There’s been a lot of attention to my post about young attorney Daniel Hynes, who had a particularly bad hair day when he was convicted of theft by extortion in the “Live Free or Die” state. From Frank Pasquale to Walter Olson to Stephen Bainbridge all the way to the Godfather of Blawgosphere, Glenn Reynolds (who linked to Pasquale because he doesn’t bother with us little people), together with a host of other blogs known and unknown, desired and otherwise.
It’s generated an interesting reaction on the parts of non-lawyers, ranging from the anticipated rant against all lawyers to the specific angst toward this particular rascal. But what’s curious is how many people were so adamant that this hellion needed to be punished, but could only express in the vaguest of terms what an appropriate penalty would be and why that particular penalty, as opposed to some other penalty, was appropriate.
Why does this matter? Because it’s way to easy to rant about what a bad guy he is, and how wrong his conduct is, without offering what should be done about it and a rational basis for the punishment. This is what lawyers have to deal with, and it’s not good enough to vent without considering what to do abut the problem.
To all those folks who want to let loose, try the next step.
1. Should Mr. Hynes be held accountable civilly (monetary damages), administratively (suspension or disbarment) or criminally?
2. What should the precise penalty/punishment be?
3. Why that penalty/punishment as opposed to any other?
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Reynolds didn’t just link to Pasquale but to Bainbridge also.
What did you do, steal his wife?
I know. He actually went back to add Bainbridge in, and still left me out.
I swear I never touched her. I swear.
In my, perhaps naive, non-lawyerly opinion, any penalty that leaves such a person free to practice law ever again would not meet the case. Would disbarment do that? Then, that.
Basically, this guy used his legal credentials and expertise as a weapon to victimize the public on a laughable pretext, knowing full well that what he was doing was wrong and apparently with confidence that he could do so with impunity. (And as this prosecution appears to be something of a novelty, it seems as though he had every reason for that confidence.) If that is not an ethical transgression worth deterring and condemning in the strongest terms then the whole notion, not to say pretense, of legal ethics is in trouble.
Frankly, I still can’t quite get my mind around the notion that a charge of extortion in this case is “a bit much.”
After reading through the vitriol from the previous post, I’m glad you boiled down your question more clearly. I think that disbarment would be more than sufficient, while criminal penalties are probably too severe. I’d also be in favor of an apology letter to all of the salons to which he wrote an email, but without knowing the contours of NH attorney discipline law, I don’t know that it can be ordered in an administrative proceeding.
As this exercise helps to clarify, disbarment seems to be an obvious, significant and appropriate penalty for his conduct. Making it a crime goes a step farther. I’ve tried, by asking people to decide what the appropriate penalty should be and explain why, to help clarify the distinctions between the various penalties available, their severity and collateral consequences.
Things often “feel” like they should be “something”, but when put to the challenge of explaining a rational basis for the outcome, people may appreciate reason over emotion.
Thanks A. Vitriol is a lot easier than thoughtfulness.
Wow, you almost had the heralded “Instapundit link” that brings hits by the boatload. But, from what I’ve seen they might not be the most sympathetic visitors to a criminal defense blog. Still, Reynolds should have given credit. Knowing him (I’m a big fan of the other Glenn, Greenwald) I’m not surprised he left you out, just disappointed. Criminal defense lawyers are just too far down on the hierarchy for the Professor to acknowledge.
Heavy sigh.
I heard he’s got video.
As a micro-business owner, I don’t think lawyers realize how upsetting it is to face a lawsuit. I think his punishment should include a nice settlement to the salon owner, say $10,000 to $20,000. Enough to punish this particular offender, make other lawyers think twice and give comfort to a put-upon business owner.
As far as punishment, I think that 3X the amount of sought after damages and a 6 month restriction on practicing would be sufficient for a first offense.
The amount of damages is similar to landlord-tenant law in NY and the restriciton on practicing should give him a moments pause before being such a fool in the future.
And yet, Instapundit managed to fix that today and acknowledged he blew it. Imagine such a thing from Greenwald or his lemmings!
Since I’m here, compliments of Instapundit, no less, tell us what you think should happen to the guy?
And please don’t let your sigh indicate you are any kind of fan of Greenwald or I’ll never make it back . . .
RANT….Gangs of Lawyers create and work in a giant mass( or mess) of laws, the one side defending us from the other side attacking us.
NON RANT…Take it from a non lawyer – this looks like extortion.
How about three to five times the demanded amount per letter?
In other words, something steep enough to deter some abuse (but not, for instance, by a large firm with deep pockets, so there’s one obvious flaw), but not so much as to preclude learning one’s lesson and moving forward.
Since this was a civil claim, the rememdy should as well be civil. I would be very suspicious of any attempt to criminalize speech, no matter how deserving the individual.
Um. Most business people would look to see where the letter was coming from. Because, basically, only our government can bring charges against businesses.
Now, this guy sent 20 letters. At 47-cents a pop? OR did he add “return receipt requests?”
Yes, people frighten easily.
Meanwhile, in Los Angeles, there is a “group” that goes around suing for disabled people. And, a very small restaurant just got clipped for $6,000. Plus, they had to devote two parking spaces,to make one handicapped space.
The way businesses get clipped usually comes from those who’ve systematically used the law to rip people off.
Pretty good outcome for this story. But I do wonder how much cash the lawyer got from the 19 who didn’t report the correspondence. Until the sham was exposed.
It would make an interesting movie!
I’d love to stick my oar in. I’m not a lawyer, but I’m friends with a lot of them, and hired a lot more, for just about everything but patent and (thankfully) criminal work.
The Legal Profession simply does not get how disconnected it is from reality in matters like this.
To any rational thinking person, this is extortion. The debate here shows how far from rational thought the legal profession has gone in its pursuit of “perfection”… or whatever it is that lawyers pursue.
Here are your three questions:
1. Should Mr. Hynes be held accountable civilly (monetary damages), administratively (suspension or disbarment) or criminally?
As I said, his behavior is clearly extortion. Thus his penalty should be criminal in nature. The legal class’ urge to slowly replace the criminal justice system with the tort system looks to many of us like a desire to either profit more from your work, or just to play in a sandbox with more liberal rules.
In any case, Mr. Hynes’s action look, walk, and sound like a Duck. Serve him up a l’Orange.
2. What should the precise penalty/punishment be?
I am neither lawyer nor legislator. I would say that we should leave it up to the professionals to determine appropriate penalties, but guilds seldom, and lawyerly guilds never, settle adequate punishments upon themselves.
If pressed, I would say a punishment that would be both just and effective would be a few months in jail, court fees, and restitution to the letter recipients for any and all legal expenses incurred.
Disbarment is a little harsh for a first (set of) offense(s).
3. Why that penalty/punishment as opposed to any other?
The real key here, one that I am belaboring, is that extortionate conduct should be punished by the criminal courts, not the civil. This should hold whether the criminal is a lawyer or Joe Blow.
Punishing misdeeds via the civil system is problematic in many ways. The chief among them is that this practice encourages the transition of the Legal PROFESSION to the Legal INDUSTRY. Also, the civil law burden of proof is insufficient for punishing crimes. The highest injustice in many individual cases is that persons convicted or exonerated in criminal court can still be sued for the exact same act in question. This could not be more obviously Double Jeopardy to the layman. The fact that cogent, clear, and clarion arguments can be, and obviously are, made against this truth, does not make them correct.
It just means that some members of an insular, increasingly unaccountable industry are capable of producing arguments of incredible rhetorical legerdemains suggesting the above mentioned Duck is actually a flying, aquatic, Pig. And that the other members of the debating society say such an argument is convincing.