Simple Justice

The .05% Solution

SHG — 2013-05-18T10:21:00Z

It started at .10%. Then it was .08%. Now, the National Transportation Safety Board wants to reduce it to .05% blood alcohol content to create a per se crime of drunk driving. And it comes with a plethora of ideas, including steering wheels that can tell from perspiration whether the driver has been drinking, or interlock devices that won't allow a car to start until the driver has done some heavy breathing,

The New York Times says it's a good thing.

It is surprising how few drinks can impair a driver’s judgment. A report from the National Transportation Safety Board estimates that alcohol-impaired driving contributes to thousands of deaths and tens of thousands of serious injuries each year. It is right to urge states to reduce that toll by lowering the allowable blood-alcohol concentration for drivers from 0.08 percent to 0.05 percent.

The first sign of a problem is the wiggly word used to make the connection between alcohol and thousands of deaths. See how they snuck it in there, "contribute"? Not "cause," because there is no evidence that alcohol was the cause, and indeed there is a ton of evidence to the contrary. The statistics are played by including in the numbers any death where anyone anywhere near a car had any alcohol in them, including the victim, without regard to whether alcohol had anything to do with it.

The second sign is that Mothers Against Drunk Driving, the force behind the reduction from .10% to .08% and the public service announcements, the school groups like SADD, and pretty much every initiative relating to drunk driving, doesn't support this change.

This is shocking. No, worse than shocking. But MADD isn't just the mothers who have endured a tragedy anymore, but a sophisticated machine. In their zeal to wipe drunk driving from the face of the earth, they realize that this move goes too far. They have thrived on the support of middle America, using the "do it for the children" argument better than anyone else. But this move goes beyond the tipping point of acceptability, and that would spell the death of their power and their effort.

The use of a percentage of blood alcohol content as the definition of a crime is a strict liability offense. You don't have to drive dangerously. In fact, you can driver perfectly, but you're still a criminal. You may not put your own interests ahead of society, but just be a pretty normal, law-abiding, happy person, and still you're a criminal. You may support the death penalty, make cookies for the DAR bake sale, own an AK, but still you're a criminal.

If the BAC is reduced to .05%, it's going to change a lot of lives, and the people whose lives it changes aren't bad people and aren't going to like it.

The point has been made that if we want to eradicate drunk driving, then it can be done quite easily by making the legal BAC .00%. No drinking, period. Easy. But people aren't going to like that at all. The argument offered to make the .05% BAC more palatable is that it allows some drinking:

The new standard would not bar all alcohol, but would mean giving up a drink or two. A 180-pound man who might be able to drink four beers or glasses of wine in 90 minutes without reaching the 0.08 limit might have to cut back to three to meet the lower standard. A 130-pound woman who could have three drinks in 90 minutes and stay below the current standard might have two drinks instead.

The advocates want to make this change seem as innocuous as possible, rather than controlling the behaviors of others. Not being much of a drinker, it would likely have no impact on me. But for those who enjoy a bottle of wine with dinner, or live out in no-man's-land and whose only entertainment is a dozen beers at the highway honky-tonk, they will become criminals.

And that's the issue. This isn't about advocating for the right to drive drunk, but about the criminalization of things that are done today by the law-abiding. This isn't about people making a decision to engage in criminal conduct, but about people not knowing whether they're going to be a criminal or not.

There are many consequences of this change, together with the other ideas to prevent people from driving drunk, that aren't being discussed. What happens when the technology of the magic steering wheel fails and cars won't start? What about the person who shares a car with a convicted drunk driver but is constrained to use the interlock device? What about the person with an emergency who needs to get to the hospital but can't get the car to start? The list goes on for a long time. Use your imagination.

The Bubble Boy agenda, the Utopia where no one is ever harmed, won't happen because of this change. There will still be crashes, because people can't drive worth a damn, and there will still be children who die in crashes. There will be diseases that take the lives of people who don't deserve to die, even though the television informs us that they've cured restless leg syndrome. There will never be that perfect world where no mother has to bury her child.

Still, anyone who has had too much to drink should not get behind the wheel. You are selfish and foolish, and you have no right to put me or my children at risk because you wanted to have a good time. But you can do this because you're a human being, not because it's the new crime du jour. And police can, and should, arrest you if you drive recklessly, whether it's because you're drunk or you just drive like crap.

It's hard to argue against something that has become so socially unacceptable as drunk driving. Only a pariah, or a criminal defense lawyer, would be ~~crazy~~ bold enough to speak out against something that saves the lives of children. But when half of America finds itself branded as a convicted criminal, crying in a lawyer's office that they meant no harm, and caused no harm, it will make more sense.

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The First Reaction: It Wasn't Our Fault

SHG — 2013-05-18T10:10:00Z

The story isn't a particularly complicated one, when an armed intruder broke into an apartment of Hofstra University co-eds in search of money and, not finding enough to satisfy him, sent one to an ATM to get more. Even for someone stupid enough to invade a home, this was idiotic. If you want money, you don't pick an apartment of college women.

Instead of going to the ATM, Jessica Rebello called the Nassau County Police. Her twin sister, Andrea Rebello, remained inside with the intruder. The story turns particularly banal at this point. Cops swarm, gunfight ensues and two dead bodies are found. Two?

According the Huffington Post:

Andrea Rebello, 21, of New York, was shot dead by a masked gunman while her twin sister was in the house, cops told the New York Post. The gunman was also killed in a firefight with police.

The intruder broke into the home at about 2:20 a.m., where the sisters, one of their boyfriends and another woman were staying. The suspect held them hostage for a short time, but let the unidentified woman go to get cash from an ATM. She called police, NBC News reports.

Rebello and the gunman were killed during a firefight that erupted when police arrived. Police told the Post that the suspect killed Rebello, and cops killed him.

This didn't seem right. Not that it was impossible that the gunman shot and killed this lovely young Hofstra student, but why, in the midst of a gunfight with police would he kill her? To what end? The Daily News told a different story.

Police brass acknowledged that officers opened fire in the house, but couldn’t confirm who fired the bullets that killed the popular college student and the unidentified attacker.

There's the rub. Bullets have no mind, no conscience. They don't know who they strike, and they don't care. At this time, it's unclear whether the masked intruder ever fired his weapon.

Asked if the suspect fired his weapon, [Chief of Detectives Rick] Capece said authorities wouldn’t comment “until we get more info.”

Why is it always after the bodies are dead that the concern about getting more info strikes?

It may be that the police arrived and were fired upon by the robber, returning fire in turn. It may be that the robber, inexplicably, turned his gun on Andrea Rebello in the midst of a gun fight with police and killed her. There is no requirement that stupid or crazy people act in a rational way or do things that make sense under any line of reason.

But it may also be that the Nassau County Police, a force that doesn't get many shootouts, failed to exercise tactical judgment, knowing that there was a young woman in the house with an armed gunman. Was there a need for dozens of police cruisers to descend on the house in shock and awe fashion? Did anyone think it through, make an active decision that this was the best thing to do under the circumstances?

It's not a matter of sympathy for the masked gunman, but cold, hard analysis, that the primary goal at the outset was that Andrea Rebello, as well as the others inside the house, make it out alive. There would be time later to deal with the robber, and capturing or killing him didn't need to come first. First, make sure the innocents inside stayed alive.

That didn't happen. That is what makes this a disaster.

The smell of this scenario is all too usual, massive police presence descends on house. The sound of a gun shot and every cop there opens fire. Maybe it was the robber. Maybe it was a cop. Maybe it was an accident. Maybe it never happened, and one cop thought he heard something and it was his first shot that made the rest discharge their weapons.

But did anybody stop to think there were people in this house? Did anybody stop to think that firing into this house meant that bullets would strike whoever was in their path, without regard to whether it's a masked gunman or a young woman?

I hope it turns out that the gunman shot at police first. I hope the gunman shot this 21-year-old college student. Not because it makes this pointless, terrible death any better, but because it's better than the alternative that the police mindlessly fired into this home and killed her. As a father, that would be more than I could take.

But the smell of this tragedy is bad, and regardless of who killed whom, the goal of the police should have been to assure that the people inside emerged alive. That didn't happen, and there is nothing about the way in which the police dealt with this situation that gave it much of a chance. Their knee-jerk reaction prevailed when they responded to the call.

And when questioned about how Andrea Rebello died, the knee-jerk reaction was to blame the gunman, even though it may well prove to be the cops. Regardless of whose bullet struck her, this was not a good day for the Nassau County Police. This was a horrible day for the Rebello family. This was a bad day for everyone.

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Top 10 Ways To Waste An Hour Of Your Life

SHG — 2013-05-18T10:01:00Z

Because everybody loves a listicle:

10. Reading a law review article.
9. Twitting.
8. Waiting for your client to be brought down to the visiting room at a correctional center.
7. Asking your mother-in-law "how are you."
6. Driving on the Long Island Expressway.
5. Waiting for your case to be called for a quick adjournment.
4. Trying to find a new, worthwhile blawg.
3. Asking a parent "how are your children."
2. Discussing the law of contracts with a fellow named Rajesh in Bangalore.
1. On hold waiting for someone at Dell Customer Care to anwer the phone.

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But For Video: Domestic Dispute Edition

SHG — 2013-05-17T10:30:00Z

One of the things that people, including lawyers, have a hard time with is that laws and rights aren't always in sync, and occasionally create a direct and irreconcilable conflict. Ultimately, a side has to be picked, and some will disagree with the choice. This video of the police responding to a domestic dispute in Cotati, California, via Turley, presents a good view of the problem:

Way back when, domestic disputes were treated by law enforcement as a family matter, something that they had no business being involved with and below the threshold of "real crime." Not that it had anything to do with the old joke, "what do you call the husbands of 156,000 abused women? Officer." No, the problem is that what they perceived as benign neglect ended up with the occasional dead spouse.

While this isn't a gender thing in the abstract, it is in real life. There are men who abuse women and do them grave harm. Yes, it happens the other way around too, but the frequency and level of abuse isn't often the same. No carping on who gets beaten more or worse permitted.

A seismic shift in policy happen, and police in most departments across the country were not only required to fully investigate claims of domestic abuse, but to not take no for an answer. No community or police department wanted a dead spouse after the police left a home. This isn't a bad goal.

As for what happened in the video, consider the pragmatics of the situation. The couple refused to come out, as is their right, and refused to let the cops in, as is also their right. If the cops walked away and the wife ended up dead, there would be hell to pay, but if they forcibly entered and found a beaten wife, there would be no downside. The remedy for an unlawful entry is suppression of evidence, and the only evidence would be the victim. You can't suppress a victim.

On the other side, if they break in without a warrant and there is no evidence of a crime, the couple can try to find a lawyer to handle their civil rights claim for a broken door. Not too likely, and chances are fair that they would never make it past summary judgment, even though they should. That's the nature of §1983, whether you like it or not.

But does that make the entry lawful? Not by a long shot. The domestic dispute call might give rise to a reasonable suspicion, but not probable cause. The cops had authority to investigation, but what they found at the home was a couple who asserted their constitutional rights. The issue, of course, is that abused women frequently deny abuse to the police, for fear of retribution afterward, so the wife's (and we're assuming that the police here figured it was the wife who would be getting the worst of the dispute) assertion that she was fine may have been completely accurate. Or not.

But the absence of any evidence, response or observation that supports the allegation that someone was being harmed doesn't create an exigency that permits the police to enter a home without a warrant. Lack of knowledge is neither cause nor exigency, even though one can argue that lack of knowledge doesn't prove that everything is fine.

So the solution was for the police to remain at the window and continue to observe while calling in for a search warrant issued by a neutral magistrate. If they saw someone being beaten in the interim, then they break down the door and enter to help. Otherwise, they cool their jets. And if the judge refused a warrant based on their allegations, then they turn around and walk away.

Might this put someone at risk of harm, even death? Yes, it might, but the Constitution isn't an inconvenience to ignore when hypothetical concerns present themselves. Absent a warrant or exigent circumstances, the police cannot lawfully enter a home. That there is no meaningful remedy for their doing so is a fault in the way we address constitutional violations, not a free pass to ignore the Fourth Amendment.

As for the tasing upon entry, well, there was absolutely no explanation or justification for that use of force, and the woman's screams reminds us that Tasers aren't the easy fix to any situation, but painful and potentially deadly weapons only to be used then force is needed and permitted.

For those still unhappy about how the concerns for abused women interact with constitutional rights, consider that the only pain inflicted her upon the woman came at the hands of the police. How does that fly with your belief system?

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The Kitchen Sink Theory of Reform

SHG — 2013-05-17T09:35:00Z

Jacob Gershman at the WSJ Law Blog opens his post with a question:

When it comes to regulating the legal profession, why is it that only lawyers call the shots?

It's not asked merely as a rhetorical question, but a prelude to the latest bit of academic intrusion into things they don't firmly grasp and serve to distract from the alternative reality where academics clean up their own nasty mess.

There are good, sound, thoughtful arguments to be made on such overarching questions. Unfortunately, the author of a new law review article, Washington and Lee Law School prof James Moliterno, doesn't appear to be aware of them.

“The legal profession is ponderous, backward looking, and self-preserving,” Mr. Moliterno writes. “I recommend a more forward-looking approach that welcomes the views, and even control, of nonlawyers and innovators in business and other enterprises.”

Are we ponderous, backward looking and self-preserving? Hell, yeah. Oh wait, Moliterno didn't mean that in a good way. There is a reason why the legal profession makes glaciers look speedy. It's not necessarily a good thing, but that doesn't make the alternative, flinging ourselves mindless into the future, throw every facile idea against a wall and see what sticks, a good thing either.

One of the foundational problems that neither academics nor non-lawyers seem prepared to grasp is that we holds people's lives and fortunes in our hands. We cannot, for the sake of innovation, risk a person's life. Our own lives? Maybe. Someone else's. No way. There is no post-mortem where we get to say "sorry about that life sentence, but I really wanted to try something new and cool, and it just didn't pan out nearly as well I hoped. Bummer, right?"

To steer a better course, he suggests giving non-lawyers a turn at the wheel. This means, he says, letting them serve in leadership and policy positions at the American Bar Association, which sets the standards and codes of the profession. He thinks state bar associations should also open their doors.

It's not that Moliterno argues that non-lawyers should be involved in the process. To hear what people outside the legal profession think and experience would be enormously useful to lawyers. Any information that adds to our base of knowledge and understanding is useful. But that's not what he's saying. Not by a long shot.

Writes Mr. Moliterno:

Turning to creative nonlawyers presents the most advantageous way for the legal profession to grow and change on its own terms. Creative nonlawyers can predict and manage change that is likely to result from competitive forces. In the United States, changes made by the profession itself are highly likely to dampen pressure for change dictated by government. In the absence of self-reform, change will be effected either by government or the forces of competition.

It's not clear who "creative nonlawyers" are, or whether they have their own department at Walmart, but I've got my doubts that such a group has the magical power of predicting change any more than police have the magical power of knowing who is guilty before they collect evidence. The rationale for embracing creative nonlawyers is that the profession will otherwise be dictated by government or the forces of competition. It's unclear what role government will have, but if the forces of competition were at work, half of American law schools would be closed and lawprofs like Moliterno would have to work for a living.

And what are some of the deeper, more concrete reforms he promotes?

“Lawyers still function on the state-by-state licensure system. A lawyer cannot walk across the line from Ohio to Pennsylvania and engage in law practice,” Mr. Moliterno tells Law Blog, as an example. “We would either move to a national law license or a very relaxed form of admission-on-motion system, allowing lawyers to much more freely cross borders.”

This may come as a surprise, but you can walk across the border in upstate New York to Canada. And down in Texas, to Mexico. Geographical proximity really doesn't have much of anything to do with the ability to move into a different political entity, with its own laws, and magically know what they are. It's not that Ohio and Pennsylvania are physically far apart, but that each is a separate state that gets to make its own laws and run its own court system. I know, crazy, right?

And that's without mention that we now have these machines that take human beings, including lawyers, into the air and in a few hours, transport them to other states, like Kansas, or even Iowa. You no longer have to walk. And these states too have their own laws and court systems. While physicians have the benefit of human bodies being relatively stable across state lines, the corpus juris tends to vary more widely. Yet Moliterno appears to be unaware of this.

“If there were some nonlawyer ownership of law firms, or more generally legal services delivery, the owners would find it in their business interests for the lawyers to have insurance and follow the ethics rules,” said Mr. Moliterno, who just wrote a book on a similar theme.

That's right, segues are for kids. So nonlawyer ownership of firms would encourage ethics rules? Because maximization of shareholder profit has worked so well in making corporations ethical? Oh, he's written a book. Never mind.

And finally, the last resort of scoundrels and those who have never practiced law:

The professor also predicts that non-lawyers would encourage the growth of legal services geared toward middle and low income people. “Entities like LegalZoom and Rocket Lawyer would flourish rather than be sued for unauthorized practice of law. Much more creative systems of service delivery would be pioneered without the resistance of the legal profession,” he said.

The snarky response is that cutting law school tuition by 80% would do a lot more to encourage legal services geared toward middle and low income people, but I don't see Professor Moliterno offering to give back his salary. But that's snarky, and I won't do it. Instead, I merely refer back to my earlier writings that note that fill-in-the-blank forms aren't really legal services, but rather a second-rate palliative for the poor that puts them at grave risk without their appreciation. Or, apparently, Moliterno's.

And in case you're wondering what James Moliterno, who has embraced the kitchen sink approach to reform, teaches, that would be legal ethics to law students. As for trench lawyers who see immediately the absurdity of these reforms, if we don't start playing a role in questioning the efficacy of such scholarship, expect that the downward ethical trajectory of the legal profession is just going to get worse. Or we can just leave it to the lawprofs, because they have such a firm grasp on the practice of law.

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Odds Are 16 2/3% For A Perfect 10

SHG — 2013-05-16T11:05:00Z

When Tempe criminal defense lawyer Matt Brown decided to go on a walking tour of America for a few months, he probably wasn't sure what would greet him when he came home. He found out.

For one thing, Matt learned that he had now achieved a perfect 10 on Avvo. This comes as no surprise, given the strength of the latest award he deservedly won, though his relationship with Avvo hadn't always gone smoothly. But now that he looked as fine as Bo Derek, he returned to an office bustling with people who needed him.

At some point after climbing onto the Colorado Plateau, however, the volume of voice messages increased. Not a lot, but a noticeable amount. Many callers’ messages demanded prompt calls back, ignoring my voice mail greetings entirely. When I called, most of them tried to negotiate my non-negotiable initial consultation fee. They became angry when I suggested I might not be the right lawyer for them if they felt $100.00 was an unreasonable amount for an hour of my time. One guy fumed about how rude I was to not hike my ass back to the office and meet with him for free right away. Another guy sent [Matt's partner] Adrian an email saying I should be fired. Adrian says the complaint is still under review by the firm’s human resources department.

By the time I was done with my vacation, I had scheduled six initial consultations for last week, my first week back. One was with someone who’d called during the first four weeks, but the remaining five were with callers I’d spoken with after more calls started coming in.

What could have caused this sudden surge in popularity? Matt made six appointments for these "leads" and "prospects" to meet with perfection.

Last week, five people failed to show up for their appointments without so much as a call. When I called them afterwards, I got to hear the full gamut of reasons why people can’t be reached. “The Cricket customer you are calling is not accepting calls at this time.” “The number you are calling is no longer in service.” You name it, I heard it. The one no-show I did reach said he’d hired a “TV lawyer.” He didn’t think I might want to know that he wasn’t going to make the consultation we’d set. The one very pleasant gentleman who made his appointment and retained me was the first consultation I had scheduled. He was a referral from a former client.

That's one out of six. One who showed. One who retained him. A week ago, I spoke with a fellow who called me after finding me on Avvo. He had a real case. He had a case that interested me. I explained to him that I do not give free consultations, and he had no problem with it. I made an appointment to see him two days hence.

At the appointed time, I sat there awaiting this potential new client. Fifteen minutes later, playing spider solitaire unsuccessfully on my computer, I called to find out if there was a delay. It took him a moment to remember who I was, and then he apologized. He told me he retained another lawyer the day before. I told that was fine, but asked him why he didn't call me to tell me he would not make our appointment. His voice turned sheepish, and he responded that he thought that was just the way things worked for lawyers. Our call was over.

By my calculus, it takes 1000 calls from people who find you on the internet to get one person whose case I would take. The marketeers don't see this as a problem, and their promise isn't to get you clients, but "leads" and "prospects." What you do with them afterward is up to you, not them.

But the same people who use the internet to find a lawyer are the ones who are taught by companies like Avvo that lawyers' time has no value. They teach that lawyers answer questions for free. They teach that a person in need of a lawyer for his public urination case should contact 10, 20, 30 lawyers to find the right one for them. And while they include the caveat buried somewhere off to the side, below the grinning image of the lawyer who is paying to have his advertisement show up on your Avvo page, that the ratings shouldn't be the sole basis for hiring a lawyer.

But then, who wouldn't prefer to hire a lawyer with a perfect rating. Like Matt Brown. Like me.

By my calculations, I will now have to turn away another 999 "leads' before I hear from a client whose case interests me. But I can't afford to waste another hour of my practice on an appointment where the "prospect" doesn't show. I have work to do for clients who retain me based on referrals from other clients or lawyers, and the time lost to those who find me on the internet is stolen from me and never recovered.

If I feel like killing an hour of my time, maybe I'll use it to walk America like Matt. And when I come home, I'll listen to my messages and ponder how best to use my time.

Nothing To Salvage in Kern County

SHG — 2013-05-16T09:52:00Z

If anyone else had hogtied, beaten, dropped on the ground, beaten again until dead, a man named David Sal Silva, there would be a swift response, resulting in the release of video evidence to the media, a perp walk and a press conference about how brave the officers were to take down the perpetrators. Anyone but their own deputies responding to an call about an intoxicated man.

The beating was horrible.

A half-dozen Kern County sheriff’s deputies were across the street beating a man with clubs and kicking him, she said. So she whipped out her mobile phone and began to video the episode, announcing to the officers what she was doing.
For about eight minutes, Ms. Melendez said, the man screamed and cried for help. Then he went silent, she said, making only choking sounds.

Finally, having hogtied him, a number of witnesses said, two officers picked up the man and dropped him, twice. One deputy nudged the man with his foot. When he did not respond, they began CPR.

Two people reported to 911 what happened, and that they had recorded the beating. The cellphones containing the videos were seized by detectives before they had warrants. Then one of the videos disappeared. In the meantime, the officers present at the murder were returned to full duty.

After the horror of this murder and the "disappearance" of the video became the subject of national scrutiny, gears shifted and Kern County sheriff changed his story.

Sheriff Donny Youngblood also announced Tuesday that he asked the FBI to analyze two cellphones taken from witnesses who say they recorded the incident.

"I took the unprecedented step of asking the FBI to conduct a parallel investigation," Youngblood told The Times. "Our credibility is at stake here."

Youngblood said he has also placed the officers on paid administrative leave, a decision made in the last 48 hours, based on information they had received. He said he wanted to ensure the safety of the officers on the street.

The officers involved are Deputies Ryan Greer, Tanner Miller, Jeffrey Kelly, Luis Almanza, Brian Brock, David Stephens and Sgt. Douglas Sword.

Since, a surveillance video has emerged, but like most surveillance videos, it's not particularly satisfying. The woman who had the video asked that her identity be kept a secret for fear of the reprisal. The video on the seized cellphone that remains has not been released, but one might suspect that it's not nearly as damning as the video that has disappeared. And Sheriff Youngblood says "our credibility is at stake here."

The isn't a post about the horrific beating, murder, of David Sal Silva. This isn't about the warrantless seizure of cellphones with videos of the murder. This isn't about how the deputies were returned to duty rather than arrested, or how they are now on paid vacation while the investigation spins in circles. This is a post about salvaging credibility.

It appears that Sheriff Donny Youngblood, by calling in the FBI to figure out what happened with the disappeared video, thinks this is going to salvage credibility. After all, doesn't it show that he isn't concealing the evidence of his deputies having murdered a man? Hasn't he opened his doors to another law enforcement agency, a credible agency, and by doing do shown that he is not engaged in a coverup?

What invariably comes from discrete incidents of outrage such as the murder of David Sal Silver, the taking of the videos, the disappearance of the videos, the restoration of the cops to the street and the reaction when the cops finally come to grips with the fact that the nation is watching, is a crisis management strategy that seeks to test how badly people want to not confront the terrible things that can happen.

When Youngblood seeks to salvage credibility, he's not being forthright. What he's really saying is he wants to see what it will take bring the public back to his side, to calm down, close their eyes and believe once again that the police are their friends. It's not trust, but stopping the loss of credibility before trust is gone forever.

There is nothing the FBI can do now, even if we assume they can restore a deleted video, that will change the underlying culture of this Sheriff's department that made seven deputies think they were entitled to kill a man, made someone else think they could make the evidence disappear, and made a sheriff think he could put them back on the street and no one could stop him. Even now, with the witness statements and the surveillance video, the best Youngblood can come up with is trying to salvage his credibility by asking the FBI to conduct a parallel investigation.

It's not that David Sal Silva was the first man to end up needlessly dead on the street at the hands of law enforcement, or the first time officers roughly handled the citizens who had evidence of a crime, or the first time evidence of a murder by police mysteriously disappeared, or the first time the perpetrators of a crime were given their guns and shields back to protect and serve, or the first time they were later given paid vacations.

It's also not the first time people read, saw, heard of all these things and let their minds play whatever games it needed to play to find a way not to confront the inescapable reality of the situation, that they were seeing the end result of a malignancy that existed and spread deep within the Kern County Sheriff's Department.

Will the media or the public recognize that there was no credibility to be salvaged, but just another test of whether they are too fearful, too disconnected, too willing to pretend it isn't what it is so they won't have to confront how law enforcement got this out of control, this violent, this evil? If they fail the test, it won't be the first time.

College Speech Codes and the Neo-Puritans

SHG — 2013-05-15T10:47:00Z

While heads are turned toward the other scandals du jour, the Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights has been hard at work trying to ram its Utopian vision of speech down the throats of colleges and universities. If students didn't read Orwell in high school, they get to live it in college.

Via FIRE, the Foundation for Individual Rights in Education,

In a letter sent yesterday [May 9, 2013] to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

Why? Are they all a bunch of Puritans in Washington? Not likely. Rather, this reflects a neo-feminist political perspective that seeks to protect women from any feelings of sexual harassment. In other words, it's the feminist version of the delicate teacup rule, that women are entitled to go through life without their fragile eyes or ears being forced to suffer anything that they prefer not to see or hear.

At Volokh Conspiracy, Eugene offers a much deeper discussion of what is involved in the newspeak, and why it reflects no acquaintance whatsoever with the First Amendment. But in reading into the inanity of these rules, and the underlying notion of "equality" they purport to promote, I couldn't help but to draw an immediate connection to the Cyber Civil Rights movement promoted by Lawprof Danielle Citron, with the backing of the head feminist lawprof, Ann Bartow.

Ever the evil genius, Ann Bartow of Feminist Law Profs, who I'm sure comes to this symposium with an open mind, makes a pre-emptive attack in her opening post:
Many participatory sectors of the Internet are dominated by aggressive bullies, nasty haters and monetizing opportunists. It's hard to tell whether they constitute a numeric majority, but the geography of the Internet allows a small number of people to scorch vast swaths of earth with surprisingly little effort. There is no currently such thing as the "safe spaces on the web where those with unpopular views can exchange ideas without fear of retribution" that Frank Pasquale calls for. Not even here. The folks running this symposium decided not to facilitate comments on CCR related posts here at Concurring Opinions, but they have no control over the conversations that take place other places, which may be intractably linked to this blog via hyperlinks and search engine results. I'm doubtful that the architecture of the Internet can be changed to provide the benefits of connectivity without simultaneously facilitating engagement or intervention by bad actors.

By the mere act of linking to the CCR posts, others (myself included) are "aggressive bullies, nasty haters and monetizing opportunists." Bartow's never been one to tolerate any opinions other than hers, and she is well rehearsed in the art of simultaneously painting herself the victim even as she lashes out.

The appeal of the rhetoric is self-evident. After all, who wants to be an aggressive bully or a nasty hater? Or for that matter, who wants to be a sexual harasser on a college campus because he asked a girl on a date and was not only rejected, but criminalized. The possibilities are endless.

As insane as the CCR movement seemed at the time, particularly in light of its frontal assault on otherwise well-established rights such as free speech, the imposition of campus speech codes is not only insidious in itself, but the precursor to clearing up the neo-feminist angst online.

After all, if they teach the males while in college that they are sexual harassers based upon the feelings of any potential hearer or seer of their male nastiness, chances are pretty good that they will conform their conduct to avoid being labeled an outcast or criminal, and carry that conduct over to their use of the internet. It may take time for the newspeak mindset to filter through male society, but the hope is it will happen.

And similarly, with the DOJ and DOE on board with the evisceration of free speech in the name of delicate feelings, it becomes a baby step to push this view of sensitivity into other areas of life. The workplace is already a lost cause. The internet is just down the road apiece.

Even though these campus speech codes may not seem to affect many of us directly, though it could very well affect our children, the failure to recognize where this is heading and how it may impact general perceptions of "propriety" when it comes to free speech now may well prove disastrous later. Ten years from now, merely writing this post could spell a ten year mandatory minimum for me, though I suspect it will be digitally burned before any delicate eyes might see it and suffer unpleasant feelings.

Corner Clearing, Rochester Style

SHG — 2013-05-15T10:18:00Z

Many of us have wondered whether the person with the handicapped parking permit is really handicapped or just enjoying the perks of using one of the usually empty spaces close to the door. This same thought seems to occur fairly regularly to police when they come across a person in a wheelchair. After all, it's so much cooler to roll around than walk.

In Rochester, New York, two cops were doing their important law enforcement duty of "clearing a corner," when they came across a less than compliant 52-year-old Benny Warr. Good name, right? Warr was in a wheelchair, which naturally raise suspicions immediately. According to the Democrat and Chronicle:

The incident occurred the evening of May 1 near Jefferson Avenue and Bartlett Street and involved 52-year-old Benny Warr. The video — taken by a bystander whose identity has not been confirmed — begins with Warr being physically taken to the ground from his motorized wheelchair but does not show what preceded the incident.

Police say the officers were clearing a corner, and that Warr was arrested for disorderly conduct and resisting arrest.

The word out of Rochester is that Warr was waiting for a bus when the officers ordered him to get lost. Warr was disinclined to do so, and let the officers know in appropriately unpleasant language. They did not react well.

Naturally, which is defined as there being a video so the Rochester Police Department can't deny this happened or explain that Warr made a furtive gesture compelling the police to engage in a dynamic response for officer safety, an internal investigation is being pursued, according to Sgt. Justin Collins, and the cops hope that Warr will be a willing and compliant witness. Because, well, his experience with the Rochester police has gone so well up to now.

But one thing is clear. Warr needed the wheelchair. And as for any thoughts about whether those people parking taking the really cool handicapped spots are fakers, remember that not all disabilities are visible, and even if they are trying to beat the system, it won't kill you to walk the extra 20 feet anyway. Don't be a hater.

H/T Don Thompson

The FBI Hates The "On" Button

SHG — 2013-05-15T09:43:00Z

Harvey Silverglate of Three Felonies A Day fame has an op-ed in the Boston Globe to remind us of why the FBI does not subscribe to the meme of without pics, it didn't happen. This will come as a shock to many, but the FBI has a policy, an actual written policy, forbidding agents from recording interrogations.

Sounds insane, right? After all, if they can record a confession, it doesn't get any better. Yet again, what seems so obvious and simple runs contrary to the government braintrust, but it's not without reason.

Harvey explains:

FBI agents always interview in pairs. One agent asks the questions, while the other writes up what is called a “form 302 report” based on his notes. The 302 report, which the interviewee does not normally see, becomes the official record of the exchange; any interviewee who contests its accuracy risks prosecution for lying to a federal official, a felony. And here is the key problem that throws the accuracy of all such statements and reports into doubt: FBI agents almost never electronically record their interrogations; to do so would be against written policy.
The memo in part attempts to defend the policy as logistically necessary, but given that virtually every cellphone today has sound recording capabilities, any “inconvenience” or “non-availability” excuse for not recording seems laughably weak. The more honest — and more terrifying — justification for non-recording given in the memo reads as follows: “. . . perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants. Initial resistance may be interpreted as involuntariness and misleading a defendant as to the quality of the evidence against him may appear to be unfair deceit.” Translated from bureaucratese: When viewed in the light of day, recorded witness statements could appear to a reasonable jury of laypersons to have been coercively or misleadingly obtained.

The 2006 memo is an update to an earlier policy from the '90's, when electronic recording devices weren't as readily available as they are today. They were, of course, still more than sufficiently available, but the lie made enough sense to outsiders that they could pass it off as plausible.

Reality was that they didn't want a jury to see them make sausage of a defendant. While the courts don't mind agents lying or coercing to deceive and manipulate defendants into talking, even admitting to things that were sheer nonsense to stop the interrogation, jurors might not have enjoyed the confession nearly as much. They might have even thought the agents were, well, behaving poorly. Hoover would roll over in his ~~dress~~ grave at the thought.

But the FBI leaves out the even more potent criticism of its practice — that such interview tactics seem virtually geared toward establishing as fact what the FBI wanted to hear from the witness. Frightened and confused interviewees, who, if they deny they said what any 302 report claims they uttered, can then be indicted for making false statements. The FBI is thus able to put words into a witness or suspect’s mouth and coerce him to adopt the FBI’s version as his own. The FBI thus establishes the official version of what a witness said, and the pressure on the witness to adhere to the 302 version is enormous. Any deviation, after all, raises the question: “Were you lying during your FBI interview, or are you lying now?”

This is where an appreciation of what happens is a bit more difficult to appreciate. We can picture, for example, an old time steno sitting there, taking copious notes to precisely record what's being said, but that's not the case. There are two agents, one doing the talking and one doing the writing. The one doing the writing puts on paper the things he decides he wants to put on paper. It goes something like this:

Q: We found files on your computer showing that you went to a website with instructions on how to make a bomb, so we know you did it. When did you first go to the bomb website?

A: I surf the web constantly and go through, like, a million pages. I have no idea what pages I searched or when. How could I possibly know?

Notated in 302: D cannot recall when he first went to bomb website. Went "constantly."

See what he did there? Funny, right? Unless you happen to be the person being interrogated, in which case there's nothing funny about it. I have a permanent bruise just below the elbow where clients squeeze while whispering in my ear, "that's a lie, that's not what I said." Ah, reality versus truth. It may not be what really happened, but whatever is written on a 302 is truth in a United States Courthouse.

And if it's bad in more pedestrian cases, it's worse where the subject matter is sophisticated or industry jargon is involved. The substance flies over the agent's head, so that the only thing understood, and written in permanent ink, is "guilty, guilty, guilty!" There is no nuance on a 302.

A recording can be subject to dispute. A 302 is not. The defendant is placed in the untenable position of engaging in the proverbial "pissing match" with the agent over what words were spoken, and the spray stings. Whether it's a 1001 violation or obstruction of justice enhancement, there is a price to be paid for dispute. Sometimes it's worth the risk, but only because the option of letting it slide is so onerous that there is no choice.

As Harvey concludes, the FBI's choice of not recording interrogations shouldn't entitle them to a presumption of credibility. Indeed, it flies against everything that we know to be true, that they can easily record and thereby provide the court, defense and jury with an indisputable record of what was said.

And yet, they don't and it doesn't seem to bother much of anybody. Well, except the defendant. But then, it's not like he matters, since he's "guilty, guilty, guilty!" After all, the 302 says so.

H/T Radley Balko

Have A Nice Day?

SHG — 2013-05-14T11:56:00Z

Via Ed at Blawg Review (yes, the rumors of his demise have been greatly exaggerated).

An interesting perspective, if one doesn't mind doing a lot of squinting when looking through rose colored glasses. It brings to mind the adage, when you hear the sound of hoof beats, don't assume it's a zebra. On the other hand, if it gets you through the day, assume whatever works.

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Fixing Leaks, AP Style

SHG — 2013-05-14T10:50:00Z

If I had to choose between government without newspapers or newspapers without government, I wouldn't hesitate to choose the latter.

--Thomas Jefferson

The government needed to know who leaked the CIA's in stopping a new "underpants bomber" by Al Qaeda to the Associated Press. To do that, they obtained two months of phone records from AP reporters and an editor.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

What distinguishes this story from the everyday accumulation of phone records, or otherwise private information that the government feels compelled to obtain, is that it happened to one of the most significant news organizations in the world, and that it happened to one of the most significant news organizations in the world. No, the repetition wasn't accidental. I'll explain.

Should the government have done this to you, or me, this would not be a headline. What happens to our lives, our privacy, our world, may matter a great deal to us, but not so much to others, and certainly nothing to the AP. But what happens to the AP constitutes a "massive and unprecedented intrusion," according to the AP. That's because it happened to them.

But then, the AP is, by every definition, the Press, with as capital a "P" as one can type. It is the fourth estate, an organization whose duty, at least in concept, is to disseminate news, information and ideas to the public. This function is so critical to the viability of a democracy that its freedom is enshrined in the First Amendment to the Constitution.

Among the tools in its arsenal is the ability to publish information provided by unnamed sources, who may be government officials, who reveal things that the government might prefer not be revealed. This could be the CIA's involvement in thwarting a terrorist plot, or torture perpetrated by the CIA, or corruption. It could be anything that the public needs to know to exercise our responsibilities as citizens in a working democracy. Without information, even if it's embarrassing or, as in this case, overly revealing, our form of government cannot work.

The question isn't whether AP's disclosure was inappropriate and harmed covert national security issues. It probably did. But then, what is the question?

According to Orin Kerr, the question is whether the government, using the tools and methods made available to it by law and regulation, are authorized to ferret out the source who improperly disclosed the CIA's involvement to a reporter. In other words, from the perspective of national security acting within its lawful parameters, there was a need to stop the leak and they did what they had to do. That it was done to the AP was unfortunate, but that's where they needed to investigate.

Orin challenges readers to explain where the government violated any of its own laws or regulations in doing so. The Department of Justice issued a statement explaining its purpose.

We take seriously our obligations to follow all applicable laws, federal regulations, and Department of Justice policies when issuing subpoenas for phone records of media organizations. Those regulations require us to make every reasonable effort to obtain information through alternative means before even considering a subpoena for the phone records of a member of the media. We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation. Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.

This is where things went awry. The government creates its own regulations to effectuate its performance of its responsibilities to us. Theoretically, we approve of its doing so, since we elect smiling/angry faces to be our voice in government, but since we make such electoral decisions based on overarching interests and at wide intervals, nobody really believes that this reflects a majority approval. It's just the unfortunate backside to republicanism. You vote the big picture and suffer the details.

In contrast to the regulations, with which in fairness most people would have no problem provided it happened to someone else, we have an interest of constitutional magnitude. The Attorney General has taken it upon himself to balance "the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws."

See what he did there? It's not the freedom of the press versus finding his leaker, but the "fair and effective administration of our criminal laws," the whole megillah. The criminal law of which he speaks would be the one that prohibited someone from leaking to the press that this was a covert operation by the CIA, because they didn't want Al Qaeda to know the CIA was on to them. It's a worthy concern, but less than the "fair and effective administration" of justice. Nobody wants to sacrifice the fair and effective, well you know. But is catching their leaker worth seizing the AP's phone records?

The government says it is. The government says it complied with the rules it made up for itself. The government is sorry it came to this, but fair, effective, well, is important. The government says it's important enough to sacrifice some harm to the free press. And they've woken the AP out of their complacency, because nobody lost any sleep when it was me or you who the government might target.

Brady at 50: The Cake is a Lie*

SHG — 2013-05-14T09:36:00Z

One of the most important, most discussed, most controversial and most worthless decisions issued by the Supreme Court of the United States of America turned 50 yesterday. Written by William O. Douglas, it offered a promise of substantive fairness that was breathtaking. Fifty years later, the joke's on us.

Brady v. Maryland held that the prosecution violated the due process clause by withholding material favorable to the accused from the defense. To this day, I imagine Wild Bill Douglas laughing out loud, muttering to his clerks, "let's see what problems this causes 'em." Funny guy, Bill.

In an excellent HuffPo post, Radley Balko goes through a number of the loose ends of Brady. The post is entitled Brady v. Maryland Turns 50, But Defense Attorneys Aren't Celebrating, recognizing that this decision, together with its progeny offered perhaps the best chance our criminal justice system ever had to level the playing field and provide a criminal defendant with half a chance, maybe just a quarter but definitely more than he had before, to challenge an accusation against him by the most powerful government to ever exist on the fact of the earth. And failed.

"It simply hasn't worked," says Steven Benjamin, president of the National Association of Criminal Defense Lawyers. "Brady violations are a system[atic], everyday problem in the courts. I would say they affect a majority of criminal cases."

"In order to work, Brady relies upon police and prosecutors to locate and identify information that could cast doubt on a defendant's guilt," Benjamin explains. "The problem is that those are the people with the least motivation and least ability to do so. If they're trying someone, they believe he is guilty. So they're viewing all the evidence the prism of confirmation bias."

That bias, Benjamin says, can be powerful. "You can have a piece of evidence that is pivotal to establishing someone's innocence, and police and prosecutors could interpret that same piece of evidence as further proof of the same person's guilt."

What's Brady? What will be "pivotal," or important, or the tiny bit of information that turns otherwise insignificant details into a certain defense? Sometimes it's obvious, but most of the time it's completely unknown or unknowable until the pieces of the puzzle fit together. What's Brady? It's what a prosecutor decides it is, based on whatever goes on in that dark, dank prosecutorial mind.

While many prosecutors are undoubtedly honorable and likely make every attempt to comply with their Brady responsibilities, confirmation bias and a culture of conviction can provide a strong incentive to overlook or misinterpret exculpatory evidence, even unintentionally. With no counterbalancing disincentive, it isn't difficult to see how Brady violations could become routine.

Failure to disclose Brady may not be a product of malice or impropriety, and indeed may not be recognized by the prosecution at all, but there is nothing in the system to compel the prosecutor to err on the side of disclosure, and every reason to shrug off the defense's demand, even highly particularized demand in those rare cases where there is an inkling that Brady exists, because, well, why not?

So a demand is made and the prosecutor responds that he is fully aware of his Brady obligation and will of course disclose any Brady material should it exist. Which it doesn't, despite your pounding the table to argue that it does. If you're really lucky, a judge, sufficiently annoyed with your pounding, might take a look at a questionable bit of evidence to decide whether it's Brady, because judges certainly know how it will fit with the defense's theory and investigation, before announcing that it's nothing that matters to him, so it clearly can't matter to the defense. Move along, counselor.

And even if the prosecution concedes the existence of Brady material, it need only be disclosed within a time frame that provides a reasonable opportunity to use it, which may mean after two days of testimony with the jury in the box. This is where the judge says "certainly a lawyer of your competence will have no problem making use of the Brady material, counselor," when you complain about how this was needed six months ago to be used as part of your investigation.

But the reality Is that Brady material is rarely disclosed, there being no incentive to disclose it (aside from integrity and good will) and a huge incentive to conceal it, because it's subject to harmless error on appeal. Most of the time, the existence of Brady material is discovered by sheer, dumb luck, with someone stumbling upon it after the conviction. At that point, however, it's utility is extremely limited, since the burden shifts to the defense to show it was not only withheld, but would have been likely to produce a different verdict.

Not just concealed. Not just material. Not just important or offered the possibility that the defendant would have been acquitted. No, no, no. The test is whether the Brady material, had it been disclosed, would have been likely to result in acquittal. Other than a smoking gun, very little can meet that standard.

On May 13, 1963, Associate Justice William O. Douglas told us that due process required that the guys with the guns and shields, the ability to investigate that dwarfed anything the defense could imagine, the power to accumulate evidence long before the defendant had a name, tell us that there was material that might be favorable to the accused. But he gave us none of the tools, methods, means, law to make that right happen.

So here we are, 50 years later, incapable of making Brady work. Such a fabulous right, just outside our reach.
And without the means to effectuate the grand disclosure required by Brady in a way and at a time when it matters, it's just another joke played on the defendant. After 50 years of spectacular failure, there is little chance we will ever see Bill Douglas' opinion as anything other than a practical joke.

* The "cake is a lie" comes from Gideon's reaction to the 50th anniversary of Brady.

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The Fallacy of Simplicity

SHG — 2013-05-13T12:40:00Z

Over at the Puddle, Andy Mergendahl pounds away at the myriad challenges to his "plain language" views on legal writing.

Who’a [sic] afraid of legal writing in plain English? A lot of lawyers. Since I started writing about legal writing, I’ve been amazed at how entrenched so many lawyers seem to be against the notion that legal writing should be as easy to understand as possible to the widest audience possible.

But that notion seems to strike fear into the hearts of many, I suspect because it seems to strike at the traditional lawyering culture that in the post-Great Recession economy seems in danger of disintegrating.

Andy's "suspicious" attempt to rationalize those who don't see it his way by attributing it to fear, and thereby ascribing fearlessness to himself, doesn't serve to strengthen his argument.

The tone of many of the comments, both here on Lawyerist and in other places, reflects what I think is a rejection of the democratic (note the lower-case ‘d’ there, please) nature of writing that any literate person would have a reasonable chance of understanding. In other words, there’s an elitist tone to much of the negative commentary.

That defensive elitism generally falls into one of several overlapping points of view, which I’ve titled in bold below. I’ve included parts of some comments on my posts as examples of those points of view.

The title headings of his points are:

My readers and I are smart, so there’s no need to “dumb down” my writing.

My clients are paying me to write impressive documents. That requires fancy language.

I refuse to surrender “good” writing to the witless masses and their spineless apologists! This is all just liberal politics at work!

Rules must be correct, otherwise they wouldn’t exist. So stop encouraging people to break them!

You are wrong! I win! Neeners!*

You’re wrong! You just are! I know this!

Had these been written by, say Brian Garner, I might characterize them as strawmen, but in a gesture of magnanimity and the liberal application of Hanlon's Razor, no negative characterization is levied. Despite Andy's post bearing the banal scent of butthurt, the issue is worthy of discussion. As Sam Glover satirically wrote in response to a comment there castigating Andy for his persistence,

You’re right.. We shouldn’t argue about legal writing on a blog about law practice. Totally out of place.

Indeed, blogs about law practice are the appropriate place to argue about legal writing, and so I champion Sam's cause.

The problem with Andy's approach is that his basic premise is deeply, irreparably flawed. Andy explains his point of view:

[L]egal writing should be as easy to understand as possible to the widest audience possible.

A very egalitarian perspective indeed, but a very mistaken one. Legal writing serves one purpose only: to communicate an idea as clearly as possible to a judge. Briefs are not novellas, to be read by Court TV viewers with poor reception. Contracts are not magazine articles to be skimmed by those with passing fancy.

This said, it doesn't mean that Andy is entirely wrong. Far too often, lawyers grow unduly enamored of words they feel are "lawyerly," tossing in an errant "wheretofore" because it would take more effort to use more effective transition. As Andy argues, many lawyers, often with youthful abandon, toss about the words they believe to be more lawyer-like so that their writing appears to conform with their limited grasp of legal writing.

Also like Andy, they are wrong. Incomprehensible strings of lawyerish words may seem "learned" to non-lawyers, who mistakenly assume that the only reason they don't have a clue what the lawyer is writing about is their lack of a law school degree, but are nothing more than gibberish.

These two views, overly simple and overly lawyerish, reflect the polar extremes of the argument, and both are similarly misguided. Legal writing that serves to clearly and precisely convey the message to the judge is good writing. Writing that does anything else is not.

Or to put it another way, writing that thrills the masses, moves them, makes them laugh, makes them cry, becomes a part of them, but loses in court, is not good legal writing. That's because we are lawyers, and our duty is to present our clients' cause to the decision-maker as effectively as we can.

Wherefore, your affiant sayeth naught.

* From the Urban Dictionary:

1.	neener
	(knee-nuhr) interj. An interjection typically used to taunt, ridicule, or boast. "No thanks to you, but I was able to score the last tickets to the show tonight, and you're not going with me, so neener!"
2.	neener
	Neener (noun) - A neener is a person who takes the fun out of things, usually just by being who they are. They usually will cite some lame reason like "They shouldn't give that free stuff to the employees, it should be used by the IT department"

The Passion of Prosecutors

SHG — 2013-05-13T10:43:00Z

Even though he retired in 1999, the legacy of Louis Scarcella's detective work lives on. It lives in the 16 years Jeffrey Deskovic spent in prison for a rape and murder he didn't commit. It lives in the 23 years David Ranta spent in prison for the murder of a rabbi by someone else. And Brooklyn District Attorney Joe Hynes says its Scarcella's fault.

The mistakes were largely pinned on Mr. Scarcella, who according to an inquiry by Mr. Hynes’s office let informants out of jail to visit prostitutes, often had no notes to back up his interviews and told a witness to pick Mr. Ranta out of a lineup. Mr. Scarcella, who retired in 1999, has denied any wrongdoing.

Inmates said he made up confessions, and Mr. Scarcella acknowledged having used the same crack-addicted prostitute as an eyewitness on at least six different occasions.

Bad cop, no donut? Not good enough. This isn't to say that Scarcella doesn't bear primary culpability for his conduct, though one would expect his response to be that he was doing so in the name of mom and apple pie, taking the bad guys off the street any way he could. Wrapping themselves in the toxic combination of good intentions and the myth of cops having some magical ability to know who the bad guy is serves to justify all manner of impropriety. It lets them, and usually us, sleep at night, even though it's total nonsense.

But as with any complex conspiracy, it can't happen without the help of others. In Scarcella's case, those others would have the letters ADA before their name.

Legal experts say the office is playing the role of a champion against injustice after spending decades defending weak cases under Mr. Hynes and his predecessor, Elizabeth Holtzman.
“The disturbing thing is the way they are making this look like a rogue detective, when a lot of detectives in the late ’80s and ’90s were operating that way,” said Joel Rudin, a lawyer who sued the city on behalf of Jabbar Collins, a man exonerated after serving 16 years for a Brooklyn murder. Prosecutors “knew what was going on and took advantage of it to get convictions.”

Whether prosecutors "knew" or merely turned a blind eye, willful ignorance of the evidence brought to them, could be the subject of debate, but it's irrelevant. The fact is that it is the duty of prosecutors, whose ethical obligation is not to convict but do justice, to know. The fact is that prosecutors had the opportunity and means to know. If they didn't know, they have no one to blame but themselves.

A generation ago, after I approached Bill Burmeister at the Official Corruption Unit of the Manhattan District Attorney's office with police behaving really badly, later known as the Dirty 30 Scandal, he felt compelled to tell the Special Narcotics prosecutor on the case, Joie de Marie Piderit, that her cops were under investigation. She had some choices at that moment, and the option she chose was to let me know that she stood behind her cops, describing them as "puppy dogs" who would never lie, and then putting them back into the grand jury even though no further indictment was needed, which served to provide transactional immunity.

After the case broke and AUSA Mike Horowitz brought indictments against her puppy dogs, she called me and explained that she never knew. I corrected her, not that it mattered by that point.

Too many assistants come to adore cops, their dashing, hardened life on the streets contrasting with the prosecutors' cloistered life in the courthouse. They live vicariously through cops, they look up to them, they want to be accepted by cops as worthy of the camaraderie of crime fighters, knowing in their hearts that cops look at prosecutors as over-educated slugs to be manipulated, who have never put their life on the line or gotten their hands dirty.

There were red flags all over Louis Scarcella's cases, snitches who would give up their mother for a wink, confessions without notes, too much "brilliant" police work for anyone to accomplish. But no prosecutor noticed, or if they did, couldn't rationalize away for the sake of society. They were doing God's work, and Scarcella sat at the right hand of the Lord. You don't question the man sitting at the right hand of the Lord. You bask in his glory, because his becomes yours as you convict murderers and rapists.

Bad cops don't produce wrongful convictions on their own.

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ATL's Top 50 Law Schools (and other things that matter)

SHG — 2013-05-12T09:44:00Z

I give David Lat at Above The Law a lot of credit for trying to do the impossible, challenge U.S. News & World Reports list of the best law schools. The cynical view of his effort is that he's trolling for eyeballs by catering to the crowd of disaffected law students and young lawyers, but then it's a topic that lends itself to cynicism.

Harvard Law School's goodwill ambassador Elie Mystal explains to Lee Pacchia, who went to the same law school I did in 1979.

Any video that shows Elie in a suit, looking so "natural," is worth watching. For those who don't know much about Elie, he's smart and a fun guy to hang out with, though he talks about 100 miles per hour so you have to listen closely between slurps of beer.

Whether the approach has any scientific validity, or any more validity than the US News flavor, doesn't really matter. The difference in approach is that US News looks to inputs, whereas ATL looked to outputs. In other words, the question wasn't how many tenured lawprofs are on staff, or how many books are in the library, but how many students come out of school and get jobs. The premise of the former is good inputs will produce good outputs, though there is nothing clear about what constitutes good inputs.

But at a time when law schools churn out 45,000 students for a society that can only offer jobs to about half, ATL questions in quasi-Moneyball fashion, whether the pieces of law school that we traditionally believe reflect their quality are anything more than baloney.

The basic premise underlying the ATL approach to ranking schools: the economics of the legal job market are so out of balance that it is proper to consider some legal jobs as more equal than others. In other words, a position as an associate with a large firm is a “better” employment outcome than becoming a temp doc reviewer or even an associate with a small local firm. That might seem crassly elitist, but then again only the Biglaw associate has a plausible prospect of paying off his student loans.

In addition to placing a higher premium on “quality” (i.e., lucrative) job outcomes, we also acknowledge that “prestige” plays an out-sized role in the legal profession. We can all agree that Supreme Court clerkships and federal judgeships are among the most “prestigious” gigs to be had. Our methodology rewards schools for producing both.

So does the ATL Top 50 supplant US News? Don't be ridiculous. Of course not. But it does serve to make a point that's needed, that the reason students attend law school is to become lawyers. A handful will get that "brass ring," the Supreme Court clerkship or whatever it is that seems "prestigious" to law students these days (a job, you grey-bearded moron, any job), but most won't.

The upshot of Elie's interview by Lee is that he suggests the legal profession is heading toward a two-tier system, the Elite lawyers who attend brand name law schools and hop on the partner track at Biglaw and the rest of us.

The rest of us. I suspect that Elie's prediction has always been the case if you look at the legal profession from where he sits. Bear in mind that ATL's demographic is largely law students, obsessed with such matters law school ranking and jobs with big paychecks. They described the work I do as ShitLaw because it lacks what they define as prestige, which comes from being accepted at a Peer law firm.

The benefit of a job at such a firm is a regular, and substantial, paycheck. They are viewed as successes by the people they chat with at cocktail parties, though if the other guests are in finance, they are still considered the "help," and any paycheck with fewer than five zeroes is considered rather inconsequential. It's tough to be considered successful at the top, a lesson that few law students can appreciate until they've been invited to the "right" dinners.

In my 30 years in practice, no client has ever asked me what law school I attended. To this day, the only time it's mentioned is when some kid, usually a scamblogger, wants to point out that I went to a non-Peer law school, because he thinks he can cut me down to size by a metric that he thinks is critical. Such efforts are laughable from the other side of the legal profession, as beyond irrelevant.

I had a chance to go to Biglaw way back when, and passed it up to become a criminal defense lawyer. It has its drawbacks, not getting a paycheck signed by someone else, not knowing when the next good case will come in, but after 30 years of not knowing what tomorrow would bring, it's just the way it goes. In the meantime, I've had some great times practicing law, done well enough to provide for my family and keep them reasonably happy, been able to structure my time so I was at stripside for my son's fencing competitions and my daughter's dance recitals and plays. It's been a great life, really, and I wouldn't change it if I could.

Years ago, I gave testimony to the Feerick Commission to Promote Public Confidence in Judicial Elections. One of the "big ideas" being promoted was the use of voter guides to provide CVs of judicial candidates. In a jocular moment, I raised the rhetorical question of whether that meant that the candidate who attended Harvard Law School would win over the candidate who attended New York Law School. The whole commission began laughing uproariously, getting my point.

Aside from submitting resumes for that first job, no one will ever care what law school you went to. They will care deeply about whether you're any good at what you do. So in contrast to the ATL Top 50 Law Schools, and the US News and World Report ranking, I offer the SJ ranking of law schools. It's blank. Put your law school at the top of the list if it makes you feel good, because it's you, not your school, that matters.

If you want to be a partner at a Peer law firm, then there is nothing here for you. If you want to practice ShitLaw, have the opportunity to have as good a practice, as good a life, as you're willing to work toward, then no list of law school rankings makes any difference at all.*

But two words of warning: First, while no one will ever care what law school you went to, they will care about the reputation for competence and integrity you earn. Second, even in ShitLaw, there is no guarantee of success or a comfortable middleclass lifestyle, and you still have to work for it every day. And that goes for lawyers who graduated from Harvard as well as New York Law School. After all, check out the video with Elie and Lee. Do you get it?

* Not for nothing, but when the son of a partner at a Peer law firm gets in a jam with the law, they don't call their ex-AUSA white collar Biglaw specialist at midnight. Want to guess who they call when their beloved child has his life on the line?

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Rakofsky v. Internet: Case Dismissed

SHG — 2013-05-11T11:42:00Z

Although the decision and order are dated April 29th, Justice Shlomo Hagler's order hit the interwebz after hours on a Friday, a bit of internal irony under the circumstances. Marco Randazza, counsel for a large group of Rakofsky defendants, post the order at the Legal Satyricon, and all 31 pages are available for your reading pleasure.

The TL;dr version is that the complaint, all 1200+ paragraphs and 300+ pages of it, is dismissed. Sanctions are denied.

That the court dismissed the complaint should come as no surprise. It was baseless and stunk, but you already knew that. It was procedurally defective in so many ways that it would have taken a small fortune to expound on the arguments and issues that are normally subject to intense scrutiny in an ordinary case, and most defendants just waved those issues for the sake of expediency and a final determination on the merits.

The decision was judicious, likely crafted for the purpose of covering all the bases on appeal so that it never darkens Justice Hagler's chambers door again. Its recitation of the facts was simultaneously damning and limited, addressing only the wrongs that came out of the Deaner trial and ignoring all that was learned afterward, and formed the basis for much of the commentary about Joseph Rakofsky. In a way, it's understandable, given the unwieldiness of the case, the facts, the forests of trees that died for the cause and innate desire to limit rather than expand issues.

At the same time, limiting the scope of the inquiry serves to ignore so many of the critical messages that arose from Rakofsky's conduct. While it may make sense from a judicial perspective, there were a host of critical issues for the legal profession that were left on the table. This may reflect the difference between how one views the world as a judge versus those lawyers who waste their days trying to prevent the next generation from dragging the profession into the gutter. It may also explain why we're bloggers rather than judges.

As for the denial of sanctions, this will give rise to some confusion by lawyers and others from foreign (meaning, not New York) jurisdictions. In New York, sanctions are so rarely imposed as to be essentially nonexistent. Was this the one case so outrageous, so frivolous, that sanctions would be imposed?

There are numerous factors that may have influenced the denial of sanctions. Foremost, the dismissal of the complaint would ordinarily be deemed sufficient "punishment." That's how New York rolls. But additionally, we have the fact that Joseph Rakofsky will live in perpetuity on the internet as the poster boy for what not to do in so many different ways. More punishment.

Other influences include the sense that Rakofsky's conduct, from its initiation in the Deaner trial to his websites to his suit against the Internet was, as Justice Hagler termed it during oral argument, a "rookie mistake." While others would explain it differently, this mitigates the basis for sanctions. Additionally, the court found some comments harsh and offensive, which generates some off-setting sympathy for Rakofsky. While it may not be a legal justification, sanctions are more about "feeling" than "thinking."

On a firmer foundation, the imposition of sanctions would have been unlikely to lead to any defendant having received a dime, making them more a gesture than a reality. At the same time, it would have given Rakofsky greater incentive to appeal, and exposed the decision to a greater likelihood of reversal, given the rarity of sanctions in New York.

Still, the notoriety of this matter, from its inception to the litigation, offered enormous opportunity for a court, a judge, to explain to a new generation of young lawyers, digital natives who see what was once a learned and honorable profession devolve into the gutter of deceit for their own self-interest, and who will use the courts to burden, if not shut down, criticism of their ways, that the law will not tolerate them.

While it is clear to those of us who spend our time on the internet and try our best to push young lawyers toward the path of ethics, hard work, client service and personal integrity, it may not be as clear to lawyers, even those in robes, who are not as aware of the race to the bottom and its impact on the future of the profession. No one ever said that judges are tech aware or savvy. It's not a job requirement.

And so the case of Rakofsky v. Internet comes to an end, perhaps with more whimper than bang as hoped, but still with one message that cannot be denied. Joseph Rakofsky's claims were dismissed. The defendants win. Yes, Rakofsky burdened the defendants with the expense of having to defend against his gazillion allegations, and except for the handful of defendants who lacked the fortitude to put integrity ahead of convenience, the rest of us were prepared to suffer the cost and annoyance because integrity matters. And so the defendants won.

If necessary, it will happen again on appeal.

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No Castles in Harris County

SHG — 2013-05-11T10:36:00Z

There is probably no place in the country where the Castle Doctrine, the rule of law that allows a homeowner to take the life of a person who breaks into his home, with numerous local variations on the theme, more seriously than Texas. Indeed, Texans seem to be of the belief that it applies to any variation on the theme, from someone else's home to burglars outside the house, running away so they're shot in the back.

The motto of the Republic of Texas is "they needed killin'," which makes what happened to Jennifer Limon in Harris County all the more inexplicable.

You can hear the deputies asking the women to identify themselves, but the women refuse to comply and demand a search warrant. Then, the video shows the deputies arresting Limon.

She was charged for failing to identify herself to a law enforcement officer and resisting arrest.

Limon was in her own home. The deputies knocked on the door and she answered it. Some might question the wisdom of opening the door to police, but that's not dispositive. By opening the door, she didn't "open the door" to being questioned. The threshold is a magic line in the law, a line that the police cannot cross except in very exceptional circumstances, unless they have a warrant. These deputies had no warrant.

The deputies were there to investigate, which is a perfectly fine thing for deputies to do.

Authorities said deputies came to the apartment as part of a follow-up investigation into the robberies, and added that the suspect’s stolen vehicle had been witnessed parked near Limon’s home earlier in the week.

Nothing there that offers any direct connection between the Limon's home and the subject of the investigation, but that's not the issue either. The issue arose when Limon refused to identify herself upon demand (or request, if one prefers police jargon and isn't a slave to definitions).

A spokesperson from the constable’s office said deputies didn’t need a search warrant because the women failed to give their names.

“That’s a violation of the law,” said Sgt. J.C. Mosier. “You have to identify yourself to a police officer. At that point, the officers entered.”

While this explanation may strike some as being superficially reasonable, Sgt. Mosier's statement is sheer, utter legal insanity, enough so that it could go in the Hall of Fame For Stupid Shit Cops Say. No, you do not have to identify yourself to a police officer absent reasonable suspicion that you had, are or are going to commit a crime. Other than that, you have the right to decline and be left alone. Even in Houston.

And she had the forethought to have her cellphone video camera running, which sadly won't embed and isn't available on Youtube. While recording the incident usually serves to give rise to excuses and denials, the Harris County Precinct 1 Constable’s Office doesn't seem the least bit troubled by this conduct having been videoed, and apparently maintain that this was perfectly lawful conduct.

While watching this video, and in light of past commentary from Texans, the thought that went through my head was what would have happened had this not been Jennifer Limon, who obviously wasn't particularly militant about the Castle Doctrine, but instead been a fellow with a gun inside his home. The potential for an explosive situation was huge, and it's impossible to say how many dead bodies would have littered the threshold of that home.

The police perspective is somewhat self-evident: they get to do whatever they feel entitled to do, and the citizen should comply now and complain later, provided he's still alive to do so. So what if they make a mistake of law, such as entering a home because the homeowner, for whom no suspicion exists, refuses to identify themselves upon command? Want to live? Comply.

To the police, it's simple math. Do as they tell you and survive.

This solution does little to protect the sanctity of the home, the constitutional rights of its occupants or the sense of unfettered entitlement to command the citizens for whom their position purportedly exists to bend to their will. Compliance may be the safest route, though not necessarily, but it leads directly to the road to perdition.

Chances are the deputies involved will be told by their supervisors to try their best not to embarrass the office again, and then given a medal for their bravery. Limon will complain, which will then be investigated for the rest of her natural life until a determination is made that nothing happened here. Maybe she'll file suit and have it dismissed pre-answer on immunity grounds, or maybe it will settle for enough money to buy Slurpees for the whole family.

Not until the cops try this nonsense again with a guy with a gun and an attitude, and a few dead bodies litter the threshold, will the wrongfulness be taken seriously. And one of the dead bodies will almost certainly be the homeowner, who will be absolutely right to protect his Castle. And very dead.

Olegs Kozancenko, Beaten For What?

SHG — 2013-05-10T10:17:00Z

Olegs Kozancenko was a long-haul trucker. Not a gang-banger or drug dealer. Not a child molester or con man. A 58-year-old, 165 pound truck driver, finishing a haul and on his way home. So how does he end up looking like this?

Well, the immediate reason is pretty simple: he was beaten by CHP Officers Andrew P. Murrill and Jim Sherman after they received "a report of a sleepy driver at the brake check station five miles east of the scene." Murrill gave Kozacenko a ticket for driving his truck too long, though it was based on his truck log for driving two days earlier. It turns out that Murrill, by his own testimony, wasn't a commercial truck "specialist," which is code for he had no clue how to read the truck log or what the law required. But that didn't stop him from being a cop, so he issued the ticket, directed Kozancenko to sign it, and then Kozancenko did the unthinkable:

Kozancenko said he first wanted to read the ticket before signing.

So Murrill was constrained to use force.

The 220-pound Murrill goes on to write in his report that the 6’ 165 pound Kozacenko was “actively resisting ” and “exhibited extraordinary strength” in refusing to be detained. “It was not a standard arrest,” the officer stated on the witness stand, even with the help of his 190-pound fellow CHP officer Sherman on the scene with Murrill.

Suspend for the moment the concern over the absence of any cause for a citation, no less an arrest, and focus on the "extraordinary strength" used to prevent the arrest. Note that the word "lawful" doesn't precede arrest, but that's just for accuracy's sake.

“He’s punched, his arm is broken, they’re on top of him face down, his ribs (are) fractured ,” said Katz. “They’re cutting off the oxygen for a significant period of time, they’re trying to use a taser on him.”

Is that it, you wonder? Well, no. That's not it.

...the truck driver suffered life-threatening injuries including a crushed left orbital eye socket, multiple facial fractures, a broken left arm, a concussion, unconsciousness and possible neurological damage.

Medical records also show that he apparently stopped breathing while lying out on the highway and had to be rushed to Auburn Faith Hospital. But Kozacenko’s injuries were too severe for that hospital’s emergency room and he had to be transported to UC Davis Medical Center in Sacramento.

All for being sleepy, if only because of a mistaken reading of his log book by a cop who admittedly is clueless? Of course not, as the excuses mount:

In addition to being cited by officer Murrill for driving over hours, Kozacenko was written up for DUI. However, that citation was also dropped (along with the driving too many hours charge) when Kozacenko’s blood alcohol came back clean at 0.00%.

After all, it never hurts to throw in a DUI just in case, because after a horrifically severe beating, it's best to be able to explain that he was a drunk driver. Everyone hates a drunk driver, and is sure that he got what's coming to him. And in the immediate aftermath of a beating, the only spokesman on camera is paid by the police to tell the story of the how the CHP stopped a drunken potential killer on the road.

After all charges were dropped, after the explanations made by Murrill for the outrageous beating and harm done by two burly cops to this guy who drives a truck were laughed at, after the excuses were rejected and ridiculed, one might reasonably wonder what became of Murrill and Sherman.

Acting Chief Ken Hill oversees the CHP Valley Division, which includes the CHP Gold Run office where Murrill still works. Hill told NBC Bay Area he could not address the specifics of the case because of pending litigation, but assured that he reviews every incident where force is used by one of his officers including Kozacenko’s incident.

“It was not something that jumped out at me being ‘oh my gosh,’ we have some serious issues here,” Hill told NBC Bay Area.

But being a helpful sort, Acting Chief Hill offered these concluding words of wisdom.

“The public if they get stopped and simply comply with what they are asked to do, they have nothing to fear, nothing to fear at all. It is when a citizen decides to disregard the direction that they are given, and they decide to do something different, then things escalate, and I’m not talking about this case specifically, but sometimes a citizen will do things that causes us to escalate our actions,” Hill said.

Or to put it another way, do what we tell you or you'll end up like Olegs Kozancenko.

H/T FritzMuffKnuckle

It's Only Virtual For You

SHG — 2013-05-10T10:07:00Z

While some lawyers who have chosen the more avant garde 21st century Lawyer route of having a Virtual Law Office care little about such archaic details as the Code of Professional Responsibility, others, most notably Stephanie Kimbro, are deeply concerned. The rules sometimes make it difficult for change, and for lawyers to do what's best or easiest for them.

This is why I invariably turn to Steph when ethical issues arise, knowing that she won't just shrug them off as the yoke of antiquity, to be ignored at her leisure. While others argue that it's their right to ignore the disciplinary rules, Steph may not like them any more than any other virtual lawyer, but she acknowledges and confronts them.

And so Steph did:

The NY State Bar Association Committee on Professional Ethics has published a new ethics Opinion 964 on April 4, 2013 that affects virtual law offices. (HT to Niki Black for bringing it to my attention.)

The opinion is more related to lawyer advertising than virtual law offices, but it affects advertising for virtual, traditional and hybrid delivery models. The opinion was prompted by an inquiry from a lawyer who delivers immigration law services primarily online. Like many lawyers with virtual law offices, the lawyer rarely meets with clients in person and communicates using video conferencing and other digital methods of communication. Working from home, the opinion explains that the lawyer did not want to have clients coming to her home office. Accordingly, she preferred to use a PO Box or other mailbox service than providing her home address.

The issue arises from the fact that the lawyer, who works from home via her VLO, didn't want clients "coming to her home." Steph explains why she doesn't see the lawyer's concern as unreasonable:

Being able to work from a home office and provide basic legal services through online delivery provides them with a way to get started in the legal profession. There are obvious security reasons for not wanting to give out your home address. My clients have 21st Century access to me, and frankly, that’s way more prompt and personal than your traditional 9-5pm street address and snailmail.

And, in a curious twist, she argues that it's not as if the lawyer's home address can't be found anyway.

A virtual lawyer’s clients tend to be ones who can Google proficiently and find numerous online legal service options. They are smart enough to figure out that this is how you operate. And even if they aren’t, won’t that information be in your engagement agreement before any relationship is entered into? I can’t imagine a client who searches for me online, finds my website that says “virtual law office,” but then after seeing that really wants to drive to my house to meet me in person. That doesn’t happen. They want a virtual law office because they don’t have to go to an office. They have OTHER WAYS, modern methods, secure methods, of communicating with the lawyer.

After raising questions about this analysis, Steph asked me to explain why this was a problem. At the most superficial level, it's a problem because the rules say it's a problem, and upon accepting our role as an attorney admitted to practice law, we commit ourselves to adhering to the Code of Professional Conduct. But that's not an explanation, and I owe Steph a more thoughtful response.

The rules exist for two reasons, the first being to set the parameters within which lawyers work, as a means of guiding our choices so that each individual lawyer doesn't get to decide for himself what constitutes sufficiently ethical practices. The second reason, however, is to protect clients from lawyers.

Steph's analysis views the Virtual Lawyer from the perspective of everything working great. Her model client is knowledgeable, and both seeks and appreciates the alternative mode of practice. Her model lawyer is competent, responsive and honest. Everybody is happy. Everything works great. The only thing in the way are these damn rules.

But as many "consumers of legal services" tell us, lawyers aren't always so wonderful, and neither are clients. What about the lawyer who takes money and is never heard from again? What about the lawyer who provides inadequate, inaccurate, incompetent legal services, but insists their work is fabulous? What about the lawyer who assumes the responsibility of serving a client, but on the eve of the client's need, can't be found?

The rules exist for the bad times, not the good. And even Virtual Lawyers can make mistakes, screw up, be grossly incompetent and unethical. This isn't to say they are more or less so inclined, but no different than any other lawyer. Stercus accidit. That's where the rules come in. So if the client can't find the lawyer on the internet or by telephone, telex, smoke signals, Skype, whatever, and their need is to have something completed by tomorrow, where do they turn? They may not want to pay the lawyer a visit, but they want to lose even less.

After some twitter discussion, Steph added:

UPDATE: After reading a couple comments about this post on Twitter, it seems to me a valid concern here is enforcement. How does the state bar monitor and enforce these rules. Yes, they have access to licensed lawyer’s contact information and some states do random auditing. Maybe the better discussion we should be having that hangs over all of these different tech-related ethics opinions is “How do we help the states to enforce the rules in an age where it’s easier for unethical lawyers (and those not even licensed to practice) to use the tech to hide and cover up the evidence?” Part of this may be providing education to the state agencies handling enforcement about how the technology works and how to use it to handle online auditing and to track down folks who aren’t following the rules. This would be a worthwhile conversation.

This is why I like Steph so much, because she doesn't hide from ethical issues. But the question isn't limited to bar enforcement of its rules, but to the actual needs of the maligned client. The client whose lawyer disappears in the ether (with her money) and needs a document by tomorrow isn't interested in how the bar can enforce its rules and discipline the lawyer. The client wants the job done, done right and done now.

So my short answer to Steph's question is that the rules don't exist to accommodate the wants of lawyers under the best of circumstances, but to protect the needs of clients under the worst of circumstances.

And Steph Kimbro is still my VLO heroine. Happy birthday, Steph.