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.
We're into the final weeks of the Supreme Court term, wherein each year the robes release a flurry of decisions on matters great and small. The much-anticipated Bilski decision didn't arrive this week but a number of others did, including key rulings which affect privacy and personal liberty interests.
City of Ontario v. Quon was anticipated — quite apprehensively by many — to set the tone for the Court's privacy and Fourth Amendment jurisprudence in our fast-changing age of mobile messaging, smartphones, and always-on interconnectedness. When the decision was handed down this week, however, the Court was unanimous in ruling against Quon but was unexpectedly measured in its holdings. The facts of the case — briefly, these involved personal messages sent by a government employee using a government-issued communications device — tended to limit the scope of the Court's ruling, as did the justices' recognition that the rapid pace of change counsels a measured approach to privacy issues vis-à-vis new devices and technologies.
W. Scott Blackmer offered a good capsule summary of the decision:
The Court noted that any reasonable privacy expectations were probably limited by the city’s Computer Policy, which stated (as do the policies of many employers) that users “should have no expectations of privacy or confidentiality” when using city computers. A subsequent memo made it clear that this policy extended as well to communications devices furnished by the city. Quon argued that this policy was modified by his superior’s subsequent verbal assurance that there would be no audit as long as officers paid for excess text usage. The Court declined to make a finding on that argument, assuming for purposes of the decision that Quon had some reasonable expectation of privacy. But the Court ruled that the city’s search of message content was reasonable because it was undertaken for a work-related purpose and used measures that were not excessively intrusive in the circumstances. And because the employer’s search was reasonable, the other parties who sent messages to Quon could not prevail on their argument that the review of message content violated their own Fourth Amendment rights.Blackmer noted that only Justice Scalia urged the Court to broaden its opinion to address the privacy expectations of non-government employees; though Scalia's brethren declined to do so, Blackmer suggested that private employers would be well-advised to clearly-define a communications policy for employer-issued devices and to consistently apply that policy to avoid the complications raised by the City of Ontario's mixed messages to Quon.
Kashmir Hill culled two passages in Justice Kennedy's opinion for the Court, expressing the majority's reluctance to decide too much in Quon:
Justice Kennedy was very hesitant about the scope of today’s decision. He wrote:Lyle Denniston also emphasized the limited nature of the decision:Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.That sounds like a cry for help to me. “Please, Congress, update the law!”
Finally, Kennedy tries to warn people not to overestimate the meaning of the Court’s decision today:A broad holding concerning employees’ privacy expecta tions vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on nar rower grounds…
Prudence coun sels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.
It is important to stress that the part of the privacy equation that was at issue in the Quon case is a claim of privacy against government intrusion into personal exchanges — that is, whether the Fourth Amendment’s guarantees of privacy from government officials and agencies are to apply to the electronic communications of public employees. (The Fourth Amendment does not deal with questions of privacy for texting workers in the private sector, but how the courts deal with Fourth Amendment issues in this realm may well have an influence on managements in their dealings with texting workers in private offices and factories.)Ethan Ackerman and Eric Goldman viewed the opinion as so limited and tied to the facts of the case that it offers little utility in future matters. Ackerman wrote:
The Court’s Quon decision permits government supervisors to examine the private texting of their employees but only if the following conditions have been met: the cell phone must be provided by the agency itself, the worker must have been told in advance that any messages they send on that equipment would be subject to auditing by management, the examination of the transcripts must be for a work-related purposes — such as determining whether the device was being used wrongly — and not to gather evidence of criminal wrongdoing, the review of the transcripts must be based on some grounds to suggest misuse, and management would be wise before looking at transcripts to delete messages sent when the worker was off duty. In checking up on workers’ use, the Court added, management need not use the “least intrusive” method of review.
Those, the Court made clear in the opinion written by Justice Anthony M. Kennedy, are the essential ingredients of a government intrusion into texting by workers that will satisfy the Court’s prior Fourth Amendment “controlling precedents.”
I noted with some surprise in December 2009 when the Court granted certiorari, and wondered whether this was a good or bad thing for online privacy. The glass half-full or half-empty quandary remains after the court's narrow opinion.Goldman shared Ackerman's confusion over the Court's intentions:
[A]fter seeing the opinions, it remains baffling why the court granted cert in this case. The only obvious reason is that the Supreme Court felt like it had to fix the 9th Circuit’s mistakes, as it yet again reversed the 9th Circuit (like that wasn’t entirely predictable). Otherwise, the opinions are so limited to the facts of the case that they provide almost no value to anyone other than the litigants. That seems like a real lost opportunity for an appellate court with discretionary appeals.Glass-half-full or half-empty, opportunity lost or no, Kevin Bankston wrote that Quon offered "hopeful signs" for employees of non-government entities:
Instead of finding no Fourth Amendment privacy protection in text messages, the Court instead assumed without deciding that there was a Fourth Amendment expectation of privacy in the text messages, but that the City's search of the text messages was reasonable under the Fourth Amendment because it was work-related. In doing so, the Court applied but did not expand its previous rulings on the limits of privacy in government workplaces.In his opinion, Justice Kennedy wrote, "Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification." From this intriguing dicta, Douglas Berman considered a possible future direction in sentencing jurisprudence:
Meanwhile, in explaining why it cautiously chose not to answer the expectation of privacy question, the Court... seemed to preview how it would eventually address the question of whether we have a Fourth Amendment interest in the text messages stored by our cell phone and pager providers, and, by extension, in emails stored by our email providers, IMs stored by our instant messaging providers, and voicemails stored by our phone providers.
Rather than automatically concluding that communications stored with third party providers are entitled to no Fourth Amendment protection at all — the rule that the Department of Justice has urged in email privacy cases such as Warshak v. U.S. — the Court made clear it would instead cautiously make such decisions based on society's privacy expectations and its level of reliance on new communications technologies....
[I]t is not too much of a stretch to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now "essential means or necessary instruments for self-expression, even self-identification." But... sex offenders these days often face release conditions that fully or significantly restrict their access to the internet and/or social networking websites. I suspect that this classic Justce Kennedy line from Quon might find its way into a few efforts in lower courts to attack limits placed on some offenders' use of modern means of digital communation.Another narrow ruling has more troubling implications for First Amendment speech protections. In short, Humanitarian Law Project concerned an organization sought to train members of designated terrorist organizations to pursue their objectives by non-violent means. While this certainly seems a worthy objective, the activists were concerned that their trainings would run afoul of an anti-terror law prohibiting the provision of "material support" to designated terrorist organizations. The Court determined that the group's training and advocacy could be considered "material support" within the meaning of the statue (which provides for various types of support, including "training", "expert advice", and other assistance) and that, as applied, the statute did not violate the First Amendment.
Mike Sacks noted that the decision broke a recent string of decisions supporting a broader First Amendment and further noted the curious acquiescence of the liberal Justice Stevens in the opinion:
This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms. In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment. In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.Rick Pildes characterized the decision as a deferential one which respected cooperative law-making between the Executive and Legislative branches:
The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay.
Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism. He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.
Today's decision... involves one area in which Congress and the Executive Branch worked together, over many years, to create a legal regime that makes it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization," and that fills in the definitional details. And the 6-3 decision powerfully confirms that the Court, as it has throughout its history, will give a good deal of weight to factual findings and informed judgments of the other two branches, when they act in concert.As was the case with the Quon decision, the Court emphasized that its ruling in Humanitarian Law Project was a very narrow one; Lyle Denniston discussed the Chief Justice's opinion, Justice Stevens' agreement, and the other Court liberals' reservations:
This deference theme is, indeed, the central one that runs throughout the Court's analysis of the specific statutory terms and First Amendment issues. And it has implications for all other terrorism policies issues, including issues Congress has not confronted in all these years, such as how to structure the ongoing detention regime that currently exists at GTMO, or potential issues that might be looming, such as how the Court might respond were Congress to define the boundaries of the "public safety" exception to Miranda.
Chief Justice John G. Roberts, Jr., who wrote the majority opinion, sought to emphasize how narrow the ruling was, even while making it unmistakably clear that the Court was quite willing to defer to the political branches — Congress and the Executive Branch — on what they decide needs to be done to protect the U.S. from terrorism. Thus, the main opinion moved back and forth between stress on its narrow scope, and an acceptance that even benign actions can be interpreted as helping to advance the dangerous goals of listed organizations.Whether the majority are sincere in their belief that theirs is a limited opinion or whether Justice Breyer and others are correct that this decision opens the door to more direct governmental intrusion on traditional First Amendment protections remains to be seen. Norm Pattis suspected that Breyer is correct and the Humanitarian Law Project decision has started the Court down another slippery slope:
The fact Justice John Paul Stevens, who has written some of the Court’s strongest opinions rejecting government claims to power over terrorism, joined without quibble in the Roberts opinion supported the notion that it was narrow. (Stevens, no doubt, also was attracted to an opinion that applied the most rigorous test of the government power to control speech — that is, it must satisfy “strict scrutiny” — to a law designed to protect national security.) But the fact that the Court’s other liberal-leaning Justices filed a strongly worded dissent — and Justice Stephen G. Breyer took the somewhat unusual step of orally reciting the dissent from the bench — supported the appearance that the Court had gone quite far to allow criminalizing of speech activity in this realm of the law.
Those looking for a bright line through this dark wood of error should focus on what appears to be the test for distinguishing material support from mere support. "The statute reaches only material support coordinated with or under the direction or a designated foreign terrorist organization," Roberts wrote. Presumably, work done in support of a terrorist group but neither coordinated with the group nor directed by the group remains protected by the First Amendment.In a series of posts, Eugene Volokh explored areas of First Amendment law affected by the Humanitarian Law Project majority's finding that the content-based speech restrictions at issue passed the "Strict Scrutiny" test; Volokh noted that the ruling is, thus far, unique:
This is a mighty thin line. The Court's sub rosa importation of the independent contractor/employeedistinction will no doubt prove troublesome in cases to come. How do we determine when a person supporting a group is working independently or under the control of the group? While that question might be easy to determine, the question of when a supporter's activities are coordianted by a prohibited group is of necessity a far murkier issue.
At its core, the Humanitarian Law Project decision disturbs because of its reliance on the slippery slope sort of argument that justifies any assertion of government power. Although the plaintiffs in this case argued that their purpose was merely to teach groups how to petition the United Nations, Congress and other bodies for relief, the majority held that these services, which translate easily into money, are so fungible that they might free up resources for violent uses. What's more, diplomatic efforts might become time-buying ruses bent to the service of terrorist intent. All cows, Hegel once observed, look alike in the gray twilight of evening.
The dissent shreds this reasoning, and suggests that whatever deference the Court should give to findings by Congress and the Executive branch about the practices of terrorist organizations, the right to advocate for peaceable change is a core Constitutional value of ancient and venerable lineage. Frankly, I think the dissent has the better argument. Once the slippery slope analogy is adopted, there is no stopping the slide into tyranny. Consider what has become the Fourth Amendment's "reasonableness" requirement as to searches and seizures.
This decision is... the only non-overruled majority opinion upholding a content-based speech restriction under strict scrutiny. Or at least this is so if the Court’s inquiry into whether the law is “necessary to further” “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order” is another way of asking whether the law is narrowly tailored to a compelling government interest. I’m inclined to say that this is indeed so — especially since the Court’s precedents call for strict scrutiny of content-based speech restrictions — though the dissent reasonably notes that the majority is not entirely clear on this.Volokh explained in another post why the Court's emphasis on protected independent advocacy, whether it assists named terror groups or undermines the government's anti-terror objectives indirectly, is meaningful:
So what does this mean? Does it suggest that other content-based speech restrictions will be more easily upheld in the future? I think it’s possible, but not very likely, because of the Court’s repeated insistence that the law doesn’t apply to independent advocacy, and only covers speech controlled by or coordinated with the group.
[I]f f one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.Other posts in Volokh's series are available here and here.
But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”
If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest.
Our justice system is an adversarial one. Though "adversarial" is generally taken to mean a contention of testimony and evidence rather than personalities, it can become a very personal matter from time-to-time. It's not uncommon for one side's counsel to accuse the other side's witnesses of misrepresentation of facts or outright fabrication of testimony. For criminal defense attorneys, making such accusations is an essential part of their role, as they attempt wherever and whenever possible to sway witnesses, inject uncertainty, or disprove false testimony. In law school, we learned that this process is known as "cross-examination".
Perhaps he missed that day in school or has forgotten either defense counsel's proper function or his own in the years since, but Judge Gregory Galler, a District judge in the Minneapolis, Minnesota area, displayed an embarrassing lack of understanding of things this past week. Briefly, during a recent trial, defense attorney David McCormick confronted a testifying police officer on the stand during cross-examination; some reports said that McCormick questioned the officer whether his testimony was designed in part to "cover his own ass", while other reports merely noted that the questioning suggested that the officer had been less than truthful in his testimony. Whatever was said, the judge was offended and ordered McCormick to write an apology for "impugning the officer's integrity".
Understandably, there was a widespread outcry over this perversion of the criminal justice process. For his part, the judge was vague about what had been ordered (he admitted only that he "might have" ordered the apology, though he later extended his deadline "indefinitely" and attempted to recharacterize his order as being directed at the mild expletive allegedly used by counsel) and expressed surprise that his order had caused such a stir. Though trial errors are certainly common enough, this one struck a chord in the blawgosphere both for its extraordinary cluelessness and for the fact that it exposed the uneven nature of the criminal justice system and courts' treatment of police and defense witnesses.
Scott Greenfield for one was unsurprised at the judge's partiality; instead, he expressed his dismay (with tongue in cheek) that McCormick had not done even more to earn the judge's ire:
Judge Galler was outraged, apparently, by McCormick's "suggestion" that the officer was being less than truthful. I, on the other hand, am outraged that McCormick didn't make the officer cry on the stand, admitting wholesale fabrication and complicity in the kidnapping of the Lindbergh baby. It's a perspective thing.Ken at the Popehat blog also took a good-natured swipe at McCormick:
One might suspect that Galler, whether in his experience as a lawyer before being measured for the robe, or perhaps during luncheon discussions with other jurists over the virtue of sobriety, was made aware of both the purpose of cross-examination, as well as the duty of a defense lawyer. Both would suggest that challenging the credibility of a police officer is, well, kinda what we do.
Was the officer lying? Who knows. It's certainly not beyond the pale for McCormick, who for some odd reason may be more inclined to believe his client's view of events rather than the officer's, to question the officer's veracity. Even if he didn't believe in the innocence of his client, McCormick's job requires (yes, requires) him to seek to undermine the officer's credibility if possible. That's what we do. We test the veracity of the police under withering cross-examination, should that be strategically advisable.
Who the hell does he think he is? Mister, that officer is the thin blue line between you and utter anarchy that would make Mad Max look like a direct-to-video Strawberry Shortcake movie. When Wigmore said that cross-examination was the greatest legal engine ever invented for discovery of truth, he certainly didn’t mean to suggest that upstart lawyers ought to question the veracity of police officers. The idea!Bobby Frederick was one of many who disagreed with Judge Galler; no less an authority than Justice Byron White supports his position:
The first thing, for those not familiar with the obligations of defense counsel, is that it is the defense lawyer's job to question the integrity of witnesses during cross examination. My experience, contrary to what the public wants to believe, is that police officers will lie on the stand. If I am calling him or her a liar in front of the jury, odds are I may be right. But what if the officer is being completely truthful? Consider the words of Justice White in U.S. v. Wade (1967):Bad Lawyer noted that this incident sheds some light onto a common situation — judges protecting police witnesses who testify frequently in their courts:Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.
This may seem silly or trivial but this story sheds light on a common problem in small law situations--often times the police seem like they are "clients" of the court.As Lord Acton famously opined, "Power tends to corrupt, and absolute power corrupts absolutely." The authority judges enjoy in the confines of their own courtrooms is considerable, if not yet absolute, and the capacity of some judges to act like petty tyrants is disheartening, even when such tyranny is arguably employed with some benevolent aim. Matt Brown related an example:
This is because the elected or selected judges of these small courts continually see the same law enforcement representatives as witnessed in their courtrooms. I have seen Judges consciously, or I'd rather like to think, unconsciously--begin to view themselves as friends or even as colleagues of the law enforcement officers who appear regularly before them. These judges may even have formed an opinion as to the officer's credibility or reputation based on observing the officer testify in previous matters. If the judge is in an elected position alienating the police is not a politic move as far as the judge is concerned. So you get a "captured" and less than independent judiciary. Net result, really aggressive cross-examinations designed to challenge the sweetheart relationship between witness and judge.
I imagine that what I saw was her version of tough love. She sentenced him leniently overall, so I think she was probably just hoping to scare him straight. I’m sure she thought her abuse, which she condescendingly heaped on this man who was a decade or more her senior, was for his own good. I wasn’t impressed.Scott Greenfield added his criticism for those judges who abuse their authority in this manner, even where it's meant as "tough love":
The judge wasted her anger. The guy’s a repeat offender, but look at the offenses. Didn’t she think for one second that it was ridiculous making an example out of a guy who took a cactus and tried to enter his own shed? He’s already at least a two-time felon. Although it’s for dumb reasons, employers probably don’t care. He’s going away for a relatively long time. Her scolding had no real effect.
I never like it when she goes off on defendants. At best, it plays to the worst in those who watch. It appeals to our desire to shame and ostracize others. I don’t believe for a second that it’s for their good; it’s because it makes us feel better about ourselves in some sick way.
If we lived in a place where laws and punishment had any rational relationship to morality or what offenders actually deserve, maybe there might be someplace in the courts system for something like what I saw. I still doubt it. Sadly, we don’t live in such a place.
One of the virtues expected of a judge is a judicial temperament. The ability to restrain oneself despite possessing awesome power, to speak calmly, rationally, politely to all before the court. This includes the defendant. This includes sentence.
Judges think of this as an act of courage on their part. It's ridiculous. It takes no courage for a judge to ridicule and demean a defendant who can do nothing to stop her. It's an abuse of power, nothing more.
A judge who gets off on abusing a defendant at sentence isn't showing tough love, but that they have no business wielding the power they possess. Whether or not the defendant's crime is unforgivable, so too is the judge's abuse of power.
For all our discussion of criminal justice matters, relatively few of us have seen the inside of a prison facility, let alone the inside of a prison cell. Gideon has, and wrote an outstanding post this week to give us the benefit of his experience:
I didn’t have the courage to ask my escort to have them close the cell door for a minute, locking me in. It was nauseating and claustrophobic enough as it is. Maybe I was having a panic attack, or maybe the air in there was dead, like the spirits of the men that inhabit these cells, but I thought I was going to faint.Jamison Koeehlr, who very helpfully reminded me this week that there are two "E"s in his surname but unhelpfully neglected to advise as to their arrangement, wrestled with a dilemma many new legal bloggers have faced — whether or how to incorporate client experiences and information without betraying confidences, compromising the attorney-client relationship, or running afoul of ethics rules. Noting that Scott Greenfield has drawn a clear line and will not share "war stories" in his blog, Koehler considered whether a more moderate approach could nonetheless be acceptable both ethically and professionally:
I willed myself to stand there, though, for a minute. To look around at the bare walls, the bare desk, the dirty toilet and imagine someone “living” there.
I even briefly closed my eyes and tried to picture myself there, day in and day out, for months, which turned into years, which turned into decades.
Would I survive? How does anyone? Would I give up and stop bathing, shaving, eating? Would I maintain my sanity or would I quickly decompensate? How long would it be before I’d want to kill myself?
Parole has got to be a sham. There’s no way that a group of 3 or 4 “regular folks” can decide whether one inmate is worthy of release over another. How can anyone better themselves in those conditions? Is there any choice but to give in to the atmosphere? The aura of despair, rejection and failure? How can we reasonably expect a person to prove to us on the outside that they’re worthy of a shot, when we give them no chance at redemption?
Parole hearings last 30-40 minutes. In that time, the board will try to determine who the person is that is sitting before them, what they’ve done to “change” and whether they’ll reoffend. It’s a crock of shit. It has to be.
There is so much wrong with our criminal justice system: the way we treat inmates, the disparate sentencing of minorities and whites, the witchhunts of sex offenders. Yet there is nothing that you or I can change about this. And that’s a pity. Fear has won and will always win. Stereotyping still rules the day and will do so for eons to come. We are wonderful at recognizing the heterogeneity of those close to us and the homogeneity of everyone else.
Lots of people have lost faith in the goodness of the human spirit and have forgotten that man, at his core, is a fallible being. But he is not his actions; rather he is how he responds to them.
No doubt those in jail have transgressed against our social and moral code. But we, on the outside, have abused that code and disfigured it beyond recognition. Just as those in jail may be responsible for pain and suffering and loss of human life, so are we.
The question is not whether to betray client confidences. That one is easy — it’s an absolutely no-no – and would include situations, as Scott Greenfield has cautioned, in which something a client told the lawyer in the context of the attorney-client relationship could unconsciously seep into the blogger’s entry.Greenfield replied that in reality, the "composite or fictionalized clients" approach Koehler described may be too fine a line for lawyers to walk; moreover, he suggested, it's unnecessary to take that risk or impose that risk on clients:
The question is also not whether a client reading a blog would recognize him/herself in an entry and feel embarrassed by it. This would violate, among other things, the lawyer’s duty of loyalty to the client.
Finally, the question is not even about usurping ownership of a case.... In most situations, the cases do belong to our clients. They are their cases to write about. They are also their cases NOT to write about.
No. The answer to these questions is pretty clear.
At the same time, recognizing that the specifics of a case can often make a blog entry come alive, the question I have struggled with is the extent to which there may be circumstances in which we can write about clients without violating any ethical or moral duties to the clients, without violating their trust. In other words, can we have our cake and eat it too?
[W]riting about composite or fictionalized clients is another matter.
Through the careful use of some creative license... the blurring of both details and timeframe, and the jumbling of identities, we can draw from our experiences with real-life cases and clients without compromising either the interests of those clients or our ethical duties to them. Even if in the end the composite client exists only in the mind of the blogger who created him, the story is no less interesting, no less illuminating. These clients don’t exist; and yet they do.
Confidences can be revealed directly, as when we write about a particular case or client. Yet, we reveal something with everything we write. We reveal something about ourselves, whether it's our analytical ability, our emotional state, our sense of humor or our humanity (or lack thereof). We reveal things we don't intend to reveal. It's difficult, sometimes impossible, to realize how our thoughts appear through our words. We reveal our impressions, biases, strategies, frustrations.Before now, Tim Kevan's BabyBarista blog has always been presented from the viewpoint of its eponymous protagonist; this week, however, BabyB found a kindred spirit of sorts in Charon QC's Matt Muttley, Managing Partner of Muttley Dastardley LLP. In a guest post, Muttley delivered instructions to BabyB for some new standard form contracts provisions:
Blawgers sometimes believe that they are adept at making their point while disclosing nothing. Sometimes it's true. Sometimes it's not. The problem, unfortunately, is that our self-assessment of what we disclose through our writing isn't necessarily accurate. I speak only for myself here, but I do not trust my ability to know that I've given nothing away. And I think I'm fairly good at it, as these things go.
To that end, we need to consider why we need to take the risk. If we write for fun, then there is no comparison between our desire to enjoy blawging and a client's dependence on our confidentiality and discretion. Our fun is never worth the chance of doing harm to our client. Even inadvertent harm.
For those who blawg for profit, the rationale is even less availing. To use writing for mercenary purposes, running the risk that something we might write will inure to the detriment of our client, is inexcusable. We can't take comfort in accidental error, or even benign neglect. The self-promoter is selling his confidences for the next fee. There is no excuse for this.
My views on the subject of confidentiality are likely more harsh than those of your grievance committee or bar association. But then, their concern is limited to whether you've gone over the line and committed a sanctionable violation of a disciplinary rule. My point is that we, whether playing pundits on social media or just using social media to compensate for our lack of dear friends in the real world, have no excuse for going anywhere near that line.
Neither our pleasure nor profit is a good reason to risk harm to our clients. Not cause harm, but merely take the chance. There are so many other things to write about, so very many interesting and fascinating things to engage our minds and words. There is no reason why we do anything that might present a risk to a client.
Counsel is asked to ensure that there is sufficient obfuscation built into the wording of the clause – to tax even the brightest lawyers and, of course, the judge should we be unfortunate to be placed in the position of a judge determining our client’s freedom to contract as he pleases.Happily, as Charon QC reported, this is but the first of many such collaborations between Kevan and himself and between their fictional creations, BabyB and Muttley:
We have noted from your blog your preparedness to be duplicitous and, frankly, nakedly greedy and venal. The Partners admire such qualities in counsel and I would hope that you are able to live up to these standards in the advice you tender. Fail and TopFirst will be invited to step up to the bar you failed to reach. I trust that I make myself clear and that these instructions are also clear?
We plan to involve my entirely fictional law firm Muttley Dastardly LLP with Babybarista from time to time.... Although the idea to do this was unfuelled by Rioja… I cannot lie. I was serendipitously overrefreshed when I wrote the instructions to counsel.
Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Wikipedia, The Chronicles of Jessica, and Paris Odds n Ends Thrift Store.
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