It’s small.  It’s exclusive.  And it knows every single car that comes in.  Every one.  Via Newsday,

The 3.3-square-mile North Shore enclave of Kings Point is launching a far-reaching surveillance network that can compare the license plate of every car going into the village against federal and state crime databases such as most-wanted lists, stolen vehicle alerts and suspected terrorist files.

When the project is completed, 44 cameras will monitor 19 entrances into the village in what may be one of the most extensive municipal tracking programs anywhere.

The number of cameras equals about one for every 120 people in the village of 5,305 people. Kings Point, a community of million-dollar homes, sits on the Great Neck peninsula, surrounded on three sides by water.

It’s not as if Kings Point suffers from a crime wave, though it did have 19 property crimes and one violent crime in 2010.  You just can’t be too careful.

Mayor Michael Kalnick said the tracking program is necessary to protect residents, but privacy and civil rights groups consider it an overreaching intrusion.

“Crime will always be out there,” Kalnick said. “Do you wait for it to happen? I think no.”

Fortunately, Kalnick has yet to consider enacting a law requiring every non-resident to enter the village to submit to a cavity search.  After all, you don’t want to wait for crime to happen, do you?

The problem, of course, is that there’s nothing facially wrong with the use of cameras to monitor every car that drives into the village.  License plates are public, and there is no right to drive without government taking note of them.  Indeed, the NYSCLU doesn’t like the initiative, but the worst they can say about it is that it seems like overkill.

“When we talk about installing an intense surveillance system like these, there needs to be intense public debate,” said Samantha Fredrickson, the Nassau County chapter director of New York Civil Liberties Union. “It’s just another example of the government watching and keeping track of what we do in our personal time. It just doesn’t seem necessary.”

It’s not necessary.  It’s a choice made by a village that can afford to make such choices.  At the same time, it reflects the potential of technological achievement and overarching desire for security.  For the moment, Kings Point is an early adopter.  Others will follow.  It certainly gives new meaning to Allen Funt’s old tag line, “smile, you’re on Candid Camera,” but it’s not likely to be nearly as funny.

Though the issue surrounding the right to photograph and videotape police would seem to be sufficiently well known and understood, even by those dumber than bricks cops who just don’t like it when someone ignores their authority, there are still a few cops who can’t seem to grasp that it’s not only lawful, but going to bite back very shortly.

Meet Las Vegas Police Officer Derek Colling, whose conduct in the pointless beating of Mitchell Crooks not only demonstrates that he doesn’t yet get the idea that videotaping is lawful, but couldn’t wait to inflict his “world of hurt.”

Via  Injustice Everywhere and Carlos Miller, the simple scene of a guy with a video camera, unconnected to any wrong whatsoever, is just brutal.  Crooks videotaped it, with the camera running even after it was beaten from his hands and lying on the ground.  Of particular note is when Colling informs Crooks that he’s about to inflict a “world of hurt” in furtherance of his desire to protect and serve.

Crooks, 36, ended up bloody with a broken nose and charged with battery on a police officer and obstruction of justice.  Another case of a citizen viciously attacking a cop’s fist with his face.  Yes, judge, that can happen.  Charges have since been dropped and Colling is enjoying a paid vacation while internal affairs investigates.  Sources say that they may eventually watch the videotape.

Notably, though hardly surprisingly, Derek Colling has had a  few violent episodes in his past.

Colling has been involved in two fatal shootings in his 5 1/2 years as a Las Vegas police officer. In 2006, he and four other officers shot Shawn Jacob Collins after the 43-year-old man pulled a gun at an east valley gas station.

In 2009, he confronted a mentally ill 15-year-old Tanner Chamberlain, who was holding a knife in front of his mother and waving it in the direction of officers. Colling shot him in the head.

Both shootings were ruled justified by Clark County coroner’s juries.

In the scheme of things, these killings are far more serious than the mere beating of Crooks for videotaping, particularly the killing of Tanner Chamberlain.  That Colling was too quick to want to inflict harm should have raised a red flag. Twice. And yet he was still out on the street to enjoy his “world of hurt.”

In an unusual juxtaposition, Crooks also has some history with the police:

Crooks made headlines in 2002 when he videotaped two Inglewood, Calif., police officers beating a 16-year-old boy. One officer was fired and criminally charged but was not convicted after two trials ended with hung juries. The incident strained race relations in Southern California — the police officer was white, the teenager black.

And without Crooks’ videos, chances are nonexistent that anyone would have believed how things happened.  For decades, defendants and others have argued about abuse and misconduct, and courts have refused to believe it possible, siding with the police as the default reaction.  How many cops fists were viciously assaulted by a person’s face?

And yet I venture to guess that even now, if there’s no video of the beating, judges will still refuse to believe that the cop is vicious and violent.  What will it take before judges stop accepting the word of a cop at face value and start scrutinizing what transpired to consider the possibility that the cop is a liar and the citizen is the victim?

Congress retained King & Spalding to “defend” the Defense of Marriage Act.  It did so because the Attorney General wouldn’t defend the law, and it would be wrong to have a law passed by Congress, no matter how incredibly wrong, be held unconstitutional without anyone arguing to the contrary.

They turned to King & Spalding because Paul Clement, former Solicitor General, was there.  But K&S started catching flack for it, and decided to bail.  It was bad for business to do something unpopular, so they moved to be relieved.

Paul Clement was faced with a choice.  He did the principled thing.  He resigned.

 I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.

As I searched for professional guidance on how to proceed, I found wisdom in the place you and I both would have expected to find it: from our former partner, Judge Griffin Bell, in a 2002 commencement speech to his alma mater, Mercer Law School. “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation. Sometimes you will make a bad bargain, but as professionals, you are still obligated to carry out the representation.”

I hereby proclaim former United States Solicitor General Paul Clement an honorary criminal defense lawyer.  He’s got balls.

And so you know, Clement left K&S and got a new gig at Bancroft PLLC about 37 seconds later, proving that the job market is much, much better for lawyers with guts.  It helps to be a former solicitor general and that the new firm was started by fellow Bush administration DOJ alumnus, Viet Dinh, but still, Clement has balls.

At Reason, Jacob Sollum writes that “we’re all hostages to the dopiest person with an iPhone.”  This comes from a story about two women in Nordstrom’s who “saw something and said something.”

[A]t a mall in Burlington, Massachusetts, when they saw a guy carrying a novelty umbrella that resembles a samurai sword. They called 911 and reported that a man with a rifle was walking around the mall, whereupon “federal, state, and local police descended on the mall,” which was evacuated and closed while police interrogated short white men wearing gray sweatshirts, black pants, and a black backpacks. Eventually the umbrella carrier, recognizing himself from this description, came forward and confessed that he is a total geek, at which point the mall was reopened.

Please, folks, just stop. Stop making yourselves look even more stupid by defending this stupidity. Just admit that the cops should have investigated the report first, then decided if they needed to unleash the SWAT teams and the helicopters. 

Instead, by saying “Damn straight, and we’d do it again!”, you’ve just empowered every attention-seeking nut and prank phone caller to shut down businesses at will.  If all it takes is for someone to say they THINK they saw something that LOOKED like a rifle to shut down streets and close businesses, then we’re all hostages to the dopiest person with a phone.

The problem is that it doesn’t merely turn the rest of us into hostages, but targets.  Every person in that mall that was subject to interrogation and search became a target, despite having done nothing to warrant any interference with their otherwise pleasant day of shopping.  If there was a little something in their backpack that they didn’t want the police to see, there was not good reason to demand inspection and, once found, subject them to seizure.

What if someone took umbrage with being stopped and questioned without having done anything on their part to justify a significant intrusion on their constitutional right to be left alone, and balked.  Arrest?  Taser? The wrong “aggressive” gesture at the wrong moment, and a bullet in their head?

Despite protestations to the contrary, we all have different levels of tolerance, or sensibility.  What one person sees as a fun or interesting, another sees as dark and threatening.  We pretend that there is something common between us, what we like to call “sense,” when the hard reality is there is no such thing.  Whatever we think is obvious we impute to the rest of society, since we’re all normal and it’s those other weirdos who just don’t get it.

Graham says we’re hostages to the dopiest person with an iPhone.  Certainly, these women could qualify, but the government has fostered and empowered hysteria, whether it’s the product of stupidity or fear.  While the stupidity factor makes this story funny, in the sense that no tragedy followed and so it’s just another tale of dopiness, it reflects how low the threshold has fallen that controls our freedom.

When the police descended on that mall, they were fully and lawfully empowered to take whatever action was necessary to find their rifleman.  Indeed, had they failed to do so, and a guy shot up the mall and killed a bunch of shoppers, it would be a national tragedy.  A properly so, despite rising prices and diminishing quantity.

We’re working with the thinnest thread of sanity and intelligence here.  We were always subject to the lowest common denominator, but historically those people on the bottom wrung of the sanity and intelligence scale were treated officially as outliers, lunatics and morons.  People who weren’t quite sure they saw what they saw, or knew what they knew, would be reluctant to say anything, no less reach out to police to close down a mall.  Not anymore.

Most of us have seen a package unencumbered by a hand sitting in a public place.  Watch for a few more minutes and someone comes back, maybe a nice mother with some wayward children who required collecting.  They clutch the package and walk away holding hands.  No terrorism here. 

We wait and watch.  Rarely is anything so askew as to demand immediate action.  We can distinguish an umbrella from a rifle.  We don’t rush to assumption of the one in a million occurrence with nothing more than a flash of a fear to push us over the edge.  But then, we aren’t the ones phoning in reports to police from Nordstrom’s.

The heroes of this episode are the hysterics, and there are more of them than anyone realizes.  By elevating them from lunatics and morons to heroes, they are empowered to give voice to their crazy fears.  The years of inhibition, concern that the rest of the world not learn that they are the crazy people walking among us, are over.  They are the new protectors, their silly fears now the only thing standing between us and the terrorists.

And as long as the crazy people keep iPhoning it in, the police will have everything they need to search us all at the mall.  Or on the street.  Or anywhere else we go.  If you see something, say something.  Don’t worry about how stupid or crazy it seems.  It’s all good.

Brian Tannebaum’s post about a “request” on the ABA’s “solosez” listserv, has generated some excellent discussion, both positive and exceedingly misdirected.  It began with a young lawyer’s request for a marketing strategy to compensate for threatened loss of welfare payments in the form of indigent criminal defense work, which the lawyer had intended to bootstrap him to success as a civil litigator. 

The lawyer who made the request acquitted himself quite well.  Whether it was an inartfully expressed request or a learning experience is unclear, but the end result was that he was better for the experience.  And from his comments, my bet is that at least a few young lawyers got the message.

Seth Godin, marketing philosopher, made a timely observation about alignment of goals.  Though offered in the context of business, it transcends the banal.

A perfect relationship: I want your company to help me, and your company wants to help me. We’re both focused on helping the same person.

The Walmart relationship: I want the cheapest possible prices and Walmart wants to (actually works hard to) give me the cheapest possible prices. That’s why there’s little pushback about customer service or employee respect… the goals are aligned.

The Apple relationship: I want Apple to be cool. Apple wants to be cool. That’s why there’s little pushback on pricing or obsolence or disappointing developers.

The demagogue politician relationship: I will feel more powerful if you get elected and get your way. You will feel more powerful if you get elected and get your way.

On the other hand,

Compare these to the ultimately doomed relationships (if not doomed, then tense) in which goals don’t align, relationships where the brand took advantage of an opening but then grows out of the initial deal and wants to change it:

The Dell relationship: I want a cheap, boring, reliable computer. You want to make more profit.

The hip designer relationship: I want the new thing no one else has yet. You want to be around for years.

The typical media relationship: I want to see the shows, you want to interrupt with ads.

As the “developing nature” of the attorney/client relationship, at least as expressed by marketers and perceived by young lawyers, is more akin to a commercial transaction than a fiduciary relationship, the application of misalignment seems more obvious.  But alignment, it seems to me, has less to do with commerce, per se, than with relationships, and the relationship between lawyer and client is at the core of our profession.

Using Godin’s framework, consider this:

Clients want lawyers who are reasonably price and capable of providing excellent representation.

Lawyers want clients to pay them as much money as possible for the least amount of work, without regard to their ability to deliver competent representation.

For many lawyers, this is an unfair statement of misalignment.  They are deeply concerned with providing competent, if not excellent, representation.  They want to be fairly compensated, but do not charge more than what is reasonable (though clients may still perceive the cost of legal services to be excessive).  They are fully prepared to forego a case if they cannot satisfy a client’s needs, despite the fact that this means they will not earn a fee.

For other lawyers, this statement of misalignment is right on target.  Their need to make money trumps everything else.  Their vision of lawyering is egocentric, it’s all there so they have a way to earn a living, pay off their loans and achieve the success and prestige they were promised.  The only stumbling block is that they need to convince the walking ATM machine, clients, that they fulfill their needs in order to pry that cash out of their hands.

Many of us believe that young lawyers aren’t truly as bad as all that, but have been misled by the sweet chorus of marketers and social media gurus who are the sirens of the internet.  We try to refocus them on the ideal and away from the easy path to success and prestige.  The marketers and SMGs want their money, and dangle the easy path.  Ours is more difficult and unsupportive. 

They offer apologies and excuses for these unpleasant times, and we tell them that being a lawyer is hard work.  They argue no pain, all gain.  They tell them they’re wonderful and brilliant, just as their mothers did before them.  They offer hope and immediate gratification.  Who doesn’t want a magic bullet?  And so many are led down the path toward wealth and happiness.  Let’s face it, the marketers have a much more appealing pitch than we do. 

What’s wrong with that?  Misalignment.

The  Joseph Rakofsky story is one of the most recent and extreme of apocryphal tales, but stories of clients who entrusted their fortunes or freedom to lawyers who took their money and left them hanging are legion.  The anger and bitterness is palpable, but the lawyers who did the dirty have long since walked away and wiped their hands of it, the money pocketed and gone and the consumer of their legal services (as these aren’t clients to these lawyers, but mere consumers) left broke and dangling in the wind.  Who cares? The lawyers got paid.

It can’t last.  It won’t last.  You can make a quick buck off lying to consumers (and yourself) that you are caring, aggressive and competent, but eventually your inability to perform, or care, catches up to you.  You can lie about your experience and expertise, using the  new-age marketing mantra that Google and six months makes you every bit as much of an expert and worthy of your marketing claims.  But it’s still a lie. 

It might be too much to expect that hungry, desperate, disillusioned lawyers will put honor and integrity ahead of their need to cashflow, their dreams of profit.  They may be too low on the  Hierarchy of Needs to be capable of shedding their self-interest for a higher calling.  So if you can’t do it because it’s the right thing to do, then consider doing it because the scam won’t last forever. 

Worse still, this impacts the entire legal profession, as clients perceive lawyers as being nothing more than selfish, greedy, incompetent liars.  If you won’t do it out of honor, do it out of self-interest. 

Jason Wilson sent me a law review article by 7th Circuit Judge Richard Posner and Toronto (?) lawprof Albert Yoon,  What Judges Think of the Quality of Legal Representation, published in the Stanford Law Review.  It’s not a new article, but it’s one I had never read because nobody reads law review articles unless someone provides a really good reason to waste an hour of one’s life.  This one was worth reading.

Jason pointed me toward one aspect of the article, which I provide intact (without footnotes) to save you a bit of time:

The judges’ views of criminal lawyers (Tables 4 and 5) inform controversy over the relative effectiveness of these different types of defense counsel. Federal appellate and district judges in our sample express high regard for prosecutors and public defenders but low regard for court-appointed counsel and retained counsel, which is consistent with the previous legal and economic literature.

Retained counsel represent 25% and court-appointed counsel 33% of federal criminal defendants. If the quality of legal representation matters to criminal case outcomes, as recent studies suggest, a majority of indigent federal criminal defendants may be serving longer sentences by virtue of not having been represented by a federal public defender. The Constitution has been interpreted to place a floor under the quality of assistance of counsel tolerated in criminal cases, but one federal district judge described the work of defense attorneys other than public defenders as “exceedingly poor.”

The responses by state judges—who find a similar frequency of disparity in legal representation in criminal cases but greater parity between prosecutors and defense attorneys—are at odds not only with the experience of federal judges but also with the views of scholars and journalists, who paint an unflattering picture of the performance of court-appointed counsel in state courts.

The judges’ responses to Question 4 (Table 4) suggest which combinations of prosecutor and defense counsel are most likely to result in disparities in the quality of legal representation in criminal cases. For federal (appellate and district) judges, it is when a prosecutor opposes either court-appointed or retained counsel. For state appellate judges, it is more likely when the prosecutor opposes court-appointed counsel.

For state trial judges, however, a pattern is less apparent. Although judges may disagree on the relative ordering by skill level of the different types of criminal lawyer, the responses to Question 5 indicate that each judge group perceives significant disparities in quality of counsel in 20% to 40% of all criminal cases. Given the judges’ consistently positive impressions of prosecutors, the results suggest that criminal defense lawyers are indeed inferior.

That judges think better of prosecutors than defense counsel should come as no surprise to anyone who’s ever stepped foot in a courtroom.  That they think private criminal defense lawyers are, of all the players in the courtroom, inferior, however, is a harsh smack in the face.

The article is replete with issues that merit discussion, not the least of which is the institutional bias of judges who clearly and overwhelmingly favor prosecutors, and secondarily public defenders, to private criminal defense lawyers.  I hope that others will carry the water and write about this, but the many varied and monumental issues presented by this article far exceed the scope of a blawg post.  Instead, I chose to focus on one small aspect of this article. 

It’s not that most private criminal defense lawyers would disagree completely with the assessment that there are many in the game who are, using Posner’s word, “inferior.”  Of course, that would only happen in private, among friends and after a few stiff drinks.  Complaining about fellow CDLs is like trying to teach a pig to sing, so why bother?

But are private CDLs any different, any more deserving, of judges’ contempt than prosecutors and public defenders?  There’s the rub, and it reflects an irrationality on the part of the bench that can’t go unsaid.

The vast majority of private criminal defense lawyers cut their teeth in one of two places: They were either prosecutors or public defenders.  Those who went straight into private practice are a very small minority.  So how, I wonder, did such fine, excellent lawyers while on the public dole suddenly turn into such incompetent buffoons when they walked down the road apiece?

They didn’t.  I can’t remember how many times a newly minted private criminal defense lawyer walked out of the well shell-shocked because a judge, the one he stood before for a year while a prosecutor, the judge he believed loved him so dearly and thought of him so highly, suddenly turned on him and treated him like the enemy, unfit to be heard and unworthy of any credit at all.  When he was a prosecutor, the judge adored him and trusted his every word.  As a CDL, the judge didn’t believe his name without verification. 

It’s not the lawyer.  That judges believe, and I don’t doubt Posner’s survey, it’s the lawyer isn’t a question, but it’s not.  It’s the judges, and their altered state of consciousness (and conscience) when they put on a robe.  Not all judges, but many.  When they make the transition from advocate to Keeper of the Faith, they see clearly the role and utility of the players before them.  The players who make their life most problematic are the ones they least respect.

Let’s remember, just for kicks, that judges don’t spring from the womb in robes either.  You were one of us once, whether on the side of truth and justice or a prosecutor.  Us older guys remember when you made a fool of yourself, sloppy drunk and stupid at the Christmas part.  We remember bailing your sorry butt out when you yelled out objection in the middle of a closing and had no clue why. 

Some of you were darn good lawyers when you walked among humans.  Some of you hid in the backrooms licking envelopes.  None of you, however, suddenly became taller, more handsome and possessed of brilliance the day you put on a robe.  Your jokes aren’t funnier now, and we laugh because we see no benefit in pissing you off when you make a lame one.  You aren’t any better or worse as a judge than you were as a lawyer.  You just have sufficient authority to prevent reality from seeping through.

There isn’t a private criminal defense lawyer who doesn’t have a ton of stories about how a judge cut some snot-nosed prosecutor a break to compensate for some massive failure in the performance of his job, all because society shouldn’t suffer for a prosecutor’s inexperience or incompetence.  Same with public defenders, because they’re burdened with ten times the caseload that any lawyer should carry.  There are excellent excuses for the differential in treatment and perception.  But they are excuses.

There’s no break to be cut for a private criminal defense lawyer.  They are the enemy, paid provocateurs.  They serve no master but the criminal, guns for hire whose purpose is to lie and deceive the court and make the judges’ job painful and difficult.  If only private criminal defense lawyers could get with the program, become part of the finely honed machine of justice that gets cases off the docket and criminals incarcerated.

This isn’t to say that there are inferior lawyers in our midst.  We all know there are, and we know that they end up there because it’s the path of last resort.  There are no supervisors to oversee, no bosses from whom to seek approval.  There are vast differences in skill, ethics and honor.  You see that.  We know that.

But then, we are viewed through the prism of your judicial eyes, the same eyes that thought so well of us when we worked for the government, the same eyes that saw us as your friend, maybe savior, when you weren’t such a big shot.  Just as you didn’t suddenly get brilliant, we didn’t suddenly get stupid.

Rather than point at the private criminal defense bar and complain that we’re “inferior,” consider the changes in your perception.  We are you.  We are the prosecutors and the public defenders.  If we’re inferior, so is everyone else in the system.  We are every bit as much of the system as everyone else, except we don’t get a paycheck whether we do our job well or poorly.  We have to earn our pay with every client and every case, something judges no longer have to concern themselves with.

While Title III wiretapping is supposed to be a measure of last resort, so intrusive and potentially abusive that the government can only turn to it when normal investigative measures failed and there was strong reason to support extraordinary means.  Of course, that was when Title III enacted in 1968, when privacy was more of a concern and safety less so.

Wiretaps seem like a technological anachronism these days, conjuring up romantic images of agents slipping into house in the dark of night to plant bugs in telephone receivers.  No need for any of that nonsense anymore.  Today, it’s just a flip of the switch and your call is available for their listening pleasure.  But the rules of Title III remain intact.  These rules require minimization, that agents limit their listening to conversations relating to the basis for the warrant and not overhear privileged communications. 

It’s tricky business, with agents allowed to sneak back in for a couple minutes here and there just to be sure they haven’t missed anything.  Then again, it’s not always clear what’s relevant and inculpatory, since people can talk in code and appear to be speaking about ordinary stuff, like purchasing 10 and a half pizzas, when their discussion is more ominous.

Of course, sometimes a conversation has absolutely nothing to do with criminal conduct.  Sometimes husbands and wives talk, maybe argue, even fight, disclosing very personal information that was not intended for anyone else’s ears and has absolutely nothing to do with any criminal conduct.  It’s wrong of the government to listen in, record, enjoy overhearing these conversations.

As Michael Rothfeld writes in the Wall Street Journal, the Galleon case produced some highly dubious recordings.

Some of more than 40 secret recordings played for jurors at the trial of Galleon Group founder Raj Rajaratnam have contained stretches of dialogue that appear exclusively personal, focusing on marriages and alleged extramarital affairs, social visits and vacations.

Not only did the government overhear and record communications that bore no connection to crime, but the court allowed them to be played to the jury.  The argument was that these personal conversations established the relationship giving rise to insider information was passed along.  Like the ubiquitous claims of “background,” arguments like this can be used to admit anything and everything, since it’s all interconnected in some metaphysical sort of way.  Mind you, it’s total nonsense, but that never stopped a judge from acquiescing to a purely rhetorical argument by the government.

In the case of Craig Drimal, a similar problem occurred.

In a ruling on Wednesday, a judge overseeing a different but related insider-trading case excoriated the government for monitoring intimate calls between trader Craig Drimal and his wife about their marriage, which had nothing to do with the case.

Outrageous?  A total violation of the minimization requirements of Title III?

“The court is deeply troubled by this unnecessary, and apparently voyeuristic, intrusion into the Drimals’ private life,” wrote U.S. District Judge Richard Sullivan. He ruled, though, that the errors didn’t justify Mr. Drimal’s request to suppress more than 1,000 calls taped by the Federal Bureau of Investigation.

Judge Sullivan, whose path to the bench went through the United States Attorneys office in Manhattan, wagged his finger very, very hard at the prosecutors.  He probably had a very stern look on his face as well.  He told them that he was “deeply troubled,” but not deeply enough to do anything about it.  The remedy for violation of Title III, which was to be strictly construed, is suppression.  The government was not to enjoy the benefit of this horribly intrusive means to insert themselves in people’s most personal communications unless it played strictly by the rules. 

Or not.  Judge Sullivan ruled that the errors didn’t justify suppression.  Justification, however, has nothing to do with it.  The rules are the rules for minimization, and they ignored the rules.  Put aside the irony that the government prosecutes people, puts them in prison, for hypertechnical violations of rule, while ignoring rules at will to achieve that result.  

Nathan Burney noted Judge Sullivan’s ruling.

Namby-pamby judges in the past tried to deal with minimization violations by just suppressing the personal conversations.  This served no use whatsoever, because all that did was exclude evidence that wasn’t admissible at trial in the first place.  There was no penalty for violating this fairly important rule.

So there has been pressure on the courts to actually enforce the rule in a meaningful way, by suppressing all conversations that were intercepted on a wire where there were blatant violations of the minimization requirement.  Instead, the courts appear to have gone in the opposite direction.  ”We can’t suppress,” they seem to be saying, “because then we’d lose all that lovely lovely evidence.”

At the first stage, Nathan notes judges who do nothing more than excise that which the government should never have to begin with.  This, of course, provides the exact opposite incentive for adherence to minimization requirements, as the government can record everything and the worst that will happen is they won’t be able to use the recordings they should never have had in the first place.  No harm, no foul.

To call these judges “namby-pamby” strikes me as a bit too kind.  They know exactly what they’re doing, staring down a flagrant Title III violation and letting it slide through anyway, giving the government their  way without any consequence for the abuse.  Still, it’s not as bad as a judge who allows personal, private communications wholly unrelated to any crime to come in.  Why not just allow cameras in people’s bathrooms for fun?

The problem with the government’s failure to minimize wiretaps in corporate and financial crime cases strikes many as troubling, but it’s hardly surprising.

The use of secret surveillance is old hat for organized crime and narcotics suspects, whose lawyers say the government has for years captured personal conversations.

The strict construed rules developed in the 1960s became increasingly wavy, loosey-goosey, as wiretaps became the tool of choice for drugs and mobsters, two groups with few friends and advocates in the courthouse.  The government’s zeal to get these heinous criminals caused judges to loosen the rules, and nobody complained except the defendants and their lawyers. 

Nobody felt terribly bad about the ways Title III was ignored and abused when it came to drug dealers and mobsters.  And rulings chipped away at the rules, until the rules were nothing more than mere stumbling blocks to step over.  All those former prosecutors who got gigs at Biglaw were silent about the ways Title III was being undermined.  After all, it had nothing to do with their clients, just those nasty drug dealers and mobsters. 

Now that these weapons against heinous criminals have been turned on defendants accused of corporate and financial crimes, previously upstanding businesspeople and pillars of the community, it’s too late to wonder how all the protections of Title III have been eviscerated. 

So Judge Richard Sullivan is deeply troubled?  I bet that will make Craig Drimal feel better as he listens to recordings of conversations he had with his wife about their marital life played to a jury.  Let’s hope Judge Sullivan doesn’t sprain his finger wagging it so hard.

In the New York Times, Paul Krugman writes, almost as an aside to his primary point on health care costs, about consumers of medical services.

How did it become normal, or for that matter even acceptable, to refer to medical patients as “consumers”? The relationship between patient and doctor used to be considered something special, almost sacred. Now politicians and supposed reformers talk about the act of receiving care as if it were no different from a commercial transaction, like buying a car — and their only complaint is that it isn’t commercial enough.

What has gone wrong with us?

Doctors don’t have consumers. They have patients.  Lawyers don’t have consumers.  We have clients.  What has gone wrong with us?

This isn’t a mere rhetorical issue, but a reflection of the misguided change in the nature of our relationship with the people we serve, and how that relationship has changed from fiduciary to commercial.  Consumers purchase services, and their importance to us is reduced to the fact that they pay us money in exchange for those services. 

Clients, on the other hand, are people or entities who have entrusted themselves to our care,  We hold their fortune and freedom in our hands, and have accepted the duty to care for it without regard to a direct cash quid pro quo.  Once we accept the responsibility, their lives become our responsibility.  They don’t pluck legal services off the shelf as if they were walking down a supermarket aisle.

Not long ago, I start reading the pitch from legal marketers about how their services would generate “leads,” potential customers who, with the right pitch, may purchase your services.  Used car salesmen want leads.  They have cars to sell and want anyone interested in buying a car, anyone with sufficient cash in hand, to come to their used car lot rather than the one across the street.  Sellers want leads, and then it’s up to them to sell.

A couple of years ago, a brave (and foolish) legal marketer sent me an advance copy of his book, asking me what I thought.  There was a chapter in there about generating “leads.”  I told him I was offended by his characterizing clients as leads, that this was a marketing term and it fundamentally conflicted with what lawyers do.  Lawyers do not seek “leads,” I told him.  We seek clients.  I thought it was outrageous.

But the use of the word “leads” has become pervasive in the legal marketing realm, and there has been no tsunami of lawyer outrage at marketers referring to clients as “leads.”  It quickly dawned on me that I was the outlier, the lawyer who refused to see clients as mere consumers engaged in a commercial transaction.  These were not people to be “sold,” but to be represented.  These were not walking wallets, but human being in need of our professional help.  But that was just me.

What has gone wrong with us?

By changing our mindset toward clients into seeing leads that we hope to convert into consumers, we’ve diminished the nature of our relationship with our clients.  We now sell them however much justice they can afford, and are willing to buy.  Would you like fries with that?  Supersize?  We try to milk the leads for as much as we can, getting them to purchase as much of our service as they’re willing to buy, whether they need it or not.

There is no aspect of our work more disingenuous than “unbundling,” a concept which we market as a benefit to consumers when in fact it’s just a marketing boon for lawyers.  Instead of telling the client who either can’t, or won’t, pay for what he really needs that we cannot represent him, unbundling allows us to take whatever cash he’s got in his pocket and just limit our work, reduce our responsibility, cut our losses, while snatching up the small change the consumer is willing to spend.  We know that clients need holistic advice and representation, yet pretend that if we draft the complaint, they can carry the water the rest of the way.  It’s likely to prove disastrous, but we don’t care, as long as they’ve emptied their pockets and can’t blame us later for the mess they’re in.

It’s this quest for leads that has lead so many lawyers to create their own personal brand of porn, pitching consumers for the business by smiles and lies.  All marketers lie, because without lies they would get no leads.  Newer, better, shiner sells. If lawyers want leads, lawyers need to do the things that marketers tell us generates leads. 

The business of law is no longer about our responsibility toward our client, but generating the next lead, bringing in the next consumer and getting the next fee.  Once a lead is converted into a consumer and the sale is made, we move on to the next lead.

But we don’t sell used cars.  We are responsible for people’s lives.  We used to be, anyway.  And people who are responsible for the lives of others don’t think of them as leads or consumers. 

Old man Ed. at  Blawg Review sent me the link because he likes to tweak me on stuff like this.  You see, I have a really great email address from AOL because I was a subscriber years ago when the good email addresses were still available.  Mine is SHGLaw.  I’ve used it for what seems like forever.  Everybody who knows me knows that it’s my email address.  I was cool once.

But time marches on, and it’s no longer cool to have an AOL email address.  It’s been said before, but was reiterated by Ernie the Attorney.

Lawyers need a professional email address, and it’s not @aol.com

I submit that high on the list of “professionalism” goals should be for lawyers to get their own domain name for use with the firm email. Can it be considered professional these days for an attorney to use an email address like this: [email protected]? Same goes for @hotmail, @yahoo, and even @gmail.

I’m sure that Ed got a chuckle out of this, since he knows that I still use my old-fangled AOL email address and he loves to point out how un-techno-cool I am.  I have an email address for simplejustice.us as well, but it gets forwarded to my AOL address so I see everything in the same place.  It’s more efficient that way, and eliminating needless complications allows me to spend less time on being cool and more time doing my work.

Ernie, apparently, thinks otherwise.  There are many things that matter greatly in today’s complex world of lawyering, and one of those things is the domain name used by lawyers.  After reading his post, I asked a client how important it was to him that I had a really cool email address as opposed to my old fogey AOL email address.

“It’s very important, Greenfield,” he told me.  “Right after winning my case, it’s the most important thing in the world to me.”

After he left, I commented on Ernie post about his position that having the right email address was “high on the list of professionalism.”  I submitted, in response to his submission, that a lawyer’s email address really wasn’t terribly important, and that Ernie’s time and effort would be better spent submitting that professionalism is better accomplished by worrying about the ability to be a damn good lawyer than about the domain name at the back end of an email address.  I went so far as to suggest that his submission was seriously misguided.

My comment wasn’t the first.  Another person had already written this Ernie’s post was “great.”  Dollars to donuts (no hipster would ever use such a ridiculously archaic expression as this), this commenter had struggled long and hard to come up with the perfect email address, one that would impress the most astute hipster on the internet. 

It’s not really clear to me what a hipster is, though my teenage son has tried to explain it to me a few times.  My understanding is that it’s someone who is more concerned with the appearance of being cutting edge than possessing the underlying skills, knowledge or background to cut the edge himself.  Hipsters wear cool eyeglasses and very tight pants, because they make him look, well, hip.  I get my eyeglasses at the drug store because I lost the ones I bought from the optometrist, and I prefer relaxed fit because they’re roomy and comfortable.

As a matter of respect, I checked back to see whether Ernie had any thoughts on my comment.  It wasn’t there.  Ernie’s comments are moderated, and mine was apparently moderated into oblivion.

I don’t know Ernie Svenson, though from his picture, he doesn’t look like the sort of fellow to wear tight pants.  My guess is that there are different types of hipsters, and he’s just the Louisiana version.  But regardless, the elevation of such trivialities as one’s email address to appease those children for whom appearances trump substance makes one a hipster no matter whether you wear a neon glasses or pince nez. I just wish lawyers wouldn’t adopt hipster priorities.

It’s not that there’s anything wrong with having a really cool email address, with the domain being either your law firm marketing name or some variation that tells those for whom the domain name is a viable substitute for things like ability and experience, but on the list of things that matter to lawyers, and more importantly to clients, my bet is that winning their cases is likely to be more important than how hip your email address is.

I’m considering sending Ernie an email to ask him why he didn’t think my comment, though critical, was worthy of seeing the light of day.  I’ve got his email right here, [email protected].  It’s right at the top of his blog, where even us old fogeys can find it.  And no, I won’t hold it against him.

You can’t cross-examine a speed camera, but if you try really hard, it’s possible to beat the camera at its own game.  Via Jonathan Adler at Volokh Conspiracy, the Washington Post covers Will Foreman’s rage against the machine: