I’ve long been a big fan of Carolyn Elefant, and saw her as one of the few honest voices among the cheerleaders at their self-proclaimed cutting edge of the future of law.  But her participation in Ignite Law, and the glow of good feelings among the iToy apostles, may have colored her view.  Just a little.

Carolyn writes about the “big news” out of Chicago.

Perhaps the most surprising piece news from last night’s Ignite Law was Jay Shepherd’s  announcement that he’s shutting down his firm to focus full time on his business, Prefix LLC which teaches lawyers how to price knowledge.

This isn’t a post about whether those who leave the law are better or worse than those who remain. Instead, more generally, I wonder about the implications of the loss of energy and talent and teachers from our profession. Knowledge once imparted through the ages as mentorship has now been product-ized and commoditized.

Yet at the same time, informal mentorship can’t keep pace with rapid changes in the profession, or offer the same level of advice – nor can mentors develop products and new technologies that help solo and small firms advance. Perhaps in fact, the whole concept of mentorship doesn’t even make sense in an age of new ideas where lawyers may be better off buying the advice that they need instead of relying on tips from colleagues. Selling mentorship makes our profession a far less collegial and generous place – but perhaps it’s more effective and efficient.

Carolyn’s fear, that mentorship is dead, is confused and confusing.  To the vast number of practicing attorneys, the Jay Shepherds of the internet are completely unrelated to anything remotely resembling the practice of law.  At best, he’s a one trick techno-pony, and to those of us in the criminal defense niche, the trick is as old as it gets.  To lawyers who aren’t consumed by the significance of every shiny new toy developed by Apple, the notion that Shepherd’s flight from law to consulting reflects a mentoring issue at all is ludicrous.

If lawyer mentoring is the topic, then look to a lawyer.  Jeff Gamso, for example.  He’s a lawyer. He practices law.  He has no tricks to sell and he’s not about to announce the opening of Gamso-r-Us at the local strip mall.  Instead, he speaks to  the stuff lawyers do in the course of practicing law.

Earlier today, on a strange legal listserv, I’ve been looking at for a few months, a new lawyer (or fairly new or something, it was less than clear) wrote this.

I am on the precipice of hanging out a shingle. I’m wondering two things:

(1) What is the minimum I should get done before I start. I.e. does it matter if I have no marketing up via websites or even business cards? What is absolutely necessary before you start other than office space and malpractice insurance. 

(2) My background is in civil law. However, even after three years, I don’t feel as though I am really equipped to do that over many other areas of law and I’ve been thinking about opening as a criminal practice but open to civil litigation. Is this too broad? Do I need to focus on one area? I have no background in criminal law, but my deepest desire is to get trial work and I feel that is the area of law best suited for the experience.

After three years in civil law, he’s not “really equipped” to do that work by himself.  But criminal? even with “no background”? The only issue is whether to limit himself to death penalty work or represent whatever sort of bad guy walks in the door.  Oh, and whether he needs a website and business cards before he starts.

This ought to be a matter close to Carolyn’s heart, having to do with a lawyer on the “precipice of hanging out a shingle.”  Carolyn, if you don’t know, is probably the most credible voice for solo practitioners in the blawgosphere, having written the premier instruction manual, Solo By Choice. 

My bet is that the listserv to which Gamso refers is the ABA flavor, SoloSez, populated by a curious mix of lawyers in solo practice, lawyers who want to be in solo practice, and people who may have practiced law at one point or another who now have an agenda to flog or a service to sell to the uninitiated.

Gamso has nothing to sell, yet he apparently bothers to read the listserv.  Despite there being nothing in it for him, except the likelihood of argument, aggravation and angst, he informed the inchoate solo criminal defense lawyer wannabe that he was headed down the road to perdition.  No doubt, he won a fan for his sound advice, particularly since the questioner didn’t ask whether he should leap blindly into a practice area where he had neither competence nor experience, but whether he needed business cards before doing so.

Compare Gamso’s advice with what someone like Jay Shepherd would have said.   Don’t worry about experience or competence kid; just glom onto some high profile case even if you don’t get paid for it, bluff your way through, and make sure the newspapers spell your name right.  What if you lose?  Then try it again, and just keep trying until you get lucky and fool them all.

The loss of this advice isn’t a flaw of mentoring, but a feature.  At least if we’re talking about mentoring lawyers.  If there are people out there who are foolish enough to pay someone for their snake oil, despite the readily available sound advice of someone like Jeff Gamso, so be it.  Gamso as done what he can to mentor young lawyers, to guide them toward responsibility and competence.  He can’t force them to ignore the prophets of profit.

But don’t bemoan those who flee the practice of law to sell front row seats to their tricks.  These aren’t the mentors that lawyers need.  There is no “rapidly changing pace” of the law, but only of some of the tools used to perform the fundamental functions of practicing law. 

Mentors are still here.  Mentors don’t “develop products or new technologies.”  Mentors don’t confuse an iPad with competence.  Mentors don’t claim to have discovered magic bullets that others have used for generations.  At least not lawyer mentors. 

The problem, Carolyn, is that if you are troubled by Shepherd’s decision to sell his new trick,  you’re looking for the wrong mentors.  At least if your concern is about mentors for lawyers.

About a dozen times since I started Simple Justice, someone showed up to argue a point and substantiated their credibility with the statement, I write for Huffington Post.  The earth started to move. Angels sang, A bright light from above enveloped my computer.  They were important.

That was then, when people whose self-worth was established through their connection to Arianna Huffington, their access to her platform as their very own.  It made them . . . worthy.  As it turned out, it wasn’t so bad for Huffington either.  When the reality of money on the table hit home, the warm feeling of importance, strutting their stuff around the blogosphere, the light from above suddenly shined less bright.

One writer, Jonathan Tasini,  started a class action against Huffington, promising to make her a pariah in progressive circles.  His allegation:

“In my view, the Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation.”

Disclosures: I used to be shamelessly exploited by the Huffington Post myself, until the managers there changed their posting policies in a way that seemed likely to yield fewer eyeballs. Then, “modern-day slave[]” that I was “on Arianna Huffington’s plantation,” I just took advantage of the traditional right of slaves to stop working. (What, that’s not a traditional right of slaves?)

I’m also ruthlessly enslaved by radio and television programs that ask me to appear on them, and that indirectly make money from my priceless punditry without paying me a penny. And of course I run a veritable forced labor camp here, where the authors of our million comments are (doubtless to their shock and horror) entirely unpaid, even though they drive up our page views and thus our income stream.

(Aside: Yes, VC has past the million comment mark.  I plan to reach it too, the only caveat being that I live to 397 years of age.)

The young Turk on the AOL/HuffPo Payroll, Radley Balko, is similarly unpersuaded to shed a tear.

A bunch of people agreed to write for Huffington Post for free. Or rather, in exchange for a platform that gave them access to a pretty large audience. They did this knowing full well that the goal of Huffington Post has always been to eventually become profitable. If they agreed to sit behind their keyboards and voluntarily churn out free content, how exactly have they been exploited? And on what basis could they possibly argue that those prior agreements should change now that the site has been purchased by AOL?

I can’t tell you how many times I’ve written for free over the years. It’s how you get a foot in the door. It has never occurred to me to go back and sue all of those publications. Come to think of it, I’ve been writing for all of you for free for the last nine years. Expect a visit from my process server soon.

Of course, if Balko is going to be a slave on Arianna Huffington’s plantation, at least he’s going to be a well paid slave.  You know, the slave in Gucci chains.  He’ll suffer.

The consideration for their “churning out content” at Huffington Plantation was the bragging rights of being part of the tribe, the fame, whether real or perceived, the ability to tell others, like me, that they wrote for Huffington Post and were, therefore, not the stark raving lunatics or village idiots they otherwise appeared to be.  This was more than enough value to make them feel that their efforts were worth it.

I was less than impressed most of the time.  That they posted their content without compensation at Arianna Huffington’s website always struck me as a fool’s play.  I knew they weren’t getting paid. I also knew that there was so much posted by so many writers that she could accommodate plenty of duds and still hold on to her eyeballs.  Some of the writers offered some incredibly banal, simplistic, even moronic content and ideas, but they remained vitally self-important by dint of their connection to greatness.

It was certainly impressive that HuffPo had a $315 million price tag. Memo to AOL: Simple Justice can be had for half the price. Call me, we’ll talk.  Writers, lawyers, entrepreneurs, do a lot of things to gain recognition or compensate for their feelings of inadequacy.  Huffington turned her website into a fortune.  Good for her.  This is America and she’s allowed to make a killing off a good idea well executed.

We all make choices in how we spend out time.  The HuffPo whiners, and that doesn’t include those writers who wear big-boy pants and aren’t complaining now that they received their compensation in full when their name appeared at the top of a post, were never slaves, but fools.  They sought fame rather than payment for their services, and they got the benefit of the bargain.  It didn’t turn out as well as they hoped?  Bummer.

The lesson here is that fame has become the coin of the realm, as predicted by Andy Warhol, but taken farther than Andy could have ever dreamed.  If someone is willing to work for fame, then the deal is struck.  When it turns out later that fame isn’t all it’s cracked up to be, and the shine of coins is brighter than the spotlight, don’t complain about it.  You chose poorly.  Suck it up and learn from it.

And no, I am not looking for guest posts from former HuffPo writers, and no, I have no plan to pay anyone for their effort.  And no, there’s no fame to be had here.

Full Disclosure:  Nobody pays me to write here.  I wouldn’t mind if someone did.  But if you want me to write for you, then we will have to reach an agreement on compensation.  I write for free for me, not for you.

According to Gawker, the top three most popular passwords are:

123456
password
12345678

Simple passwords are subject to brute-force cracking in a matter of minutes by the average desktop machine, never mind a workstation or cluster systems that a computer forensic lab will have available to crack a system.

For example, below is the time needed to crack a password consisting of 36 characters: The full alphabet, either upper or lower case (not both in this case) plus numbers.

0123456789 and either ABCDEFGHIJKLMNOPQRSTUVWXYZ or abcdefghijklmnopqrstuvwxyz

Password Length	Combinations	Class A	Class B	Class C	Class D	Class E	Class F
2	1,296	Instant	Instant	Instant	Instant	Instant	Instant
3	46,656	4 Secs	Instant	Instant	Instant	Instant	Instant
4	1.6 million	2½ Mins	16 Seconds	1 Second	Instant	Instant	Instant
5	60.4 million	1½ Hours	10 Mins	1 Min	Instant	Instant	Instant

Versus the time to crack a password that contains 96 characters: Mixed upper and lower case alphabet plus numbers and common symbols.

0123456789AaBbCcDdEeFfGgHhIiJjKkLlMmNnOoPpQqRrSsTtUuVvWwXxYyZz <SP>!”#$%&’()*+,-./:;<=>?@[\]^_`{|}~

Password Length	Combinations	Class A	Class B	Class C	Class D	Class E	Class F
2	9,216	Instant	Instant	Instant	Instant	Instant	Instant
3	884,736	88½ Secs	9 Secs	Instant	Instant	Instant	Instant
4	85 Million	2¼ Hours	14 Mins	1½ Mins	8½ Secs	Instant	Instant
5	8 Billion	9½ Days	22½ Hours	2¼ Hours	13½ Mins	1¼ Mins	8 Secs
6	782 Billion	2½ Years	90 Days	9 Days	22 Hours	2 Hours	13 Mins
7	75 Trillion	238 Years	24 Years	2½ Years	87 Days	8½ Days	20 Hours
8	7.2 Quadrillion	22,875 Years	2,287 Years	229 Years	23 Years	2¼ Years	83½ Days

Note: Class D is a typical desktop machine, or next year’s high-end smartphone.

Taken from:  Password Recovery Speeds. A full breakdown of password security is available from  Lockdown.co.uk.

So as should be painfully clear, choose a strong password.

What has become painfully clear is that there is no chance whatsoever that I will be able to remember a password that can’t be broken instantaneously.  If you can, you’re a better man than I am, Gunga Din.  There’s also a matter of encryption, and Keith provides some suggestions for that as well.

There are three alternatives, however, worthy of consideration.  The first is to have nothing incriminating or private on your electronic device as you enter the United States, making the search and seizure nothing more than wrong and inconvenient.  The second is to continue to argue that laptop searches bear no connection to the historic bases for causeless border searches in the hope that the federal courts will eventually apply the rationale rather than the rubric and distinguish opportunistic law enforcement searches that properly fall under the ambit of the Fourth Amendment.  Good luck with that.

The third is to fundamentally undermine the scheme concocted by the government to subvert and circumvent the reasonable expectation of privacy in our papers and effects by employment of special tools designed to thwart the government’s efforts to use any excuse to delve into our secret computer life:  A pen and paper.

No, Apple doesn’t make the iPen, and you won’t need a password to use one.

Few things can be as gratifying to elected officials than the public’s general inability to connect the dots, even when they are displayed before them for all to see and are as ugly as possible.  Imagine the deep sigh of relief when they hear silence instead of the chant of the villagers approaching with torches and pitchforks. 

Nassau County District Attorney Kathleen Rice must know that sigh well. From Newsday :

One consequence of the myriad problems at the Nassau County Police Department crime laboratory will be the retesting of at least 3,000 forensic samples, at a minimum cost of $400,000. In view of Nassau’s budget problems, this expense, stemming as it does from mismanagement and a lack of oversight at the lab, should cause an uproar.

It hasn’t, largely because when District Attorney Kathleen Rice announced the costs, she said the money would come from the police department’s forfeiture funds, “rather than sticking taxpayers with the bill.”

Despite having some of the highest taxes in the nation, Nassau County has such a massive structural deficit that it’s under the thumb of a finance authority to compel the executive and legislature to avoid renaming the courthouse after Wal-Mart.  This had nothing to do with the fact that its  crime lab has been shuttered for lying and cheating, while under the watchful eye of Rice and cops perpetually by her side.  Now they have to do it all over again, paying a competent lab for the effort, and this only goes back as far as 2005, while no one knows how far back the lying and cheating goes.

What if the cost of this incompetence meant that schools were closed, teachers fired?  What if it meant taxes went up for the nice family in the split level on the corner?  What if it meant your taxes went up.  You would be angry.  You would be very upset that massive incompetence, the sort you could put your finger on, was taking money out of your pocket.  You would make the angry sound, grrrr, and go out to the garage to look for the pitchfork.

Fortunately, you won’t have to.  As Rice announced, it won’t cost taxpayers a dime.  The cost will be paid from the “police department’s forfeiture funds.”  They way she said it, she sounds like the taxpayer’s hero.  Heroine?  That just sounds wrong, though.

This carefully crafted announcement, however, hides a few ugly things behind the great news.  First, that the police have a slush fund that nobody knows about, all while they are sucking at the public teet for money to keep cops on the street to protect the womenfolk from rapists.  Second, that this slush fund came from asset forfeitures, that shady process of civil seizures with negligible basis and even lower burden of proof, while owners are tied up with defending against criminal prosecution.

But the third bit of ugliness is that one that raised the cackles of the Newsday editorial writer, that the amount of the slush fund is itself a big secret:

They derive from taxpayer-funded law enforcement, arise from crimes committed against society and are to be used for the public good. So it’s worth asking: How much money does Nassau have in its two forfeiture funds, one federal and one state, and how much will the retesting deplete them? Are there programs that would have happened that now won’t, because this money is being used in this way?

The Nassau cops’ answer to these questions: It’s none of your business.

The “why” is about as basic a law enforcement ploy as one would expect.

Nassau police brass are refusing to release even the most general information about the funds, arguing that publicizing exactly what forfeiture money is spent on could endanger officers and operations.

Certainly we can’t let the criminals know what the cops are doing.  Just as with the secrets of the crime lab.  Except this argument is utterly nonsensical, since the amount of the slush fund tells nothing to criminals.  It also tells nothing to the elected officials who are supposed to be watching the public fisc while the cops amass their own private financing sources. 

Or the citizens, who pay the taxes necessitated by public services.  And official incompetence.  And fiscal mismanagement.  And police corruption.  All of which gets swept under the carpet when the slush fund is used to pay off the bill from the crime lab and denied the taxpayers for general use.

It should come as no surprise that this piling on of uglies, of incompetence, of mismanagement and corruption, is both happening and coming to light.  When no one is minding the cops, all sorts of bad things tend to happen.  When the public blindly accepts ridiculous rhetoric to justify the uglies, it emboldens officials to do even worse.  And Nassau County has become the posterboy for abject neglect.

The question now is whether the public will applaud Kathleen Rice’s disingenuous announcement that it won’t cost the taxpayers a dime to fix the crime lab fiasco because of the existence of a still-secret police slush fund.  The final ugly dot to be connected is how all of this happened and continues to happen while she sits at the big District Attorney’s desk and yet seems to have neither a clue, nor a responsibility, for any of it. 

After all, why give a second thought to Rice when she’s busy saving the taxpayer’s money? 

While integrity is a character trait, knowledge of the rules of ethics is something that must be taught to budding lawyers in the hope that they will know what to do when the time comes.  According to Paul Horowitz at PrawfsBlawg, this has become a challenge.

I have lately been thinking, though, that another influence on the class is the economy itself.  It would be foolish to say that a given year’s class of students is more or less “ethical” than others.  But I do think that the answers I have been receiving in class discussion for the last couple of years have been heavily influenced by the poor legal economy.  

For one thing, it can be hard to focus on the — forgive me — niceties of legal ethics when your first concern is just getting a job, any job.  More importantly, my sense is that students’ responses to ethical dilemmas are now heavily influenced by the idea that any client — even a client in a hypothetical problem — may be the last client they ever see, and that if something has to give, they would always rather keep a client than withdraw or give recommendations that risk seeing the client walk.

What duty does the potential client have, if any, to research an attorney. Yeah, the client may have been duped to some degree, but don’t they have the right to hire a lawyer of their choosing, even if you would not approve of their choice???

This shifting of blame was echoed in a subsequent post about Rakofsky.

As a result, the burden is also on the party hiring the lawyer to perform due diligence.  Says Saul Singer, senior legal ethics counsel for the D.C. Bar:  “Web sites and bar licenses don’t provide enough information.  Potential clients need to get references and check out a lawyer’s reputation.”  Singer continues:  “I don’t trust the Internet, because anybody can go on there and say anything.”

While it certainly behooves a client to “perform due diligence” rather than fall prey to a scam, the burden never falls on the client to bear the responsibility of a lawyer’s ethical failings.  How, exactly, a client should perform such diligence remains something of a mystery, as Singer correctly notes that anybody can say anything on the internet, reducing it to an inherently untrustworthy source.

This is not to suggest that either of the lawyers who questioned the clients’ role would engage in unethical conduct, but it does suggest that the line of DR 102(A)(4) isn’t clear any more.  Lawyers shouldn’t engage in “conduct involving dishonesty, fraud, deceit, or misrepresentation,” unless they can get away with it?  Or at least it’s not just the lawyer’s fault for being less than honest, and it’s fair to blame the victim.

As Horowitz notes, these rules are considered more “niceties” than duties, as if ethics is some archaic leftover from the days when lawyers could find jobs that paid sufficiently well to cover the debt service on student loans, keep the cupboards stocked with Cheetos and fill the leased BMW with hi-test.  The students don’t want to sit there in Legal Ethics class, and the professors, according to Horowitz, don’t want to teach it.  It’s not sexy. It’s not fun.  It’s not going to earn them money.  No lawyer can promote himself by noting that he aced legal ethics.

The internet is, most assuredly, not a trustworthy source of information for the public.  Beyond the fractious nature of blogs and websites, where specific agendas collect supporters wearing tin foil hats or blinders who assert with absolute certainty that there are good and evil sides, right and wrong trends, magic answers to troubling problems that are hidden from sight by vast conspiracies of liberals, conservatives, corporations and, yes, lawyers. 

But the existence of hungry, desperate lawyers on the internet with little concern for the niceties of the disciplinary rules provides no excuse for the lines to grow wiggly in the classroom.  It’s bad, very bad, that we are facing a crisis of integrity on the internet amongst lawyers.  Yes, a crisis.  But the job in the classroom isn’t to water down ethics, make it palatable or succumb to the demands of students to circumvent their ethical responsibility in their effort to earn enough money to repay their student loans.  The going is tough.  Ethics do not change.

Of all the required classes in law school, one pervades everything a lawyer does and will ever do when holding the trust of another person in his hands.  Especially in the age of the internet, of marketing the marketing of law, of a vision of tough times ahead and hungry mouths to feed, the need for clarity and firmness in the ethical responsibilities of lawyers is more important than ever. 

Maybe the students won’t be happy to hear it.  Maybe the students won’t love you for it, and award you happy professor of the year.  But don’t let a fear of ethics undermine what may well prove to be one of the most important thing they learn in law school.  Teach them that lawyers cannot deceive the public, no matter how hungry they are.

A move is afoot by the ABA Section on Legal Education and Admission to the Bar to disconnect the obligation to provide tenure from the accreditation process. At Balkinization,  Brian Tamahana explains:

The purpose of the proposed changes is to allow law schools greater flexibility in finding cost efficient ways to train lawyers. According to the AALS, that’s an erroneous view of what law schools are about. “Lawyers are not ‘produced’ or even ‘trained’ by law schools,” declared former AALS President Reese Hansen in opposition to the changes (critics who excoriate law schools for doing a poor job of training lawyers would heartily agree, though Hansen undoubtedly did not mean to imply that). “What lawyers must ultimately deliver is judgment….That kind of mature judgment is primarily created by personal interaction between individual faculty and individual students in countless educational settings.” The argument of the AALS appears to boil down to the assertion that law students can obtain sound lawyerly judgment only if law schools are staffed by full time law professors with tenure.

Paul Caron at  Tax Prof Blog provides some salient outtakes from the  AALS letter in opposition to the changes:

Those who seek to alter the fundamental assumptions underlying accreditation and its role in the system of legal education should bear the burden of justifying that need to the legal education community and all those who rely on the high quality of American legal education.

We therefore ask the Council and the Standards Review Committee to take the following actions:

1. Reject the radical proposed changes to the role of faculty, and other changes to the standards that would weaken, rather than strengthen, legal education.


2. Initiate a process for the specific purpose of allowing all important constituencies to understand and debate the vision animating the current proposals and their combined effect on legal education.


3. Undertake or commission an independent, fact-based study of the actual cost drivers in legal education, and their relationship with the accreditation process.

And over at Concurring Opinions, Dave Hoffman provides some additional lawprof color, as he’s taken the decidedly minority view within the Academy that disconnecting tenure from accreditation won’t be the end of civilization as we know it.

The majority may have been motivated, by contrast, by a fear of a “race to the bottom.” Once a single law school offers cheap legal education without tenure (and without incumbent-protecting rules such as those that prohibit law students’ outside employment), we’ll all circle the drain and become diploma mills.  

Tamahana is hardly as kind in his commentary.

Frankly, these claims about what we do as law professors are embarrassing. I’m not selfless. Exceedingly few of the many law professors I know strike me as selfless. This is a fantastic job, for which we are generously compensated. Law school deans–many of whom earn between $200,000 and $400,000–are definitely not selfless. We don’t model selflessness for our students. And the truth, contrary to Hansen’s above assertion, is that many law professors engage in scant interaction with law students, so we do very little modeling of any kind outside of the classroom. (I should add that lawyers today are anything but selfless, which further belies the assertion that we influence our students in this fashion.)

I also don’t see how “public service underlie[s] teaching.” Teaching in a law school is not a public service. A few law professors on every faculty work on bar committees and such, but not the majority of us. Legal aid lawyers and public defenders are doing public service, perhaps also prosecutors and judges, but not law professors. We teach, we write, we serve on law school committees, and we engage in consulting of various sorts. This standard package of law professor activities does not constitute “public service.”

Cut to the quick, the question is whether a change in ABA accreditation such that law schools will no longer be required to offer tenure will result in a cottage industry of cheap diploma mills taught by fly-by-night legal charlatans or spell the death of cushy lawprof jobs with huge paychecks while feigning selflessness and penning articles that no one will ever read.

There can be no doubt, as both Tamahana and Hoffman assert, that the primary motivation for the AALS and its constituent faculties is to preserve the fabulous lifestyle of the rich and famous lawprofs.  Of course, that doesn’t mean the dire predictions of gutter law schools lacks merit. 

For quite some time, the disconnect between the academics’ vision of law school and the practitioners’ vision has been manifest.  What we see as a monstrous and unacceptable gap in practical education they see as turning it into a “trade school.”  Resort to derogatory descriptions aside, the words of Marquette Law School Professor David Papke ring in my ears,  where he informed the heathen lawyers that scholars were above teaching students to be lawyers.

We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.

The “we” Papke refers to are the law professors, the entitled academics who feel no shame that law students pay for their indulgence to “appreciate the depth of the legal discourse and explore its rich complexities.”  Right, and they graduate without the slightest clue how to draft a motion.

I take no issue with the proposition that there be a Ph.D. program in the “rich complexities of the law,” for those who want to dwell on legal discourse.  Whether anybody would enroll is such a scholarly endeavor is another matter, but you can have all the tenured faculty you want, or can afford.  But this has nothing to do with why people go to law school.  Students attend law school to become lawyers, not pay the salary of self-indulgent legal scholars.

I give Hoffman and Tamahana a lot of credit for bucking the tide as well as their wallet in taking a contrary position to the AALS.  And the most ironic aspect to the scholars whining about the possibility that this will turn law school into a trade school is how their faculty positions sound remarkably like trade unions.

So no one will bother to write law review articles is they don’t have to gain tenure?  We’ll survive.  And if keeping your job depends on lawprofs being better teachers, we might even thrive. 

Don’t blame potential clients scanning the internet for the right lawyer.  It’s not their fault that you’re facing a conundrum, whether because you’re a new lawyer who lacks the experience they seek but is willing to take a case for significantly less money than a more experienced lawyer.  Or a lawyer with the experience but unwilling to offer a “two murders for the price of one” deal on Wednesdays.

A company called WebVisible did a survey providing some basic notions of what people are looking for when searching for a lawyer online.  When I received the press release, I deleted it, but the  ABA Journal posted it and, to be honest, it’s more enlightening than I realized.  Enlightening, however, doesn’t mean helpful.

And the survey shows:

Details about credentials and experience                                                                 68 percent Personal referrals or recommendations from network                                           58
Information about legal procedures and answers to common questions          52
Expect him/her to show up in variety of directory listings                                        30
A special offer – a discount, or added service for free                                             20
A video profile of the attorney or legal practice                                                          16
A video testimonial from an actual client                                                                      9
A non-video testimonial from a client                                                                            9

Some additional findings:

• Almost a quarter (24 percent) of all retired people take into consideration a video profile when choosing an attorney or legal service.

• Nearly one in three – 30 percent – of both men and women want the attorney/legal service to show up in a variety of directory listings.

• More than half (55 percent) of women value information on legal procedures and answers to common questions when choosing an attorney/legal service.

• Younger respondents are particularly keen on discounts, with those in the 18‐24, 25‐34 and 35‐44 groups choosing discounts at higher rates than the overall average.

The problem facing lawyers who either look to, or claim that, the internet as the “future of the law” is that the expectations and demands of potential clients put the lawyer in an awkward situation.  The only honest answer to most common questions is “it depends,” and nobody likes that answer.  Testimonials are used by some lawyers, but are rife for deception.  And “younger respondents” want a discount, while younger lawyers don’t want anyone to know just how inexperienced they really are, by neglecting to mention their year of admission when puffing their vast experience in 49 highly specific practice niches.

Missing from this (as well as the ABA’s own survey) are two considerations for lawyers to ponder when deciding how to play the internet marketing game.  First, do you really want these potential clients, the ones who will trade off experience for a BOGO offer.  Assuming that fees charged are appropriate to cover expenses and provide a reasonable profit, why would you want clients who pay less?

Second, do those voices cheering you on in the race to the bottom really reflect the “future” of the practice of law?  Sure, lawyers can fairly easily manufacture credentials they don’t really possess, exaggerate their experience and competence and, unless they have a face made for radio, create a video to entice the unwary.   Joseph Rakofsky had a particularly compelling video of himself on his website before he went dark.

It’s not that potential clients are to blame for what they want of lawyers.  Heck, I would want some of the same things as well if I could get it.  The internet has done some serious damage in creating foolish expectations, such as the wealth of websites offering “free answers to legal questions,” which range from generically stupid to shockingly wrong, but give rise to the belief that anybody can get legal advice for free for the asking.

The argument is that by providing answers for free, lawyers can establish themselves as trustworthy and competent in the eyes of the public.  Aside from the irony of these free answer opportunities being the bastion of the schemers and deceivers, the ones who spend their empty hours trying to be a Level 64 Contributor on Avvo Answers and praying that nobody calls them out on their claim of practicing in a different area of law or in a jurisdiction thousands of miles away, these are questions from people for the express purpose of avoiding hiring a lawyer. 

Here’s the shocker, anyone who starts his question, “I’ve just been arrested . . . ” and wonders what to do is telling you that he doesn’t want to pay a lawyer.  Otherwise, an arrest would be a pretty good motivator to hire counsel, if that was within the realm of possibility and interest.  Nobody, but nobody, needs to ask what to do after they’ve been arrested.  They are looking for a way around the obvious.  Or they are looking for cheap. Extreme cheap.  Is that what you’re selling?

These survey are quite informative, though not necessarily in the way they’re intended.  They are telling us that people want something different than what we have to offer.  They are telling us that they may have no idea what to look for in a lawyer, but want it cheap.  They are telling us that we’ve forsaken our own dignity in the effort to make a quick buck, and have led the public to believe that we should put shiny videos and fake testimonials online to entice them.

But they aren’t going to be happy with us in the end if we can’t produce competent representation.  Even though it can’t be found in the survey, what clients want from lawyers is excellent representation.  Offer two murders for the price of one every Wednesday, but losing two for the price of one isn’t going to make you loved.

And my guess is that most of the people who read this post will race to the bottom anyway.  What are we doing to ourselves?

The only thing worse than being deluged with questions at oral argument is being deafened by silence. Thankfully, it’s never been my experience to stand before a mute appeals court, so disinterested in the case before them that not one can be bothered to show some interest.  On the other hand, it’s usually a polite repartee.

But then, I’ve never argued before the Supreme Court of the United States.  From the way Adam Liptak describes it, they’re animals.

If you didn’t know it was a Supreme Court argument, you might think you were seeing a catastrophically overbooked cable television show. The justices of late have been jostling for judicial airtime in a sort of verbal roller derby.

The overbooked cable TV show is a vivid analogy. where mouths do everything possible to talk over, under and around one another so that their sound emits from your speaker to the exclusion of other mouths.  No one gets to complete a sentence, a thought, before another voice slices and dices ideas into worthless slivers.

About 15 minutes in, Justice Stephen G. Breyer tried to ask a question. The effort failed, and Justice Ruth Bader Ginsburg jumped in. A half-hour passed before Justice Breyer had another chance, and now his attempt was interrupted by Justice Antonin Scalia, who said Justice Breyer was asking irrelevant questions.

Then Justice Scalia pressed a point that did not interest Justice Breyer. As the lawyer tried to answer Justice Scalia, Justice Breyer stopped him. “Skip that one,” Justice Breyer said of Justice Scalia’s question.

From the sidelines, it’s amusing to watch justices jostle with each other for position, elbows a-jabbing and arms and legs akimbo as they get hipchecked off the track.  As an advocate, however, this is a nightmare.  Who do you answer?  Who do you ignore as a justice from the middle of the bench tells you not to bother with one on the end?

It’s one thing for justices to be overtly rude with each other.  They have life tenure. You have an hour, tops.

Seth P. Waxman, a former United States solicitor general, was caught in the cross-fire. He was answering a question from Justice Sonia Sotomayor when Chief Justice John G. Roberts tried to interrupt.

“Counsel,” the chief justice said.

Mr. Waxman kept talking, which seemed to irritate the chief justice.

“Counsel!” the chief justice repeated, now in a raised voice. (The exclamation point is in the official transcript.)

Mr. Waxman was contrite. “Mr. Chief Justice, I’m sorry,” he said.

Liptak’s point is that the in-fighting has little to do with the advocate or his position, but the use of the advocate as a prop by justices in their own fight for control.  While he doesn’t say, it seems that the advocate who doesn’t cede control to the justices and allow himself to be played can do his cause some serious damage by his breach of etiquette.  Then again, what sort of etiquette exists when two, up to nine, justices are giving conflicting directions at once, interrupting you and each other and ridiculing, sometimes explicitly, each other’s questions/statements?

And then there are the efforts to screw with an advocate just for fun.

Now that he wears robes, Chief Justice Roberts sometimes shows a mischievous side that he had kept in check as a lawyer. He delights in pointing out internal contradictions in advocates’ positions and in asking them questions with no good answers.

“You try to throw them off balance a little bit,” he told C-Span in 2009.

He certainly did that last month in a case about police questioning of a student, Camreta v. Greene.

The student’s lawyer was about a dozen words into her argument, trying to explain why the case was moot. Chief Justice Roberts interrupted her.

“Then why are you here?” he asked, to laughter. “Why don’t you just go away?”

The amount of time, effort, expense and angst that goes into an appearance before the big bench is extraordinary.  Though I’ve never been there, others I know have, and they spent months in preparation for that one hour of (please, oh please) glory.  Don’t even ask about the psychological and emotional investment of clients in this potentially earth shattering moment.  And then, standing in a brand new white shirt with perfectly pressed dark suit, the CJ makes you look like a monkey for sport.

And there’s nothing you can do about it.

Even if you have a sassy comeback, your mind whirls and you realize that the last thing you really want to do at that instant is out-wise-ass the Chief Justice of the Supreme Court of the United States. 

While Liptak’s Sidebar column does a great job in describing the problem, it offers nothing, neither advice nor commentary, in handling it.  He describes the dynamic as more of a ping-pong match than dialogue or conversation, but nobody standing before the court for oral argument wants to be smashed.

While the political/philosophical lines on the court have become the fodder of constant discussion, the court’s inability to demonstrate a modicum of courtesy within its own ranks, and toward the lawyers before it, seems shockingly wrong.  If anything, the duty should fall on Chief Justice Roberts to control warring factions as well as demonstrate through his own example the courtesy that courts expect of advocates.  He’s not supposed to set himself up as Lord of the Flies, and yet the arguments described by Liptak seem more typical of a school yard fight.

Given what’s at stake in these cases, and the nature of the divisions on the court itself, the justices elbowing each other out of the action hardly seems as amusing as Liptak makes it.  Frankly, the lack of etiquette and courtesy ought to embarrass the justices, and certainly should infuriate those advocates who have put in the months of work for the purpose of doing their best to advocate on behalf of their clients. 

The Supreme Court may be the highest in the land, but this sort of behavior reflects the lowest of courtesy and propriety.  It’s unbecoming and unseemly that they treat each other so poorly and treat advocates as if they are mere collateral damage in their internal power struggle.  They may tell advocates, in effect, to shut up, but someone needs to tell them to grow up.

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

—Through the Looking Glass, Lewis Carrol (Charles Lutwidge Dodgson)

At Volokh Conspiracy, David Post channels Humpty in his attack on a  New York Times Op-Ed by Caroline Alexander.

Alexander sharply criticizes the choice of a line from Virgil’s Aeneid as the memorial inscription at the planned 9/11 memorial in New York. “No day shall erase you from the memory of time,” an “eloquent translation,” she admits, of Virgil’s “Nulla dies umquam memori vos eximet sevo.” She describes the context of the quotation — the death of two Trojan warriors, Nisus and Euralthus. In context, she says, the verse expresses the “central sentiment that the young men were fortunate to die together” — a sentiment that is “grotesque” and “disastrous” when applied to “civilians killed indiscriminately in an act of terrorism.”

His issue is less her provision of context to the quote, but what he sees as her dismissive and condescending approach toward the fools who seized upon the quote without consideration of its context.

Oh, please! My objection is not to her illuminating the context from which the quote is drawn. That’s an interesting little point; I adore Virgil, and the Aeneid — Robert Fagles’ magnificent recent translation of the latter is one of the four or five best books I’ve read in the last decade or two — and I’m always interested in learning more about the work.

But the arrogance of it: “You Philistines who haven’t read the Aeneid (in the original Latin, of course) couldn’t possibly understand the true meaning of these words you’re inscribing at the memorial. That, I’m afraid, is reserved to those of who can “winnow out what may be right from what is clearly wrong.”

And so David concludes:

Sorry, but Caroline Alexander does not get to decide for the rest of us what those words on the inscription “mean.” Neither, actually, does Virgil (though he’s got a helluva better claim on it than she does). The words mean what we decide they mean. This notion that they’re somehow frozen forever in time, attached to Virgil’s tale, is ridiculous and the worst form of elitism. (Emphasis added.)

There is certainly an element of cultural elitism attached to Alexander’s critique, though it’s unclear when the possession of knowledge or the attaintment of education became grounds for such a pejorative attack.  I hesitate to guess at the number of New Yorkers who have read Virgil’s Aeneid, either in the original Latin or Robert Fagles’ translation, but I’ll engage in wild speculation and say that most won’t be familiar with the context of the quote.  It doesn’t make them bad people, but it doesn’t make those familiar with the work bad people either.

The question raised by David’s point is whether Virgil’s words, now in society’s possession, belong to him or us.  Are we entitled to take this string of letters and spaces, make them mean what we decide they mean, use them as our own for whatever purpose or meaning we decide to attribute to them, as if Virgil never wrote them?

Putting words on paper is an act of communication, seeking to express a purposeful thought to others.  When speaking to one person, the words are best communicated in a way that will be received and understood by their recipient.  When speaking to larger, more amorphous groups, there will invariably be some who misunderstand or misread the meaning of the words.

They will take their own meaning from the words, based upon their own understanding, experience, education, depth of thought, and all the things that go into making them reasonably sentient beings.  That will be their reality, and they will attribute their meaning to the writer of the words.  Rarely does the reader say, this is what I understood you to say, though it may not have been you intended when you wrote the words.

Is there a right side to this argument?  Absolutely.  If the idea or feeling conveyed is attributed to Virgil, then it is Virgil’s meaning, and Virgil’s alone, that defines the sentence within its context.  We have no right, neither moral nor intellectual authority, to lay claim to Virgil’s words but superimpose our contextual-less meaning atop them.  It’s not ours to do.  Forget such legal trivialities as copyright, and instead honor the source of the words and the gravitas of their author.

Had I written the same words, even if I had the competence to write them in Latin, I can assure you that no one would be suggesting they be used as the inscription for the 9/11 memorial.  The words might be no different, but I’m not Virgil.  My words wouldn’t have been given a second thought.

On the other hand, the content of my posts, my blawg, are mine, and mine alone, to define.  With surprising frequency, commenters inform me what I mean.  They correct my explanation by asserting their own, despite the fact that the words come from my head through my fingers to my post.  They tell me I’m wrong, that my words mean what they decide they mean.

In contrast to David’s arrogance of elitism, there is the arrogance of ignorance.  As a blank slate, ignorance offers much to commend it to those who want to impose their own views upon the thoughts created by others.  Someone does the heavy lifting of putting words together, organize and express ideas, and then others, like parasites, take it and use it, twist it, consume it, for their own.  As long as they’re ignorant, there is no constraint by context or understanding, and they’re free to do to the words and ideas anything they want, satisfied that their meaning is every bit as valid as the person who created the words and ideas.

Anyone can own a string of letters and spaces.  Anyone can impose their chosen meaning on them.  You just can’t attribute them to someone else without accepting the meaning of the originator as conclusive.  Call me an intellectual elitist, but the writer owns his words.

It was a reasonable question:

Maybe it’s just me because I am working on my first federal criminal appeal for a defendant, but is anyone else alarmed at the ease by which the government can get into evidence incriminating material relating to uncharged crimes and bad acts under F. R. Crim. Pro 404(b)? I mean, everything and the kitchen sink can come in to prove “intent” as long as it doesn’t touch character? I’m not an expert like some of you here, but my research so far reveals that admission of 404(b) material as evidence is never reversed (if you have a case, let me know . . . ) and there is no question in my mind that the jury will have no trouble hearing that bell ringing in every case.

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

The sort of question with accompanying observation one sees with some regularity on criminal defense listserv, reflecting the dismay of the rookie that years of studying the law has failed miserably to prepare her for the harsh reality.  So many fine platitudes turn out to be empty, meaningless words.

The problem isn’t that there is anything terribly unusual about the either the question or the epiphany, but that it comes from Deborah Borman, an assistant professor of law at Northwestern Law School, and was posted at PrawfsBlawg.  Don’t be fooled by her attractive, youthful appearance.  She didn’t pop out of law school yesterday.

Prior to her appointment at Northwestern, Professor Borman served as a career clerk for a Justice of the Illinois Appellate Court from 1991-2008, drafting more than 300 opinions in all areas of civil and criminal law, and as an Illinois Assistant Attorney General in the Consumer Fraud Bureau. Ms. Borman is a Panel Contributing Editor to the 9th Edition of Black’s Law Dictionary as well as an Assistant Editor of the Journal of the Legal Writing Institute.

Borman spent 17 years of her career as a clerk for a Justice of the Illinois Appellate Court.  According to her CV, she “researched and drafted over 300 published opinions and unpublished orders addressing civil and criminal issues.” She is now charged with training the next generation of lawyers at Northwestern, having previously been an adjunct at John Marshall and DePaul law schools.

After all that, she vents the common frustration,

It seems that the Federal Rules present an uphill battle, barefoot, in the snow, for a defendant on appeal and that the constitutional guarantee of a fair trial may be undermined by the Rules.

Putting aside the unanswerable question of why, now, she’s doing her first federal criminal appeal and what qualifications she possesses to take a person’s life in her hands, it is unfathomable that she spent 17 years writing decisions that brought tears of joy and sorrow to others, that made or ruined lives, without ever having realized that the playing field was a little out of level.

It’s wonderful that Borman has come to the realization that Rule 404(b) can be unbearably unfair, though it appears that she may still believe that the rest of the criminal law is working swimmingly well.  Until she has to do her second, then third, appeal, where she will learn that it’s not just 404(b).  Given enough time and appeals, she may eventually come to the grander epiphany that the defendant is always fighting an uphill battle, barefoot and in the snow.  Hopefully she will get there eventually.

Hidden within her growth spurt, however, is a lesson for those of us who write briefs and argue causes before appellate courts, where we want to believe that whoever is in the backroom researching and drafting has at least a little idea of the reality in the trenches.  We presume they aren’t so totally isolated, disconnected from reality, that they actually believe the black letter law dressed up in grand platitudes, and take comfort in their decisions knowing that the law is a wondrous thing, the best it can be.

Having bent an elbow or two with people whose careers were spent making decisions, or helping others to make decisions, I’ve been told that they get it, they know what really happens in the trenches.  Some do, as they were in the trenches themselves.  Others have to be taken on faith, since the only basis to believe them is their own word.  We hope they aren’t lying to themselves and us.

After 22 years of transition from law student to lawyer, Deborah Borman has come to the realization that at least one rule of criminal procedure isn’t nearly as fair in practice as it would appear from the caselaw.  That’s good.  It would have been a whole lot better, though, had she reached this plateau about 300 decisions earlier.   Still, better to learn this life lesson later than not at all.