I first met her when she was working for New York City’s corporation counsel, defending the City against claims that police officers violated the civil rights of individuals.  She subpoenaed me to testify in federal court in a claim by my client.  She was nice enough about it, and understood that I wasn’t going to give her anything to use to hang my client.

Her first question to me before Judge Jed Rakoff was whether I was a “criminal lawyer,”  That was all I needed, and I went off correcting her, that I was a criminal defense lawyer, a very different thing.  Judge Rakoff enjoyed the repartee.  I did as well, as she played fair and honest.

Soon thereafter, she left the womb and hung out her shingle to represent those who had suffered at the hands of the police.  I welcomed her joining the side of the angels.  One of the things she chose to do was join the New York State Association of Criminal Defense Lawyers, because her fortunes where inextricably tied with what we do.  As a member, she joined the listserv.

Nobody told her, however, that she should put aside her healthy belief in ethics.  Just as she played fair and honest in the employ of the City, she was fair and honest in all her dealings.  It never occurred to her that her integrity, something that would maintain her in good stead during her years of fighting for good causes, would be the basis for her eventual vilification.

Rose Weber took umbrage with a lawyer on the listserv who asked a question, one that she believed any criminal lawyer should know the answer to, or at bare minimum should find the answer to rather than prevail upon others.  This is an ongoing issue on listservs in general, and the NYSACDL listserv in particular.  There are two schools of thought, one being that the listserv isn’t a substitute for personal responsibility, and the other being that it’s better that people ask then screw up.  My support goes to the former view, but that’s not the reason for this post.

After a skirmish broke out over the issue, Rose took a look at the website of the person asking the question and noted something troubling.  Yup, you guessed it.  It said she was “highly experienced.”  Two years out of school, both spent in the service of a nearby legal aid office.  Whether that constitutes “highly experienced” may be a subject of debate, as it’s a purely subjective assessment.  Some would (and did) argue that she earned that description in the trenches.  Others would disagree. Still this isn’t the point of this post.

As has been argued  here and elsewhere, and elsewhere, and elsewhere, and still elsewhere, one of the foremost problems confronting the legal profession in this age of technology and rampant self-promotion is the puffery, the deception, the over-hype that marketers, and marketing lawyers, employ to sell themselves.  While the ABA 20/20 Commission considers what, if anything, to do, many within and without the profession consider the internet to be an ethics-free zone, the place where lawyers are entitled to lie through their teeth about themselves, their abilities, their experience, to get clients and make money.

Rose Weber raised a question.  It was a good question, a right question.  Some may quibble about the context or manner or tone, but someone will always quibble about such things.  We’re no more likely to share sensibilities than common sense.  It’s just a diversion from the issue, that one person’s approach isn’t the way another would prefer it. 

And so I finally come to the point of this post, bearing in mind that Rose’s question was put out on the NYSACDL listerv.  She was vilified for having questioned the propriety of holding oneself out as more than she might be.  Put another way, deceptive marketing.

The important official voices of this bar association spoke out in unison, we don’t ask such questions.  The target of Rose’s question was furious, asserting that the listserv was a safe haven for criminal defense lawyers, a “member benefit,” where no one would ever challenge her or say anything that might hurt her feelings. 

The important official voices cried “hallelujah,” that this bar association existed to make its members happy, to embrace them no matter what they did, as long as they paid their dues.  But let me not put words in anyone’s mouth.  From Kevin O’Connell, the new president, only a few days in office:

This listserv should be a safe environment for a colleague to ask a question without fear of ridicule. While colleagues do sometimes ask pretty rudimentary questions, it is better that the question gets asked and answered than not….Attacks launched in this semi-public forum have a serious chilling effect of the flow of information.

Is there a problem with some of our colleagues puffing their qualifications? Clearly there is, but that is an issue that should be dealt with in another setting. Perhaps we should consider taking it up in a CLE event of some type…

Can we please get back to business?

And there’s the reaction of the immediate past president, George Goltzer, who, despite no longer speaking for the association, can’t find it within himself not to.

rose, i stopped speaking for the association three and a half days ago when i administered the oath to kevin o’connell. he speaks for the association now and just spoke very well.  a smiley face is sometimes better than vitriol. as for this important issue, i can think of more pressing problems plaguing our members than each others advertising.

Why would a bar association concern itself with such trivialities as lawyer deception when it can offer a smiley face?  After all, it’s hard enough to keep the slightly more than 200 members statewide paying their dues, and we all know that happy lawyers, even if liars, are more likely to pay dues than ones whose integrity is called into question.  Certainly, in the quest for bar association dollars, the ones used to pay for its ongoing existence in the hope that someday it will again serve a purpose as it did when its was formed, there is no higher purpose than appeasing any lawyer with an open checkbook.

Whether Rose Weber’s point was right or wrong isn’t the question.  That she challenged the propriety, the honesty, of claiming to be “highly experienced” within the “safe environment” is precisely what must be done to protect the integrity of the profession.  Maybe the lawyer had damn good reason to make her claim of experience.  Maybe not. 

But when the NYSACDL was formed, and some very hard-nosed lawyers fought long and hard for it to reflect the best that criminal defense lawyers could be, they screamed and yelled at each other, challenged each other, called each other some pretty bad names, all the time.  And nobody, but nobody, ever told anyone in the room to play nice and behave like good little boys and girls.  These were lawyers, and they argued their points, and they were honest enough to call someone out when they disagreed, and they were tough enough to handle a challenge.  These were lawyers, not smily faces.

So these important officials made Rose Weber the bad guy for having done the unthinkable, raised a pressing and justified question about the potentially deceptive marketing of another member of the club.  And for that, they vilified Rose.  Because, as Goltzer said, “i can think of more pressing problems plaguing our members than each others advertising.”  Like membership for its own sake, since it’s not like this bar association gives a damn about the integrity of its own little niche of the profession. 

Rose Weber did nothing more than raise a valid and important issue, and for that she was castigated by the important official people.  I may be neither important nor official, but I applaud Rose Weber for putting integrity on the table while other made clear they couldn’t care less.

Of course, that was  made clear before this happened.

* A note for the uninitiated. I was a board member and vice president of the New York State Association of Criminal Defense Lawyers, and twice resigned.  I am, and always have been, a huge supporter of what this association was and could be.  I am disgusted by what it’s become, and I’ve made that clear in word and deed.  This, in turn, has made me an outcast to some in the association, and the voice of reason and institutional memory to others.  If it didn’t matter to me, I would ignore its existence, but the criminal defense bar needs a strong, honest voice rather than a smily face.