There’s a cartoon by Peter Steiner that offers one of the most important lessons for the digital world.
It’s a lesson that bears repeating regularly, as people “find” the internet and embrace it as their window to the world.
One rather shocking example was raised by Mark Bennett, who keeps a sharp eye on one of the most dangerous ideas online, Avvo Answers.
Seen on Avvo :
I am a resident physician in Houston, TX. A charge of indecent exposure has been brought against me by a complaining witness- no other witnesses or evidence involved. I had a warrant for my arrest, for which I went it for booking and was released on bail. Pretrial hearing is set for next month. I don’t know what to expect. My attorney believes I might be offered deferment.
Should I take this? How will having deferment affect my professional licensing?
If not, how can I contact the ADA for plea bargaining? at what stage is plea bargaining done? I would settle for a reduced offer but I don’t know how to go about it.OR should I just take my chances with a trial by jury?
Thank you for your time.
One can only pray he’s going into proctology. What’s astounding is the fact that someone with sufficient intelligence to make it through med school can be so unbearably stupid as to ask this question of lawyers who give free advice for the primary purpose of self-promotion. For the record, any attorney who uses Avvo Answers to promote himself should be tarred and feathered, then run out of town on a rail, then stripped naked and placed on an ant hill covered in honey. And I have a number of friends who use Avvo Answers. I also have the honey at the ready.
The culture of free advice from people who bear no responsibility for their answers, and are more likely than not to be incompetent to provide viable answers, is the foremost feature of the internet. When things work out, hooray, aren’t we wonderful. When they don’t, tough nuggies. Bad Avvo Answers is a recurring theme, almost a meme within the profession.
The lawyers who respond to these questions characterize their efforts as some form of pro bono, a public service, They are liars. There are many opportunities for public service, where they can provide hard contributions to those who can’t afford counsel. This is base self-promotion, No one, and I mean no one, provides Avvo Answers because they’re a great humanitarian. The proof is at the bottom of many a lawyer’s response. The disclaimer:
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
If further explanation of why this is a joke is needed, than you don’t deserve to be a lawyer. And if you’re going to try to spin your way out of this cesspool, be prepared for a harsh response.
On the other side of the internet, a law student is so thrilled with himself that he’s laid out the secret to beating a ticket. This was picked up by both Volokh Conspiracy and Above the Law , the sublime to the ridiculous, Elie Mystal explains:
I talk a lot about what legal education doesn’t prepare you for. You know what it does prepare you for? Any future interaction with police officers. By the time I finished 1L year, I knew the golden rule for dealing with officers of the law: keep your mouth shut. Knowing the law and knowing your rights helps. But whenever you deal with a cop, you should say as little as possible.
You don’t even have to be a practicing lawyer to reap the benefit of these skills. On his blog, Concurrent Sentences (gavel bang Volokh Conspiracy), a Michigan area law student explains how he masterfully handled a recent traffic stop. It’s a skill all lawyers should have…
Masterfully? Elie, as a black male, would be expected to be a little more circumspect. This may explain why he’s writing for ATL rather than practicing. Let’s take a gander at how this law student handled his traffic stop.
APO: Good afternoon
ME: [silent]
APO: Good afternoon sir
ME: [silent]
APO: GOOD AFTERNOON SIR [raising voice]
ME: [silent]
APO: Do you know why I pulled you over?
ME: No
APO: I pulled you over because you have window tint on your front side windows
ME: [Silent]
APO: You ever been pulled over for this before?
ME: No, my car is registered in Colorado.
APO: In Michigan you are not allowed to have window tint on your front side windows.
ME: Officer, I am not trying to argue with you, but I am very familiar with the statute relating to window tint in Michigan and I know that the statute specifically exempts vehicles that are not registered in Michigan.
And if the officer was in a lousy mood, had a fight with his wife, or didn’t like the attitude, at what junctures in the first 30 seconds of the interaction might he have told this kid to step out of his car and given him a darn good tuning up?
There’s no chapter in the Criminal Law hornbook about tuning up. Interestingly, many of the comments about this masterful handling noted that the law student behaved poorly, that he could have accomplished his goal without being a wiseguy and needlessly antagonizing the officer. They are absolutely right. As I suggested with the far superior Flex Your Rights video, even the well-behaved motorist puts himself at risk by asserting his rights. The antagonistic motorist is begging for it. No, that doesn’t make it right, but it’s still brutally real.
Someone will stumble on all of this in their search for answers on the internet, and believe that they can rely on such a “masterful” approach. Someone will be beaten, arrested, tased or shot for it. Who should they blame?
It’s not that people try to be inaccurate, though some could care less as long as their name is spelled correctly. It’s that the medium lends itself to error, mistake and misinterpretation. If you contribute to this, you are wrong. It’s bad enough that so many lawyers are willing, no desirous, of putting on hot pants to strut around the internet in search of clients. Must you also be a mutt on the internet?
Update: Mike Cernovitch tells the story about his and Norm Pattis’ “flex their rights” moment with a thick necked cop. Even weathered criminal defense lawyers can appreciate when it’s not a good to give a cop a hard time over nothing.
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What strikes me most about the physician in Texas referenced in the post is that he precedes his questions to the anonymous selfpromoters who will respond by saying that he has an attorney! Why bother if you’re not going to ask him/her for advice? If you think your lawyer isn’t giving competent advice and you need another opinion, it’s time to change lawyers, not seek advice from the anonymous ether.
That struck me too. Perhaps his lawyer is billing him by the hour and he’s looking for freebies. T
One day I’ll get around to writing the post of the cop that pulled me over a few months ago and started screaming at me, while my wife and kids were in the car.
My infraction? Driving in the left lane on the parkway.
Oddly enough, I don’t think arrogance would have helped me.
That was no cop, but a self-proclaimed ethicist without his files. He now feels very badly that you forced him to scream at you, and especially that you made your wife and kids bear witness to his otherwise inadvertant, well-intended and wholly understandable screaming. Self-proclaimed ethicists look a lot like cops. People often confuse the two.
I am not sure that your negative assessment about lawyers answering questions on AVVO, or any other site, is necessarily true. Certrainly there are inappropriate responses made with little regard for the attorney-client relationship that should be established. However, I do think the “Disclaimer” you copied above is probably the best advice I have seen that fits just about all inquiries for legal opinions online and I would advocate it as the bst answer to be given in many situations. That said, half the time the questions and answeers I see are not truly “legal” in nature, but questions requiring mostly common sense answers or “life” issues that a supervisor or parent would be adept at doling out.
The power of attorneys who advertise to rationalize what they do never ceases to amaze. So you like the disclaimer? Avvo advertises to consumers that they can ask a question and get free legal advice. Lawyers then answer the question with disclaimers that what they are giving, deliberately intended to taste and smell like legal advice, isn’t really legal advice at all. The lawyers get “credit” toward their being a valued contributor, thus enhancing their Avvo reputation, while defrauding the very consumers misled into believing that they can get freebie answers.
And this is what you think is the good part? I knew I would have to explain it to somebody. I tried to avoid it. I really did.
The writers of these disclaimers must understand that they cannot change the nature of their as-advertised free legal advice with a footnote claiming it to be otherwise. Or are there states where you can effectively disclaim what is plainly true?
The preceding words are provided for discussion purposes only and do not constitute any form of blog comment, forum posting, or other communication, and do not create a blogger-bloggee relationship.
Huge fan of your blog, and I read it daily. I would just like to comment though, I wrote that narrative about a traffic stop that I experienced a couple weeks ago, and the more it gets linked too or discussed the more it gets taken out of context. ATL excerpted a very small portion of my blog post, and I think the commentary by Elie Mystal mis-characterized it. I certainly didn’t write it as any method or secret for beating a traffic ticket, but wrote it more as an illustration of how police officers often use pretextual stops to detain and harass people during their law enforcement fishing expeditions. I certainly didn’t write it to brag about my handling of an officer in order to beat a ticket. In fact, I think I made it clear in my writing that I thought I should not only have not only not received a ticket, but should not have been pulled over in the first place because the officer probably did not have reasonable suspicion to support the stop. As I discussed in my post, the officer was either incompetent and not aware of the relevant traffic violations and exceptions, or he pulled me over, reasonable suspicion be damned. I’m pretty sure it was the second one. I definitely didn’t think my handling of the officer was “masterful.”
How I perceive police officers didn’t happen overnight. It is the result of over a decades worth of (mostly) negative experiences with them, including a few of those “tuning ups” you mentioned, up to and including being threatened by an officer with his firearm. I have also have many, many opportunities to learn about other people’s negative experiences with law enforcement, see what they did and the result they got, and learned from it. I have been stopped by very courteous and professional officers, and I have been stopped by the other kind. This officer was most definitely the other kind. How I respond to and interact with police officers has probably shifted 180 degrees since I was a teenager, and it is completely the result of prior interactions where I was a complete sweetheart, did exactly what the officer wanted, and got fucked. My experiences with law enforcement is probably the biggest factor in how I gravitated towards criminal defense and civil rights litigation, and it can be solely attributed to why I have chosen to work for a public defense agency after graduation. I think the responses to my narrative on various message boards and blawgs has opened up a lot of really interesting dialogue relating to how people perceive police authority and their responses to it and I plan on writing a comprehensive post about it very soon, as soon as I knock out a couple finals. Again, huge fan, and I have definitely learned a lot from reading your work over the past few years. I would just ask that if you are going to evaluate mine, don’t do it based on someone else’s characterization of it. Thanks.
I know you’ve caught a lot of crap over this in the past few days. My view is that you were reckless and lucky, but I think you realize that. That he was wrong and you were right is an issue to address under the proper circumstances. If he had beaten you to a pulp on the road, there’s little comfort in knowing that you were right. I’m not suggesting that you should have complied and waived rights, but you must also avoid needlessly antagonizing the cop in the process.
My post isn’t about your handling, however, but Elie’s promotion of it as “masterful”, suggesting to the many children who read ATL that this is the really cool way to deal with a traffic stop. I don’t want to see bad cops win, but I also don’t want to see anyone get their head split open or the guts on the pavement in the process. There’s a time and place, and a way, to take a stand. Just because you were lucky this time doesn’t mean the next guy will be.
Point taken. I think anyone handling a stop like I did that has been legitimately pulled over can expect to get a traffic ticket 100% of the time. Probably a lot of the time when they are illegitimately stopped, also. Some people are going to get rodney kinged, and some people are probably going to get worse. But I think if people read some of the updates over at Injustice Everywhere it becomes pretty obvious that even being as polite as possible and doing everything an officer says isn’t always enough to keep police officers from shooting or tasing people.
One of my biggest frustrations with the legal system in general and especially when it comes to dealing with police officers is that when officers overstep their authority or engage in misconduct, that “time and place” almost never comes. I have experienced a lot of low to mid level police misconduct, and I haven’t found that “time and place” yet. Usually the situation just got worse when I went looking for it. There are little or no legal or administrative consequences for police misconduct, especially when the violation is relatively minor, such as in this case.
Even when the results are fatal, they are almost never charged, and often not even reprimanded. I definitely agree with you, but I think it is pretty outrageous that there is even this discussion that people have to coddle and not offend police officers, or else risk physical violence against themselves. Unfortunately, its only when really bad facts happen that people become aware of it, and a lot of people are probably going to get hurt before any substantive cultural changes are made.
I actually doubt that any substantive cultural change will happen. An attorney supervisor I have had told me “there is a fine line between standing up for your rights and being a dick about it. But don’t need to be a pussy about it, either.” I gave up on trying to talk my way out of traffic tickets a long time ago. Not to get all ideologue, but many, many people have sacrificed for us to have the civil liberties that we enjoy. I don’t think people should give them away in hopes to save a couple hundred dollars and a few points on their driving record. I don’t think people should give them away because they are worried that a police officer might get miffed and get violent. And thanks, it’s nice to have a discussion about it where the other side isn’t just “you’re a douche” or “what an asshole.” My blog is completely contaminated.
[Ed. Note: Broken into paragraphs for readability.]
I certainly agree with your advice on dealing with the police. My curiosity gets me though. Was there something I missed? If there was only 1 witness who claimed indecent exposure, how is the resident in any trouble? Can’t he just say, “I did not.”. How could he be convicted if it is just 1 persons word against another. Thank you.
Your concerns are all valid, but tempting the cop into making you the target of his affection is not the solution. What Packratt does at Injustice Everywhere sheds light on the problem. Becoming a statistic to make a point is just foolish. As bad as the official channels, the courts, the system can be at addressing police abuse and misconduct, not to mention sheer stupidity, never let frustration with it compel you to invite abuse on yourself.
I’m absolutely certain that Packratt, who started in this endeavor after being the victim of abuse, would have greatly preferred never having been beaten in the first place. Trust me, it’s not that much fun. Should you become a CDL, you’ll have plenty of opportunity to fight the man. Let your zeal motivate you to do everything in your power to stop police abuse and misconduct, without getting a good tuning up for your troubles.
Don’t assert your rights because an officer might physically injure you?
That’s not only bad legal advice, it’s bad public policy. Of course, being your opinion it’s valid.
Geez, I hope no one else misunderstood this post as badly as you did. That’s not even close to what I’m saying.
I’m say do not needlessly antagonize the police. I am not saying don’t assert your rights. Sorry if that didn’t come across to you.
As Scott says, the last thing I want is to read yet another story of cops beating the crap out of someone for nothing more than annoying them (or any other reason in fact). I’d rather never see another story of abuse again… which is why I put myself through the torture of doing what I do.
It’s no breeze for me, many of the reports I cover I can’t help but either relive what I went through or put myself in the place of the victim, imagining what they went through. I don’t want to keep reliving it, but I must if I’m going to make something good out of the senselessness of what I went through… and it was possibly even more senseless than trying to talk one’s way out of a ticket.
…and yes, sometimes, no matter how nice, polite, cooperative, and calm you are… you’ll still get abused. I know, I did everything I was supposed to and didn’t talk back one bit.
I don’t know… wish I knew how to fix the problem. All I can do is try to make sense of it all through what I do. Not sure how successful that is going to be, but I’m trying.
Anyway, like I say at the end of every daily update… Stay safe out there.
Yes, it does say he has an attorney. But I am sure it is a criminal defense attorney and with all due respect to the proprietor of this blog and even though I am a brand-new baby attorney, I have seen a good percentage of my clients (not a large number, I know) given truly horrible advice in dealing with the licensing agencies. I am dealing mainly with nurses, so they generally don’t have people like Mark Bennett answering their questions from Avvo. Mark’s comments in his first paragraph are spot on regarding how the licensing boards operate; if anything, he doesn’t really state it strongly enough – the Board WILL consider a deferred adjudication the same as a conviction.
The bad advice I have been told by nurses under investigation by the Texas Board of Nursing (yes, TBON) has been not to worry about TBON – you have nothing to worry about since you have been acquitted, etc. The state Boards of Nursing, at least in Texas but also throughout most of the country based on others who practice in front of the Boards, are almost as unforgiving as to an undisclosed arrest as they are to a conviction. They consider it a defect of character that is worthy of penalties that in this day will kill a career (try getting a job as a nurse with any sort of board action on your record – it is not happening right now based on the experience of a couple of my clients).
All I ask is for the criminal defense bar to educate themselves about how draconian the licensing boards have become and not tell clients, “don’t worry about disclosing your arrest – the charges were dismissed and you have nothing to explain to anyone”* They need to have an attorney with license defense knowledge and experience retained as soon as they think practical, possibly even before the criminal case is concluded if the criminal defense attorney does not have that experience.
Marc
*Actual advice given to one of my clients