A Constitutional Right, Kensplained

At Fault Lines, Ken White added a wrinkle to an evergreen post amongst criminal defense lawyers.  We keep telling people to STFU.

Criminal defense attorneys say it (often in vain, often too late) to defendants and targets of criminal investigations.  Litigators say it to their angry clients.  When a lawyer says “shut up,” that doesn’t mean you should never talk about your case again.  It means that you shouldn’t talk to police without your lawyer, because the police don’t have your best interests at heart.  It means you shouldn’t talk to your pals about your case, because one of them may be trying to work off an arrest and may repeat what you say to the cops.  They may even be wearing a wire.  It means that everything you say may be used against you – criminally or civilly – and so now, in recognition of your human frailty, you should only say things in carefully controlled circumstances after the benefit of the advice of someone who knows what is going on.

You get it, right? You’ve heard it, over and over, and you don’t need to hear it again. Sure, some n00b will get internet access and have to learn it for the first time, but for you old-timers, we’re boring you. Got it.

So then comes the wrinkle:

But the Internet poses a problem.  Too many people with the good sense to shut up in the real world view online speech as somehow pretend, otherworldly, not counting — as inherently risk-free.  Not so.

Take the infamous /r/legaladvice subforum of social media behemoth Reddit.  It’s a place for people to post legal dilemmas in order to solicit the input of other Reddit users who may be lawyers, trolls, or (judging by the level of legal acumen) Golden Retrievers.  It is routine for Reddit users to post civil and criminal scenarios that amount to confessions to crimes and civil wrongs.  Often these posts have enough detail to make them easily identifiable.  For instance, how many imbeciles pointed BB guns at police helicopters in San Diego recently?

After all, if there’s a forum on reddit for legal advice, how can you get free brilliance without spilling a bit of your guts?  And what use is Avvo’s Awful Answers if you don’t give the down and dirty? Isn’t the internet for porn free legal information?

Ken has certainly spent more time on reddit’s r/legaladvice than I have, earning a banning in the process. But from the little I’ve seen, it’s a clear and present danger to law and any non-lawyer foolish enough to avail himself of its pleasures. But aren’t these lawyers giving legal advice? Aren’t these fully qualified professionals doing their best to serve the underserved, to enlighten the poor and downtrodden, to offer comfort and succor to the marginalized?

Beats the hell out of me. The only thing I know with any certainty is that what I’ve seen is a lot of stupid. Ignorant and inaccurate commentary, more likely to cause harm than anything else.

Ken’s point is that by asking your questions, whether on reddit, Avvo or various other places, where your confession is blast emailed around the internet for use as a promotional weapon to suck clueless lawyers into advertising deals, you are doing the same as having a nice chat with your local cops about why you murdered that guy who had it comin’. For reasons that are self-evident, you will invoke your right to silence with the police, while telling the internet where you buried the body.

So what are the self-evident reasons you abandon all reason and admit your guilt publicly?  Free advice. One of the lies “access to justice” advocates tell themselves is that the poor and middle class can’t afford lawyers. It’s often a lie. The problem isn’t what they can and can’t afford, but how they prefer to allocate the scarce resource of money. They can afford an iPhone. They can’t afford a lawyer. They can afford a car. They can’t afford a lawyer. They can afford Nike sneakers. They can’t afford a lawyer. They can afford what they choose to spend money on, and if they chose to spend money on a lawyer and do without the newest iPhone, they could afford one. They just choose not to.

Which brings up the question of whether the trade-off is worth it.  On the one side, you’ve forsaken your right to remain silent, and blown it in the most public sphere possible, where it is not only visible to the world, but you have no clue who is reading your words or how they will come back to bite you in the ass.

On the other side, you get essentially anonymous advice, which may or may not come from a lawyer, may or may not come from a lawyer who practices in the relevant niche, may or may not come from a lawyer with any experience whatsoever. Or you may get advice from a 12-year-old, a marketeer pretending to be the lawyer as part of her online marketing campaign to make people love her for being such a great humanitarian, or an incompetent. Yeah, we’ve got them in the guild.

And then again, maybe an exceptionally good lawyer will try to give the best possible answer to your question she can. But even so, it is never possible to give a sound, reliable answer without delving deeply into the facts and circumstances of the case, as well as your personal information. There are questions to be answered that won’t dawn on you, or would embarrass you, or you might be naturally inclined to lie about. After all, if you mislead a lawyer and get an answer based on your deception, that means you win in real life, right?

At the top of the side bar at SJ, it says “this isn’t legal advice.” It’s not. Not because I don’t believe that what I write here is sound. If that was the case, I wouldn’t write it. But whether it applies to you or your circumstances is another matter. And even more importantly, how do you know that I’m not just another blithering idiot on the internet spewing nonsense to your detriment?

I don’t think I am, but you can’t say for sure. Don’t believe, not because it’s wrong, but because your desire for free isn’t a substitute for your need for reliable competent legal advice. But listen to Ken and STFU. Online and off. He’s right about that. You can trust him.

13 comments on “A Constitutional Right, Kensplained

  1. Bruce Coulson

    “Advice n. to seek anothers approval of a course already decided upon.”
    Also described as the least thing you can do for another, both per Ambrose Bierce.

    Those who go to random strangers for free advice get exactly what they pay for.

    1. SHG Post author

      I didn’t say they didn’t deserve what they got, but for some unknown reason, people believe this crap. Darwin was wrong, you know.

  2. Wilbur

    “how do you know that I’m not just another blithering idiot on the internet spewing nonsense to your detriment?”

    If you were, then we wouldn’t be reading you and posting our incisive comments. But then, someone needs to deem whether I’m a blithering idiot too. And then someone needs to judge that individual.

    My head hurts. Too much blather for one week. TGIF

  3. mb

    r/legaladvice was the quickest ban I ever got. (and that’s up against the entire internet) Every comment I put there boiled down to either ‘you have not provided sufficient facts for anyone to answer your question’ or ‘please consider the personal costs of litigation before you reject the idea of alternative dispute resolution’. The 2Ls that populate that board are deranged. Thankfully, none of them write or reason well enough to ever pass a bar exam. If only the unfortunate people seeking advice there could see what those people looked like in real life, even they would know, these are not the people to talk to.

    1. SHG Post author

      I’m actually glad to hear they’re 2Ls and not actual lawyers. Reading r/legaladvice seriously shook my confidence in the guild.

      1. mb

        You can tell by how they are always certain that every question will be decided by an obscure point of law nobody else has ever heard of, and the way they always want to take the smallest things to court.

        The ones with the thing by their name to show that they have been voted up consistently are people who dropped out from their 2L year. Any good suggestions about what people should actually do get voted down until they are hidden from view and the user who wrote them banned

  4. Billy Bob

    This is troubling. You know why?
    Just lost my train of thought. Let me calm down and try to reconfigure our precious resources.
    Okay, the judge in CT said anything we said could–and would–be used against us! (Did she really say that?) This is
    outrageous, and a repeat. We already reported that last month here, somewhere.
    So, the bottom line is that the whole process is a farce. Yea, we said that two, maybe one thousand times here and there. It makes no sense. These are crazy, lunatic people parading as educated intellectuals and keepers of the public decorum. They luv to judge, because–you know why?–well, they’re well-positioned and know better than the rest of us, irregardless. They keep nothing but their unearned paychecks and their vACATION HOMES. You herd it hear first.

    Getting back to the topic at hand, some n00b getting legal advice over the internet? Well, hello, yea, it’s
    crazy, lunatic stuff worse than Alice in Wonderbread Land.

    P.S., There are reasons the poor are downtrodden. But we’re not going there, not here, not now, not ever. Please consult your local sociologist-slychologist. Bobby Kennedy was the last of the Mohegaaans in that regard. (Answer: Beeecause we need them in order to feel rich ourselves!)

  5. Derek Ramsey

    It is also a good idea to avoid asking how to commit crimes on Reddit. Luckily for Paul Combetta, he got legal immunity to protect him from his own stupidity. I don’t believe he had to ask Reddit for how to get that. Would have been interesting if he had though.

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