Whether one agrees with Aaron Sibarium that the law has been lost, there has been little doubt in my mind that the ABA was captured by legal academics and their progressive lawyer allies when it came up with Model Rule 8.4(g). I’ve made that pretty clear over the past few years.

And yet some states, like Pennsylvania, adopted their variation on the theme of Rule 8.4(g) despite the fact that it’s a flagrant effort to create a lawyer speech code to put one’s license to practice law in jeopardy for holding the wrong views, for expressing the wrong ideas. Continue reading →

If the prosecutor informed you that your client was guilty, would you shrug and respond, “Well, if you say so, then that must be true”? What if he said he had “no doubt”? Would you then advise your client to cop a plea, because if the prosecutor had “no doubt,” surely that meant he was guilty, right? No, not right. Not a chance.

Is it any different when the target is someone despicable?

One of the senior Manhattan prosecutors who investigated Donald J. Trump believed that the former president was “guilty of numerous felony violations” and that it was “a grave failure of justice” not to hold him accountable, according to a copy of his resignation letter.

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There is a schism between the understanding of lawyers engaged in the prosecution and defense of criminal charges and the public in general that is easily exploited by dishonest demagogues on an issue like the appropriate sentence for possession of child pornography. Even very conservative, very prosecutorial, Andy McCarthy knows it’s bullshit, and risked his right wing cred to say so out loud.

No, this isn’t a debate, not because reasonable minds can’t differ, but because those who believe there’s something here to argue are either using it to demagogue (Hawley and Cruz, representing their respective Yale and Harvard law school’s finest) or are so lacking in the understanding of our legal system that they lack the capacity to understand why it’s complete crap. And there’s little point in trying to explain, as if it’s possible to do so to people wholly lacking the foundation to understand, things to people who don’t want to understand. So, believe whatever you want. You can’t be helped and change nothing. Continue reading →

After Washington Post reporter Felicia Sonmez took to the twitters to first destroy Jon Kaiman’s career with frivolous accusations, and later twist Kobe Bryant’s death into an excuse to smear the beloved basketball star, her editors decided that she just might be too batshit crazy biased to be trusted to report on stories where she had already burned her credibility, proven her flagrant prejudice and embarassed the paper.

They took her off the sexual-assault story beat, so she sued for sex and victim discrimination because there was no cause of action to sue her employer for removing biased and untrustworthy reporters. In response, WaPo moved to dismiss under the District of Columbia anti-SLAPP law. Continue reading →

Aaron Sibarium has written something of a magnum opus on a subject that’s been of grave concern to me for quite a while, whether young lawyers have forsaken their duty to represent people deemed deplorable in their eyes. Whenever I raise this problem, someone will reply that kids will be kids, and just wait until they get out in the real world. But as Aaron notes in the subtitle:

The kids didn’t grow out of it.

Rather than quote at painful length from Aaron’s post, go read it. Is he right? Is it too late to change the pathology of lawyers practicing in the Panopticon? Okay, one quote because it captures so much about the problem. Continue reading →

As noted when discussing the free speech outrage du jour at Yale Law School, I’ve struggled to find a principle that supports the argument that the student hecklers whose purpose of shouting down and silencing invited speakers isn’t as much protected speech as that of the invited speaker. There is no First Amendment doctrine that differentiates the speech of the invited speaker from that of the silencers, who are expressing their disapproval of the invited speaker being given a platform to speak.

It’s not that the argument favoring the invited speaker’s right to speak, as well as the right of those who came to hear what the speaker has to say, isn’t a sound argument. It most certainly is. It’s not that the hecklers contribute much of value when their only purpose is to prevent someone else from speaking. They most certainly do not. It’s a good argument. It’s just not First Amendment doctrine. Continue reading →

The “common sense” connections between drugs, cash and guns has long been used to create a self-proving circle of evidence against a defendant. After all, drugs are illegal. Selling drugs gets one cash. Drugs dealers use guns to protect their illegal drugs and money from other drug dealers and the police. When a cop finds drugs, cash and guns, what else could it be?

Then again, there may be no connection at all between drugs, cash and guns. But over the past few decades, the assumption has become so ingrained that it’s been universally enjoyed by police and prosecutors, such that the mere mention has served to justify everything from no-knock nighttime warrants to seizures of cash from law-abiding citizens. Judges have similarly accepted the assumptions and shifted the burden to prove “innocence” to the defense, a negative burden that is almost impossible to prove. Continue reading →

Among the reasons why criminal defense lawyers are rarely nominated for federal judgeships or win elections for public office is that our duty, the zealous defense of people accused of crimes, invariably exposes us to a simple, obvious attack. We defend bad people. Sometimes they’re evil. Sometimes they’re icky. Sometimes both.

But they are people who are easy to attack, easy to despise and we’re positioned in a place where the groundlings can be easily manipulated into believing that by defending them, we either support what they’re doing or use our efforts to put them back on the street to do it again. Maybe next time, to you. They are deplorable, and we, then, are deplorable enablers. Without us, the deplorables would be in prison where they couldn’t harm you. Bad lawyers. Continue reading →

There’s much to appreciate in an editorial that’s proven highly controversial on an issue that shouldn’t be controversial at all. That free speech has become a hot, and sore, topic proves the necessity for such an editorial. That it’s been reviled as an attack on the left, by the left, for its “bothsides-ism”* demonstrates its necessity.

So why then did the New York Times editorial board, no slouches they, open an editorial they knew would be so deeply controversial, and taken by those with whom they feel the strongest camaraderie, with these words? Continue reading →

If anyone could be accused of making cons a business, it’s safe to say Arnold Rothstein would be counted a guilty party.

Nicknamed “The Brain” because of an uncanny ability to calculate statistics and probabilities in his head, Rothstein was born in 1882 in Manhattan to Abraham and Esther Rothstein. Arnold enjoyed an affluent life growing up, but apparently was quite resentful of his older brother, who eventually became a rabbi. Continue reading →