By 5-4 decision, the Supreme yesterday put an end to consumer class actions in AT&T v. Concepcion, holding that the Federal Arbitration Act preempts state law prohibiting contracts of adhesion.  The court held that “contracts” imposed by corporations allowing only arbitration of individual disputes are okey-dokey, and that if you don’t like the deal, go find a multinational corporation to provide cellphone services that will negotiate every term and condition of the deal with you individually.

Or else, each and every person who contracts for service can bring their own arbitration action for the $12,49 that the corporation overcharged.  Imagine how much work that will be for AT&T if 27 million people file for individual arbitration at once!  Now if we can just get all those people to go along with the plan.

In Scranton, Chief Dan Duffy is in big trouble with the police union because he arrested a drug dealer.  Via Overlawyered,

[T]he police union has filed a grievance with the state collective bargaining board over a drug arrest made by police chief Dan Duffy in March, “because the chief is not a member of the collective bargaining unit and was ‘off duty’ when the March 20 arrest was made.

 Earlier this week, I wrote an analysis of some silly claims from Canadian IP lawyer James Gannon’s sarcastic suggestion that copying money is just like copying content. Gannon stopped by in our comments… and oddly did not respond to a single point that I raised about his faulty analysis. Instead, he only commented to claim that it was somehow rude or discourteous of me to link to his piece and to discuss it without first asking for permission. I found this somewhat shocking. I’ve never heard that it’s common courtesy to ask before you link to someone. Yet Gannon insisted that most people who link to him first ask his permission and he suggests, snidely, that his readership has higher “standards” in regards to how they view content.

While at the supermarket, I went down the frozen pizza aisle. Not having bought a frozen pizza since my law school days, I was overwhelmed at the selection. There was DiGiorno, Tombstone, Red Baron, Amy’s and Kashi’s. There was organic, low-fat, thick, thin, healthy and indulgent. It occurred to me while standing there that there were similarities between me selecting a frozen pizza and an in-house counsel selecting a firm. My decision came down to value, which economists have an equation for – quality over cost. I wanted a flavorful pizza with quality ingredients at a good price. Likewise, in-house counsel are looking for quality service (strong work product, responsive counsel, good outcomes) at a reasonable cost (lower billable rates or possibly alternative billing arrangements). When working on a matter, remember that the client you are working for wants a positive outcome and does not want to pay too much for it.

Yesterday, a comment came in on my post from earlier this month on  marketing legal services.  The commenter was Ed Poll of Edward Poll & Associates, Inc., of Venice, California, proprietor of  LawBiz.com and other law firm management-related enterprises.

Here, in full, is the text of Mr. Poll’s comment:

As a marketer, you know how important branding is … and use of another’s brand and registered mark is not appropriate. I can only surmise, then, that your use of my brand in your post was a result of lack of knowledge.  The Business of Law(r) is my registered mark since 1995.  In the future, should you want to use it, please provide attribution.  Thanks.

Unlike the snipping other George Wallace, I believe in respecting another man’s registered mark.  Accordingly, I have registered the mark “Ed Poll” for the use of internet idiot, and fully expect it to be honored by all.  To do otherwise is not appropriate.  And by the way, if you want to link to me in order to provide proper attribution, you will need my permission first.

Via Radley Balko, Broward Circuit Court Judge Ilona Holmes had just finished an Easter dinner with her sister and family in Deerfield Beach when she was taught the first rule of policing.

The first rule of policing, as I’ve explained many times, is get home for dinner.  What?  Did you think it would be something heroic and inspirational?  Well, it is, just not to you.  Foremost in a police officer’s mind as he straps on his gun is to make it through his shift unharmed.  Be reasonable.  It’s a job, not something to die for.  He’s got a wife and kids.  She’s got a husband and kids.  Not even a pension and gold shield will make up for leaving your children parentless.  Get home for dinner is a very good rule.

As it happens, the first rule of policing tends to conflict with the ordinary enjoyment of life, free from either the threat of death or, under unfortunate circumstances, the erroneous infliction of death.  And the judge learned this first hand.

The call to police said there might be a burglar inside 235 Southwest 4th Street. But there is no 235. Only 236 and 230.

Arriving police outside spotted someone inside 230 – Neville Scarlett was in the kitchen cleaning up the Easter dinner plates – and thought he might be the burglar.

There seems to be a running issue with police and house numbers, and it manifested itself again when the cops were confronted with the impossible, no number 235 and adrenalin flowing. Scarlett was in his own home, doing the dishes, minding his own business.  What are the chances he was thinking about the first rule of policing?  Then his wife, Carmita, looked out her kitchen window.

There’s a man with a gun and he’s going to shoot me!!” yelled Carmita. “I thought it was the robber!” Her sister, Judge Holmes, came running to the kitchen. The judge carries a legal firearm and immediately pulled it out and held it in her hand.

“She said ‘Who are you!? What are you doing?!’ He said ‘this is BSO.’ She said, ‘this is Circuit Court Judge Ilona Holmes!!’” Carmita said.

Under certain circumstances, announcing that you’re a judge carries some weight.  It’s enough to make lawyers laugh at your jokes, no matter how bad they are, or behave with courtesy toward you no matter how dismissive you are.  But it’s not enough to overcome the first rule of policing.

“They said, ‘Come out with your hands up!’ She said, ‘I am Circuit Court Judge Ilona Holmes. I am armed.'”

They all slowly went out through a side door. “She was putting the gun down. They yelled, ‘put the gun down! Put the gun down!’ Right there, the cop had his gun pointed at her.”

Judge Holmes, surrounded by deputies with guns drawn, slowly put the gun on the grass, announcing it as she went. She was holding a cell phone in the other hand. When she began to place that on the ground, police began yelling.

“When she went to put that down, they yelled, ‘Get away from the gun!’ She said ‘everybody calm down. I’m putting my cell phone down’.”

At that point, a higher-ranking deputy recognized her and called on his team to lower their guns, according to Carmita.

The funny thing is that judges are often hard to distinguish from ordinary people when they aren’t in robes or sitting on the bench.  They just look like regular folk, you and me.  Even if someone yells out that they are a judge, the police officer pointing his gun at your head can’t be certain that you aren’t some very tricky criminal about to throw your cellphone at him with great velocity.  And how can he be sure it’s actually a cellphone anyway?  Everything is presumed to be a deadly weapon under the first rule of policing.

“The one that first recognized her, he picked the gun up, opened it up, took the bullets out, he started giving her a speech: ‘Judge Holmes, you know, these guys may not know who you are. I know who you are. This could have been so different.’ And my sister said, ‘everyone of ya’ll know me. Ya’ll been before me’.”

Notice that even after recognizing the judge, his first act was to take the bullets out of the judge’s gun?  His second act was to tell the judge that “this could have been so different,” as in she might have had her head blown off, just in case.  The sort of mistake that could happen to ordinary folk.

But Carmita was downright angry. Remember the man outside her kitchen window who pointed a gun at her? Still wearing her pajamas and footies, she approached him afterward. “I said ‘you had a gun pointed at me!’ He said ‘because I felt threatened.’ I said ‘threatened how?'”

A well-trained officer knows that the first thing out of his mouth when he points his gun is to claim he felt threatened.  After all, if an officer feels threatened, then he’s entitled to do whatever he needs to do according to the first rule of policing.

While we are appalled at the frequency with which ordinary, law-abiding people who have the misfortune to meet up with police end up dead, judges rarely get a chance to experience anything beyond the sanitized, rationalized version of events presented in courtrooms.

Broward Circuit Court Judge Ilona Holmes had an opportunity to come face to face with first rule of policing.  This should be added to the list of things a judge, and prosecutor, should experience before being allowed to make a decision about other people’s lives.

When it became publicly known that Gitmo detainees were being waterboarded, and subsequent to the debate about whether torturing prisoners was really torture or just “enhanced interrogation with psychological fear of death with extreme prejudice,” the blame was directed at the administration doing the dirty.  But President Bush didn’t dream up these techniques on his own.

The  New York Times reports that actions are being taken to hold the nuts and bolts guys accountable.

Critics are taking legal action to seek punishment for psychologists who, they say, designed and consulted on abusive interrogation techniques used on suspected terrorists.

The psychologists violated professional ethics rules, the critics say, because, they claim, the interrogations amounted to torture.

In one lawsuit, in State Supreme Court in Manhattan, a human rights group based in San Francisco is trying to force New York State to investigate Dr. John Francis Leso, a psychologist whom the group accuses of overseeing abusive interrogations at Guantánamo nearly a decade ago.

An NYU professor of psychiatry, Steven Reisner, who filed a grievance with the state disciplinary board, said:

“The significance is this: There has been no one held accountable for the Bush administration’s torture program.” Because the federal government has been unwilling to bring criminal prosecutions, Dr. Reisner said, “we’re trying to bring an ethical complaint so they’re at least held accountable for their licensure.”

Naturally, these actions have yet to achieve any success or produce results.  And indeed, it’s quite likely that Leso, as well as Dr. James E. Mitchell who designed, and Dr. Larry James who oversaw “abusive interrogation techniques” at Guantánamo, will ever be held directly accountable, as their efforts were under the protective arm of the government.  But these actions will at least make it known within their profession that these were the people who used their education, knowledge and experience to make torture possible.

State courts would be reluctant to intervene in complaints against military psychologists because they would “tend toward the view that these are matters of federal policy and federal law” that the government should address, said Dr. M. Gregg Bloche, a professor at Georgetown University who is both a lawyer and a doctor.

Ironically, one of the justifications for the acceptability of the abusive interrogation techniques offered by the administration was that they were designed by doctors.

The psychologists may also benefit from circular reasoning by the government and ethical authorities, said Dr. Bloche, whose book, “The Hippocratic Myth,” explores the tension of doctors’ ethical commitments.

While the Justice Department under President George W. Bush said its interrogation guidelines were legal because psychologists designed them, the American Psychological Association has said that the psychologists who consulted on interrogations had a duty to follow government guidelines, Dr. Bloche said.

While psychology may be a bit dubious in its therapeutic benefit for most, apparently its effectiveness when it comes to torture is no longer in doubt.  When the government needed torture, the whole “do no harm” myth went up in smoke, trumped by the overarching duty to please the customer.

There’s a tendency to forget, as we blame the government for things gone bad, that they wouldn’t be able to accomplish nefarious covert goals without the help of others.  Had no psychologist been willing to lend his craft to torture, there would likely still have been abusive measures, but without the imprimatur of medical approval.

Remember John Yoo, the justice department toady whose notorious torture memo provided the government with the legal rationalization to do harm?  Remember how he ended up in prison as a law professor at University of California, Berkeley because of this? 

That wrongs committed at the behest of the government, and those who use their professional prowess to make it possible (or more effective), rarely end up with anyone paying a price, doesn’t necessarily mean that they can walk away free and clear.  There may never be prison sentences for this psychologists, or even a day’s suspension of their professional licenses, but at least these actions by their professional brethren get their name out there and they will not escape the shame of enabling this disgraceful moment in American history.

It might not be much, but it’s better than nothing.  And if they ever make a movie about them, I hope they model after Marathon Man.

At Volokh Conspiracy, Orin Kerr points to two new decisions on dog hits that reflect a monumental clash.  The first, from the Tenth Circuit Court of Appeals, is United States v. Ludwig, and it’s a stunner.

[I]t surely goes without saying that a drug dog’s alert establishes probable cause only if that dog is reliable. See id. at 1283. But none of this means we mount a full-scale statistical inquisition into each dog’s history. Instead, courts typically rely on the dog’s certification as proof of its reliability…Of course, if a credentialing organization proved to be a sham, its certification would no longer serve as proof of reliability. But the judicial task, we hold, is so limited: to assessing the reliability of the credentialing organization, not individual dogs. And in this case there is no suggestion that the California Narcotic Canine Association, the organization that credentialed the drug dog in this case, is all smoke and mirrors.

[T]he dog’s records—spanning some 200 pages in the record and covering 7 years’ worth of data—reveal that its alerts have identified a seizable quantity of drugs . . . 58% of the time. . . . While we hesitate to get into the business of affixing figures on probable cause, if we were pushed to do so we would hold this to be enough. After all, probable cause doesn’t require an officer’s suspicion about the presence of contraband to be “more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983)…

[W]e hold that evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog‘s reliability for purposes of determining probable cause— especially since training and certification in this state are not standardized and thus each training and certification program may differ with no meaningful way to assess them.

Accordingly, we conclude that to meet its burden of establishing that the officer had a reasonable basis for believing the dog to be reliable in order to establish probable cause, the State must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog‘s reliability in being able to detect the presence of illegal substances within the vehicle.

While the Florida Supreme Court still begins with the notion that magic sniffing dogs, with the right papers, can be reliable, at least the court recognizes one of the critical failings noted by the report of the National Academy of Sciences, that law enforcement “creates” a forensic science, validates it, and then creates its own organization to certify it.  In other words, one lies and the other swears to it.

Of course, even the Florida decision fails to address two other pervasive failings in what has become generally accepted forensic science, that it’s never been scientifically validated using real scientists and real scientific method, and that it’s performed under uncontrolled conditions.  We know this because whenever its tested under controlled conditions,  it comes out the other way.

The problem we’re saddled with is that there is a wealth of junk science already deeply embedded in law enforcement and the legal system that could never pass muster under Daubert if it was given any meaningful scrutiny.  As it’s already been accepted despite its lack of scientific basis, courts just keep pushing it along as precedent, even if it holds no scientific water.

The 10th Circuit decision provides as clear a picture of abdication of responsibility for allowing junk to be perpetuated, but goes a step further.  Rather than acknowledge its gatekeeper role when it comes to junk science in the courtroom, the Circuit has handed its responsibility over to the California Narcotic Canine Association, then wiped their hands and walked away.  Mind you, rather than require the prosecution to prove that the credentialling agency wasn’t a law enforcement controlled sham, they shift the burden to the defence to prove that it wasn’t “smoke and mirrors,” because the defense certainly has the inside dirt on how the run the show.

While the Florida decision offers a small opening in the junk science door, at least the court shows the presence of mind not to rubber stamp junk science because it’s been going on for decades.  It may not be much for law enforcement to fabricate some self-serving statewide standards and pretend that makes their magic dogs reliable, but it’s a start.

Someday, courts may be willing to take a hard, fresh look at all the wonderful forensic science that has been used to stop people, convict people and lock them away, despite the reality found by the National Academy of Sciences that law enforcement has just been making this stuff up all along.  But then, if they do, it will be pretty darned embarrassing for judges to have to face the fact that they’ve been played for a generation by charlatans with make-believe science.

Which brings us to the only real question that matters:  Will judges be willing to look historically foolish rather than enable the conviction of innocent people based on junk science? 

Apparently, my post about marketers efforts to  contort the language of lawyers to turn clients into consumers and potential clients into leads did some damage to the nice men and women who brought you “new and improved,” when they only changed the color of the box.  It certainly got  Charlie Green riled up enough to write a lengthy screed about the evil Greenfield.

When someone starts talking about being “responsible for the lives of others,” get your megalomania sniffer out.  Greenfield’s parallel here isn’t with doctoring—it’s with witch-doctoring.

In my experience, most law firms are still a long way from being touched by market forces, much less dominated by them.  The idea that marketing is in fundamental conflict with client service makes as much sense as an Ayn Rand Daycare Center.

Krugman integrates ethics and economics.  Greenfield is anti-integration when it comes to law and economics—there can be no compromise with the devil. Such intolerance, I find, is closely correlated with cases of the Hammer-Nail Syndrome.

I haven’t got much of a clue what Charlie’s ranting about either, as logical connections don’t seem to be his forte.  He just seems to make stuff up as he goes along, but then, that’s the nature of the beast.  Don’t assume, however, that there’s a village somewhere looking for its idiot.  Charlie’s no fool, his writing notwithstanding.  Charlie is a marketing consultant who goes by the name “Trust Advisors.”  It’s pure marketing genius, unlike the typical “new and improved” gang.  Charlie has set himself up as the arbiter of Trust, the final authority on how to sell lies with a straight face.

While his writing suggests that he doesn’t have the slightest clue what lawyers do, or the ethical constraints under which lawyers function, don’t be fooled.  It’s just part of the trick of circumventing the big brick wall that separates Charlie from money. To the marketer like Charlie, the rule of professional responsibility demonstrate megalomania; Any lawyer who fulfills his ethical obligations toward his clients is psychologically impaired.

While this won’t work well with any lawyer reasonably concerned with ethical rules, those aren’t the people Charlie’s out there sniffing for anyway.  What Charlie and his ilk want are the desperate lawyers, the ones looking for an excuse to ignore the responsibility to their clients.  You can trust Charlie.  He’s manufacture the excuse.  And here it is:

Professionalism must include ethics.  To me, that means treating our clients and patients as intelligent equals in a joint search to make things better in their part of the world. Your expertise is not a license to bloviate, much less to be respected for doing so.  Your expertise is an attribute that, if you treat clients decently, will be perceived as such and rightly so.

That means—let me spell it out—if you’re not proactively seeking opportunities to improve the world via your expertise, then you’re not behaving as a professional.

Charlie lapses into a rationalization that if a lawyer invented the cure for smallpox, then sat in his office waiting for smallpox sufferers to call, he would be unethical.  It’s a great point, aside from its total and bizarre disconnect with anything bearing on what lawyers do.  When is the last time you cured smallpox and didn’t tell anybody?

Of course, the image probably makes desperate lawyers feel not only justified in marketing themselves, but more important about themselves.  Imagine, curing smallpox! They’re society’s saviors, and all they had to do was market themselves!  Plus, they can scam a few unsuspecting clients out of some money at the same time!  Woo hoo!

Scott says he’s responsible for his clients’ lives.  I suggest that’s a bad rule for the rest of us.

We’re not responsible for our clients’ lives; they are.  Our job is to help them—not live their lives for them.

You have to give Charlie credit.  It takes huge cojones to argue that ethics = marketing.  So what if it means you have to close one eye, squint with the other, suspend all reason and just plain make stupid stuff up.  After all, it’s about marketing, and if you’re so desperate that you are willing to believe such nonsense, then Charlie is the guy you should trust.

But for the rest of the legal profession, take a hard look at Charlie’s apologia.  This is the crap marketers are trying to sell you, the effort to find out which lawyers are desperate and ignorant enough to embrace such nonsense. 

I’m looking forward to reading about the next lawyer who trusts Charlie, the one who’s been a lawyer for 12 minutes but is “highly experienced” and cured smallpox.  You can’t make this stuff up.  But Charlie can.

It’s small.  It’s exclusive.  And it knows every single car that comes in.  Every one.  Via Newsday,

The 3.3-square-mile North Shore enclave of Kings Point is launching a far-reaching surveillance network that can compare the license plate of every car going into the village against federal and state crime databases such as most-wanted lists, stolen vehicle alerts and suspected terrorist files.

When the project is completed, 44 cameras will monitor 19 entrances into the village in what may be one of the most extensive municipal tracking programs anywhere.

The number of cameras equals about one for every 120 people in the village of 5,305 people. Kings Point, a community of million-dollar homes, sits on the Great Neck peninsula, surrounded on three sides by water.

It’s not as if Kings Point suffers from a crime wave, though it did have 19 property crimes and one violent crime in 2010.  You just can’t be too careful.

Mayor Michael Kalnick said the tracking program is necessary to protect residents, but privacy and civil rights groups consider it an overreaching intrusion.

“Crime will always be out there,” Kalnick said. “Do you wait for it to happen? I think no.”

Fortunately, Kalnick has yet to consider enacting a law requiring every non-resident to enter the village to submit to a cavity search.  After all, you don’t want to wait for crime to happen, do you?

The problem, of course, is that there’s nothing facially wrong with the use of cameras to monitor every car that drives into the village.  License plates are public, and there is no right to drive without government taking note of them.  Indeed, the NYSCLU doesn’t like the initiative, but the worst they can say about it is that it seems like overkill.

“When we talk about installing an intense surveillance system like these, there needs to be intense public debate,” said Samantha Fredrickson, the Nassau County chapter director of New York Civil Liberties Union. “It’s just another example of the government watching and keeping track of what we do in our personal time. It just doesn’t seem necessary.”

It’s not necessary.  It’s a choice made by a village that can afford to make such choices.  At the same time, it reflects the potential of technological achievement and overarching desire for security.  For the moment, Kings Point is an early adopter.  Others will follow.  It certainly gives new meaning to Allen Funt’s old tag line, “smile, you’re on Candid Camera,” but it’s not likely to be nearly as funny.

Though the issue surrounding the right to photograph and videotape police would seem to be sufficiently well known and understood, even by those dumber than bricks cops who just don’t like it when someone ignores their authority, there are still a few cops who can’t seem to grasp that it’s not only lawful, but going to bite back very shortly.

Meet Las Vegas Police Officer Derek Colling, whose conduct in the pointless beating of Mitchell Crooks not only demonstrates that he doesn’t yet get the idea that videotaping is lawful, but couldn’t wait to inflict his “world of hurt.”

Via  Injustice Everywhere and Carlos Miller, the simple scene of a guy with a video camera, unconnected to any wrong whatsoever, is just brutal.  Crooks videotaped it, with the camera running even after it was beaten from his hands and lying on the ground.  Of particular note is when Colling informs Crooks that he’s about to inflict a “world of hurt” in furtherance of his desire to protect and serve.

Crooks, 36, ended up bloody with a broken nose and charged with battery on a police officer and obstruction of justice.  Another case of a citizen viciously attacking a cop’s fist with his face.  Yes, judge, that can happen.  Charges have since been dropped and Colling is enjoying a paid vacation while internal affairs investigates.  Sources say that they may eventually watch the videotape.

Notably, though hardly surprisingly, Derek Colling has had a  few violent episodes in his past.

Colling has been involved in two fatal shootings in his 5 1/2 years as a Las Vegas police officer. In 2006, he and four other officers shot Shawn Jacob Collins after the 43-year-old man pulled a gun at an east valley gas station.

In 2009, he confronted a mentally ill 15-year-old Tanner Chamberlain, who was holding a knife in front of his mother and waving it in the direction of officers. Colling shot him in the head.

Both shootings were ruled justified by Clark County coroner’s juries.

In the scheme of things, these killings are far more serious than the mere beating of Crooks for videotaping, particularly the killing of Tanner Chamberlain.  That Colling was too quick to want to inflict harm should have raised a red flag. Twice. And yet he was still out on the street to enjoy his “world of hurt.”

In an unusual juxtaposition, Crooks also has some history with the police:

Crooks made headlines in 2002 when he videotaped two Inglewood, Calif., police officers beating a 16-year-old boy. One officer was fired and criminally charged but was not convicted after two trials ended with hung juries. The incident strained race relations in Southern California — the police officer was white, the teenager black.

And without Crooks’ videos, chances are nonexistent that anyone would have believed how things happened.  For decades, defendants and others have argued about abuse and misconduct, and courts have refused to believe it possible, siding with the police as the default reaction.  How many cops fists were viciously assaulted by a person’s face?

And yet I venture to guess that even now, if there’s no video of the beating, judges will still refuse to believe that the cop is vicious and violent.  What will it take before judges stop accepting the word of a cop at face value and start scrutinizing what transpired to consider the possibility that the cop is a liar and the citizen is the victim?

Congress retained King & Spalding to “defend” the Defense of Marriage Act.  It did so because the Attorney General wouldn’t defend the law, and it would be wrong to have a law passed by Congress, no matter how incredibly wrong, be held unconstitutional without anyone arguing to the contrary.

They turned to King & Spalding because Paul Clement, former Solicitor General, was there.  But K&S started catching flack for it, and decided to bail.  It was bad for business to do something unpopular, so they moved to be relieved.

Paul Clement was faced with a choice.  He did the principled thing.  He resigned.

 I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.

As I searched for professional guidance on how to proceed, I found wisdom in the place you and I both would have expected to find it: from our former partner, Judge Griffin Bell, in a 2002 commencement speech to his alma mater, Mercer Law School. “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation. Sometimes you will make a bad bargain, but as professionals, you are still obligated to carry out the representation.”

I hereby proclaim former United States Solicitor General Paul Clement an honorary criminal defense lawyer.  He’s got balls.

And so you know, Clement left K&S and got a new gig at Bancroft PLLC about 37 seconds later, proving that the job market is much, much better for lawyers with guts.  It helps to be a former solicitor general and that the new firm was started by fellow Bush administration DOJ alumnus, Viet Dinh, but still, Clement has balls.

At Reason, Jacob Sollum writes that “we’re all hostages to the dopiest person with an iPhone.”  This comes from a story about two women in Nordstrom’s who “saw something and said something.”

[A]t a mall in Burlington, Massachusetts, when they saw a guy carrying a novelty umbrella that resembles a samurai sword. They called 911 and reported that a man with a rifle was walking around the mall, whereupon “federal, state, and local police descended on the mall,” which was evacuated and closed while police interrogated short white men wearing gray sweatshirts, black pants, and a black backpacks. Eventually the umbrella carrier, recognizing himself from this description, came forward and confessed that he is a total geek, at which point the mall was reopened.

Please, folks, just stop. Stop making yourselves look even more stupid by defending this stupidity. Just admit that the cops should have investigated the report first, then decided if they needed to unleash the SWAT teams and the helicopters. 

Instead, by saying “Damn straight, and we’d do it again!”, you’ve just empowered every attention-seeking nut and prank phone caller to shut down businesses at will.  If all it takes is for someone to say they THINK they saw something that LOOKED like a rifle to shut down streets and close businesses, then we’re all hostages to the dopiest person with a phone.

The problem is that it doesn’t merely turn the rest of us into hostages, but targets.  Every person in that mall that was subject to interrogation and search became a target, despite having done nothing to warrant any interference with their otherwise pleasant day of shopping.  If there was a little something in their backpack that they didn’t want the police to see, there was not good reason to demand inspection and, once found, subject them to seizure.

What if someone took umbrage with being stopped and questioned without having done anything on their part to justify a significant intrusion on their constitutional right to be left alone, and balked.  Arrest?  Taser? The wrong “aggressive” gesture at the wrong moment, and a bullet in their head?

Despite protestations to the contrary, we all have different levels of tolerance, or sensibility.  What one person sees as a fun or interesting, another sees as dark and threatening.  We pretend that there is something common between us, what we like to call “sense,” when the hard reality is there is no such thing.  Whatever we think is obvious we impute to the rest of society, since we’re all normal and it’s those other weirdos who just don’t get it.

Graham says we’re hostages to the dopiest person with an iPhone.  Certainly, these women could qualify, but the government has fostered and empowered hysteria, whether it’s the product of stupidity or fear.  While the stupidity factor makes this story funny, in the sense that no tragedy followed and so it’s just another tale of dopiness, it reflects how low the threshold has fallen that controls our freedom.

When the police descended on that mall, they were fully and lawfully empowered to take whatever action was necessary to find their rifleman.  Indeed, had they failed to do so, and a guy shot up the mall and killed a bunch of shoppers, it would be a national tragedy.  A properly so, despite rising prices and diminishing quantity.

We’re working with the thinnest thread of sanity and intelligence here.  We were always subject to the lowest common denominator, but historically those people on the bottom wrung of the sanity and intelligence scale were treated officially as outliers, lunatics and morons.  People who weren’t quite sure they saw what they saw, or knew what they knew, would be reluctant to say anything, no less reach out to police to close down a mall.  Not anymore.

Most of us have seen a package unencumbered by a hand sitting in a public place.  Watch for a few more minutes and someone comes back, maybe a nice mother with some wayward children who required collecting.  They clutch the package and walk away holding hands.  No terrorism here. 

We wait and watch.  Rarely is anything so askew as to demand immediate action.  We can distinguish an umbrella from a rifle.  We don’t rush to assumption of the one in a million occurrence with nothing more than a flash of a fear to push us over the edge.  But then, we aren’t the ones phoning in reports to police from Nordstrom’s.

The heroes of this episode are the hysterics, and there are more of them than anyone realizes.  By elevating them from lunatics and morons to heroes, they are empowered to give voice to their crazy fears.  The years of inhibition, concern that the rest of the world not learn that they are the crazy people walking among us, are over.  They are the new protectors, their silly fears now the only thing standing between us and the terrorists.

And as long as the crazy people keep iPhoning it in, the police will have everything they need to search us all at the mall.  Or on the street.  Or anywhere else we go.  If you see something, say something.  Don’t worry about how stupid or crazy it seems.  It’s all good.

Brian Tannebaum’s post about a “request” on the ABA’s “solosez” listserv, has generated some excellent discussion, both positive and exceedingly misdirected.  It began with a young lawyer’s request for a marketing strategy to compensate for threatened loss of welfare payments in the form of indigent criminal defense work, which the lawyer had intended to bootstrap him to success as a civil litigator. 

The lawyer who made the request acquitted himself quite well.  Whether it was an inartfully expressed request or a learning experience is unclear, but the end result was that he was better for the experience.  And from his comments, my bet is that at least a few young lawyers got the message.

Seth Godin, marketing philosopher, made a timely observation about alignment of goals.  Though offered in the context of business, it transcends the banal.

A perfect relationship: I want your company to help me, and your company wants to help me. We’re both focused on helping the same person.

The Walmart relationship: I want the cheapest possible prices and Walmart wants to (actually works hard to) give me the cheapest possible prices. That’s why there’s little pushback about customer service or employee respect… the goals are aligned.

The Apple relationship: I want Apple to be cool. Apple wants to be cool. That’s why there’s little pushback on pricing or obsolence or disappointing developers.

The demagogue politician relationship: I will feel more powerful if you get elected and get your way. You will feel more powerful if you get elected and get your way.

On the other hand,

Compare these to the ultimately doomed relationships (if not doomed, then tense) in which goals don’t align, relationships where the brand took advantage of an opening but then grows out of the initial deal and wants to change it:

The Dell relationship: I want a cheap, boring, reliable computer. You want to make more profit.

The hip designer relationship: I want the new thing no one else has yet. You want to be around for years.

The typical media relationship: I want to see the shows, you want to interrupt with ads.

As the “developing nature” of the attorney/client relationship, at least as expressed by marketers and perceived by young lawyers, is more akin to a commercial transaction than a fiduciary relationship, the application of misalignment seems more obvious.  But alignment, it seems to me, has less to do with commerce, per se, than with relationships, and the relationship between lawyer and client is at the core of our profession.

Using Godin’s framework, consider this:

Clients want lawyers who are reasonably price and capable of providing excellent representation.

Lawyers want clients to pay them as much money as possible for the least amount of work, without regard to their ability to deliver competent representation.

For many lawyers, this is an unfair statement of misalignment.  They are deeply concerned with providing competent, if not excellent, representation.  They want to be fairly compensated, but do not charge more than what is reasonable (though clients may still perceive the cost of legal services to be excessive).  They are fully prepared to forego a case if they cannot satisfy a client’s needs, despite the fact that this means they will not earn a fee.

For other lawyers, this statement of misalignment is right on target.  Their need to make money trumps everything else.  Their vision of lawyering is egocentric, it’s all there so they have a way to earn a living, pay off their loans and achieve the success and prestige they were promised.  The only stumbling block is that they need to convince the walking ATM machine, clients, that they fulfill their needs in order to pry that cash out of their hands.

Many of us believe that young lawyers aren’t truly as bad as all that, but have been misled by the sweet chorus of marketers and social media gurus who are the sirens of the internet.  We try to refocus them on the ideal and away from the easy path to success and prestige.  The marketers and SMGs want their money, and dangle the easy path.  Ours is more difficult and unsupportive. 

They offer apologies and excuses for these unpleasant times, and we tell them that being a lawyer is hard work.  They argue no pain, all gain.  They tell them they’re wonderful and brilliant, just as their mothers did before them.  They offer hope and immediate gratification.  Who doesn’t want a magic bullet?  And so many are led down the path toward wealth and happiness.  Let’s face it, the marketers have a much more appealing pitch than we do. 

What’s wrong with that?  Misalignment.

The  Joseph Rakofsky story is one of the most recent and extreme of apocryphal tales, but stories of clients who entrusted their fortunes or freedom to lawyers who took their money and left them hanging are legion.  The anger and bitterness is palpable, but the lawyers who did the dirty have long since walked away and wiped their hands of it, the money pocketed and gone and the consumer of their legal services (as these aren’t clients to these lawyers, but mere consumers) left broke and dangling in the wind.  Who cares? The lawyers got paid.

It can’t last.  It won’t last.  You can make a quick buck off lying to consumers (and yourself) that you are caring, aggressive and competent, but eventually your inability to perform, or care, catches up to you.  You can lie about your experience and expertise, using the  new-age marketing mantra that Google and six months makes you every bit as much of an expert and worthy of your marketing claims.  But it’s still a lie. 

It might be too much to expect that hungry, desperate, disillusioned lawyers will put honor and integrity ahead of their need to cashflow, their dreams of profit.  They may be too low on the  Hierarchy of Needs to be capable of shedding their self-interest for a higher calling.  So if you can’t do it because it’s the right thing to do, then consider doing it because the scam won’t last forever. 

Worse still, this impacts the entire legal profession, as clients perceive lawyers as being nothing more than selfish, greedy, incompetent liars.  If you won’t do it out of honor, do it out of self-interest.