When the United States Supreme Court takes a case and rules, it applies to all.  When the issue is important, we all stand to gain or lose.  When the decision goes south, we all pay.  We don’t, however, get a say in who brings the case.

Rarely do we look behind the brief.  In Florence v. Board of Chosen Freeholders, we watched as a  car wreck happened right in front of the bench.  The case involved the strip search of a guy jailed for a mistaken warrant for a civil contempt, and people of my ilk would have such a search held unconstitutional.  Based on the way oral argument went, it appears that we’re due for the opposite conclusion, that everyone entering a jail, whether for minor or even non-criminal reasons, will have to squat and cough.

The  WSJ Law Blog provides the backstory to this fiasco.

For decades, federal appeals courts held it unconstitutional to strip-search people arrested on minor charges without a specific reason to suspect weapons or drugs were hidden in their body cavities. A lot of jails disregarded the rulings, and some have paid a high price.

Lawyer Elmer Robert Keach III, of Amsterdam, N.Y., says he and his colleagues have racked up $36 million in class-action settlements with jails across the Northeast and as far away as Texas. Roughly 30% of that went to attorneys’ fees.

Keach likes things as they are. Which is why, our colleague Jess Bravin  reports, he has taken to hurling insults at lawyer Susan Chana Lask, whom he fears may have ruined it all by bringing a strip-search case before a conservative-led Supreme Court. (The same court that, last month, suggested that blanket strip-search policies might be constitutional.)

The problem is that Albert Florence retained Lask as his lawyer.  He made this choice on his own, but we will all live with what she did.  And Keath thinks Florence did not choose wisely.

“Susan Chana Lask is an incompetent dolt,” said Keach, who predicts a 6-3 Supreme Court vote blessing blanket strip searches.

While Keach made a living off suing jurisdictions that strip-searched people for no good reason, and thus had a huge horse in the race, his efforts also forced jails to stop the practice.  Lask, by pushing her case to the Supreme Court, may make the practice lawful everywhere, overriding all the great circuit and state court decisions with one, huge, massive failed case.  And every person whose buttucks are spread will have Lask to thank.

But the story didn’t end with the WSJ expose, as Susan Chana Lask sought to vindicate her honor in a comment:

Susan Lask wrote:
Unfortunately, this article is repeating false information. I never went to keach for help at anytime. My case was fine and I won it in the District Court myself. before winning though, Mr. Keach contacted me the day of my oral argument that I won later, and told me he was going to try an dtake my case away from me. this is a tactic some lawyers do that is not accpetable, and in fact was so unacacpetable the Court rules against Mr. keach and the public record shows he was ordered to stay away from my case and the court stated clearly “Ms. lask was found to be very competant and appointed class counsel.” I would appreciate it of the WSJ would kindly get their facts straight and review the record so it is reported correctly. Also, I never ever refered to Mr. Keach as Mr. leech. your colleague ade that up for sensationalism. i accidenatlly said it when he called me and I said that was a mistake. Of course, your colleague unfirtunately abused that mistake and its really a shame that the WSJ thinks its newsworthy to pit people against each other. IAlso, I didn’t “lose” in the 3rd Circuit-0if you would check your facts, the jails appealed to the 3rd Circuit which before that case two otehr Circuits, the 9th and 11th, also held as the 3rd circuit–so the 3rd Circuit followed suit. If you would read the 3rd Circuit’s opinion, they literally state there is an issue and imply they need the Supreme Court to resolve the Circuit Split. So why dont you just name all of the other lawyers who “lost” cases in the 9th and 11th Circuits too–or you should state the truth that these are court decisions, not egotistical wins and losses. Also, you are falsely stating I asked keach’s help–that never happened. I had a conversation with him like many lawyers i conversed with throughout the US as part of my investigation in the case. Mr. Florence as well knows the facts and there are documents disproving your story. It is again a terrible shame this reporting the WSJ enngages in, but that will be handled appropriately and the public ses through this poor report.

Does this writing make you comfortable with your unchosen counsel?  Lask’s comment largely confirms the old saw that one should never confirm in writing what people only suspect.

Not to be ignored, Bob Keach also commented, though his appears at Orin Kerr’s post on this subject at Volokh Conspiracy :

Bob Keach says:
Counselors,
While I am reluctant to enter the fray here, I have been the victim of an unfair hatchet job in the Wall Street Journal, which clearly wrote its story to make lawyers, namely me, look bad. If I had this to do over again, I would not have participated.
Regardless, while I cannot address everything detailed above about me, all of my settlements involved seeking injunctive relief, and usually sought injunctive relief before any discussions of money or the like. My colleagues and I stopped this practice in 13 jurisdictions in four states, and several other dedicated civil rights attorneys did the same elsewhere in the Country. These cases led to countless other municipalities, and the Pennsylvania State Legislature through legislation, to stop strip searching misdemeanor pre-trial detainees. I am upset that Ms. Lask took her case to the Supreme Court because of my concern that the case is a loser, and will make bad precedent that will affect people’s rights all over the country. If she fails (and she most likely will), people charged with minor crimes (and likely non-criminal conduct, such as violating municipal ordinances) will be strip searched when they enter a local jail; something that disproportionately affects the poor, who cannot post bail. Ms. Lask should have resolved her case, in the best interests of her clients, rather than risk an adverse ruling on appeal in a legal landscape that was changing. My colleagues and I settled eight of these cases in the Third Circuit before Ms. Lask decided to undo a series of great District Court decisions and try her luck at the Third Circuit. Discretion is the better part of valor, and sometimes you have to know, as a plaintiff’s lawyer, when to settle.
I have dedicated my life to this issue for over 12 years, and won a number of important decisions in this area. To see all of this hard work undone is certainly a bitter pill to take. It is certainly a lot worse than being unfairly portrayed in the Wall Street Journal.
Bob Keach

Rarely do we get this kind of inside-the-onion view of back-squabbling among those who deal hands-on with such issues.  As Keach see it, this was the wrong case brought before the wrong court by the wrong lawyer, and there isn’t an imprisoned butt that won’t suffer for it.  Lask is not without a point, however, as her concern was not the law for posterity (or posteriors), but the representation of one guy named Albert.

We often question how the law devolved to a state of incomprehensibility, to such a dark and awful place that things we consider horrendously wrong receive the stamp of approval by a gang of harsh, robed figured in Washington.  This is how.

There we forget, there are lawyers who either aren’t up to the job, or harbor bizarre ideas (think “internet mobbing”) that could do monumental damage for society.  Whether they suffer from the Dunning-Kruger Effect or some unknown pathology, they are just as capable of petitioning for certiorari as the best among us.  And they are particularly capable of wreaking havoc with society. And they desperately want the opportunity to do so, to be heroes in their own minds but at our expense.

That’s how it happens sometimes.  When next a client complains about suffering the indignity of having been sent to jail for some trivial, even utterly mistaken, reason, only to have some screw with myopia within sniffing distance, remember Susan Chana Lask.  She wanted only to help Albert Forence, and (assuming the predictions of a horribly bad outcome are accurate), blew it for everyone.