When  last we discussed Bruce Karatz, former CEO of KB Homes who was facing either probation or 6.5 years in prison, according to whose calculator you used, the question of what would become of Karatz had yet to be determined.  Judge Otis D. Wright II has fixed that.

Karatz was sentenced, as recommended by the probation officer, to five years probation with 8 months of home detention at his “24 room Bel-Air mansion.”  We know this because it was specifically pointed out by the government in its sentencing memorandum, which Judge Wright called, “mean-spirited and beneath this office.” 

“To promote respect for the law, the public must be assured that a wealthy, well-connected individual, regardless of his station, array of prominent friends and associates, history of private success or acts of public largess, will be subject to the same standard of criminal justice as those less fortunate,” prosecutors wrote.

Judge Wright did not appreciate the government’s take on things.

“But what was even more disturbing was the inflammatory language in the government’s report that if this court did not impose a harsh sentence that it was evidence of a two-tiered justice system, one of the rich and one for everyone else,” the judge said. “To invite public ridicule and scorn on this institution, I think, is unspeakable.”

Unspeakable though it may be, Judge Wright spoke it.  Loud and clear.  But if the court’s expression of its views up to this point remain somewhat, shall we say, obtuse, then consider this:

“I don’t care, sir, whether or not you have a pot to piss in,” Judge Wright said to Mr. Karatz. “What you get here is fairness.”

Now there’s something to carve into the marble pillars above the courthouse door.  And I have nothing further to say.

There was no doubt upon reading  Eugene’s post that it was a decision that warranted further discussion.  Seriously, a prosecutor pulling a birthday cake out of a bag during summation, complete with 8 candles to mark the birthday the deceased victim would never see.  It doesn’t get any more bizarre.

But before I could get off the phone and churn it out, along came Gideon at  A Public Defender  with a great post on the same case.   The stress point is that this frosted bit of outrageous drama is deemed waived on appeal because defense counsel neglected to object.  Post hoc, of course, defendant counsel (and I leave you to read Gid’s version to know where he places himself in the top 10 best criminal defense lawyers in the whole, wide, entire State of Georgia, claims the decision was “strategic,” as he didn’t want to draw additional attention to the cake.

Right.  Because there was a good chance that the jury wouldn’t otherwise notice a lit birthday cake for a dead child pulled out a bag during summation.

Apparently, neither integrity, honest nor zealous representation are part of the criteria for making that list of the best lawyers ever.  Then again, as long as lawyers are allowed to proclaim themselves the bestest ever, the criteria will remain a perpetual mystery.

But I already give away too much, since there no point in my writing about it when Gid’s already done the work for me.  As the title says, piece of cake.

In an almost surreal post at The Faculty Lounge, where law professors hang out to discuss deep, scholarly thoughts, the sort of stuff that they assume would only interest fellow academics, Drexel’s own Dan Filler ponders the age-old question, “is it ethical to let lawyers spam their comments just to get comments at all?”

Bloggers always see lots of spam in the comments – particularly in the older posts.  These days, we see a ton of comments signed by (presumably faux) Air Jordan, Uggs, and Viagra sellers.  The signature is attached to a link to a commercial site apparently seeking to drive up traffic via the Google algorithm.  When I feel the energy, I clean a ton of them out….but too often they live forever in our archives.  

Recently I noticed some  spam-like comments originating from law firms.    Perhaps too quickly, I erased some of them.

Ever generous, you will no doubt notice the parenthetical, presumably faux, because there are many people with the given name Uggs and Viagra.  Sadly, there may well be a few with the name Air Jordan, though they usually post comments under the name “Truth Speaker” or “John David Galt.”  But I digress.

Filler goes on to note, as examples, comments to a post about lawyers as presidential candidates, including one by the Rosenblum divorce firm about candidates writing books, completely off-topic, and this one:

Tobler Law – aka Tobler & Associates (your accident and injury team) – adds:

Thanks for the post! I had no idea there were so many lawyers as past presidents – I knew about Lincoln and Taft, but the rest I was clueless on.

I too was thrown by the clueless part, since it’s clearly truthful.  Yet Filler had questions.

Now, I recognize that this might not be spam.  Perhaps someone from Tobler was researching this question about lawyer presidents, came upon a two and half year old post,  was stunned to realize that Richard Nixon (to say nothing of Bill Clinton) was a lawyer, and felt compelled to comment.  Maybe Mr. Rosenblum thought this was the perfect setting to pontificate about the use of books as a campaign fund-raising tool.  But call me a skeptic.  I think that these folks are spamming to drive up their Google profile.

Skeptic.  As a lawprof, Filler should know as well as anyone how stupid trench lawyers can be, offering such foolish and tangential comments in their effort to show their interest and appreciation for scholarly blogging.  And yet Filler, rather than appreciate the outside interest, questions the bona fides of the comment.  Skeptic indeed.

Such heady concerns, raising the obvious question of how long it will take before this post is expanded and expounded to find its rightful place in the Harvard Law Review, earning Filler the admiration of his peers he so richly deserves.  Filler goes on to ask the really hard questions:

Is it ethical for lawyers to do this?  Is the strategic production of spam comments a form of advertising?  If so, is it in compliance with advertising regulations?  Are there other restrictions that might make such spurious comments improper?  Does it make the profession look bad?

What boggles the mind is that these tough questions reflect near-total isolation from what has long been a subject of discussion nearly everywhere else in the blawgosphere.  Is there any question whatsoever that this is spam?  Is there any doubt that the idiotic comments were posted for the sole purpose of gaining SEO juice?  Is it conceivable that even a lawprof would find it difficult to recognize that it makes the “profession” look like crap?

Well, apparently the answer to these “yes,” as reflected in the comments to Filler’s post.

Yes, I was a bit puzzled about those two comments, but (vainly, perhaps) chose to believe that they were just associates who were drawn to my brilliant post like moths to a flame…

The foregoing apologia was offered by Willamette Lawprof Laura Appleman, whose Yale JD obviously didn’t do enough to clue her in.

Then there’s the ironic thoughts of personal injury lawyer, Ron Miller,

I tend to publish all of these types of comments. Sure, they might be a little spammy but having commenters is good and while not particularly insightful, these somewhat hallow comments still add something to the conversation.

Ole Miss lawprof  Ben Cooper doesn’t see them as advertising, to which ethics lawprof  John Steele responds:

Ben,

Just for the sake of argument, let me offer a weak argument that some spam is misleading. When the spam comment is generic, off-point, and solely for the purpose of jacking up search engine results, is the comment at least insincere and therefor “misleading”?

To which Cooper replies that Steele’s is about the best argument one could make against “spam comments,” implicitly endorsing the ethics of spammers.  And naturally, rounding out the comments at the bottom is a spam comment, though not from a lawyer.

Sadly, this bit of silliness at the Faculty Lounge reflects two deeply troubling problems, that lawprofs allow, and thus encourage, the spam that the rest of us have been fighting to kill.  See Turk, the  Popehat guys, Carolyn Elefant,  Bennett and Tannebaum, all of whom have gone to great lengths in their effort to clean up the never-ending opportunity for scum to embarrass the profession.  All the while, lawprofs invite them in for dinner.  Thanks for all your help, pals.

More importantly, trench lawyers have long been concerned that the academic blawgosphere and practical blawgosphere rarely intersect.  While some of us, myself included, keep abreast of the lawprof blawgs, the fear is that they ignore real lawyers in favor on insularity and isolation.  This is a significant problem, given that law schools are already far behind the curve when it comes to providing a useful education to students and lawprofs chose to ignore the ideas and concerns of real lawyers in favor of chatting amongst themselves.

This is one of those posts which proves the point beyond a reasonable doubt.  For crying out loud, would it kill you guys to pay just a little attention to real lawyers?  Maybe then you wouldn’t have to ponder such ridiculous thoughts.

Some say it’s hard enough to be a criminal defense lawyer these days, what with the law becoming increasingly unfavorable, paying clients harder to find and the public unsupportive.  But consider whether your day in the trenches was as bad as Orleans Parish Public Defender Stuart Weg’s.

[Weg’s] arrest in Judge Ben Willard’s Section C on Dec. 4, 2009, when the public defender said he couldn’t believe Willard would not order the release of a man wrongly arrested because his name was similar to the suspect.

The man, Tyrone L. Claiborne, had been in jail for 10 days when Weg demanded his release.

“Go find Tyrone,” Willard ordered Weg, according to a transcript of the hearing included in Weg’s lawsuit.

Weg was booked by deputies with battery, criminal trespass and resisting arrest. The charges were dismissed in March.

The problem was that Tyrone L. Claiborne was the wrong guy, and the prosecution conceded the fact.  Most would anticipate a judge to find the error a good reason to release the defendant.  Not Judge Willard.

The dust-up took place over Willard’s resistance to release a man after prosecutors determined he was wrongly arrested.

The man, Tyrone Claiborne, had been mistakenly arrested on a warrant meant for a man with the same birthday named Tyrane Claborne. The wanted man had failed to pay his fines and fees while in the Section C drug court after pleading guilty to attempted heroin possession with the intent to distribute. 

Tyrone,  Tyrane.  An easy mistake to make,  After all, it’s not like they get the name right on the first few tries anyway.  But there remained a kink.

According to Weg, Willard asked whether the two men were related. “Upon discovering that the two are brothers, the judge declared that the matter was a ‘family affair’ and that he intended to continue holding Tyrone L. Claiborne until he… could cause his brother to appear before the court,” the lawsuit says.  

As long as they have Tyrone in a holding cell, it would be a terrible waste not to find out where brother Tyrane is hanging.  And if Weg wanted his guy out, let Weg get the story from Tyrone about Tyrane.  What’s so hard to understand?  Yet Weg took issue, for no better reason than Tyrone not being Tyrane.  That’s when things got bad.

In the Municipal Court gist, a deputy wrote that Weg “turn(ed) around and struck” the deputy and refused to leave.

Weg was taken to the ground during the incident, the suit says, and a deputy identified only as S. Livingston “positioned himself on Weg’s back and placed Weg in a chokehold around his neck.”

Another deputy, called E. Gray in the suit, “then hit and kicked Weg about his head and body as he lay on the court’s anteroom floor, causing him to suffer bruised ribs and other injuries.”

That’s the dust-up, which must be the New Orleans way of describing a kick in the head from a deputy.  Charges were brought against Weg for battery, criminal trespass and resisting arrest, but were subsequently dismissed.

Every lawyer is taught to obey the judge’s order now, appeal later.  The rule, however, presumes that judges don’t engage in an utterly unquestionable abuse of power by holding a concededly innocent person in custody for a completely improper purpose.  It makes for a very hard choice.  And a good kick in the head and ribs makes the choice even harder.

Perhaps Weg should have realized the potential for problems with Judge Willard.

After the incident, [Orkeans Parish Chief Public Defender Derwyn] Bunton sent a letter to the state judiciary commission reporting that Weg was the second public defender physically removed from Willard’s courtroom in 2009.

So stop complaining about how tough it is in your courtroom, and be happy that you don’t have to practice in Judge Willard’s.  Or have the grave misfortune of being concededly innocent there without a lawyer like Weg beside you.

H/T Packratt

Arguably, the most important piece of office equipment to a lawyer defending against accusations of financial crime in federal court is a calculator.  Not a fancy one, with sine, cosine and tangent, but your basic model, provided it’s got enough room on the screen for lots of zeroes.  That’s what we used to figure out what the government is talking about when it comes up with the bizarre and outrageous loss calculations tossed out to the judge at arraignment and again at sentence.

Bruce Karatz, former CEO of KB Homes,  found that out when he saw the government’s response to the calculations by his probation officer in the presentence investigation report.

On Wednesday [meaning today], the former chief executive is scheduled to be sentenced in Los Angeles federal court for his April conviction for fraud and making false statements in connection with an options-backdating scandal. Karatz, who the government alleges tried to make nearly $11 million from backdating, has denied wrongdoing and plans to appeal his conviction.

The U.S. Probation Office, an arm of the courts, has recommended that Judge Otis Wright give Karatz probation and eight months of home confinement. But the U.S. Attorney’s office wants a 6.5-year prison sentence.

A key issue in the case revolves around how much financial loss KB Home and its shareholders suffered. The Probation Office believes there was no loss. Prosecutors argue that the $11 million, representing gains Karatz made or hoped to make at KB Home’s expense, qualifies him for a multiyear prison term.

It’s unusual that the PSR rejected the government’s loss calculation, and this reflects either a great effort on the part of Karatz’s counsel or a particularly independent probation officer.  Calculating loss is required under the fraud table of the Sentencing Guidelines, but how one calculates loss is another matter.

The idea that the loss caused by fraudulent conduct be actual loss, the net amount of money gained as a direct result of the conduct, is archaic.  Actual loss is often tiny, even non-existent, in most cases, and that does the government no good at all.  The loss amount is used to determine the guidelines sentence, and by coming up with a loss in the multi-millions, if no billions, the government wields a huge club over the head of a defendant, forcing a choice when deciding to roll the dice and fight, of staring down decades in prison if the court adopts the government’s calculations.

The dispute is part of a growing debate over whether the sentencing system for white-collar crimes has come to rely too heavily on calculations of financial losses to fraud victims. Under the sentencing guidelines, legal experts say, an executive of a large public company convicted of a crime like securities fraud could be sentenced to life imprisonment on a first offense.

Pretty much anything a senior executive in a public company does will give rise to ramifications, to even the most unimaginative prosecutor, in the millions of dollars.  Spend $100 on a half decent lunch to befriend the decision-maker on a foreign contract, and bear the gazillion dollar consequences of the revenue derived from the contract over ten years, replete with assumptions of market hegemony.  Forget the cost of the meal.  Forget even the cost of performance of the contract, or market share.  Assume only revenue, with terms so favorable that your favorite deity would be asking for a job, and every person in the world signing up for your service, and then we’re talking loss.

It’s not that the government’s overzealous calculations necessarily turn judges’ heads.  Judges often have a far better grasp of the real loss than do prosecutors, who have little, if any, understanding of business, and whose flights of fancy can be ludicrous.

But some judges are balking. Last month in New York, U.S. Judge John Gleeson gave a convicted securities swindler five years even though the guidelines called for 17 to 22 years. “Here in the trenches where fraud sentences are actually imposed, there is a more nuanced reality,” he wrote.

But you can’t count on it, either.  Post-Enron, when Congress responded to public outcry and trebled the guideline sentences for corporate fraud because it got congressfolk elected, there were plenty of judges who felt the pain inflicted upon thousands of people by the greedy fraudsters.  Screwing with loss calculations was one way, an easy way, to jack up sentences to meet expectations that these criminals would suffer long and hard for what they did.  Some judges generally accept the government’s accounting.  It’s the new GAAP.

But not every financial and corporate crime meets the Enron and Madoff bar.  Many are trivial in themselves, often without any discernible harm to anyone, except through rhetorical gamesmanship and wild speculation.  Yet sentences equivalent to murder are in the offing.  I can’t tell you how many times I’ve heard a corporate executive mutter, “it’s not like I killed anybody.” 

The play for sympathy, ironically, is on the government’s side when it comes to loss calculations.  This is what they  had to say about Karatz:

The U.S. Attorney’s office here wants a 6.5-year prison sentence. In a filing, the prosecutors argue that confining Mr. Karatz in his “24-room Bel-Air mansion,” would suggest “a two-tiered criminal justice system, one for the affluent….and a second for ordinary citizens.”

A 24 room Bel-Air mansion (and no mention of the cost of his shower curtain)?  Well, clearly he should go to prison instead.  It’s not like he studied hard to get into good schools, worked hard to make his way up the corporate ladder.  Served well to achieve the position of CEO.  And was very well compensated along the way.  After all, it’s a crime in America to be successful.  Or so the government contends when it uses its very own version of GAAP to calculate loss under the guidelines.

There’s a reasoned debate over whether it makes sense, in a flat world or even just a flat nation, to license lawyers to practice on a state by state basis.  Federalism be damned, the lines frequently blur and the calls for help come from all corners of the United States. 

Granted, one can always travel pro hac vice, provided you find a local lawyer willing, for a fee, to offer his office as a mail drop and messenger service, and some occasional pronunciation advice (do you say vore dyer or voir dire?), but the situation in New York has long remained static.  We don’t get reciprocity because we don’t give reciprocity. 

Until now.  From the New York Law Journal :

Leaders of the New York State Bar Association have asked the Court of Appeals to permit in-house counsels who have a “continuous presence” in New York to be authorized to practice law here without having to pass the state bar exam.

The House of Delegates, meeting Saturday at the group’s Albany headquarters, approved a resolution asking the New York Court of Appeals to add a new Part 522 to its rules to create a registration requirement specifically for in-house counsel.

While relieving in-house counsels of the bar exam requirement and the Appellate Division character and fitness tests to see if they are in good professional standing in their home states, the new rule would require them to pay New York’s biennial $375 lawyer registration fee, to meet the state’s continuing legal education requirements and to be subject to New York’s disciplinary rules.

So how many of you will rush out to mail their NYSBA dues check immediately, now that you know that  the NEW YORK State Bar Association has stood up for the rights of lawyers from elsewhere to practice in New York?  Not all lawyers, of course, but only in-house counsel, because when a lawyer works for a corporation, that changes everything about his familiarity with New York law and competency to practice law.  No really, as explained by the NEW YORK State Bar Association president.

Stephen P. Younger, president of the state bar, said the recommendation, if adopted by the Court, would address an area of “major concern” at large corporations, namely, whether their in-house counsels in New York are engaged in the illegal practice of law when they advise their executives.

“This is about maintaining New York’s place as a center for national and international business and with encouraging companies to come here without worrying that their counsels are practicing illegally,” said Mr. Younger, of Patterson Belknap Webb & Tyler.

Because it’s not like we don’t have any lawyers admitted to practice in New York who could do the lawyering piece.

Wait a second, you say.  That statement smacks of protectionism.  That statement smells like you’re (I’m) advocating to keep foreign lawyers out so that the lawyering in New York is done by lawyers admitted to practice in New York.  Hah, you say, Greenfield is a protectionist!

“Hah!,” I say back at you.  I’ve set you up and you didn’t even see it coming. 

The principled rationale for state by state admission to the bar, assurance that anyone purporting to represent or provide legal advice to another, is competent to do so, doesn’t admit to an exception for a discrete group of attorneys based solely on the nature of their employment.  Are lawyers imbued with super-competence by virtue of being hired by a corporation as opposed to anyone else? 

This is a result-oriented proposal, designed to improve the corporate climate in New York at the expense of New York admitted lawyers.  It does not, by any metric, assure that a lawyer admitted in, say, Florida, is competent to advise on New York law.  Quite the contrary, it ignores the issue altogether. 

[NYSBA committee chair, Joseph E.] Neuhaus said statutes on the unlawful practice of law are “unclear” and there is not enough case law to clarify the issue.

“Nobody thinks that [serving as in-house counsel in New York for] one week is practicing law,” said Mr. Neuhaus, of Sullivan & Cromwell. “The issue is not having a transitory presence. The issue is having a continuous presence. We are talking about someone who was transferred here for two of three years.”

Of course, if they transfer here for years, then they certainly have the time and opportunity to take the bar here as well.  But that’s not what this is all about.

New York would require a reciprocity agreement with another state or country allowing New York lawyers to be admitted for the practice of law under similar circumstances.

Aha!  So the give-back is that other states, once New York has opened the door if only slightly, will reciprocate and let New York admitted lawyers pretend they have a clue about the laws and norms of other jurisdictions.

According to the committee on attorney conduct, 44 states and the District of Columbia have adopted rules permitting out-of-state lawyers employed by in-state entities to practice locally. In addition to New York, the states without reciprocity agreements are Hawaii, Mississippi, Montana, Texas and West Virginia, according to state bar officials.

Of course, the only group of lawyers to benefit from this measure happens to be in-house counsel.  While other states offer reciprocity of admission to all lawyers coming from states that do likewise, New York isn’t one of them.  Maybe this is the start of a change of direction for New York, recognizing that lawyers shouldn’t be married to only one state in their practice of law given that our country, our world, has grown increasingly flat.  Or maybe this reflects a discrete concern of the New York State Bar Association to favor in-house counsel.  Either way, it won’t do us a lick of good.

Florida, on the other hand, would never consider recognizing a New York lawyer’s admission as being worth spit, since that would mean every semi-retired New York lawyer would hang out a shingle in God’s Waiting Room while playing a round of winter golf.  At least they understand the true meaning of protectionism, a very principled rationale.

Steve Landsburg, an economics professor at University of Rochester, posts a Law School Admissions Test at his blog, Big Questions.  It comes in two parts, the first being the “test” itself.

Here I have a couple of urns. The one on the left contains 70 red balls and 30 black. The one on the right contains 30 red and 70 black.

While you weren’t looking, I reached into one of these urns and randomly drew out a dozen balls. As you can see, 4 of them were red and 8 were black.

 

 

Here are three questions that I think you ought to be able to answer if you want to be in the business of assessing evidence:

1. If you had to guess, which urn would you guess I drew from?
2. What’s your estimate of the odds that you’re right?
3. Do you think you’re right beyond a reasonable doubt?

Stop here.  Without overthinking the problem, the answer should be reasonably clear, because probability is what it is.  But Landsburg’s point isn’t about probability.  In his second post on the test, Landsburg recounts the reaction from some lawyers at a cocktail party.  One lawyer chose the counterintuitive route, which the others rejected.

The other lawyers all agreed that this was not a very rational thing to do — that the evidence was in favor of the right-hand urn.

“But by how much?” I persisted. After a while a consensus emerged: The evidence is meager; the odds might go up from 50-50 to 55-45, but “…as lawyers we are trained to be skeptical, so we would slant our best judgments downward and act as if the odds were still roughly 50-50″.

The correct answer is about 98%. Yes, the balls were drawn from the right-hand urn beyond a reasonable doubt. This story points out the fact that most subjects vastly underestimate the power of a small sample.

Notice where he slides seamlessly from statistics into the abyss?  I’ll repeat it in case you missed it:

The correct answer is about 98%. Yes, the balls were drawn from the right-hand urn beyond a reasonable doubt.

Landsburg has put the likelihood that a defendant committed a crime sufficient to overcome reasonable doubt at 98%.  You might think he pulled this number out of his butt, but he didn’t.  His put his statistical skills to good use in a different arena, citing to one of my favorite law review articles ever, Alexander “Sasha” Volokh’s “n Guilty Men,” 146 U. Penn. L. Rev. 173.

While 10 guilty men might indeed be the industry standard, the legal scholar Sasha Volokh has documented a long tradition that encompasses a wide range of numbers, some as high as 100 or more. It is difficult for me to believe that the largest of those numbers were ever meant to be taken seriously.

Seizing upon the ancient aphorism, an example of a concept memorialized in a variety of expressions to encompass the idea that we do not accept the conviction of innocents as the price for conviction of the guilty, Landsburg has taken them literally and used the 10 to 1 ratio as the measure of collateral damage.

While acknowledging that 98% suggests that some of those convicted are in fact innocent, and in a nation where so many are convicted, that’s a whole lot of people, he further explains (for the benefit of lawyers, I trust) that it’s not quite a straight two percent who are not guilty.

One commenter suggested that if we adopted a “98%” standard, then 1 out of every 50 people on death row would be innocent. That’s not true, because under that standard, we’d convict everyone who’s 98% sure to be guilty plus everyone who’s 99% sure, plus everyone who’s 99.5% sure, and so forth. So among the entire convicted population, the fraction of innocents would likely be well below 2%.

So rather than 2% of our convict population being innocent, statistical progression suggests that it would “likely be well below 2%,” a surprisingly imprecise expression given Landsburg mathematical bent.

Lest we think Landsburg a hardcore badge-licker, he offers some basis to suggest that his numbers far exceed what we’re staring at from jurors already:

Indeed, I learned from yesterday’s comments [based upon Wikipedia] that as an empirical matter, potential jurors appear to set their cutoff for conviction at something like 70-74% certainty.

70-74% certainty sounds like roughly the right standard to me in a world where the police can be counted on not to take advantage of that standard by falsifying evidence against people they don’t like. Given that prospect, though, I think I prefer something a little tougher — though not as tough as 98%.

With this background, I offer my Law School Admissions Test: Why is Professor Steve Landsburg completely wrong?

H/T Eugene Volokh

I’m ashamed to admit it, but I haven’t kept abreast of trends in polygamy.  I know, but I’ve got one wife and the idea of having more would make my head explode.  If you’re like me, however, fear not.  Jonathan Turley provides all you could possibly want to know, and more, about what’s happening in polygamy these days. 

Turley, “lead counsel for the cast of the TLC reality TV show ‘Sister Wives’ on possible polygamy charges in Utah,” is going international as an expert in polygamy, providing an affidavit “as a legal expert in the polygamy case before the British Columbia Supreme Court — a case that is being watched closely around the world.”  As an aside, isn’t it always the unassuming professorial types who turn out to be oddly knowledgeable about cutting edge sexual relationships?  Just saying’.

The affidavit itself it a brief two-pager, adopting under oath the content of his expert report.  But before you get to the report, one has to wade through Turley’s curriculum vitae, which weighs in at a whopping 40 pages.  How he managed to cut it down to the bare bones, I’ll never know.  When a lawprof burps, it’s a new line in the CV. 

The primary thesis of the report is that societal and legal views of polygamy, and Turley provides a definitional section to describe it in all its glorious permutations, are intellectually dubious and changing.  He argues that the long-held societal prohibitions reflect a  tyranny of the majority against bona fide religious beliefs and intrusion of government into personal choices, private consensual unions.  He argues that plural unions are not inherently dangerous, and therefore nobody’s business, much like homosexual unions.  Do these women look dangerous to you?

While it hadn’t occurred to me before, his point that societal norms are a’changing makes some sense, given that The Learning Channel does indeed air a television reality show about alleged polygamists.  This is how minds begin to change, seeing that the folks who engage in this conduct don’t have horns. 

Perhaps this is the start of a trend toward normalization of polygamy, though it hasn’t done much for Housewives in New Jersey.  Still, I can only imagine what comes next:

Pot Luck (Bravo, 8:00 p,m,) — The gripping story of a group of sexy marijuana farmers dealing with the highs and lows of hydroponics while keeping one step ahead of the laws. 

While nothing in Turley’s affidavit made me think that polygamy is a good idea for anyone who doesn’t put on magic underwear every morning, it’s certainly quite informative and relatively persuasive.

Considering that second (or third) spouse, and yes, ladies, multiple husbands (or polyandry, as we are informed) is on the table as well, in the near future?  Then this is a must read.  Whether your plan is the next great reality TV show or a stint in the local hoosegow, the time to bone up on poly-whatever is before you’ve said, “I do.”  And “I do, I do, I do, I (hmm, not sure about you; Well, okay) do.”

And he says :

Although yodle should not have put a picture on their micro site that would put their client at risk, if I am not mistaken, are you not paying for leads from people searching for your services. Who cares where it came from as long as it brings you a new cusotmer/ ROI.

When Mark Bennett received this comment from James J. McCarthy, IV, “Senior Account Executive of Business Development” at eLocallisting.com, he sent out an email to some friends asking whether they had posted the comment, because it seemed as if someone was goofing on him.  It seemed impossible that anyone would be so mind-bogglingly stupid as to leave a comment like this if they were serious.  And yet, there it was, McCarthy’s contribution.

Regular readers of blawgs like Bennett’s and mine will get the joke.  Some will find it funny.  Most will find it boring and unfunny.  They’ve heard enough of the joke in its many permutations.  “We get it,” the let us know.  “Can’t you move on already and get back to the stuff we like, lying cops, slimy prosecutors and dopey judges.”

Preaching to the choir has its pleasures, such as the positive feedback from those who agree with us when we’re busy picking low-hanging fruit.  There’s a story every day about one of the troika, cops, prosecutors, judges, going wild.  It’s not that we don’t care about readers’ interests, but that it gets tedious to post the same thing, over and over, with only the names changed, unless there’s some point to be made.  If the only point is that there are lying cops, slimy prosecutors and dopey judges out there, then read an old post and pretend it’s new.  It’s already been said.  You got it.  We got it.  Everybody got it.  Would the last guy out please shut off the lights?

But there is a battle going on within the legal profession that won’t interest some readers, but should.  Writing blawg posts may be great fun, and it may even be fun to read them once in a while, but the real deal happens in courts, big and small, around the country where regular people who don’t spend a lot of time reading blawg posts hire lawyers to save them from the system.  As would be expected, many people turn to their computers to help them pick their lawyer, even though it’s far from the best way to do so.  Indeed, it’s likely the worst, in my opinion, but then nobody asked for my opinion.

If you’re a lawyer who has spent years honing his skills, has his head on straight about what we, as criminal defense lawyers, do for our clients and takes personal pride in doing the best work he can, putting honesty and integrity ahead of self-interest, and being effective for your clients rather than bemoaning the injustice in the world, then you need to pay damn close attention.  You are a member of a minority group.

It’s not based on your skin color, ancestry or gender.  It spans all the immutable factors.  It’s the group of lawyers who think that the comment by James J. McCarthy IV is a joke. 

Who cares where it came from as long as it brings you a new cusotmer/ ROI.

New lawyers, digital natives, coming into the fold don’t care.  They care that the phone rings.  Old lawyers discovering the magic of the internet don’t care.  They care that the phone rings.  If the phone isn’t ringing, then they pay someone to perform the magic of SEO juice to raise their search results.  If the phone isn’t ringing, they pay someone to create a website for them, providing a list of reasons why potential new clients should hire them.  Not just that, but why they should hire them rather than you. 

This is a zero-sum game.  If a client hires another lawyer, it means that the client does not hire you.  One lawyer gets a fee.  Another does not.  The basis for getting a fee may be the quality of representation.  It may, however, having nothing to do with the lawyers’ skills, honesty or zeal to defend his client.  It may be based upon the manufacture of a fiction designed to entice clients to select you over another lawyer. 

What’s the difference?  As long as you get the client and do your best, isn’t that all that matters?  Many lawyers who do the dirty wrap themselves up in this rationalization, telling themselves that as long as they do their best, it doesn’t matter how they scored the case.  Like McCarthy, who cares where it came from as long as it brings you a new customer.

A cheating scandal has erupted at the University of Central Florida.  Hundreds of students are implicated.  On Good Morning America, some students were interviewed.  One said that there are enough unethical people in business already, and cheating is wrong.  Another said everybody cheats, and getting ahead by any means available is all that matters.  These are our children talking.  Who do you want to be right?

The legal profession is at a crossroads.  Maybe past the crossroads, but some of us hope not so far past that we can’t change course.  The implications reach well beyond any individual case.  They strike at the core of what we, as lawyers, do, and at the very justification for our existence.  If we, as a profession, give up internal integrity for the next legal fee, then every curse ever uttered about lawyers is absolutely right.

There will always be outliers to ethics, to honesty, to integrity.  As long as they are outliers, we can address them on an ad hoc basis, if we have the will to do so.  The shift on the internet has been that honest lawyers are now the outliers.  And if this trend is not stopped, is not reversed, we will be exactly what people think we are.  We will be the joke.

And that’s why guys like Bennett and I keep boring you with this stuff.  I’m sorry if it doesn’t make you laugh or cry, but your entertainment is not my primary concern.

Houston, better known as Harris County around them parts, has selected its first public
defender.

Alex Bunin, federal defender from the Northern District of New York.

From his bio at Albany Law School :

Federal Public Defender for the Northern District of New York. Appointed to establish that office by the United States Court of Appeals for the Second Circuit. Established federal defender offices in the District of Vermont and the Southern District of Alabama. Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1991. Author of articles on criminal law, criminal procedure, and the death penalty.

Excellent choice.  Your gain is the Northern District’s loss, and there’s probably no one more capable of establishing the office of Harris County Public Defender.

H/T Bennett