Adam Liptak’s  New York Times article about the Roberts Court’s philosophical embrace of business interests allows for a tangent into the world of the Supreme Court bar, those “specialized” lawyers whose practice revolves around arguing before the Big Bench.

The Roberts court’s engagement with business issues has risen along with the emergence of a breed of lawyers specializing in Supreme Court advocacy, many of them veterans of the United States solicitor general’s office, which represents the federal government in the court.

These specialists have been extraordinarily successful, both in persuading the court to hear business cases and to rule in favor of their clients.

Over at Volokh Conspiracy, Orin Kerr runs with this aspect of the article, offering his “pet theory”:

My pet theory attributes the creation of the specialized Supreme Court bar to the increase in the number of law clerks each Justice hires. Back in the 1930s, each Justice typically would hire one clerk. That number went up to two by the 1950s, then three around 1970, and then four by the 1980s. Since the 1980s, the Justices have “graduated” about three dozen former clerks a year — with the exact number depending on whether individual Justices hire their full complement of clerks, as well as whether there are retired Justices around still hiring.

The increase in the number of clerks led to a crew of young lawyers entering private practice every year who happen to have great expertise in how the Supreme Court works. The Supreme Court can be a quirky institution, and these young lawyers knew the quirks. If you say that 2/3 of former clerks went into private practice, that’s around 25 new lawyers a year. Many of those former clerks naturally were interested in Supreme Court work, so they started to focus on Supreme Court work and helped permit and foster appellate practices focused on Supreme Court litigation. With enough former clerks around, there were lots of lawyers who could help create dedicated Supreme Court practices that amounted to a dedicated Supreme Court bar.

What remains unexplained is why these SCOTUS grads chose to use their insider knowledge for the benefit of business interests rather than, say, the public good. 

Historically, former Supreme Court clerks went on to more lofty pursuits, the bench and academia.  Given their educational background, top of the class from the most elite schools, it was a natural transition.  While they had to pay some dues beforehand, and maybe even repay some loans, the end game was to put their experience to use for the betterment of all.  Or at least, for what they perceived to be betterment, but that’s a discussion for another day.

So why the conversion from more intellectual pursuits to a fraternity of Supreme Court specialists?

Even smart kids want to drive fancy cars.

The gist of Liptak’s articles is that one of the most powerful forces driving cert petitions and argument before the Supreme Court comes straight from the board rooms of Americas major corporations:

But the chamber’s mission is by no means limited to the elected branches of government. “A central function of the chamber,” it told the Supreme Court in a recent brief, “is to represent the interests of its members in important matters before the courts.”

The vehicle for that is the litigation unit that was envisioned by Mr. Powell, the National Chamber Litigation Center, which says it is “the voice of business in the courts on issues of national concern to the business community.”

This isn’t your father’s Chamber of Commerce.  This is big money litigation.  Huge money litigation.  And its being used to buy the hearts and minds, not to mention the brains and balls, of these one-time Supreme Court insiders.  Knowing how to frame a cert petition to appeal to the particular personalities on the bench is worth a great deal to this Chamber.  This chamber wants to get its say in that chamber, and it will pay for the privilege.

Being an unrepentant capitalist, there’s little to fault in the choice of former clerks making the decision to go for the money, to capitalize on their experience and monetize their insider info.  It may be crass to think that such fine minds care only for the cash, but it’s certainly an understandable choice.

The downside, of course, is that the scales are way out of balance.  While the National Chamber Litigation Center contends that it’s merely a credible voice for business, which may well be true, it leaves open the question of who is the credible voice for opposing positions?

When the balance of power becomes so skewed, one has to question whether the integrity of the Court is in jeopardy.  As Liptak notes, it’s not as if the Court is resistant to business interests.

The idea that the Supreme Court reflexively rules for the chamber and other business interests is too simplistic, many legal scholars and practitioners say. If the court favors business, they say, it is as part of a broader orientation toward free markets and a wariness of many kinds of lawsuits.

But given the Supreme’s orientation in favor of business, the need for strong opposition, a worthy challenge to the Court’s inclination to favor business interests, becomes increasingly important.  Unfortunately, the loyal opposition doesn’t always have the money or firepower to give it the ability to mount a valiant effort.

There was once a time when concerns for society trumped a job that paid extremely well.  That was before greed was good; that was before amorphous libertarian philosophies allowed those who preferred bespoke suits and fast cars to social justice in any of its permutations.  Not that there’s anything wrong with bespoke suits and fast cars.  I wonder if  Bill Gates’ Porsche 959 is still sitting on a dock in Seattle?

Just as Gates has moved from the accumulation phase of his life to the point where he uses his wealth to help others, perhaps this trend of insiders going for the gold will reach a saturation point, where they will have enough money and use their insider knowledge for purposes other than a cash bonus.

It may be that business interests will always prevail with a court inclined to favor them, but there needs to be a balance of power, where both sides have both access to the Supreme Court and credibility, if its decisions are to be worthy of credit and serve broader societal interests.  A bunch of kids being well paid by business interests isn’t a very good way to run a branch of government.

When  Turk first alerted me to Leo Flynn’s defense, my reaction was “feh.”  The 62 year old lawyer was going on trial for having downloaded child porn.  His defense was an old one, that he wasn’t looking at it for his own benefit, but on behalf of a client. 

Leo Flynn, 62, does not fit the profile of someone who possesses and distributes child pornography, federal jurors were told today, the first day of the trial. He didn’t compile a huge collection of photo and video files, and he viewed pornography only on his work computer, never at home.

Yet, he admitted to investigators that he was searching the Internet and the file-sharing service Limewire for hardcore child pornography about once a week…

It’s unclear what that means.  Are men who view kiddie porn supposed to wear tattered clothing and drool?  Does that cover priests as well.  And how many pics and vids of hardcore kiddie porn does one have to collect before it counts?

Flynn’s defense was facile.  It was just research.

Flynn told investigators at least two clients had asked his advice about child pornography, and he sought out the material on his own so he could offer an informed opinion. They asked him why he went back to Limewire and child pornography websites so frequently.

“I can’t answer that other than to say I just started looking and watching and looking and watching and finding different things and being surprised,” he answered.

Clients have asked me for advice about kiddie porn.  Miraculously, I’ve managed to advise them well without weekly scanning the internet and amassing any collection, huge or otherwise, of hardcore images.  I grasp the concept.  I don’t need to see the images.  There is absolutely nothing about the images that would affect or alter my advice.

The trial is over.  Leo Flynn prevailed.

Flynn’s lawyer, Rory Durkin, convinced the jury that each time Flynn downloaded the illegal images and videos, he was doing so in order to provide legal advice to clients.

Flynn’s lawyer friends used to call him the “perv attorney” because he defended a lot of people accused of sex crimes.

Flynn will now return to the practice of law.

In defending a client against possession of a particular image, it’s critical to be able to see the image in question.  Whether it makes the lawyer wretch in disgust or drool with erotic glee is another matter, but one cannot defend a person without knowing what he’s defending against.  That wasn’t the case here.

Flynn was surfing the ‘net, and a regular at Limewire, in search of images that were not the subject of client indictments.  Had it been otherwise, the images would have been part of discovery, not a matter of seeking them out on his own.  Moreover, his explanation was about giving “advise,” not defending charges.  I can only speculate about what advice was sought that could in any way explain the need to surf Limewire, but none of it seems reasonable or acceptable.

And yet Leo Flynn was acquitted. 

Sadly, there are many out there who argue the point of whether kiddie porn should be legal and acceptable.  People should be free to do whatever pleases them, no matter his sick and disgusting.  That it happens to involve adults engaging in sex acts on children doesn’t seem to enter into the equation.  “Maybe they consented,” they say.  Spare me.

The knee-jerk reaction of criminal defense lawyers to an acquittal is to hoot and holler.  They are too few to do otherwise.  But not all acquittals leave the same taste in one’s mouth.  This one is sour.  It’s not up to me to question the bona fides of the defense, as a Sioux Falls jury accepted it.  I accept their verdict.

But the question still lingers, is it appropriate for a lawyer to take it upon himself to “research” child pornography in order to advise clients?  Is it necessary to do so on his own, week after week, to go surfing the web, file-sharing sites, and download such images to his computer?  No one can truly see into another person’s mind and soul, but there has to be limits to participating in such conduct. 

Leo Flynn will return to the practice of law.  He now has a far clearer understanding of what it’s like to sit in the defendant’s seat, to await the verdict of a jury, to wonder whether a minute from now, his life as he knows it will be over or he will allowed to walk out of the courtroom a free man.  There’s much to be said about a lawyer who can appreciate what his clients endure.

But Leo Flynn chose to research kiddie porn by viewing and downloading images, week after week.  I don’t care to meet him for a drink or have him over for dinner.  He may not be guilty, but I don’t believe he’s innocent.

Clients take too long to get to the substance of their question,  Lawyers take too long to get to the answer.  For eons, we thought it was all about nuance and details, a firm grasp of the necessary facts and a thorough response addressing the potential variations, possibilities and their respective probabilities.

Few things have better characterized a changing mindset than this: TwitterLaw.  Forget the nuance. Forget the details.  Forget the corner office with the leather Chesterfield sofa. Cut to the chase.  Get your question down to 140 characters and get an answer in kind.

Over at Legal Blog Watch, Bruce Carton picked up on Simon Fodden’s  Slaw post decrying the advent of a British firm offering legal advice by twit:

Good grief: it’s the (I should have expected it) reductio ad absurdum of legal advice. Until now, the briefest piece of wise legal counsel was “It depends.” Now a UK lawyer is offering free advice in 140 characters, which, though longer than that gold standard, doesn’t seem wiser.

A smiling man styled only as The Legal Oracle (@thelegaloracle) is offering on Twitter:

Tweet your legal claim or question and we will answer it free of charge. Taking the fear and mystery away and making law accessible.

Speaking of “fear and mystery”, who in his or her right mind would take legal advice from an unnamed person in 140 characters?

Someone who wants a quick and dirty answer to a legal question and either can’t or won’t pay for it?

Carton, the illegitimate offspring of Bud Abbott (along with his young sidekick, Eric Lippman), suggests that this turn of events would make me swoon.  Not so fast, Carton.  While silly and pretentious, this quirk in the space/time continuum is the brainchild of Loyalty Law, a shameless, self-promoting UK legal marketer.  They don’t call them solicitors for nothing, you know.

But the @thelegaloracle concept, crazy as it seems, has some things that many of the other faux free legal answer concepts lack.  First, it’s short and to the point.  While that’s considered a flaw by many, it’s no worse a flaw than something like Avvo Answers, where a person uses as many characters as he wants to ask a legal question, typically providing tons of fluff or self-serving excuses to spin the answer received, and still asking the wrong question in the wrong way to get a meaningful answer.

Then the question is answered by people neither more qualified nor substantively capable of providing a correct answer, the twitter guy.  None of these ideas are a substitute for a proper consultation, and none of these answers provide greater reliability or merit.  At least Twitter Law is quick and dirty.  Better to be wrong in 140 characters than 3000 words.

The UK lawyer doing yeoman duty, Nicholas Jervis, hasn’t gotten a lot of question as yet. but the few I’ve seen are pretty basic and his answers are similarly basic.  They’re also quick, free and clear.  The beauty seems to be that it’s hard to ask a convoluted, overwrought, deeply personal question via twitter.  The medium just doesn’t offer much depth, such that the questions are sufficiently simple to allow for a simple answer in response.

This is way better than the free legal advice promoted elsewhere, where it’s suggested that they are a real substitute for actual legal advice.  They’re not.  They’re awful.  They’re dangerous, as people actually think they’ve been given a reliable answer to complex legal problems.  On twitter, it’s all superficial, and that seems to work.

For example,  one question (copied in the Slaw post) had to do with the statute of limitations for negligence, to which Jervis responded :

Hi Katie, 3 years is the norm, more if you/the victim is under 18 at the time of the accident or not of full capacity.

Where’s the problem?  No doubt there are questions that can’t be answered within the constraints of twitter, and even less doubt that some questions will be poorly framed and thus poorly answered.  So what?  Unlike those free legal answer sites which pretend to be a substitute for real advice, no one can possibly believe that a twit is a substitute for a lawyer.

It is what it is, and what it isn’t is reliable, personalized legal advice.  But then, it’s not supposed to be.  It’s just the next step in legal marketing as we slip/slide down the slope to the gutter.  But as far as lawyers strutting around in hot pants goes, Jervis is kinda cute.

On the other hand, given the attention span of the twitter audience, combined with the depth of thought, few concepts are better suited to the needs of modern iPad users. 

In fact, I see this as the precursor to private binding arbitration via twitter, with each side getting 10 twits to make their case. twitpics to show their evidence and a decision within minutes and paypal to deliver the award second later.  Though brevity is the soul of wit, there’s nothing funny about this idea. Is this any less reliable a means of resolving disputes than our legal system? Think about it. 

During the quiet period between Julian Assange’s release on ridiculously high bail and his resting comfortably between television appearances to explain why he didn’t commit espionage against somebody else’s country, it seemed like a good time to take stock of the international diplomatic community.

They don’t want to be embarrassed again.

In the old world, some mush-mouthed United States Senator, say Joe Lieberman, would whine about he we needed a law to stop another Wikileaks fiasco from undermining our foreign policy and putting Americans at risk.  Do it for the children, he might say, though nobody could quite figure out what this had to do with children. 

But in the new, flat world, that’s not good enough.  As we’ve learned from Assange, an Aussie operating out of Sweden without a condom, revealing American diplomatic cables that call Ruskies Robin, not even Lieberman can fix the problem in the Senate.  There’s a big hole in the roof of international diplomacy, and it’s getting governments all wet. It must be patched.

In steps the roof repairman.

The United Nations is considering whether to set up an inter-governmental working group to harmonise global efforts by policy makers to regulate the internet.

Establishment of such a group has the backing of several countries, spearheaded by Brazil.

At a meeting in New York on Wednesday, representatives from Brazil called for an international body made up of Government representatives that would attempt to create global standards for policing the internet – specifically in reaction to challenges such as WikiLeaks.

The internet is certainly a flat world issue, unfixable by any particular country alone.  Sure, we can criminalize pretty much anything in order to keep some kid in New Jersey from upsetting world order, but when it comes to Aussies working out of Sweden, it’s not as easy.

CrunchGear feels threatened.

All of this went down on Wednesday, with Brazil’s UN delegation proposing “global standards” that would, in effect, regulate the Internet.

The proposal in the obtuse verbiage of the UN would:

convene open and inclusive consultations involving all Member States and all other stakeholders with a view to assisting the process towards enhanced cooperation in order to enable Governments on an equal footing to carry out their roles and responsibilities in respect of international public policy issues pertaining to the Internet but not of the day-to-day technical and operational matters that do not impact upon those issues.

No reason to get too wrapped up in the nuance of meaningless words.  After all,

The Brazilian delegate stressed, however, that this should not be seen as a call for a “takeover” of the internet.

I’ve little doubt that this is true.  The internet is greatest relief valve ever created.  If we didn’t have an internet, where people like me could write about problems with the legal system, they would have to invent it.  If I were in charge of public catharsis for the government, I would make sure that every person had the ability to tap our words on a keyboard and write out all the things that were problematic and frustrating.  Yes, that’s it.  Let it all out.

Sure, writing posts on a blawg, like this, is fun for the blawger, and maybe it’s turned a few heads along the way.  But the reach is limited, and it’s mostly preaching to the choir.  The substance is largely about long-known problems, and reveals little.  More significantly, to the extent that it illuminates anything, it’s diluted by the multitude of crap flowing onto the internet every second, whether marketing or overwrought emotionalism that panders to children and nutjobs. 

The internet keeps the nuts off the street, where they could do some harm.

But Wikileaks, on the other hand, has the stuff that only the real insiders know.  And don’t want anyone else to know.  We can post about, argue about, rant about, rave about the stuff of cops shooting people over nothing all day long.  That can’t be kept secret anyway.

Real secrets are another matter.  Where’s the Trilateral Commission when you need it? 

CrunchGear fears that they will pull the plug on social miscreants on the internet.

We’re all old cowboys in the Wild West, and we can see a train approaching in the distance. “What’s that thing, an iron horse? Eh, I’m sure my way of life won’t be affected one bit.” (Yes, that’s a Ron Bennington line.)

Sure it won’t.

It’s going to be fun in the future telling kids that we remember a time when you didn’t have to get a license to use the Internet, or that anyone and everyone was allowed to communicate online, even if they were anti-social miscreants.

This fear is misplaced.  They want anti-social miscreants online.  It keeps them off the streets. 

The governments of the world aren’t afraid of the mouths that roar or the children who write mean things about other children.  They are concerned, however, that the notes they pass around the room, intended for their own eyes only, become public.  That would impair their ability to do the important work of running our world, a job too difficult and involved for us to know about or appreciate.  If we possessed this information, we would be too stupid to realize why they do what they must do. It requires the paternalism of government to recognize the hard decisions, incisive characterizations, secret stuff between very important people, necessary to keep our world from imploding or exploding. 

If we only knew.  But we can’t.  We can, however, write anything else we want that will allow us to get all the angry things that might otherwise cause government aggravation out of our heads and onto our webpages. 

Just not their secrets.  There’s a hole in roof at the United Nations, and they’re going to fix it.  Don’t worry.  It won’t really do much to our use of the internet, but once it’s patched, government’s won’t have to worry about getting all wet again.

It’s possibly, no definitely, the best excuse around.  Stercus accidit.  There’s nothing to argue with.  There’s no blame to levy.  It’s perfect.

Even a curmudgeon can appreciate that stercus accidit.  We may not like it, It’s certainly not helpful, but it is nonetheless a universal truth.  No amount of snarling will make it go away.  We resign ourselves to that immutable fact.

Yet when someone hides behind stercus accidit, they appear to feel that they’re entitled to a free ride.  It’s not their fault.  They’re not to blame.  It just happened.  Wrongo.

Think of it like contract law.  You perform. I perform.  You do what you’re obliged to do and so do I.  One is consideration for the other.  It’s not an issue of moral culpability, but simple, basic quid pro quo.  It doesn’t require me to love you, hate you, think anything about you whatsoever.  Buy a pie from the bakery and you get a pie in exchange for a sum of money.  It’s got nothing to do with how deeply you care about the baker’s welfare.  You just want a pie.

What if the baker, harried that day, his kids bugging him for some shiny new gadget and his significant other complaining that he doesn’t sell enough pies to pay for Jimmy Choos, mistakenly grabs the salt instead of the sugar as he’s making the pie.  It was an honest mistake, hardly unintentional.  They look pretty much alike, and the bins are next to each other.  His assistant, similarly harried by his mother’s demand that he wakes up in time to make it to work on time every day, replaced the bins backward, so that the sugar ended up where the salt goes, and vice versa.  What a mess.

So you get home with pie in hand.  After a lovely dinner with good friends, you pull out the pie, set in a lovely Spode pie plate and walk it into the dining room.  Your guests ooh and aah as you place it on the table.  You slice it. You serve it. Your guests dig in.  They wretch.  It puts a damper on your dinner service.

So you go back to the bakery the next day, explain what happened.  The baker already knows. You’re the 3rd person to tell the story.  He offers a tepid apology (because you didn’t like it, not because he screwed up) and says stercus accidit.  He then walks away.

No, I have no beef with a bakery.  Dr. SJ bakes all the pies in my house, and does a wonderful job of it.  It’s just an example.

The sense of responsibility for for the fulfillment of one’s obligations toward others has been lost in the era of good feelings.  Not completely, as there are some who were not given a balloon as a child for losing, but mostly.  After all, he said he was sorry.  What more do you want?

The problem with having a really great excuse like stercus accidit at the ready is that it’s become a substitute for fulfilling one’s obligations toward others.  Most of us, even curmudgeons, can accept that stercus accidit.  We don’t ascribe moral culpability to an accident, nor demand blood in return.  However, your accident shifts the burden onto someone else, who bears the weight of your mistake.  As much as it may not be your fault, as in a deliberate failure designed to harm another, it’s not the other guy’s fault either.  The difference is that he fulfilled his obligation toward you.  You didn’t. Make good on it.

But this means you will lose something.  Some money.  Some effort.  Some self-esteem or prestige.  Bummer.  How terribly onerous is the burden of responsibility.  Yes, it can be a real drag.  And still, someone must suffer the consequences of failure, even if the cause of failure is stercus accidit.  If it was your stercus that accidit, then it’s your problem to fix.

Falling short, even to the point of total failure, of performing one’s obligations to others has become a pervasive problem in society, as people are working harder to make less money.  Things are cut too close, with no margin for error.  We live on a wing and a prayer, hoping that things work out well and nothing goes wrong.  While we know that things sometimes go wrong, our mind plays funny tricks and allows us to function where we believe we will be the exception.  We are exceptional.  Nothing will go wrong with us.

So when it does, we are unprepared to deal with it.  And strangely, it seems to work out most of the time.  People forgive that screw up.  People are conflict averse, incapable of walking into that bakery, asking to speak with the baker and telling him that his beautiful pie sucked.  Whether it’s because we don’t want to hurt his feelings by telling him the truth, or we would rather take the hit ourselves then put our psyche at risk by having the baker say mean things to us in response, varies.  Either way, people can’t bring themselves to stand up.  It’s scary.

So the baker walks away.  He feels that he’s fulfilled his obligation toward you when he apologized.  He’s actually miffed at you for bothering him; don’t you know the pressure he’s under?  Why is it always about you?  Why isn’t it all about him?

But the biggest problem is that the baker sold 27 pies, and you are 4th, and last, person to say something.  And when he walked away, so did you, fuming at the salty pie but unwilling to push it any further.  After all, you don’t want to act like mean person.  You don’t want the baker to think ill of you. 

No one is happy.  No one is satisfied.  No one was saved.  The contract failed.  When we engage in a problem transaction with someone, their response is to tell us all the difficulties they faced and had to overcome on their part.  They tell us how well-meaning they were, how they really wanted to do right.  They tell us stercus accidit.

Do you ever tell them how hard you had to work to earn the money you used to pay them?  Don’t bother.  They don’t care.  Their obligation ended with stercus accidit as far as they’re concerned.  Now it’s up to you to decide whether that’s good enough for you.  Are you willing to walk away, as if it’s a one-way street?

When the story first came out, it appeared to be a justified shoot.  Seattle Police Officer Ian Birk saw a man with a knife. He told him to drop it three times, and the man took an aggressive posture, then responded by lunging at him.  Burke fired four shots and 50 year old John Williams was dead on the ground.

The story began to change.

Preliminary reports that Williams lunged at Birk have since been retracted. “We dropped the lunging and advancing [allegations] pending further need for investigation,” says police spokesman Sean Whitcomb.

A witness told the Seattle Times, “His body stance did not look threatening at all. I could only see the gentleman’s back, and he didn’t look aggressive at all. He didn’t even look up at the officer.”

“The only thing we know for sure is the individual had a knife,” said Chief John Diaz at a press conference on August 31. “We know from audio recordings that the officer issued at least three commands for the suspect to drop his knife.” But Williams allegedly refused Birk’s orders. From approximately 9 to 10 feet away, Birk fired four rounds.

The knife, a 3 incher that was perfectly legal (and which later turned out to be closed), was in the hands of a partially deaf, Native American wood carver shuffling across the street minding his own business.  So when he didn’t comply with Birk’s comment, bang.  Then came the dash cam

Seattle officers and civilians have had a series of high-profile conflicts that escalated rapidly: on September 4, officers using a Taser on a man who later died; an officer punching a 17-year-old girl in the face after a routine jaywalking stop in June; Officer Shandy Cobane apparently stomping the head of a Latino suspect in April while shouting, “I’m going to beat the fucking Mexican piss out of you, homie,” as the man lay face down on the pavement (King County prosecutors declined to charge Cobane with a felony hate crime); a mentally disabled teenager allegedly beaten by three officers for jaywalking in July 2009 (exonerated of wrongdoing by SPD’s Office of Professional Accountability; the teen has filed a lawsuit against SPD and the City of Seattle).

“The inquest process in King County rarely leads to any form of justice whatsoever,” says James Bible, chapter president of the NAACP. “The families are rarely represented. The shootings are almost always deemed justified. There hasn’t been a single use-of-force complaint in the past couple of years that the SPD hasn’t deemed sustained—as in it never really happened.”

Despite my not really thinking much of Gerry Spence’s blogging efforts, it’s hard to ignore probably the most significant American lawyer alive today when he’s got something to say.  Much of it makes me cringe, as I tend to find the mystical, metaphysical or overly emotional remarkably unpersuasive.  That’s just my bias toward logic and reason.

Over an  extended  period, Spence has  offered posts that simultaneously paint him as the poor, despised, undeserving outsider, while embracing his victimhood as the catapult to his making him the advocate for the downtrodden that he is today.

So, poor me, I was rejected as a kid when I wanted so desperately to belong to a fraternity.  I was rejected from the legal fraternity when I failed the bar.  How about when I ran for Congress, and after that, when I tried to get a job as a law professor, and later, when I wanted to become a judge and was rejected for both of these positions by the structure in power?

I have never thought about this in this way before – but all of these were, in fact, clubs:  the fraternity, a club to be sure, the congressional and academic brotherhoods, and the political club that governs the judiciary.  You did not belong to the club, Mr. Spence.  You were an outsider.  You were not to be trusted, because you did not belong and we will not have you.

I almost cried as I read this, until I remembered that he’s got an awfully nice ranch in Wyoming for someone who has suffered so.  It might have had something to do with the number of shoes that poor, downtrodden Imelda Marcos had in her closet.  I bet Geoffrey Fieger didn’t have as many shoes.

Having told the story of his suffering, Spence reaches the punchline:

Rejection has been the greatest of all gifts I have received.  The power structure has it own wisdom.  I would not have been a good club member.

On the other hand, the power structure freed me to take them on.  Had I been a member of the club I would never have been free to fight for certain of the causes that have defined me. 

This is Gerry Spence’s gift, the ability to craft a story that weighs on our hearts in such a way as to make us ignore the logical leap to its point.  Rejection is a gift?  What the heck is he talking about?  We are the composite of our life’s experiences, both happy and sad.  Some days we get rejected. Some days we don’t.  Big deal.

Not just a gift, but “the greatest gift.”  Assuming he’s caught us feeling for him in the first place, the use of rampant hyperbole deepens our feelings toward him, overlooking the silly exaggeration because we forgive him his excesses.  After all, he’s a poor outsider, despised for this failure to meet the expectations of the evil power structure and relegated to being the loser, then fighting for the losers.  How could you blame him for a bit of exaggeration?

Remarkably, one should be left with the clear belief that Gerry Spence is a hero, having faced terrible rejection (the greatest gift), and yet growing stronger because of it, capable of facing the evil power structure on behalf of us, also the poor and downtrodden just like him.  Even if we don’t have a ranch.

As a mechanism to show others how to spin a yarn to take advantage of emotion in place of reason, it’s not a bad effort.  Mind you, there are some major factual gaps that one has to overcome to feel sympathy for Spence, as Fieger wasn’t exactly a pro bono defense.  But I suspect that most people will take this series of posts more literally.  That’s a problem.

To say that he’s gained from rejection, or that he’s somehow ended up in the place he belongs despite his attempted forays into the club would be fine.  Not terribly emotional or exciting, but accurate.  To say, on the other hand, that rejection is a gift, no, the greatest gift, is to suggest that we should invite and welcome rejection.  We should embrace it. That’s absurd.

There’s no glory in losing.  It happens, despite our efforts to win.  It’s not any more of a “gift” than anything else that makes you who you are.  It’s but one factor in a life. Do not believe that rejection somehow wraps you in some greater metaphysical worth than winning, or coming in somewhere in the middle.  They are all just parts of a whole that ended up making you who you are.

Whether Gerry Spence will end up as the most distinguished lawyer of our age is a matter for history.  He may well be.  But even the great lawyers tell stories that sometimes fall flat, or worse yet, are more directed at maintaining their mythos at the expense of conveying a lesson for others to follow. 

Certainly, the rejection series makes one feel empathy for the plight of Gerry Spence, and builds his character as the defender of outsiders, just like him.  Crafting stories that are carefully designed to aggrandize through self-deprecation seems to be a specialty of some TLC trainees.  But for those who read the words of the Great One and take them to heart, the net result is that you’ve been played. 

If you’re seeking uplifting stories, the ones that tell you that your failures in life shouldn’t keep you down, because you too can rise up like David to slay Goliath, you may find some comfort in Spence’s tale of rejection.  But chances are good that Goliath is going to beat you to a pulp, because you aren’t Gerry Spence, you don’t have his skills at hand and can’t reasonably expect the rejection in your life to turn you into the next Gerry Spence. 

There is a lesson to be learned from Spence’s posts, mostly about the use of story telling to manipulate those who think with their heart instead of their mind.  It’s a pretty good lesson, and it comes from one of the masters, even if this wasn’t one of his best stories.  But you will only learn the lesson if you look through the story and realize what Spence is doing, tugging on heart strings with a line of pap that would make Imelda Marcos blush. 

If you can’t tell the difference between a nonsense story and an emotional conclusion that requires a leap across the logical gap, then you won’t likely need to seek out rejection as your greatest gift.  Rejection will find you no matter what you do.

Terry Haddock says he wasn’t really Shannon Williams’ lawyer, though that didn’t stop him from taking a free from Williams.  But as he sat in the jail’s conference room where he “snuck” in a cellphone and recorded conversations, Haddock claims “he had to do it.” 

Do what? From the ABA Journal.

At issue is whether attorney Terry Haddock was acting as a lawyer for inmate Shannon Williams when Haddock carried a government-wired cellphone into the Douglas County Jail and recorded Williams allegedly orchestrating the movement of millions of dollars worth of marijuana.

Plus, a lawyer representing Williams in related civil matters tells the ABA Journal, discovery shows that the feds also wired an attorney-client conference room at the jail, collecting, all told, some 50 compact discs containing 300 hours of conversation. About 80 percent of that material is recordings of Williams and his lawyer, estimates attorney Ray Richards II, and the other 20 percent is spillover recording of other inmates and their lawyers who happened to use the room subsequently.

Haddock has told others he did so because Williams talked of eliminating witnesses, an accusation Williams denies.

One would expect that if Williams spoke of “eliminating witnesses,” then there would be some confirmation in the 300 hours of conversation recorded.  This is further undermined by other information.

Law enforcement officials say Haddock did so after becoming infatuated with a woman who initially was charged in a related drug conspiracy. She is a Zimbabwean immigrant who described herself as a former escort.

This makes it smell of Haddock selling out Williams for the benefit of the object of his infatuation.

Both articles leave huge questions about what happened here and why.  What doesn’t appear to be in issue is that Shannon Williams believed that he had retained Terry Haddock to be his lawyer, paid him some amount of money for that service, and spoke with him in that capacity.  Yet Haddock and the government contend that he wasn’t.

Few things undermine the integrity of the legal system than the idea that one’s lawyer isn’t one’s lawyer, but a government agent.  How can a criminal defendant ever be secure in the knowledge of undivided loyalty if a government agent can be allowed to feign the role of criminal defense lawyer while serving another master? 

This isn’t merely a suppression issue, though suppression would be the appropriate mechanism to challenge the conduct, but rather a facial attack on the constitutional right to counsel.  If this were permissible, then no defendant could be assured that the person across the table, the person he paid, the person upon whom he relies, is really his lawyer.  It’s nuts.

Haddock’s excuse, which is discounted for lack of evidence despite the obvious and huge opportunity to provide evidentiary support, raises the more interesting question.  If, and this is a purely hypothetical “if”, Williams had in fact stated that he intended to “eliminate witnesses,” what would that mean for Haddock as his attorney.

Clearly, a crime to be committed is not protected by privilege; there’s no comfort to be taken in telling a lawyer that you plan to commit a crime, whether perjury, murder or anything in between. The lawyer is no longer bound to maintain the confidence, but permitted to reveal it.  A sound statement of the rule is set forth in  Formal Opinion 2002-1 of the Association of the Bar of the City of New York:

Our conclusion is fortified by the confidentiality provision of the ABA Model Rules, which allows a lawyer to disclose client confidences “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm. “ABA Model Rule 1.6(h)(i) (emphasis added). The comment to this Rule provides that the lawyer may make disclosure to prevent harm she “reasonably believes is intended by the client” because “it is very difficult for a lawyer to ‘know’ when such a heinous purpose will actually be carried out . . .” Similarly, the Restatement (Third) of the Law Governing Lawyers allows a lawyer to “use or disclose client confidential information when the lawyer reasonably believes that its use or disclosure is necessary to prevent a crime or fraud” in certain circumstances. Id. § 67 (emphasis added); see also id. § 66 (permitting disclosure of client confidential information when the lawyer “reasonably believes that its use or disclosure is necessary to prevent reasonably certain death or serious bodily harm to a person” (emphasis added)). The Restatement also makes clear that “a client’s subjective state of mind[] may be difficult to ascertain” and therefore “the lawyer must make a reasonable effort to determine the relevant facts” before making any disclosure. Restatement, § 67, comment h.

In other words, if the lawyer “reasonably believes” that a client will, in fact, cause the death of another, then the lawyer is permitted to disclose that information.  Notably, the lawyer isn’t require to do so, but merely permitted.

But the permission extends to disclosure of the communication.  It offers absolutely no absolution to Haddock for becoming a rat against his own client, regardless of how sincere or heartfelt his concern.  Assuming that it happened, the most Haddock could do is inform authorities of Williams’ communication and walk away (and return the fee).  He cannot serve as a government agent against his own client.

Perhaps more hard information will come out during Williams’ suppression hearing, that will provide something, some tiny bone, that offers any sort of rationale that could conceivably justify the government’s use of Haddock as its rat.  What that might be eludes me, but the opportunity will be there should there be anything for the government to claim.

We’ve seen other cases where dirty lawyers try to work off their own cases by ratting out clients.  These lawyers are the scum of the earth, and if there is a deity, should end up sleeping in a prison cell with a very large, angry, horny person. 

However, there is no circumstance where a criminal defense lawyer can ethically or morally engage with a person who believes him to be his attorney if he cannot give that person his undivided loyalty.  That the government might think otherwise comes as no great shock, but it’s fundamentally wrong, no matter what comes out of this suppression hearing.

And let’s not even talk about the “spillover” recordings of other lawyers and defendants discussing their cases in the jailhouse conference room. 

The conservative movement is here with its new blog, Right on Crime.  Cute double entendre, no?  Right wing, right as in correct?  Well, anyway, it’s a star-studded cavalcade of the biggest names in the conservative movement since Bill Buckley passed, from Newt to Meese, Bill Bennett to Asa Hutchinson.  The only person missing is Sarah Palin, but they had a requirement that all participants are required to be able to spell Iraq.

What will be interesting about this effort is that there are a number of points where east meets west, the left and right find themselves holding hands and singing Kumbaya.  And then, there are some places where they don’t.  From the Statement of Principles :

As members of the nation’s conservative movement, we strongly support constitutionally limited government, transparency, individual liberty, personal responsibility, and free enterprise. We believe public safety is a core responsibility of government because the establishment of a well-functioning criminal justice system enforces order and respect for every person’s right to property and life, and ensures that liberty does not lead to license.

How is it that conservatives can turn a phrase like ensuring “that liberty does not lead to license.”  Is that a great phrase or what?  Liberals never turn cool phrases like that.

Applying the following conservative principles to criminal justice policy is vital to achieving a cost-effective system that protects citizens, restores victims, and reforms wrongdoers.

1. As with any government program, the criminal justice system must be transparent and include performance measures that hold it accountable for its results in protecting the public, lowering crime rates, reducing re-offending, collecting victim restitution and conserving taxpayers’ money.

2. Crime victims, along with the public and taxpayers, are among the key “consumers” of the criminal justice system; the victim’s conception of justice, public safety, and the offender’s risk for future criminal conduct should be prioritized when determining an appropriate punishment.

3. The corrections system should emphasize public safety, personal responsibility, work, restitution, community service, and treatment—both in probation and parole, which supervise most offenders, and in prisons.

4. An ideal criminal justice system works to reform amenable offenders who will return to society through harnessing the power of families, charities, faith-based groups, and communities.

5. Because incentives affect human behavior, policies for both offenders and the corrections system must align incentives with our goals of public safety, victim restitution and satisfaction, and cost-effectiveness, thereby moving from a system that grows when it fails to one that rewards results.

6. Criminal law should be reserved for conduct that is either blameworthy or threatens public safety, not wielded to grow government and undermine economic freedom.

The problem is that this isn’t a Chinese menu, where you get to pick one from column A and one from column B.  There are going to be some posts that will thrill the pants off you, such as this one about how  Texas has done things right by legislating sentences of probation for small time drug possessors. 

But then there’s  Newt Gingrich’s post about prisoner re-entry in Georgia.  I can just see Newt in his bathrobe typing furiously.  While the post argues strenuously in favor of supporting successful re-entry to avoid recidivism (good), it goes on to argue for the righteousness of the Prison Fellowship.  Yup, that would be Chuck Colson’s (of  Watergate fame) effort to turn prisoners to Jesus.

For the safety of our communities and the fiscal well-being of the state, Out4Life Georgia is a critical initiative. Every taxpayer in Georgia has a direct stake in achieving a better success rate for prisoner re-entry.

Working together, the faith community, community-based nonprofits, and the state can make sure that offenders get out of prison and stay out — for life.

Faith-based is fine, provided that it happens to be your faith.  Newt must be thanking his lucky stars that Chuck didn’t go Muslim in prison.

It seems that conservative political, yet quasi-legal, blogs find a huge following, must more so than straight law blogs or liberal-oriented blogs.  My guess is that’s because conservatives spend so much time at home alone, just so they don’t miss an episode of Glenn Beck. Naw, I’m just kidding; don’t flame me.

There are a number of areas where the interests of the Right on Crime intersect with the interests of Smart on Crime, not to mention those pesky details about the Constitution.  How this plays out has yet to be seen, but I welcome Newt, not to mention former drug czar Bill Bennett to the table.  I don’t expect that they’ll get my complete support, but I similarly don’t expect them to lose any sleep over that. 

On the other hand, to the extent that we share similar ideas and goals, I’m more than happy to have folks that I tend to otherwise find disagreeable on the team of the righteous.  Whatever it takes to make sense of this mess of a system works for me.

That’s not my conclusion, but his.  Will Meyerhofer, one time Sullivan & Cromwell associate turned namby-pamby, social working, psychotherapist, bares his soul at Above the Law.  I’m trying hard to control the urge to throw a box of tissues past him to the floor.

But Will’s statement, that he sucks at law, makes an important point.  Just because someone has graduated law school, even done pretty well at it, doesn’t mean that he’s cut out to be a lawyer. 

There are two components to Will’s statement, though he seems to only recognize one, or perhaps rolls them together.  It may be that a person simply isn’t good at applying the lessons learned in the real world.  Not everyone is cut out to stand tough in a courtroom, swirling stories around them and enchanting the jurors while making federal agents cry.  One can have the cite to every Supreme Court decision on the tip of his tongue, and not be able to make a persuasive closing argument.  So you suck at law.

Another may have the most discerning eye, capable of scanning a thousand pages of documents and in a flash discerning the slightest conflict, most obscure detail that blows a case wide open that would cause droopy eyelids to merely flutter and ignore.  Yet the idea of strapping on a tie one more day raises thoughts of putting a long, sharp needle through their eagle eye.  They too suck at law.

And there’s yet another, very different, issue that Will may yet come across.  While his focus is on young associates, dealing with the consequences of an ill-conceived decision to go to law school because they couldn’t stand the sight of blood, there are lawyers who are both good at, and enjoy, the practice of law during the nascent period of their career.  But times change.

Give yourself twenty, thirty years at the same thing, day after day, year after year, and you may revisit whether law is as much fun now as it was then.  Some people burn out.  The ability to keep that fire burning, that push to achieve against all odds, tends to be far stronger with youth.  Eventually, you’ve done it, and you get tired.  You wake up one day and the need to prove yourself, the desire to prove yourself, just isn’t there.  You suck at law.

Finally, there’s the natural desire to seek new challenges.  It’s not necessarily a by-product of boredom, but rather a desire to find something that gets your juices flowing again.  Trying another brilliant case, or drafting another comprehensive contract, no longer provides the sense of satisfaction it once did.  It was fun, but not thrilling.  You want to feel the passion of a first kiss, the thrill of the first jump, and the law no longer does that for you.  You find yourself yearning for a new challenge.  You suck at law.

Meyerhofer makes clear that admitting that you suck at law isn’t a failing, but a way to free oneself from the constraint of having endured three years of boredom and lunacy, a financial commitment tighter than any straightjacket and external expectations that make one feel as if the concession is akin to admitting that you are a fraud. 

There is nothing wrong with sucking at law.  Indeed, my guess is that we all do, at one time or another.  The real fraud is the one who desperately conceals it, hiding behind puffery and bravado to pretend that he’s above all the issues that confront lawyers, and pretty much anyone who has committed to a lifetime of hard labor.  At one point or another, we all suck at law.

This isn’t to say that we should throw off our shackles and burn our yellow pads.  For some of us, we ended up where we belong, for better or worse.  For others, we have made peace with the life we’ve chosen, even though every day isn’t as thrilling as the one before, or day one.  It’s not a bad life by any means, if you’re suited to it, and it offers some wondrous benefits.  Do you really think making womens dresses is all that much fun?

The notion of admitting it, if only to yourself, that this didn’t turn out to be quite what you thought it would, doesn’t make you weak or foolish.  It makes you human.  There really isn’t anything wrong with being human.  You haven’t failed because the whole lawyer thing didn’t turn out to be what you thought it would.  You made a mistake.  Stercus accidit.

The only thing to remember is that as long as you keep strapping on that tie every morning, and taking on the responsibility of holding another person’s life in your hands, you don’t have the choice of indulging your mistake at your client’s expense.  So long as you’re a lawyer, be a lawyer, even if it’s painful.  If you, after harsh reflection, can’t perform the job, then get out.  Now. 

And if you just don’t like it anymore, then figure out if there is something better out there for you.  Life is pretty long, and there’s no sense being miserable for most of it.