Stories Untold

As a punk lawyer, I was fortunate to be in a suite of well known, experienced lawyers.  Like all punk lawyers, I wanted to be accepted.  And so I tried to tell my war stories like the big boys.  It was a learning experience.

In the blogosphere, many young lawyers make the same mistake that I did, but there’s no one there to pull them aside and tell them that their stories aren’t yet sufficiently interesting or unusual to make their telling worthwhile.  Constraints that had helped young lawyers to smooth their entry into the profession, to save them from their exuberance and desire to be accepted, have changed. 

Now that anyone can create a platform from which to speak, and often a megaphone from which to speak loudly, and since it’s very difficult to tell whether the speaker is someone who has attained credibility over time or manufactured his own through the adept use of social media, things are often said that would be best left unsaid.  Except, people no longer want to hear that they might be best to spend more time listening than talking.

There have been a few instances of criminal defense lawyers deciding that they delight in their ability to play raconteur of late that give rise to this post.  I offer it as a Dutch uncle might offer a few words of advice.  I can’t stop others from doing as they please, and wouldn’t.  I can, however, offer some suggestions, and I will.

Jamison Koehler pulled a quote from a post of mine and used it in one of his.

I don’t own my cases, and they aren’t mine to write about.  They belong to my clients, and my clients don’t want the worst experience of their lives strewn across the internet.  I respect that, so I don’t kiss and tell.

This referred to writing about my own cases.  I don’t do it.  There’s no need for it, aside from self-aggrandizement (even if that takes the form of self-deprecation).  Those who tout a win suggest to me that they must lose an awful lot, making that win such an unusual event that it’s newsworthy.  Those who take success in stride do so because they expect to succeed.  That’s why clients retain us, because we accomplish their goals more often than not.

While the quote that Jamison seizes upon is a good explanation of my reasoning, it only addresses one facet of the problem.

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. 

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.

An area of some concern to me relates to a group of social media users who defy the marketers’ spin, public defenders.  Clearly, they neither seek nor desire more “clients”, and hence neither blawg, nor twit, nor facebook, nor otherwise indulge in the permutations of social media for their own aggrandizement. Proof positive that no everyone online is there solely to make a buck.

Yet I often see PDs write about their cases, their experiences, with reckless abandon.  The other day, I came across a twit from someone who purports to be a PD who publicly twitted, “My evening project: formulating a plan to explain away 551kg of cocaine & 2700# of marijuana.”  Assuming, for the sake of argument, that it’s reasonably accurate, this twit leaves nothing to the imagination.  It’s tantamount to a confession.  While it may well be what all of us do regularly, trying to formulate a viable to defense to a charge, we do not state this publicly.  We do not inform the world that there is no legitimate, truthful, defense, for if there was, we would not be constrained to “formulate a plan to explain [it] away.” 

It may be that PDs, by the nature of their work or assignment process, lack the direct connection to the client that a retained lawyer has.  Diffusion of responsibility can alter one’s perspective about confidences.  On a PD blawg recently, there was a story about a trial of a sex offender that could have gone very wrong, but fortuitously ended up going right.  Did the PD consider that to those in the know, they would be able to identify the defendant, who was outed as guilty and acquitted only by dint of good fortune? 

And then there are the readers who complain, but I want to read your stories.  I want to be titillated.  I want to share the experience.  I want to live vicariously through them. Sorry, but your desire to play voyeur is no reason for my overstepping my ethical boundary.  Criminal defense lawyers often have sensational stories that will blow your socks off.  We sometimes know where the bodies are buried. Literally.  And we cannot tell you, no matter how cool and exciting that would be for you.  Your titillation plays no role in our disclosure.  So don’t ask.

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.

2 comments on “Stories Untold

  1. Patrick

    Where is the line drawn, apart from common sense (a commodity I’ll admit I shorted many years ago)?

    For instance, two clicks from this entry, I can read a really good story about three pharmacists who, with the help of their skilled attorney, bucked the government and got a great outcome at trial, while their alleged co-conspirators, who took the government’s best offer, are felons.

    It’s a really good story, but I’d never have heard it if it hadn’t been published by the defense attorney on the web. Now I know the names of some of the pharmacists, and what they were alleged to have done.

    Do I believe the government’s allegations in the case? No. I know that a jury of people who actually have common sense didn’t buy it, I trust the lawyer, and I always expect the government to lie to me.

    But now, in the unlikely event I ever meet one of these pharmacists, I’ll know about this awful situation. I’ll keep my mouth shut, because it’s a rude topic to discuss even if the sole point of discussion is mutual admiration for the defense attorney.

    Still, I’ll know about it anyway, which I wouldn’t if I hadn’t read some lawyer’s story on the web.

  2. Cathy

    It’s not just blogs. I’m on a mailing list — a very nice, helpful mailing list — where lawyers can post requests for help. That’s great, but sometimes the requests are absurdly specific. Like, “I’m planning to sue Company X for Claim Y. Any thoughts on Issue Z?” No regard was given for the likelihood that the lawyer for Company X might also have been on this mailing list.

    But that’s the weird thing about the Internet. It always feels much more private and insular than it actually is. Even pretty savvy people get tripped up by that. The non-savvy ones don’t stand a chance…

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