here, folks: things we think will have some durability. Relatively speaking, there aren't many of them—product names, for example, deserve attention.

For everything else we do, we pretty much know that the Smithsonian isn't going to be calling us to enshrine the original. We're also pretty sure that most of the stuff we come up with will live slightly longer than a tsetse fly only if we're lucky.

That's why we're so cavalier about trademarks. Other than observing the big-picture rules (most of the time), we hit the threshold of diminishing return on trademark-related effort very quickly. It's just not that valuable a use of our time.
After reading a discussion of similar issues, Mike Masnick revisited an earlier post concerning social controls and copyright (specifically, accusations of joke-stealing leveled by one comedian against another):
This is a similar point that I've made when people ask how I would feel if websites copied Techdirt without giving us any credit. As I say, they're free to do so, but they should realize that if someone notices that they're copying without credit, it could seriously harm their reputation -- and reputation is a scarce good that is hard to build up if you've lost it. In other words, one of the reasons why I proudly put all this content into the public domain is that I recognize that most people who use it will know that it's in their own best interest to credit us, and help give us more attention, because it's not worth the credibility risk.


Of course, none of this is new. Last year's Nobel Prize winner in economics, Elinor Ostrom, won for her work showing how specific communities can often better self-regulate so-called "public goods," rather than needing to involve gov't mandated privileges or property rights.

While we're talking about jokes here, this is a serious issue when it comes to economics, policy and the law. It suggests, yet again, that the rush to keep putting up artificial monopoly rights may not be needed in many cases.
Finally this week, all right-thinking Americans are excited that it's once again baseball season, but it's something of a chore to think about work when baseball is really what's on our minds; John Wallbillich helps us do both, advising us to "cultivate an opening day mindset":
1. Strive for precision, not perfection. (The best lawyers have setbacks, too).
“Baseball’s best teams lose about sixty-five times a season. It is not a game you can play with your teeth clenched.” — George F. Will.
2. It is possible to do good work if you’re not overly focused on the meter. (Results, not effort, are what matters).
Baseball is infinite. It has no limits of time or space. There is no clock. The foul lines extend indefinitely beyond the field of play. Even the outfield wall is only there for convenience. — Bruce Hoffman
3. It’s not about brute strength, but also perseverance and agility. (Law is the great equalizer, and a source of fairness in an unfair world).
“There is no sports event like Opening Day of baseball, the sense of beating back the forces of darkness and the National Football League.” — George Vecsey
The much-anticipated D.C. circuit court decision in Comcast v. FCC was just handed-down yesterday and though there have been some good early comments on the ruling (spoiler warning: Comcast won), I expect to see a great deal of in-depth analysis over the next couple of days; thus, I'll save this topic for next week's Round Tuit. Besides, I'm still just thinking about baseball. Play ball (and let's go, Mariners)!

UPDATE: I don't generally update these Round Tuit posts, but this classy apologetic post from Jack Marshall deserves an update. Marshall writes:
For now, I am giving notice that my efforts to find sufficient legal and ethics scholarship support for my contention, expressed here, that the April Fool’s web hoax launched at the New York Personal Injury Blog was a violation of the professional ethics rules have failed, and I am hereby retracting my earlier contention and agreeing with my critics that I was wrong, in several ways.

I have sent an apology to Eric Turkewitz, and hope that he will accept it. I also apologize to my readers, who should expect better from me, and my critics, who spent a lot of their time trying to beat some sense into me when they could have been enjoying the sun.
Like an afterschool special, I think we've all learned a valuable lesson here; now it's time to turn off the T.V. and enjoy the sun.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., New York Personal Injury Law Blog, who2.com (The Defenders, starring E.G. Marshall and Robert Reed and co-starring Dennis Hopper), and Paris Odds n Ends Thrift Store.

1 comment:

Anonymous said...

This is just a trip. Actually, I don't know what to say because it involves the White House's name. I think this is the most memorable April Fool's Day of Turkewitz.


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