I admit it, I’ve never been very good at seizing upon empty platitudes, cute metaphors or empty strings of words as a call to action.  People who love committees and consensus see this as a character flaw, which could explain why no one asked me to sit on the ABA Panel on the Future of Lawyering.  Then again, they didn’t ask Tannebaum to sit on the panel either, and he’s a company man.

If you think nostalgically about the practice of law and how it used to be, then you are on the train tracks and not on the train,” said former Connecticut Bar President Frederic Ury, who is the president–elect of the National Conference of Bar Presidents.

Hey, I think nostalgically about the practice of law.  I think about how it used to be.  That means (gasp) I’m on the train tracks and not on the train.  Uh oh.

I think about the days when lawyers understood that the client was their focus, not making money or enjoying work/life balance.  I think about the days when lawyers weren’t afraid of hard work and sacrifice, and understood that being a professional meant putting the welfare of your client ahead of your own. 

I also think about the days when excellence was something you developed and reputation was something you earned, rather than words a marketer put on your website or the bravado of the hungry baby lawyer.

And now the leaders of the official bar associations tell me that I’m on the train tracks and not on the train.  So where the heck is this train of yours heading?

“The development of artificial intelligence along with increased Internet search capabilities is making access to answers for complex legal questions easier and cheaper.

My gut reaction is to channel H.L.Mencken, but I fear that reference would be lost on these important bar association officials.  Clearly, this Fred Ury is trying to tell me something and I’m too much of a dinosaur to get it.

Why is someone going to pay $700 to have a lawyer prepare a will when they can get it for $49 online,” said Ury. “We have had a monopoly on answering legal questions about the law. But the consumer–our former clients–can now get that information for free on Google.

“Virtual law firms are here,” he said, “and there are now thousands of small town and small firm lawyers who once depended on those consumers who may not make it.

Until now, I hadn’t realized how out of touch I’ve become.  It suddenly dawns on me why Ury concludes that people can obtain answers to “complex legal questions easier and cheaper” on Google than going to a lawyer.  I didn’t see the writing on the wall. 

The quality of legal advice available today from the mouths and minds of lawyers is no better than the worthless crap one finds on Google.

I’ve seen the legal advice the internet has to offer.  It’s bad.  It’s worse than bad. It’s dangerously awful.  It downright sucks.  So what Fred Ury is saying is that the advice coming from living, breathing lawyers is no better than the Google garbage.

Holy moly.  Up to now, I had been looking at it all wrong.  It had long been my understanding that the important official people who desperately wanted to hold high office in bar associations were of the view that lawyers offered something more, something better, than crap on the internet.  Never did I realize that the profession had devolved to the point that living, breathing lawyers were not only unworthy of being retained, but superfluous, incapable of doing any better than a $49 will.  Who knew?

This is the message being sent to those of us with tickets to sell used cars in court by the most August Association in the profession, the American Bar Association.  You suck so bad that Google is just as good.

And so I’m here on the train tracks rather than on the train.

So while some legal services are available via keyboard and internet connection, there will always be clients who for some crazy reason, would rather actually talk to a lawyer, in person, before having documents prepared for signature that will affect some aspect of their future.

If you want to compete with the $70 virtual lawyer, become a virtual lawyer and charge $67.50. Lawyers today well know the tactics that comprise the race to the bottom.

I am off the train, and I’m not getting on, no matter how many train riders scream for me to jump on board.

And I’ve got Tannebaum on the train tracks with me, though not for exactly the same reason.  Whether or not there are clients who, “for some crazy reason,” want a real lawyers in place of Google, it strike this old dinosaur that there are still a few lawyers whose advice is better than Google, whose answers to “complex legal questions” cannot be found easier and cheaper online.

Of course, that’s just my view.  Clearly, it’s not shared by the Fred Ury or the ABA.

Radley Balko has taken time off from  puppy love to note another isolated incident, the  second such isolated incident coming out of beautiful New Brunswick, New Jersey in a week.  They’re certainly getting their money’s worth out of the local cops in Jersey.

The latest involves two Rutgers students who  made the mistake of renting the basement apartment in a house where a warrant was to be executed.

Two Rutgers roommates say they were sleeping in the early morning hours of December 10th and had no idea who was barging into the basement room they share in an off-campus house in New Brunswick.

“I got hit in the face; I got hit in the ribs. That’s basically what happened,” said Kareem Najjar, a Rutgers University student.

“I remember basically waking up to being hit, on the side of my face, on my back I got kicked a couple of times and stepped on,” Kostman said.

You can never tell when some student, against whom no evidence exists to suggest they are in any way involved in criminal activity, might attack.  Better safe than sorry, the police manual spells out, so first subdue them as violently as possible.

The roommates say it wasn’t until they were handcuffed that they were told this was a raid by New Brunswick Police who apparently had a warrant for someone else in the house.

“You were never arrested?” Eyewitness News reporter Sarah Wallace asked.

“No, and we asked why we were being arrested and they said, ‘you’re not being arrested you are being detained’,” Najjar said.

Once they were finally released, they say the cops had ransacked their room, and left them sitting for nearly two hours in their underwear in the cold.

Kostman claims his handcuffs were so tight and on for so long, he now has permanent nerve damage in his thumb.

That’s the price one has to pay for police safety.  Don’t like it? Well, next time you’re in trouble, call a criminal.  Chances are they won’t do as much damage.

None of this, of course, comes as much of a surprise.  It happens.  It happens over and over.  And then it happens again.  The larger question, of course, is why we continue to tolerate police doing this, and the answer can be found in the comments to the story at My Central Jersey :

7:44 AM on February 12, 2011

So many are quick to judge before all the facts are in. I’m sure these two “college students” are not as pure as the driven snow. The term “Brutal Beating” has become a standard whine for media releases and frivolus lawsuits.

8:09 PM on February 11, 2011

These type of things tend to happen when you live in a drug house!

2:51 PM on February 12, 2011

Are you referring to one where 4 of 5 cops are on top of a guy who is still resisting arrest, and the cop hits him four times? In my opinion, and most the people who commented on that article, the guy got what he deserved. A cop tells me to do something, and I do it. These cops have a tough job, dealing with strong young men with poorly developed brains.

5:59 AM on February 12, 2011

Because the smell of $$$$$ is more attractive when you sue for it instead of earning it. When they lose a case, those who file frivolous lawsuits should be made to pay ALL Court Costs! Students don’t want their parents (who are paying tuition for their little darlings) to know what they are up to and try to distort things so that they look like the victims. Remember Tyler Clementi. Over the years we have seen the drunkeness, DWI’s, drug use, fights, assault, theft by these little angels away from home for the first time and it creates a huge expense for the taxpayers here. We are sick of it and the media should not pander to it.

7:48 AM on February 12, 2011

Many Rutgers students have become as bad as some of the local low lives in New Brunswick. It took 2 months so they could get together with their schiester lawyer and come up with a greatly embellished tale of woe.

They don’t call it the Garden State for nothing.  Plant a seed and it grows.  Sometimes it grows stupid.

I’ve expressed concern that those of us who are inclined to find these isolated incidents disturbing are becoming desensitized to them by the onslaught of videos and images of brutal police conduct.  But what of those who don’t find it troubling at all?

It strikes many of us, myself included, as impossible to learn of these isolated incidents and not have them influence our realization of what happens on the streets.  We see kids, college students, beaten, sometimes killed, by police.  By mistake.  For nothing.  What part of a brain allows a person to disconnect the harm done with the recognition that these are our children, our brothers, our friends, and makes it acceptable to sacrifice them in the name of order?

I fear the answer remains that until it happens to them, until it touches them personally, there will be a way that those who adore order, and the enforcers of order, to excuse it.  The only good news is that at the pace police abuse and misconduct is going, it may touch them sooner than they think.  Only when it touches their lives will these apologists and blamers get a higher education.  And then they’ll wonder why everyone doesn’t feel bad for them.

But I wonder whether it will reach a point where police officers, most of whom I want to believe are men and women of good will and conscience, have had enough of watching videos of their own doing this to people.
Will cops ever reach the point where they won’t tolerate the beatings anymore?

“I don’t think anyone should ever be allowed to just come into your house and just beat the crap out of you,” Kostman said.

Will cops ever agree?

Ah, Brady.  It’s the carrot always dangling just a bit too far in front of criminal defense lawyers to reach.  So much promise.  So little process.  It’s the most illusive of rights ever given by the Supremes, what I once called the  worst joke ever played by  William O. Douglas.

Nathan Burney (of royal blood, no doubt, thus explaining his use of the majestic “we”, as opposed to the more common explanation of schizophrenia)  explains the gamesmanship surrounding Brady disclosure:

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any game-playing by a prosecutor is abhorrent, beyond unethical, as it abuses the overwhelming power of the government.  But gaming the very rule intended to prevent such game-playing is perverse.

How do they do it?  One simple way is to just not hand it over, secure in the expectation that the defense won’t ever find out.  The prosecutor can justify this by claiming it wasn’t really Brady material.  Perhaps they spin it as something that isn’t really helpful to the defense, as if their perspective is the only correct one.  Perhaps they spin it as just discovery-type stuff, which unfortunately is not discoverable at this time, if ever.  Or they can just cross their fingers and hope nobody ever gets wise.

And it goes on and on, there being no shortage of games to play when it comes to failing to disclose and finding excuses, justifications, explanations and rationales for depriving the defense of exculpatory evidence.

The bottom line of it, of course, is that no matter what path is taken to deny either its existence or its turnover, or its turnover in a timely fashion so that the defense can actually make use of it, is that Brady is one of the best sounding rights that never happens.  And somehow, miraculously, no judge has ever lost a minute of sleep worrying about what might have been.

So the ABA, our shining White Knight, steps into the breach to fix what ails us.  Do they issue a blanket condemnation of unethical prosecutors and their deliberate concealment of exculpatory evidence in order to convict the innocent?  Nah. Not that it would give rise to more than a hearty belly laugh, but nah.  Do they demand that courts enforce Brady disclosures at the earliest opportunity with the most severe sanctions possible?  Nah, not that it would fix the underlying gamesmanship, though the time of disclosure has always been problematic.

So what does the collection of the most important lawyers in our nation, at least in their own minds, beloved of committees and consensus, come up with as the ultimate solution to the Brady debacle?  A resolution to create a committee to make a checklist.  You can’t make this stuff up.

RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts  to adopt a procedure whereby  a criminal trial court shall, at a reasonable time prior to a criminal trial, disseminate to the prosecution and defense a written checklist delineating in detail the general disclosure obligations of the prosecution under Brady  v. Maryland, 373 U.S. 83 (1963), and its  progeny  and applicable ethical standards.

FURTHER RESOLVED, That the American Bar Association urges  federal, state, territorial, tribal, and local courts in implementing the above procedure to require a criminal trial court to create a standing committee of local prosecutors and criminal defense attorneys to assist the court in formulating and updating the written checklist delineating in detail the prosecution’s general disclosure obligations.

FURTHER RESOLVED, That any omissions or deficiencies in the written checklist provided by the court should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.

Lest you think this was a slam dunk, they struggled over this resolution, and finally added in the third decretal paragraph, as there would be open war lest the resolution didn’t uphold the primacy of legal and ethical responsibilities.  As if anybody cared.

Let’s be clear, the relevance of this resolution to the practice of law is dubious at best.  Any prosecutor disinclined to comply with the Supreme Court and the occasional admonition of a trial judge isn’t likely to melt because of an ABA resolution to create a checklist.  But let’s suspend reality for a moment and pretend that the ABA carries some persuasive authority.

A checklist?  Because it works so well for grocery clerks? 

What about the idea of dealing with the reasons why Brady has been such a monumental non-starter, like prosecutors playing games with Brady, or courts ignoring the disclosure coming in the middle of trial, or a day after the verdict?

The Nathans, perpetually optimistic, try to find the positive in this resolution.

So it was with some cautious optimism that we saw the resolution that the American Bar Association adopted today, basically telling courts to devise detailed laundry lists of things that count as Brady material in their courthouse, and to provide them to prosecutors and defense counsel in the cases that come before them.  If adopted, this practice would make it at least more difficult for prosecutors to claim ignorance of material that could have existed.  And it would make it easier for defense attorneys to spot particular bits of police paperwork and other kinds of evidence that they might not have known to ask for, if not disclosed.  It would help the hard-working defense lawyer to root out the Brady that might be there, and it would help the ethical prosecutor collect such material that they might not otherwise have obtained.

I’m constrained to disagree with both the Nathans optimism and the efficacy of being optimistic.  One reason Brady has been such a miserable failure in action is that efforts to make it real seem to invariably fall into the lawyerly fantasy that it’s not that prosecutors don’t want to give the defense exculpatory evidence, but that they just really can’t figure out what it is.  If only someone would hold their hand, wipe their brow, show them the way, then the prosecution would happily fulfill its duty to the defense.  Gag me.

So here’s my checklist:

1. Find anything that could possibly show, or lead to something that could possibly show, the defendant isn’t guilty or that a prosecution witness is wrong.
2. Hand it over.
3. Now.

Let’s see how that pans out.

The first post at Simple Justice appeared on February 13, 2007, entitled Justice is a funny thing.  The first  comment to that post came from Paul Kennedy, about two and a half years later.

Since then, I’ve published 3,976 posts.  There have been nearly 30,000 comments.  The blawgosphere has changed over a few times and we’ve had some pretty good discussions.  Hopefully, it has served some purpose for you, as it’s been cathartic, fun, frustrating and educational for me.

Thanks to all for four years of Simple Justice. 

And if you’re so inclined, please say something nice about me to the parole board.  I really am rehabilitated.  No, really.  Though I may blawg again.

My guess is that he owed back some overtime, which is why Baltimore Police Officer James Fowler’s signature was on red light tickets, the ones issued after cameras caught motorists running red lights.  The way it’s supposed to work is that an officer reviews the images and issues tickets only to those who earned them.  The issuing officer then signs the ticket.

From Packratt at Injustice Everywhere, a  WBAL-TV 11 News story exposed a bit of a problem with 2,000 of the tickets signed by Officer Fowler.

The problem concerns the sworn statement that appears on the citations confirming a police officer has reviewed the camera images to verify a violation has occurred.

On the citations in question, that signature belongs to Baltimore Officer James Fowler, who was killed in a car accident in Pennsylvania on Sept. 27, I-Team lead investigative reporter Jayne Miller said.

The Police Department said it does not blanket approve citations, and only the violators got the erroneous copies. A department representative said internal copies show the name of the officer who actually reviewed the violations.

Carolyn Elefant takes up the gauntlet of the free-ride blogger, those who author content which others than use for their own benefit.

Conventional, 21st century wisdom says that content wants to be free. That content isn’t worth paying for. That “exposure” in exchange for content is sufficient reward.

Funny thing is that those who try to sell you this line don’t have content. And not only do they want yours free, but they want to profit off of it as well.

Some, like [Molly] Secours, are simply cutting their ties, while others, like one blogger on the Hey Arianna Facebook Page is trying to determine whether there’s any legal basis for a lawsuit for retroactive compensation in recognition of how the bloggers’ collective efforts contributed to the success of the site.

As Jay Foonberg, author of How to Start and Build a Law Practice famously says:

Would you rather do the work and not get paid? Or NOT do the work and NOT get paid.

My 21st century spin on Jay’s old Chestnut is this:

If you get paid, I get paid.

Maybe that’s an old-fashioned sentiment in a free-wheeling, crowdsourcing kind of world. But then again, so is freeloading.

If you’re going to blog for free, then blog for yourself.  Your slice of the pie may be worth nothing, but at least it’s your pie.

The anecdotes were interesting, particularly that Justice John Marshall, who gave us the seminal Marbury v. Madison establishing the primacy of the Supreme Court in determining the constitutionality of laws, was simultaneously the Secretary of State for the first month of his tenure.

It was not ever thus. John Marshall, undoubtedly the greatest chief justice ever, spent his first month on the court as the secretary of state of the United States. That’s right, the chief justice and the secretary of state were the same person — an arrangement permitted by the Constitution, which only prohibits members of Congress from holding other offices. Marshall’s most famous decision — Marbury v. Madison, which established the principle of judicial review — arose from Marshall’s own failure as secretary of state to deliver the obscure William Marbury his commission as justice of the peace in the waning hours of the Adams administration. No one cared.

But Noah Feldman’s op-ed in the New York Times, which seizes on such upon the medieval influence of robed monks to the justices who played poker with presidents (Robert Jackson), asserts the obvious and then takes a blind leap into oblivion.

It is absurd for conservatives to criticize the cosmopolitan forums where judges from around the world compare notes. And it is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views. The justices are human — and the more we let them be human, the better job they will do. Let the unthinkable be said! If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.

But of course they’re human.  Of course they have beliefs.  And nobody suspected they holed themselves up in their rooms when they weren’t on the bench, cloistered from society and its myriad influences.  How that leads to the conclusion that “the more we let them be human, the better job they will do,” however, remains unclear.

Disconnected from any other aspect of his argument, Feldman states that Supreme Court Justices are too “isolated” from the rest of society, leading to their making “isolated” decisions.

The disengagement from public life that followed has had real costs. Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.

Does Feldman really believe that the absurd notion that Bill Clinton’s administration wouldn’t be, oh, “busy” dealing with the penumbras of Monica Lewinsky’s blue dress was due to their lack of political engagement?  Hey, they’re allowed to read the Times in chambers.  The error of judgment there, and if Feldman is paying attention, in a plethora of criminal cases where the notion of New Professionalism in policing informs their decisions, isn’t because they don’t have access to the same information as the rest of us.

Noah Feldman asserts that if we let Supreme Court Justice indulge in their politics like anyone else, because they are human, you know, they will somehow manifest a connection to the rest of society that will make their decisions more meaningful, real and effective.  And two plus two equals banana.

First the flaw: If justices were given free reign to openly become advocates for political positions, then we would have no reason to expect them to do otherwise.  They would hold firm to politicized positions, which would immediately become their justification for appointment, and would reflect nothing more than the party with the clout and opportunity to load the court with its adherents.  It would be like Congress, except with life tenure.

Of course, it might well be argued that this is what we have already, although it’s kept somewhat under cover to avoid the flagrant appearance of impropriety.  Nobody suspects that appointments ignore the justices political views, even though they proclaims impartiality before the Senate by mouthing the words on the script. 

While it’s somewhat true, and more true in certain cases such as Justices Alito and Thomas, it’s not nearly as true as most of us suspect.  Associate Justice Antonin Scalia, for all the flak he takes, has been on the right side of some of the most pro-defendant decisions around, authoring Crawford for example.  While the left hates him dearly, he’s added greatly to trial fairness. 

By stripping our preconceived biases for the justices, the truth is that most haven’t voted as predictably along political lines as we believe.  It may be more a matter of judicial philosophy than politics, assuming the two are separable, but the outcomes show that we take our heroes where we find them.  I’m still waiting for a decent decision out of Justice Alito too, but hey, no one promised that every justice would eventually get something right.

The better solution to address Feldman’s beef isn’t to allow rank politics to permeate the Supreme Court, but to appoint people to the court who reflect the experience of real people in the real world.  When the universe of potential justices comes only from the most isolated of the elite, whether the ivory tower, the halls of justice (the Department of Justice, that is) or the Whitest of White Shoe firms, any complaint that they lack a sense of how life works on the streets has nothing to do with their wearing black robes.

Feldman would have done better to join the  Trench  Lawyer  Movement if he wants to expose the court to the real world.  Of course, Feldman, a professor at Harvard Law School born shortly after I purchased my first pair of earth shoes, may not be aware that more real lawyers, the ones connected to that public life he reads about in the Ivory Tower, can be found in the hallways of courthouses than anywhere else.

And having enjoyed a seat at the longest running floating poker game on the Long Island Railroad, any president inclined to let a trench lawyer cum justice into his poker game better know how to play cards.  We’re hard to bluff.

The newspaper headline after the verdict played up the politics: Tea party member gets 8 years for attacking Obama supporter.  Of course, sensationalist headlines are nothing new, and certainly the political angle made for a more interesting story.

But the headline his lawyer would have written was more disturbing.

Headline should have read: Tea Partyer Gets 8 years for Attacking Obama Supporter, Despite Efforts of His Liberal Blogger Lawyer.  That’s right, I had to defend this tea partyer, who destroyed the nose of an Obama supporter with a pool cue.

a 50-year old attorney and former judge living in suburban Atlanta. My passions are classical music, constitutional law, poetry and macroeconomics.

His passions don’t interest me in the slightest.  What does is his inability to see how his political zeal both influenced his defense of his client, and his disgraceful post-trial conduct.  A disease has infected many on the internet who find themselves incapable of distinguishing between their politics and their duty. 

Brighton, it appears, does some criminal defense law.  Given the outcome of the case, there’s no reason to assume he does it very well, though a loss isn’t indicative.  Rather, it’s Brighton’s patting himself on the back for being able to defend this tea party miscreant, proving how big a person he is as a liberal.

I did not defend his actions by bashing the President; not only would that have been phony for me, it wouldn’t have worked.  Under Georgia law, there is no jury nullification, and you can’t justify a physical attack with a political argument.

All in all, I tried very hard to just be a good lawyer, hold my nose, and leave the politics out of it.  Before the jury came back and put my client in jail, Mr. Morgan told me I did a good job. I was satisfied that I had not let my politics infect my obligations as a defense lawyer.

According to Brighton, indigent defense in his neighborhood is handled by experience lawyers assigned to represent the poor.  Is there a box to check off about political party affiliation?  Clearly, this was a critical aspect of the defense, given that Brighton was constrained to “hold his nose” while defending this scum.  How proud he was that he muddled through it, “did a good job,” despite the defendant’s abhorrent politics. Maybe he should get a statue attesting to his political benevolence.

When a lawyer defends a person accused of murder, does he concern himself about being a phony?  Is the defense contingent on what the lawyer thinks of the crime?  Or the politics of the criminal?  Never.  At least never if the lawyer belongs in the trenches, entitled to hold another person’s life in his hands.  That Brighton would think to mention it, that he had to “hold his nose and leave politics out of it” to defend his client, smacks of his incapacity to be a criminal defense lawyer.

We do not support the crime by defending the criminal.  We do not concern ourselves with his politics, eating habits, television preferences or favorite color. 

One of my friends pointed out that by losing, I disqualified a Republican voter (convicted felons can’t vote).  But defense lawyers always feel bad when their clients are sent off to prison, even when they are of questionable political orientation and engage in violence. I don’t know why.

Even when they are of questionable political orientation?  Are you nuts?  Brighton is infected with the disease of politics, a malignancy that preclude his ability to recognize how his political fervor colors his thinking.  It causes blindness to ones faults and inability to understand and fulfill one’s duty.  In his case, it appears the disease is terminal.

This isn’t the perspective of the criminal defense lawyer.  This isn’t the perspective of a real liberal, not that it matters.  This is what becomes of a person when politics infects their very being to the point where they are incapable of comprehending how their misguided zeal has undermined their obligation to their client.

The internet is filled with political zealots who suffer from this disease.  The wells of courtrooms should not be.  Your politics are your own business.  Keep it out of the trenches.

H/T Ken at Popehat

When I was a puppy law clerk working for an old time criminal defense lawyer, a call came into the office seeking help with a social security disability claim.  My boss, affectionately known as Uncle Milty, told me to send it to Harry Binder.  Even then, representing claimants in social security disability was a specialty niche, and the guy who did it was Binder.

That would be Binder & Binder today.  While talk of branding today is mostly hogwash, the name Binder & Binder has long been the established name in the New York bar, and maybe the country, for handling that very specialized sort of work.  They didn’t have the flash of Harry Lipsig, who was the dean of personal injury, but there was never any question about where to send a SS case.

So if someone wanted to challenge Binder in the social security market, they would have to do some very hard work, establish their bona fides and really produce to knock the king off his thrown, right?  Or they could just pay off Google.

From the Legal Skills Prof Blog,

A California federal district court just held that a law firm specializing in disability law was liable under the Lanham Act for purchasing the law firm name “Binder & Binder” as a Google search term in order to drive traffic to its website.  The case is Binder v. Disability Group Inc., C.D. Cal., No. 07-2760, (1/25/11). 

Having concluded that Binder & Binder held valid trademark registrations, the court applied the eight-factor test for likelihood of confusion as set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 204 USPQ 808 (9th Cir. 1979). The court found that the factors addressing similarity of the marks, the strength of the plaintiff’s marks, the similarity of services, the intent of the defendant, and marketing channels all weighed in favor of likelihood of confusion.

The court also found actual confusion, based on the results of a survey, witness testimony, and other evidence.

The  court awarded Binder & Binder $292,000.00 in lost profits and enhanced damages for willful infringement by the competing law firm.

There aren’t many of us who have names worthy of such interest, that competitors would actually pay Google to drive people seeking them to another place, a place where people are not looking, are not interested, are not desirous of their services. 

Notably, the court found “actual confusion,” not merely theoretical or the threat of confusion.  When someone searches for something on Google, they expect Google to deliver an honest response, the real answer to their question.  They sometimes forget that Google is just another business selling whatever it can, including the results to your search.

More to the point, however, is that this is where lawyers have turned to make a living, sponging off the hard work and reputation of others, anticipating that enough people will be confused and mistaken click on the wrong link so that they will get business intended for another. 

Lawyers have happily become cannibals, eating their own for a buck.

Thirty years later, I would still send a case to Harry Binder if someone called seeking representation for a social security disability claim.  I certainly wouldn’t take the case, as it falls way outside my area of practice, and Binder has continued to perform with excellence in its niche.  But I would likely Google the name to get the telephone number, and I would fully expect Google to send me to the right place.

For those of you inclined to buy the Binder name, or my name, or some other lawyer or firm’s name, you’ve demonstrated two things: You’re unworthy of whatever traffic you’ll get and you’re a sleazeball.  You want the traffic that seeks Binder and Binder?  Be as good as Binder & Binder.  Establish your competence the way Harry Binder did, case by case, year after year.  Get the traffic because people out there want you, not because you bought a better lawyer’s name.

Unless, of course, you’re in Canada, where  being sleazy was held not to be deceptive and received the court’s seal of approval.

The mantra of the Slackoisie has become “you are what Google says you are.”  Baloney.  Any fool can buy a search term on Google.  For the moment, internet users remain relatively naive about what they’re spoonfed by Google and why, ignorantly assuming that whatever the search engine spews is reliable.  I’ve urged the start of the Fifth Page Movement as a way to defeat the incentive to be as sleazy and deceitful as possible.  It’s yet to take off, but I hope that people will come to realize its efficacy.

In the meantime, if the best you hope to achieve as a lawyer is to deceive enough people to make a living, or make a killing, then you deserve to be called a sleazeball.  When you sat in law school and dreamed of what you would be ten years down the road, did the name “Binder” come up?  What about the word “sleazeball?” 

Or did you dream of being a great lawyer?

I wasn’t going to write about this.  When I read the emails and twit (just one, not scores) alerting me, I responded, “so what, who cares?”  I refused to elevate it to a position of significance by writing about it, making it worthy of my time.

But then I read Eric Turkewitez’s post at  New York Personal Injury Law Blog about Dominic Barbara’s having been suspended from the practice of law, and changed my mind.  Barbara isn’t an important lawyer.  He’s loud.  He’s one of the foremost self-promoters on Long Island.  Aside from that, he’s inconsequential.

But being loud was good enough to get a handful of “high profile cases.

[Barbara] represented Howard Stern (and is a regular side-kick, call-in guest on his show). He also represented  Joey Buttafuco, Jessica Hahn, and Michael Lohan, each of whom had more than their allotted 15 minutes of fame. New York Magazine once called him the “biggest, brassiest lawyer on Long Island.” And last year he was retained for a headline making crash on the Taconic Parkway that killed eight people.

For more than 35 years, The Barbara Law Firm has performed at the highest level of quality legal representation in the fields of Family, Matrimonial, Criminal, and Civil Law.

First, as to Barbara. He was suspended this week after “an avalanche of Grievance Committee sanctions” (nine Letters of Caution, nine Admonitions, and two Advisements). That’s a lot of baggage, and as a consequence of the latest round he was handed an 18-month suspension.  Among the charges, and these seem to be the straws that broke the camel’s back, are that he failed to issue itemized bills as required, failed to supervise the lawyers in his office, failed to timely refund a portion of a fee that had not been earned after the client fired him, and engaged in conduct that adversely reflects on his fitness as a lawyer by failing to adequately communicate with that client (or her new counsel).