Just heard from a pal at Lion Button Company, in the midst of a buyout where he was represented by Dreier LLP, that the firm’s escrow account was looted and is, for all intents and purposes, gone with the wind.

Speculation is that Marc Dreier, the sole equity owner of the firm, was up in Canada trying to scam $40 million to cover the gaping hole in the firm’s escrow account.  The problem isn’t the potential collapse of his firm because the founder and owner has gone bonkers, but that the firm is now at the epicenter of perhaps the greatest instance of lawyer dishonesty ever.

The ramifications of this raiding of the escrow account will send shockwaves throughout the legal world.  The Lawyers Fund for Client Protection only covers up to $300,000 in losses, so Lion Button, with $1.6 million missing, is screwed but good, and stands to collapse for loss of its working capital.  Worse still, the faith the businesses repose in lawyer escrow accounts, particularly with Biglaw and Big Deals, may be fatally undermined as a result of this fiasco.

Apparently, the efforts are now being made both internally and externally to shut down the escrow account, preserve what remains of the cash on hand and try to salvage what little is left following this disaster.  Frankly, I hope this information is totally wrong, as the ramifications of this are shocking. 

One curious reaction to my post yesterday about what it means to be a lawyer in the Age of Layoffs was to read into my message that I was another voice in the chorus of “Go Solo, Young Lawyer.”  This is not entirely surprising, since I was Professor Number 1 of Solo Practice University, before being summarily booted out on my butt for being far uglier than the shameless marketers distinguished faculty.

Since I’ll never have the opportunity to shape young minds and help them to take charge of their futures at SPU, I’ll have to make do with an occasional post here to address some of the points that I would have made over there.  It’s just as well, since Susan Cartier Leibel would not have been completely happy with me anyway, my charming personality notwithstanding.

Not everyone is cut out for solo practice.

There.  I’ve said it.

While the practice of law, what we as individual attorneys do on behalf of a client, is unchanged regardless of where we happen to call our home, the nature of our surroundings varies wildly.  Whether we work within a corporate structure, or in your basic 7000 person law firm, with one old friend in the next office or all by your lonesome, we remain lawyers. 

But not everyone is temperamentally suited to being on your own.  Some thrive on the risk and excitement of flying without a parachute, while others can’t bear the pressure.  Some enjoy the control over their world, small though it may be, while others hear only the echo of an empty room ringing in their ears, and that echo can be deafening.

Even those of us who have spent our entire career as solo or small firm practitioners have days when we think about how wonderful it would be to get a paycheck at the end of the week rather than sit staring at the phone, willing it to ring, knowing that the electric bill was due.

The argument that some suffer the burden of crushing law school debt, making it impossible for them to enjoy the panacea of solo practice with the bells and whistles that the solo apostles inform them are minimally required, misses the point.  There is no assurance that you’re going to earn the monster salary that Biglaw dangled before you, but there’s no assurance you won’t either.  If you’re as good as mommy told you, then why fear the marketplace for your talents?  

But it can be lonely practicing solo.  When you hear a funny joke, there’s no one to share it with.  When a client makes your life miserable, who do you turn to?  If you’re pondering deep legal thoughts, where’s the friend to tell you you’re nuts?

There are ways around all of this, of course.  The Sages of Solo will tell you to create a “network”, because the word “network” is one of the premier buzzwords intended to make you overlook your well-founded discomfort.  Networks can be wonderful.  They can also be a disaster, depending on how useful, honest and worthy your network turns out to be.  Most likely, they will have attributes of both, and it will be up to you to figure out which is which.  You’ve got to have great risk tolerance to be a solo.

None of us is so brilliant that, left to our own devices, we will always get it right.

Yet the solo practitioner can take no comfort when the day comes that he screws up.  And it will.  No matter how hard we try, no matter how risk tolerant or risk averse, no matter how deliberative or active, a solo practitioner must ultimately make his own decisions and will make some wrong ones.  Some will make a lot of wrong ones.  These decisions will affect clients.  They will impact business.  It’s tough to come home after a hard day and explain to one’s spouse about the horrendously stupid thing you did today.  It’s much nicer to come home a hero, but it isn’t going to work that way every day.  Get used to it.

The difference between screwing up in a law firm versus screwing up solo is that there’s no one else to blame.  It’s all you, baby.  While some mistakes will be annoying, and some will affect nothing besides your own wallet, some will have dire consequences for people who have bet their life on your making the right call.  These are the hardest, as you can shrug off the consequences of your own errors when you’re paying the full price, but you know, in your heart, that a mistake that affects a client is the one that crushes your very reason for being. 

Then there’s the ringing phone syndrome.  The only proper way to describe this is as a chronic disease, as it never quite goes away no matter how long you practice law. 

Large firms represent large clients who have a never ending stream of legal work to be performed, more closely resembling a never-ending merry-go-round than individualized representation.  Of course, that stops when the large clients goes bankrupt and the firm collapsed under a huge pile of monogram-embossed redwelds, but that’s a story for another day.

Solo practitioners live case by case, client by client.  Some days, the phone rings 10 times, and each ring brings a person in need of your services.  Some days, the phone is silent.  No matter how many years and phone calls you enjoy, no matter how many times you’ve been asked to appear on Fox News or MSNBC, no matter how many notches in your ever-increasing belt, there is one fear that every solo practitioner shares.  That the phone has fallen permanently silent.

It’s not a phenomenon afflicting only lawyers, but having company spanning all professions makes this no more comforting.  After 25 years of living this way, one might assume that I’ve been cured of this chronic disease, knowing that the phone will assuredly ring again, if not today then tomorrow, and bring with it some great new case that will keep me far too busy, giving me yet another reason to complain.  But it doesn’t work this way.  No one is ever cured of this disease.  It stays with you until the day you take your shingle down. 

For those well-suited to a solo practice, the ringing phone syndrome is more of a nagging pain, radiating from your frontal lobe to your fingertips.  You know it’s there, but can shake it off and work through the pain.  For those who are less-well-suited to solo practice, the disease can become a deep fear, causing shuddering, uncontrolled twitching and inexplicably watering eyes when the end of the day rolls around and the phone has yet to ring. 

This is the fear exploited by the marketers, by the way, who promise that they have the secret to making your phone ring.  How wonderful to have someone else take the horrible weight off your solo-shoulders of making that telephone emit the most joyous of all sounds.  One reason that lovers o’ marketing turn sycophantic is that they are no longer truly solo, having found broader shoulder than their own to carry the burden of overwhelming fear.  If the weight of this fear is too much for you to carry alone, then it is likely that you are not cut out for solo.

Perhaps the interested opponents of these thoughts will provide you with a pep talk full of many thousands of warm words and fuzzy ideas.  But I’m not part of the chorus.  I’m a solo.

There have been a whole buncha blogs, from  WindyPundit to Balko,  Randazza to Overlawyered,  Crime & Federalism to Turley, posting about some ex-undercover cop who’s decided to become the newest internet hero by exposing corruption by cops in obtaining a search warrant on false info.

As Radley succinctly puts it,

Barry Cooper, the former drug cop turned pitchman for how-to-beat-the-cops videos. He comes off as more of a huckster than a principled whistle-blower, which I think does the good ideas he stands for (police reform) more harm than good.

But damn. I have to hand it to him. This might be one of the ballsiest moves I’ve ever seen.

Granted, this could turn out to be a hoot, if this cop-turned-huckster-turned-whistle-blower pulls off something credible.  That he might have caught the cops in Odessa, Texas, illegally using thermal imaging technology to locate a grow house and then lying about it to fabricate probable cause for a warrant, will stun and amaze everyone.  Kinda.

So why don’t I want to go to the party with my blawgospheric brethren? 

Having seen the harm of police doing what they believe they have to do to get the bad guys off the street for so long, and having experienced the quiet truth that many people really aren’t all that disturbed by the notion that police might occasionally fudge the truth to circumvent what is generally perceived as a plethora of inhibiting rules that protect the criminal at the expense of the citizen, shows like this scare me.  They turn real problems, systemic problems, into a circus.

I know, this Cooper fellow has done the legwork, huckster or not.  He set it up, filmed it, put it together, and added music (maybe, I don’t really know how good his production values will turn out to be).  It should make for some interesting viewing.  But it takes the issue of police corruption and deception to a different place, and I suggest that it’s not a place we necessarily want it to be.

I remember Serpico.  I remember the Dirty 30 and the day Abner Louima was anally raped with a toilet plunger handle in the 70th Precinct, and not a voice was raised.  New York-centric, of course, but real and undisputed.  These were hard demonstrations of systemic pervasive corruption, abuse and deception by police officers that shocked a City, and perhaps a nation.  They changed little, as people became inured to the reality that not all cops are perfect. 

What scared me then was that few people were willing to connect the dots between what undisputedly was happening in these celebrated scandals and what routinely happened behind closed doors in our police departments and on our witness stands,  My psychological analysis was that they didn’t want to, they couldn’t, or the system would collapse upon open recognition that this was not just “one bad apple,” as apologists always insisted.

What scares me now about this freak-show performance is that it will not simply further inure people to these intransigent problems, but turn it from something that is incredibly serious and painful for the real people and families harmed into some half-baked Vaudeville act.  This diminishes the real pain.

It’s not that exposure of wrongdoing by police is not an critical step in informing the public that this is real, it exists and it’s going on daily.  It’s not that clarifying why, in the smaller minds of those who can blink and make it disappear, this is wrong is a bad thing.  But this Cooper is not the poster boy for credibility, and his approach stands an awfully good chance of trivializing the problem and compromising serious efforts to change police culture by turning this into another bit of internet goofiness.

There is no question that things such as Cooper claims happened in Odessa do, in fact, happen.  But it isn’t entertainment.  At least not to the children who grown up without their parents.  When this becomes nothing more than fodder for some huckster’s latest self-promotional venture, does it mean that the battle might be won, or that the battle is over and police misconduct is just the latest sitcom.

Brian Tannebaum, our second favorite Floridian, who has taken captive the name Criminal Defense for his blawg (a reflection of his moral compass perhaps?), happened upon a fascinating idea.  “Lawyers”, Brian argues, “cannot be laid off.”  Only tools can be laid off,

If you are laid off, you are not a lawyer, you are a tool, a device, a big or small firm expendability. Check yourself.

When I first read his post, I challenged Brian to take it further, deeper.  He demurred, but offered me the opportunity to take up the cause.  I do so at his invitation.

It was a given in my youth that one of the greatest things to be was a professional.  The reason, I was told, was that no matter what happened in the world, no one could ever take your profession away from you.  Once you possessed the learning, the skills, the knowledge, it could never be taken away.  It was yours forever.

This came at a time when the pain of the Holocaust was still very real, and when people who had amassed great fortunes lost everything in an instant.  Businesses could be seized. Homes lost.  Paintings and sculpture swept away.  But no matter what group came to power, no matter how powerful they were, they could not take away your knowledge.  This was a powerful lesson.  This was why one became a “professional”.

As blawgs chronicle the layoffs from large law firms, not to mention the self-immolation of large firm owners who seem to lose their minds with some regularity, the world seems to be crumbling around thousands of lawyers who were assured that getting good grades, making law review, kissing butt at interviews, would provide them with a future of wealth and prestige.  This was the way things worked.  Just play the game, get the right summer clerkship, and you will live a life of plenty.

The country is filled with people calling themselves “lawyers” who entered this profession for the wrong reason. Maybe it’s not such a bad idea that they never really achieved what they perceived themself to be, and now find themselves looking for work, as “lawyers.”

Your world has come crashing down around your head, and the best some kid from Miami can do is kick you when you’re down?  No, that’s not what Brian is doing.  He’s challenging the conventional wisdom that took young men and women who entered law school one day with the dream of becoming a lawyer and, by the evil forces of manipulation, were turned into pointless drones to fill the needs of Biglaw.  They received magnificent starting salaries, and all it cost them was their soul. 

While I’m not entirely innocent of some small degree of Schadenfreude, with these wannabe masters of the universe coming face to face with their mortality, I feel badly about the misery caused by your having been misinformed.

You are lawyers.  You were lawyers before.  You are lawyers still.  No one can take that away from you.

What you are not is employed.  What you are not is on the partnership track.  What you are not is guaranteed to get that partnership invitation when your class turns 10.  Things aren’t working out the way they told you they would?  Bummer.

Back in law school, people lied to you.  Hey, they did it in grade school too, when they explained sex to you.  You figured out the latter and will figure out the former as well.  Lawyers do not need employers.  Lawyers are not diminished by the collapse of Biglaw, recession or name-partner psychosis. 

Brian’s lesson is that you have only seen yourself up to now as an employee, a cog in the wheel of profit per partner.  When you stand in the well of a courtroom, no one cared what firm monogram was gold-leafed onto your brief bag.  You were a lawyer, if only for the brief, shining moment.  You spoke in a clear, stentorian voice, and your case rose or fell on your words.  You, and you alone, stood between your client and disaster.  Did it make you feel alive?  That’s what it feels like to be a lawyer.

Only employees can be laid off. 

Lost your job?  Great.  Now you can be a lawyer.  Your mother will be so proud.

As a show of my appreciation to Brian for allowing me to play with his idea, the very least I can do is include this footer that Brian includes after every post at his blawg:

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Remember, he’s from Florida (not that there’s anything wrong with that).

When Radley Balko posted at The Agitator about the death of Laquisha Turner, a 17-year-old quadriplegic woman from Richmond, California, it crystallized a very real question about the tipping point between the dual functions of police, public safety and law enforcement.  In particular, when cops are engaged primarily in one function, law enforcement, how concerned should they be about their other?

From ABC7 in San Francisco,

[W]hen FBI agents raided her house as part of a major gang sweep last month, West said Turner never recovered.

“When I opened the door I said, ‘I have a disabled daughter…you guys are going to scare her, you can come in and search, do whatever you have to do,’ but by this time they were coming in the side door shooting things,” West said. 

Laquisha Turner was the victim of a drive-by shooting, ironically as a result of gang violence, and was left a quad as a result, spending her days at home playing cards and watching television.  The police entered shooting flash-bang grenades, designed to stun and confuse occupants, and avoid harm to police and occupants.

“They kept telling her to get down on the ground and she kept telling them, ‘I can’t get down,'” West said.

Should the police have been aware, in advance, that there was a quadriplegic in the house they were about to raid?  Should they be expected to ascertain whether there will be special circumstances involved, or is this too much a burden on the police? 

It’s easy to default to the answer that cops should always be required to know what they are doing beforehand, though  there is something inherently contradictory about that reaction.  The fact is that we expect the police to do their job when it comes to law enforcement in order to fulfill their responsibility to protect us from people inclined to commit crimes.  In this case, Laquisha Turner, herself the victim of violent crime, is the example of why we can’t saddle the police with a constant stream of greater and more burdensome duties.  If you don’t want to get shot on the street, then don’t make it impossible for the cops to do their job.

On the other hand, there are certain aspects of an execution of a warrant that call into question how great a burden it would be to have some clue what you might be facing inside.  Initially, the police were not engaged in a street encounter with unknown people of dubious threat.  They made the decision to enter into someone’s home, a place that the law (and most rational people) endow with a special degree of protection from forced entry.  The police made the call to break into Laquisha Turner’s home, and she did nothing to cause it. 

Further, the warrant to enter the Turner home required police to express some degree of knowledge about why they should be entitled to do so.  The expectation that they show good cause to execute the warrant includes the belief that they have good basis to knock down a door and find the target inside.  They are thus expected to have a far greater degree of knowledge about what they are doing than they would have in a typical street encounter.  In other words, the increased burden of ascertaining whether there are likely to be children, innocent people, quadriplegics inside a home, shouldn’t be particularly great.

And finally, there is the larger question about the primacy of the police functions.  Which is more important, public safety or law enforcement?  The justification for law enforcement is public safety; Police don’t enforce laws because it’s fun to do or wins them medals to wear in court to prove their credibility.  Their authority to enforce laws stems from the public welfare, and the public welfare demands that they do not harm people in the process of enforcing laws.  They do not harm innocent people.  They do not harm less than innocent people, either, to the extent they can avoid doing so consistent with self-protection, a point missed by many.

While it’s true that the expectation that cops find out if there will be a Laquisha Turner, or a Tarika Wilson, killed while holding her baby almost a year ago in Lima, Ohio, inside the house they’re about to raid, it is more important that they not harm the innocent in the course of performing their law enforcement function.

To put it another way, just as it is a axiomatic that it is better that 10 guilty men go free than 1 innocent man be convicted, it is a fundamental precept that the police not harm the innocent in their zeal fo get their target.  The bad guys will still be there tomorrow, but there will be no tomorrow for Laquisha Turner or Tarika Wilson or the others who are the unfortunate collateral damage of law enforcement. 

The duty of the police must be to protect the public first, even if it means that they have to find another way to capture their target.  If this is not their first priority, then they have neither legal nor moral authority to perform the law enforcement function.

As of yesterday, I officially became knowledgeable about blawging.  No, I did not proclaim myself an expert.  No, I did not have an epiphany.  No, I did not learn the true meaning of “search engine optimization,” and I still have no clue what that means or how to actually do it.  For the nuts and bolts junk, you have to go elsewhere.  If that’s your purpose, you may want to stop reading immediately, as I offer no refund on wasted time. 

Instead, I found myself quoted in a Law.com article by C.C. Holland entitled How to Build a Better Law Blog.  If I wasn’t knowledgeable, I wouldn’t be in there.  Walter Olson from Overlawyered was in there too, and for me to be in the same article as Walter is, well, flattering to say the least.  I mean, seriously, he started this whole blawging thing and I’m just a baby in comparison.  I hardly have the right to sit at his bended knee, so it must mean something that C.C. thought that anything I could say would have a place in the same article with Walter.

Now that my thoughts on blawging are worthy of open expression, I feel obliged to share them with others.  It’s a noblesse oblige thing that sweeps over us blawgers from time to time. After all, as C.C. writes:

Are you thinking about a foray into the world of law blogging? If so, you’re far from alone. According to the American Bar Association, there are over 2,000 law blogs now listed in the organization’s Blawg Directory, and the number is growing rapidly.

The benefits of blogging include better search-engine optimization, since frequent updates of attorney sites lead to more attention from Google and its ilk; an appearance of authority due to online punditry; and a combination of push and pull marketing. Blogs are less intrusive than e-mail newsletters and offer an opportunity for a conversation instead of a lecture. They may also showcase attorneys’ intellect or wit, thus personalizing them to potential clients.

Since they’re easy to start and cheap to run, it’s no wonder that so many new law blogs are sprouting. But don’t jump onto the bandwagon with a half-baked blog. If your blog is boring, banal or shamelessly self-promoting, it’ll do you little good and will likely die a slow death.

Did you know there were 2000 blawgs?  Do you care?  Chances are that if you’re reading this blawg, you read a few others.  But one point that’s missed by most blawgers is there are only so many free hours in a day, especially now that twitter has been proclaimed the coolest thing ever, and it soaks up time like nobody’s business.  So it’s critical that a new blawg find it’s way into that tiny niche of blawgs that make it onto peoples’ radar.  After all, why put in all that time if no one will either see or care about your blawg.  That’s just insulting.

That’s why it’s critical that you follow the 10 Blawging “Dos” and “Don’ts”.  Everybody in the blawgosphere loves a list.  Your blawg will be linked in every single existing blawg, for example, if you create a list of the 10 Best Blawgs of All Time.  It doesn’t matter if your blawg has zero content otherwise, Want proof?  This website, called “Criminal Justice Degrees Guide,” which pimps for places that offer instruction on how to become a paralegal, posted the Top 100 Law Blogs, and even the biggest, baddest blawgs, like Above the Law (with the highest demographics around in the age 3 to 7 range)  linked to it and announced how honored they were.  This list made them an overnight smash in the blawgosphere.  And you can too!

Of course, another reason why it’s critical to follow the 10 Blawging “Dos” and Don’ts” is that a spectacular entry into the blawgosphere does not guarantee that you will be able to hold an audience.  After all, even a clock that’s stopped is right twice a day, and huge success by following my rules will mean nothing if it’s not followed up by following more of my rules.  If I didn’t know stuff, would C.C. Holland have put me in the same article with Walter Olson?  Get real.

Walter Olson imagined that his Overlawyered blog would pull an audience of his friends and acquaintances and a cadre of legal policy wonks.

“But you don’t know who your audience really is until you start writing and find out,” he notes. “My readership has a large following among lawyers, but I’ve been surprised to find that a lot of doctors are reading it, as are a lot of people from other countries.”

Let’s face it, nobody knows how to blow money faster than doctors.  Why should they spill it only on Porsche 911 Turbo Carreras to make them look young and cool (as if) when they can be paying it over to you?  It’s just not fair.  If Walter can grab the docs, you can too.  There’s nothing they love more than a blawg whose purpose is to criticize lawyers, and there’s nothing easier to write about because you never run out of material.  It’s a perfect match!

I think I’ve made my point as clearly as humanly possible; If you want to be a smashing success in the blawgosphere (and who doesn’t?) and be able tell all your friends that you’ve optimized your search engine, just follow my 10 Blawging “Dos” and “Don’ts” to the letter and you too can be a Thought Leader and enjoy unbelievable financial success and gain the admiration of all! 

And isn’t that really what the blawgosphere is all about?

My love of vapid platitudes aside, there are some that wreak greater havoc than others.  Two of my favorites are, “there are two sides to every story,” and “everybody is entitled to their own opinion.”  These are two of the greatest devises for comparing sound reasoning with whatever load of lunacy someone else can come up with.

The other day, David Giacalone of f/k/a wrote me to express his disgust at the lawyer’s argument at sentence for Schenectady’s former Chief of Police and drug dealer, Gregory Kaczmarek (affectionately known as “Kaz”)

Please stop insulting our intelligence by telling us — as your mouthpiece Tom O’Hearn did over and over — that taking the plea “ultimately . . . was a pretty stand up thing for him to do,” because it allowed his wife, against whom there was more-compelling evidence, to avoid going to the penitentiary.  O’Hearn says he’d prefer his client take his chances with a jury. 

I tried to calm David down by reminding him that this is what criminal defense lawyers are required to do, provide the best possible argument they can on behalf of their clients.  Sometimes there is a good argument, well founded in fact and law.  Sometimes, we do the best we can with what we have.  It’s our job.  He understood.  He didn’t like it, but he understood.

On the other hand, that same rationale doesn’t apply everywhere or to everything.  There are assuredly times when reasonable people may differ, when there are policy choices to be made, or mere preferences in the weighing of relevant factors.  Sometimes things fall under the heading of “acceptance decisions,”  Some people love chocolate.  I don’t particularly care for it.  It’s not a right or wrong, but just a personal preference.

Personal preference, however, does not apply to reason.  When it comes to the application of reason, there aren’t always two sides of equal or equivalent value.  Sometimes, the arguments proffered are just irrational or illogical, and do not deserve the deference their makers demand.

Worse still, opinions without basis in fact are worthless.  If people want to fabricate a fiction to justify their arguments, then they lose any right to expect anyone to take them seriously.  You can’t just make things up, then argue your point based upon fiction. 

Now, to bring this home.  There has been an epidemic here of late of people commenting based upon pure, unadulterated, baseless assumption, and then wrapping it up in a logical fallacy.  The content shows that they have no idea that they are relying upon assumption, as they take their views very seriously and can’t begin to comprehend why everyone else doesn’t assume as they do.  In other words, a world exists within their heads, and they believe this world to be real for everyone as it is for them. 

When others fail to back up their view of the world through baseless assumption, they get all huffy.  They insist they’re right.  They demand they’re right.  They stamp their feet and make the same argument over and over, because obviously no one else grasps their brilliance if they don’t see the same world as they do. 

Then they get angry about it.  This stems from the belief that their position is entitled to respect, deference even.  It’s not.  Sure, people (especially me) could be kinder about disagreeing, but no one is entitled to have their ill-conceived notions treated with hid gloves.  No one is entitled to have someone else explain to them, calmly, nicely and usually ad naseum, why their assumptions are wrong.  If they lay an egg, they should expect it to get scrambled.  If they don’t want to be challenged, then keep it to yourself.

At sentence, a defendant has a right to be heard.  Here, there is no such right.  A judge has a responsibility employ appropriate judicial temperament, meaning that he’s generally ill-advised to call a lawyer a moron.  This is no courtroom, and I’m no judge. 

I’m not telling anyone not to speak their mind.  I am, however, telling you that your opinion may not be worthy of admiration and respect, and may well subject you to widespread ridicule.  If it makes you feel any better, there are plenty of people who feel the same about my opinions, laid out for the world to see whenever I post something on Simple Justice. 

I put my credibility on the line every time I put my thoughts in writing and press the little button that makes it appear on my blawg. I take my risks. You take yours.  So don’t whine about it if it turns out that you don’t have a right to your opinion.  I’ve had my butt handed to me from time to time.  Maybe today is your turn.  Get over it. 

If you can’t live with this, go post on the marketing blogs, where they will kiss every butt that comes along lest they miss a potential sale.  There you get kindness, no matter how ridiculous your opinions may be.  Here, you take your chances.

There he goes again, but this time he’s trying to stretch the rhetoric so that it will eventually include pretty much everybody on the face of the earth.  Who?  My favorite victims rights advocate, Paul Cassell, who posts at VC about his latest foray into spreading the victimhood in the case of mortgage banker mutt, Phillip Coon.

Coon, a vice-president at Coast Bank, came up with a scheme to split one point of a mortgage origination fee between himself and the mortgage broker who sold the residential real estate loans.  Former District Court Judge turned Utah Lawprof Cassell argues that the homeowners who paid the point are victims, and therefore entitled to a seat at the table.

The borrowers’ petition arises out of a plan by Coon to “skim points” off of residential mortgage loans in Florida from 2004–07. On November 5, 2008, Coon pled guilty to the scheme in U.S. District Court in Tampa. A group of 112 borrowers of these loans then filed a motion with Judge Kovachevich to be recognized as “victims” of his crime of conspiracy because they had to pay extra on their mortgages because of the crime. Judge Kovachevich denied the motion because the government’s charges only specifically listed Coast Bank, Coon’s employer, as the victim of the crime.

What’s fascinating is how the argument relies on a twist of the facts to create victimhood.  You see, the borrowers agreed to pay two points on their loans, paid their points (either up front or by inclusion within the loan) and got their check.  Paul argues that had there been no scheme, the borrowers would have paid one point less.  And so he filed a petition for mandamus in the 11th Circuit.

In the petition filed yesterday, I explain that the borrowers suffered financial harms because they became legally obligated to pay the point that Coon skimmed off the loan and had to pay interest on the point. The petition cites documents showing that Coon received more than $1.1 million from his crime, which he used to buy overseas vacations, fine wine, expensive jewelry, a $20,000 piano, and other luxury items. The petition states that “while Coon was enjoying the high life on his ill-gotten gains, the borrowers were all paying interest on the money financing it.” The petition seeks restitution for the borrowers.

What Coon did with his ill-gotten gains has zero bearing on who the victim is, and its inclusion in his argument is an obvious effort to whip up hard feelings.  It’s not that Coon doesn’t deserve hard feelings, but that there remains no logical connection between the hard feelings and Paul’s argument.  But when it comes to victims, logic apparently plays no role.  It’s all about the sympathy factor.

Coon should pay restitution, but to the appropriate victim of his crime, Coast Bank.  It was Coast’s half point that he stole, not the borrowers.  They received the deal they agreed to, and suffered no loss from their expectations.  Coast Bank, on the other hand, was entitled to his honest service, and was denied it (not to mention their half point). 

The danger of this argument is its implications for the future, given the rosy future for mortgage-related prosecutions going forward.

This could be a nationally significant case that will set the precedent for whether people who harmed by financial crimes have rights in the process. In my view, the borrowers here lost real money as a result of Coon’s crime – they should have their rights as crime victims respected.

If the borrowers are allowed to assume the status of victims, given the political happy meal offered by the CVRA as well as the new Rule 60 of the Federal Rules of Criminal Procedure, there will be no stopping borrowers from involvement in essentially every mortgage related case, even when they received everything they agreed to.

Applying a theoretical model, where everything that happens with regard to a mortgage ultimately is paid for by a borrower somewhere, there is no conceptual ledge to prevent borrowers (and consider the number we’re talking about) from intervening in a prosecution.  But by the same theoretical extension, we are all “borrowers” and all victims.  After all, the APR of residential mortgages moved in lockstep from bank to bank, meaning that one bank’s increase in points allowed others to do the same, meaning that all borrowers paid more than they theoretically should/could have but for the crime.  Do we all get a piece of the pie?

However, “but for” arguments such as this are purely speculative.  Banks increase points because they can, and because they are in the business of obtaining the best return on their investment.  As Coast Bank could get another point on their loans from otherwise satisfied borrowers, then there was no harm.  Similarly, if the borrowers were unhappy with the terms of the loan, they could have called the next bank on the list.  And if the next bank on the list also bumped the points up one because Coast Bank did, then ever borrower from every bank suffered the same theoretical consequence of the crime.  So either we’re all victims, or none.

One thing remains unclear to me, which is that Doug Berman at Sentencing Law & Policy also posted about this matter, and offered this:

I am pleased to see from this post at The Volokh Conspiracy that Professor Paul Cassell is continuing his important efforts to get district and circuit courts to give serious effect to the federal Crime Victims’ Rights Act.

Given Doug’s concern for doctrinal purity in sentencing, I can’t understand why, when it comes to the “victims’ rights” issue and CVRA, sympathy for the victims, even when they aren’t actually victims, should undermine the basic structure of the adversary process of the criminal justice system and the rights of defendants.  I’ve discussed many times and many ways why victims have no place in the well in the criminal justice system.  Yes, they’re sympathetic.  No, they don’t get to have a third table in the courtroom. 

I would sincerely like to understand how Doug rationalizes his views on fair and appropriate sentencing in general with his support of victims’ rights, which seems so antithetical to his concerns about the lack of fairness and proportionality in sentencing.  There is no insular group whose involvement would serve no purpose beyond a blatant appeal to visceral vengeance than victims.  I don’t get it. 

From Doug Berman, the Second Circuit’s en banc decision in U.S. v. Cavera arrived the other day, reversing the original panel’s ruling that EDNY Judge Charles Sifton’s use of “local conditions” to increase a sentence above the guidelines is permissible.  Ironically, the explanation for this reversal is none other than the intervening Supreme Court decisions in Gall and Kimbrough.

Cavera was in his 70s when he decided to embark on a career as a gun dealer, You know how those wild septuagenarians in Florida will do anything to keep busy and make a buck.  So Cavera found selling guns to be brought up to New York a good way to keep his idle hands busy, and it made good use of the training from his army career.

After a plea of guilty. Cavera faced a guidelines range of 12 to 18 months, but advised that he was considering an above-guidelines sentence because of “local conditions.”  What this meant was that bringing guns into New York City was an offense of a different calibre than, say, Sherman Oaks, California.  Judge Sifton concluded that the guidelines failed to adequately address the need for deterrence of gun trafficking in large metropolitan areas.  With higher homicide rates and the plethora of problems cause by weapons possession in cities, the guidelines could not properly homogenize the nation as it was intended to do when it came to guns.

On the initial appeal, the Circuit reversed, with the government agreeing that the sentence could not stand, holding that it was improper for Judge Sifton to impose a broad-based policy decision on the sentence of this individual.  The District Court could only take into account particularized arguments relative to the defendant before it, and went beyond his authority to determine, as a matter of policy, that the guidelines failed to provide adequate deterrence for major metropolitan areas.

But that was then.  This is now.

As a product of Booker, Gall and Kimbrough, the Circuit held that their review was limited to an abuse of discretion, and that the “very wide latitude” afforded a sentencing judge  allows him to take into account the “nature of the offense” as well as that of the defendant.  The double-edge sword of Gall and Kimbrough is here.

As Judge Sifton properly considered the guidelines as well as the factors set forth in 3553(a), he satisfied his procedural duty and left the Circuit to consider only substantive review, subject to the “unreasonableness” standard of highly deferential review.  The Circuit held that it was not to substitute its judgment for that of the sentencing judge.  The Court expressly rejected the presumption of reasonableness of a within guidelines sentence, as well as the presumption of unreasonableness of an outside guidelines sentence.

But all this doesn’t mean that sentences only depart in one direction, a point that many forget when they held parties after the Gall and Kimbrough decisions.

In this case, the Circuit held that the sentencing court was authorized to impose a sentence higher than the guidelines would require based upon a broad policy position, provided that the sentencing judge applies the considerations of 3553(a).  In this case, Judge Sifton used the general deterrence prong, certainly a legitimate and proper consideration for sentence, to justify his imposition of a higher than guidelines sentence on Cavera.

On the down side, the expectation that judges would use Gall and Kimbrough as a means of reducing the ridiculously harsh sentences mandated by the guidelines has been proven wrong.  While available for that purpose, it’s similarly available to increase a sentence, despite the fact that many believe that the guidelines are far too harsh to begin with.

On the up side, this decision clarifies many of the issues of review and latitude given district court judges, including the use of policy arguments with regard to crimes, most notably the crack guidelines.  As for Cavera, the enhanced sentence added a mere 6 months to the top end of the guidelines, which for most people wouldn’t be all that painful, though for a man in his 70s is like adding 10 years to the back end.

If you do federal defense in the 2nd Circuit, this is a must read decision, and offers much for argument regardless of which way you want the sentence to go.

For anyone who has either been pregnant, or been next to someone who has been pregnant for the full gestation period, there is no doubt that it’s a condition requiring a very high degree of understanding.  No one can argue with hormones.  But even more, it’s an event that remains miraculous  each and every time, even though it’s happened as many times as there are people on the face of the earth.  You’ve got to admit, that’s pretty special.

Yet not everyone seems to have a soft spot for pregnancy.  First, we have Massachusetts State Trooper Michael Galluccio (of the Brighton barracks, in case you were wondering).  According to the Boston Globe, Michael doesn’t have much of a soft spot.

Jennifer Davis was stuck in bumper-to-bumper traffic on Nov. 18, her contractions just 3 minutes apart. Her husband, John, was trying to appear calm for his wife’s sake, driving in the breakdown lane of Route 2. They pulled up behind a state trooper to ask whether they could continue using the lane to reach the next exit, near Alewife Station.

Not only did the trooper say no, he gave them a $100 citation for driving in the breakdown lane, made them wait for their citation while he finished writing someone else’s ticket, and even seemed to ask for proof of pregnancy, Jennifer Davis said.

Well, that wasn’t very nice.  True, the Davis’ use of the shoulder to circumvent bumper to bumper traffic was the potential first step toward anarchy, there being important laws prohibiting driving in the “breakdown lane” for the protection of society.  On the other hand, police frequently exercise a bit of discretion when circumstances, like pregnant women in labor, suggest it’s appropriate.  Had Jennifer been a pregnant police officer, perhaps she would have obtained more help from Trooper Galluccio.

But the story of Jennifer and Michael the Trooper doesn’t end with a $100 citation.  Oh no.  It seems that this tale has caused deep-seated antagonism toward those pregnant women with a sense of entitlement to bubble to the surface.  And surprisingly, not from the angry mobs of barren hermaphrodites, but from the legal academy.  Go figure.

David Bernstein at Volokh Conspiracy took this tale of inchoate anarcho-syndicalism and ran with it:

What a cruel, heartless cop, right? That’s the way the story is written.

But wait. If you read the story carefully, when the cop pulled the husband over, he was attending to a car in the breakdown lane, where the husband was driving illegally (albeit allegedly with the permission of cops he encountered previously). In other words, the husband was endangering the cop’s life. And the couple turned down the officer’s offer of an ambulance. Why? Well, when you get to the last paragraph, you find out that the baby wasn’t born until five hours later. If it’s a true emergency, call 911 and meet the ambulance at the next exit!

As I’ve pointed out before, the fact that a woman is in labor is no excuse for unsafe driving.

That’s just heartless.  Worse still, it’s factually wrong.  Nowhere does the story suggest that a cop’s life was endangered.  Not even close.  Not even from as biased a starting point as David’s post suggests.  The attempt to justify this animus toward pregnant women, that she didn’t in fact deliver for another five hours, is shocking.  Does David think that pregnant women know how long labor is going to take.  As a professor, an academic, a scholar, this is just incredibly foolish stuff.

What drives this sort of hostility toward pregnant women?  That’s for a well-paid therapist to discover after many years of appointments, but it’s wrong to suggest that Trooper Michael Galluccio, in his zeal to protect the breakdown lane from heinous pregnant women, is the last man standing between order and pregnant chaos.

Had the Trooper and the lawprof taken a deep breadth, thought about their mothers under the same conditions, and considered that the excessive desire for order and compliance has to occasionally give way, perhaps the miracle of child birth would be cause for joy rather than a $100 citation.