Remember that tech train lawyers were told they had to hop on or it would pass them by? Well, it doesn’t stop in New Jersey anymore.

On June 21, 2017, the Advisory Committee on Professional Ethics, Committee on Attorney Advertising, and Committee on the Unauthorized Practice of Law issued a Joint Opinion (ACPE Opinion 732, CAA Opinion 44, UPL Opinion 54) stating that the legal service program operated by Avvo through its website is an impermissible lawyer referral service, in violation of Rules of Professional Conduct 7.2(c) and 7.3(d), and comprises improper fee sharing with a nonlawyer in violation of Rule of Professional Conduct 5.4(a). New Jersey lawyers may not participate in the Avvo legal service program.

The program specifically referred to is Avvo Advisor, its 15 minute consultations for $39.95, of which Avvo takes $10 as its advertising fee. New Jersey calls bullshit.

The first question asks whether lawyers who participate in these programs are engaged in impermissible fee sharing in violation of Rule of Professional Conduct 5.4(a) (“[a] lawyer shall not share legal fees with a nonlawyer”). The Committees find that the Avvo business model violates Rule of Professional Conduct 5.4(a). The participating lawyer receives the set price for the legal service provided, then pays a portion of that amount to Avvo. The label Avvo assigns to this payment (“marketing fee”) does not determine the purpose of the fee.

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Bret Stephens, the former Wall Street Journal pundit who was brought aboard the New York Times as its token lightning rod, has announced that he is quitting what he calls the “pornified” twitters.

Twitter is no different. Bigotry flourishes on Twitter, since it offers the bigot the benefits of anonymity along with instantaneous, uncensored self-publication. It’s the place where their political minds can be as foul as they want to be — without the expense or reputational risk of showing their face at a Richard Spencer rally.

Twitter doesn’t merely amplify ugliness. It erases nuance, coarsens thought, turns into a game of “Telephone” in which original meaning becomes hopelessly garbled with every successive re-tweet. It also facilitates a form of self-righteous digital bullying and mob-like behavior that can wreck people’s lives.

A disappointing grasp of the medium, for sure. It’s hard for even the most best among us to twit thoughtfully. Nuance requires effort, discipline. The lazy twitterer can blame twitter, but his failing is that he’s lazy. A good mechanic doesn’t blame his tools.

Stephens’ problem isn’t twitter, but people. They’re awful. They’re stupid. They’re mean, nasty, hateful and just plain awful. With some experience, one learns to shrug off the myriad awful twits, because there is neither an intelligence test nor a sanity test to purchase a keyboard. Continue reading →

First Shoot: It was a pedestrian puppycide, which is completely permissible if a cop utters the magic words that he feared the doggie might hurt him.

Los Angeles County sheriff’s deputies killed a teenager Thursday morning while shooting at a pitbull they said was charging at them.

It’s another example of over-reliance on police response and too much deference to the actions they take. The Los Angeles County sheriff’s office said its policy is that officers are allowed to shoot at dogs if they “reasonably believe” they could be seriously injured or killed by the animal.

Police responded to a “loud party” call. Loud parties can be annoying to others, who are certainly entitled to their quiet enjoyment of their own home. But the call to cops for salvation implicates another truism, that every police interaction has the potential to end in death, no matter how trivial its initiation. Continue reading →

There was much to question and challenge about the District of Columbia’s Metropolitan Police Department’s handling of the mass roundup, the “kettling,” of protesters on Trump’s Inauguration Day. After all, distinguishing between those engaging in destruction and those merely present, or more importantly, present for protected purposes such as reporting on the protest, is the hard job police are paid to do.

And historically, the MPD has been pretty good at handling protests in a constitutionally protective manner, as even ThinkProgress concedes. But not this time.

When black-clad marchers began smashing windows in Washington, D.C., on Inauguration Day, the city’s police force — reputedly the best in the country at upholding protesters’ rights during disruptive demonstrations — went nuclear.

Officers quickly deployed pepper spray, tear gas, and crowd-control grenades of various types. The Metropolitan Police Department opted to “kettle” everyone on the streets nearby the initial anarchist-driven property destruction, something it does not, by reputation, make a habit of doing during protests.

Whether these tactics were justified is one question. When violence erupts, the first course of action is to stop the violence and destruction. Whether this was the best tactic to do so is another matter. Not only were the kettled protesters charged with felonies, but the mass included some folks who didn’t take kindly to being treated like others who engaged in no destruction. Continue reading →

If the backstory is to be believed, Anthony Promvongsa sounds like a pretty tough guy, maybe even a gang member, who was bold enough to go after an off-duty cop with whom he had some prior beef.

According to the criminal complaint, Promvongsa tailgated and accelerated at the car of an off-duty police officer, Colby Palmersheim, who had “prior police contacts” with Promvongsa.

Palmersheim reported that he drove to the location of another off-duty police officer, Mark Riley, and said that he “believed Promvongsa was attempting to harm him.”

Promvongsa allegedly drove between the two off-duty officers’ cars at high speed before pulling back up to their cars and telling them that “he was going to go get his boys and come back to get them,” according to the complaint.

Who says such a thing to cops, especially in Worthington, Minnesota? Palmersheim called it in, and Agent Joe Joswiak of the Buffalo Ridge Drug Task Force responded. He came in hot; one very angry cop who was going to teach this guy a lesson about messing with his brother cops. Continue reading →

It might be considered a bit snarky to say that the Los Angeles Times published an op-ed by Laura Beth Nielsen in response to one by Ken White, but that may very well be the case. Newspapers try to present balance, both sides of the coin, which is generally a good thing, with one proviso: the other side of balance isn’t complete, utter, total nonsense.

There are good arguments to be made on either side of this issue. It’s unfortunate that the author of this op-ed is unfamiliar with any of them.

–SHG, Newsday, 1984

But what of Nielsen, Ken’s counterweight? Her opening sentence foreshadows the problem:

As  a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates.

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Having written at great length about the operation of the law, Graham v. Connor, the Reasonably Scared Cop Rule, the dashcam video of the killing of Philando Castile does more in a few seconds to clarify its significance than a hundred posts here. Police Officer Jeronimo Yanez was acquitted for this killing. Whether it’s despite this video or because of it is a matter of perspective.

Beyond the video, there are many subsidiary issues, like the pretext stop for a brake light because Yanez claimed Castile looked like a suspect wanted for a crime. The post hoc rationalization that if Castile would smoke pot in front of a child, how little care would he have for Yanez’s life. But the question of how Yanez could do this, and why the jury found it acceptable, is a core legal question.

Rather than do it again, there are three very smart pieces that do an excellent job of deconstructing the scenario. The first is by Jacob Sullum at Reason. The second, David French at National Review. The third isn’t a post, but a twitstorm by @normative, Julian Sanchez. Continue reading →

This could have just as easily appeared in Vox or Huff Post, but it didn’t. Instead, Ken White’s post was published in the National Review, though the message rings true no matter what your politics.

At six in the morning, a man is startled awake by an insistent pounding on his front door. He opens it to find armed government agents. One group of them begins to ransack the man’s home. Two others take him outside and put him into the back seat of a nondescript government vehicle. One of the armed government agents sits on either side of him, trapping him.

As he sits, blinking and confused in his pajamas, they begin to bark questions at him. Was he at a particular meeting, on a particular date, with a political figure who is under suspicion of wrongdoing? The man, confused and afraid and thoroughly intimidated, makes a bad choice — he answers, and he lies. He says he was not at the meeting.

The armed government agents smile. They already have witnesses placing the man at the meeting. They already have a recording of the man at the meeting. His lie does not deter, mislead, or even mildly inconvenience them. But now they have him, whether or not he’s done anything wrong before — now he’s lied to the government, a serious crime.

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Who spoke these words?

We chose to set up our system to be stacked in favor of the defendant in all cases, so, in areas where most of the defendants are male, and most of the accusers are female, it’s a structural bias in favor of males. Even if we were to get rid of sexism, it would still be very hard to win these cases. I think this is what we have to live with on the criminal side, because we’ve made the calculation that this is the right balance of values.

Jeff Sessions? Catherine Lhamon? Catherine McKinnon? Nope. The words were uttered by Harvard Lawprof Jeannie Suk Gerson, and appear in an article in the Television section by “gender issues” editor Susan Chira.

Good to know that the system is stacked in favor of the defendant in all cases, which explains the 97% win rate. Except it’s in favor of the prosecution. Either whoever did the stacking really blew it, or this is as stupid as it gets. Guess which one it is?

Because there are often no witnesses in such cases, jurors may have to decide whether a crime was, in fact, committed. Since defense lawyers will always try to attack the credibility of the accuser, and since inconsistencies in memory are common, Professor Gersen said it was often easy to convince at least one juror that there is not proof beyond a reasonable doubt.

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At Volokh Conspiracy, Stuart Benjamin discussed a critical aspect of the Supreme Court’s opinion in Packingham v. North Carolina. The Court held the North Carolina prohibition against sex offenders having post-sentence First Amendment rights unconstitutional.

[T]he justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasn’t sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.

The distinction between majority and concurrence was one of degree, as Alito, Roberts and Thomas wouldn’t preclude a better tailored law from prohibiting “registered” sex offenders from possessing basic constitutional rights in ubiquitous technology. For the children.

But the opinion, in its musing, discussed what the Court’s default approach to fluid technological change should be, which is a huge open question going forward. Continue reading →