There’s been a lot of discussion around the blawgosphere this past week about false accusations and apologies.  The problem arises from an apology that’s not an apology, though the apologist insists vehemently that it is.

To begin with, it’s important that I include some quotes in this post, as there have been a rash of mysterious disappearances of posts and comments giving rise to the need for the apology.  If they aren’t copied into this post, the sources are likely to be gone soon enough so that the apologist can pretend they never happened.  There’s this:

I can’t take umbrage at the harshness of any critique at this point, but I don’t agree that owe the legal profession an apology. I do a great deal for the legal profession and work hard at it, not because it’s the only thing I could do but because we have one of the most difficult professions when it comes to navigating ethical dilemmas, and while the rules are one tool, others are essential too.

Then there’s this:

Look, I am completely in sympathy with anyone who wants to bash me for this. Beyond that, however, your critique is not proportionate or fair. The best way to achieve section 7’s goals is for everyone, not just me but every lawyer, to be open, and critical when we see, or think we see, problematic conduct in a colleague–or ourselves.

And of course this:

You are deluded if you think that the suggestion that a lawyer violated a Rule automatically imparts some kind of infamy.

Followed by this:

I have done all I can do to apologize,not just to Eric but to others, explain where I went wrong, extract lessons from it, not make excuses, and move forward. But I’m sorry: despite this lapse, I know I am good at what I do, and I do not have to justify myself to you.

Coupled with this:

I think I am right that the legal profession will be better because of the issues I raise, the minds my seminars engage and ideals I advocate. And I’m not about to apologize for that. You have written me off because of two blog posts and a lot of hasty replies responding to over 70 comments, many of them personally abusive. How unfair, ungenerous, and illogical….and ill-informed.

Then there’s this:

saying a lawyer has engaged in unethical conduct and saying the lawyer is unethical are too extremely different things.

Plus this:

My mistake was referencing a Rule provision that I believed could be violated without requiring reporting or discipline, when the bulk of authority has come to assert that the 8.4 misrepresentation prohibition otherwise. In other words, my claim that this was a Rule violation was more serious than I intended, because I was misreading the Rule. I never intended to say or imply that Eric was an unethical lawyer, just that he had (mistakenly) crossed a line. If I cross an ethical line without knowing it, I want people to tell me.

And this:

I am absolutely remorseful, but I do not regret my motive at all. It’s a facile sentiment rather than a perceptive one, in my opinion.

Then the closing salvo:

How is a self-abasing apology self-serving, exactly? And I am not talking about my “accusers”—-I am talking about the jackals, bloggers who have weighed in and denigrated me after I have done everything possible to set the record straight and make amends. I am talking about suggestions—based on nothing, completely unsupportable by my professional and personal conduct, that my apology was anything other than an honest and open response to discovering that I was wrong. While the individuals who were most affected by my carelessness have been gracious and even encouraging, these people seem determined to make a big a deal out of this as possible and to interpret every action, like you, in the worsts and most flattering light.

My “accusers” were not and are not correct, in that they have said that I am a fool, a fraud, someone who doesn’t know his business and who was “linkbaiting” or trying to hurt people, someone who only apologized because of fear. Those who disagreed with me were correct about two things: this was a minor issue, too minor to support the weight I placed on it, and the predominant and accepted reading of Rule 8.4 is that if dishonesty and misrepresentation in an activity unrelated to the practice of law are not at a level indicating unfitness to practice, then there is no violation of that Rule. Some of my “accusers” stated that 8.4 didn’t apply to conduct outside the practice of law. They were wrong about that. Others claimed I was wrong that the Rules are not merely disciplinary in function, and they were wrong about that as well. I believe, though it is not a matter subject to proof one way or the other, that lawyers are obligated to meet a higher standard of integrity and honesty in everything they do. And they were wrong that I said the lawyer was unethical. I said the conduct was unethical, which is very different.

And the coup de grace.

Frankly, I think anyone who continues to attack me (or anyone)after a complete and sincere apology, and that’s what I wrote, based on a single incident, knowing little of the background and with no other experience or knowledge of what I do or have done, just looks petty and uncharitable.

In contrast, the Public Editor column in the New York Times says:

David Goodman, who writes New York Online, an aggregation of news from many sources, bit on a claim by Eric Turkewitz, a personal injury lawyer and blogger, that he had been appointed official White House law blogger. Goodman tossed in a short item at the end of his April 1 post. Turkewitz wrote the next day that he had been hoping to catch political bloggers, “whose reputation is to grab any old rumor and run with it,” but instead bagged “the vaunted New York Times.”

Goodman, who said he knows he should have checked it out, especially on April Fool’s Day, said that because several prominent legal blogs also had the item, he gave it more credibility than he should have. What he did not know was that the other bloggers were in on the hoax. Corbett said the episode pointed up the risks of news aggregation and the need to rely on trustworthy sources.

Whereas Jack Marshall apologizes out of one side of his mouth and while making every excuse under the sun to shift blame to the “jackals” who attack him for being wrong, the New York Times just concedes that it screwed up and got nailed. 

The rule is that one should never attribute to malevolence what can be explained by sheer stupidity.  With that in mind, it would be wrong to suggest that the self-proclaimed ethicist is, himself, intentionally and deliberately unethical.  Even if this conclusion can be clearly drawn from his removal of posts and comments that demonstrate his commission of conduct that some might find flagrantly unethical, it’s still possible that his finger accidentally hit the delete button on each of these embarrassing and incredibility humiliating posts that undermine his fevered efforts to pretend they never happened, or that his “self-abasing apology” wasn’t calculated to excuse, justify and trivialize any itty-bitty, tiny, technical error in his analysis (which was actually correct if you squint really hard).  And so I will not attribute malevolence to him.

Jack Marshall is stupid.  So says this jackal.  Too stupid to ever be allowed to opine to a lawyer on the subject of ethics.  I only say this because I’m trying to be kind to Marshall, Nicer than he was to Turkewitz.  Nicer than he deserves.

When will this stop?  When Marshall stops trying to sell his personal version of ethics to lawyers and gets a growth position at Dairy Queen.  But as long as he continues to try to sell his crap to lawyers and bar associations as ethics expert, then there will be need for us jackals to protect lawyers from the expert.  I’m as tired of this as you are, but it remains a concern that Jack Marshall and ProEthics are still out there trying to sell themselves.  Let no one forget or be misled, even if Jack Marshall, in his own opinion, thinks it was no big deal and he’s still a really swell guy.

H/T to The Trial Warrior, Antonin Pribetic, for the title of this post.