Over the past year, we’ve had a number of “run-ins” with lawyers who were clearly unfamiliar with the blawgosphere, how it worked and how best to accomplish their purposes.  The latest salvo has just come to conclusion at Patterico’s Pontifications, where Kathy Kelly, the lawyer for Jimmie Duncan, the evidence against whom was the subject of an expose by Radley Balko at Reason, threw a hissy fit.

It seems that Patrick Frey at Patterico, by digging a little deeper into the story, stepped on Kelly’s toes, at least as far as Kelly was concerned:

I have heard from someone, however: the defendant’s lawyer, who is threatening to file a (completely baseless) State Bar complaint against me.

 The lawyer is Kathy Kelly of the Capital Post Conviction Project of Louisiana. That organization represents Jimmie Duncan, the Death Row inmate described in the article. In this comment to my original post, she implies that I have committed State Bar violations (which I most certainly have not) and threatens to file a State Bar complaint if I continue to contact witnesses on the case — in other words, if I continue to exercise my First Amendment rights. Excerpt from her comment:

As a lawyer you should no that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar.

I told her : “I don’t intend to cease exercising my First Amendment right to speak about matters of legitimate public concern because some lawyer who is mis[re]presenting the content of my post threatens a bogus complaint to my State Bar.” I asked her to tell me what rule I had supposedly violated and she suddenly decided she had better things to do. After publicly implying that I had committed an ethical violation, she said : “I’m not discussing this publicly.” I demanded that she identify a specific rule I violated, or retract her comment, and she said that she was too busy to address the issue any more.

Naturally, the blawgosphere didn’t take well to Kelly’s threat, bringing the Streisand Effect down upon her.  To her great credit, Kathy Kelly, after taking a deep breath, realized that her attack was ill-advised, and offered this response :

To Mr. Frey, Regarding my comments as Mr. Duncan’s counsel this past Sunday. Do I regret it “Yes”. Does it appear I was wrong “Yes”. My intent was not to harm your reputation but I had concerns on protecting my client’s right to a fair hearing. I acted rashly without thinking about it first.

I’m willing to admit that I was wrong on implying you committed any type of ethic violations. Being criticized on blog sites doesn’t bother me. I agree with the fact it was foolish. My only hesitation on posting anything on your blog is that it will only continue to focus attention on me and continue this instead of ending it. The focus should be on Mr. Duncan’s case not me. I will not read or post any more comments on your site.

By de-escalating matters, Kelly showed both a level of maturity and tactical sense that far too few lawyers seem to possess.  I’ve seen far too many lawyers, all full of their self-importance and perceived power, trying to bully their way through the blawgosphere.  What clearly permeates these misguided efforts is that fact that they don’t grasp the fact that they are powerless to stop the flow of information, and that the blawgosphere, if it so pleases, could destroy them.  Usually they get a slap on the wrist initially, but the consequences become increasingly serious as they persist in their efforts to bulldoze their way through.

Granted, reading something on the internet can inflame a lawyer, who by nature feels compelled to lash out at any offense, real or perceived.  Often, they lack the depth of appreciation to allow them to understand exactly what they are dealing with, since they see only a handful of written words without the benefit of context that comes from a broader understanding of the blawgosphere.  But lawyers, particularly young lawyers, often let then fingertips move far faster than their brains.  After all, they are lawyers; they can demand anything and get it.

Well no, they can’t.  And if they make the mistake of thinking that by attacking someone in the blawgosphere they are playing on a level field, then they are not merely ignorant, but courting disaster.  Kathy Kelly was roundly castigated for her threats to Frey, and had she persisted, could well have ended up one of the blawgosphere’s top goats.  Instead, the kerfluffle will be forgotten and the issue will again focus on Balkos’ bad guys rather than someone who made herself appear to be twinkie. 

This brings me to an email received yesterday from a fellow who says he’s David Wold, with a hotmail address.  For those who may not remember, the name David Wold made blawgospheric fame with an eBay auction for his DePaul Law School diploma.  More than a year later comes this request cum demand that SJ, the ABA Journal, as well as a number of other blawgs, remove posts relating to the auction.  Was the auction a bold and controversial commentary on the value of a law school education, or a “malicious misrepresentation?”

My name is David Wold.  It has recently been brought to my attention that roughly a year ago each of your corresponding sites has published or republished an article related to a story that I attempted to sell my law degree on Ebay for the purposes of promoting an adult site.  I would like to make clear that I have never and would never attempt to sell my law degree.  I did not create the referred to listing nor write the accompanying argument.  This listing was created by an individual attempting to cause some kind of public embarrassment on my part by associating my adult work with my legal education.  While it is true that I do run an adult projects and work in the adult industry as well as having a law degree from DePaul University, I would never link an argument about education with a ridiculous auction listing in order to promote a web project unrelated to either.  Nor do I wish to devalue the very degree that helped give me the opportunities to do the work that I have done.

I have attempted to find the hosting sites that make reference to this defaming article, and would like to respectfully request that these articles/blog entries be removed from your sites.  I am not seeking an apology, and, frankly, would prefer the story not be revisited.  Below are links to your corresponding articles.  Your cooperation in attempting to correct this malicious misrepresentation would be greatly appreciated.

Sincerely,
David Wold

While the waters are now perpetually muddied as to whether this David Wold or that David Wold is the real David Wold, the email creates yet a new controversy that compels airing, likely the last thing this David Wold wanted.  What really puts this email on the map is the line, “I am not seeking an apology.”  And why would anyone consider apologizing, or for that matter, care what you’re seeking?  But the fact that the eBay auction most assuredly happened, and that the controversy swirling around it was both newsworthy and meaningful to lawyers, was the reason why it received such attention.  Frankly, the name David Wold could have been replaced with any other as far as the blawgosphere was concerned.  He wasn’t the point.

What this shows, yet again, is a misunderstanding of how the blawgosphere, and the internet, works.  If you are really David Wold, then here’s a bit of information:  If I was to delete the post now, it would continue to exist forever, cached in perpetuity.  That deal is done, and there’s nothing your could say to undo it, nor anything I could do to change it.

But more importantly, your email served to do the exact opposite of what you hoped of it.  No one in the blawgosphere holds any malice toward you, or bears some responsibility for whatever harm you believe you suffered.  Why would you take the approach that you aren’t seeking an apology?  Up to that line, I considered your request to be in good faith.  Your lame attempt to suggest that the blawgosphere did you a wrong, but that you are bigger person than to expect rhetorical recompense, is precisely the sort of this that makes your effort blow up in your face.

There are lessons to be learned here.  The blawgosphere can’t be bullied into submission, and if you become enough of an annoyance, you too can be twinkified.  As Kathy Kelly learned, take a deep breath when you think that someone has maligned you before going off half-cocked.  The blawgosphere isn’t out to get you, but it isn’t particularly forgiving if you think you are going to bully it into submission.  Again, take a deep breath.