But for my general policy against the use of profanity in blawg posts, I would have added the word “bitches” at the back end of the title, because it’s the only word suitable to express the attitude of Cook Source  editor Judith Griggs.

Some readers will immediately jump to the conclusion that cooking is among my many talents and interests.  It’s not. 

Reading, however, is, and when I read a post like Ken’s at Popehat (who is not reluctant to use profanity in his title), I feel that it needs to be passed along and spread around the blawgosphere.  The reason is that Cook Source editor Judith Griggs is a worthless sack of excrement, and everyone should know.

It’s tempting to assume that the world of online cooking is somehow different than the world of online games, or online politics, or online gossip — that the culinary arts have made the transition to the internet without running afoul of the Greater Internet Fuckwad Theory. But of course they haven’t. Case in point: Cooks Source.

The bullet: Monica Gaudio wrote an entertaining and informative piece about how apple pie recipes changed over the ages. Then Cooks Source simply stole it: they ran it in their printed magazine without asking her permission or paying her. “Mistakes happen,” you might say. “Someone screwed up.” Think so? Then consider the response of Cooks Source’s editor when Monica complained. Monica asked for an apology and a modest donation to the Columbia School of Journalism (a nice touch). The editor displays a breathtaking combination of abject legal ignorance, swollen entitlement, hubris, and general Internet Fuckwittery:

Yes Monica, I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws. It was “my bad” indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.

But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!”

The web is considered “public domain”?  Maybe by children, scrapers and thieves, but not by editors of supposedly legitimate print publications, Judith.  It’s not that your former job at Housitonic Home doesn’t blow me away with your importance and power, but the whole “what constitutes public domain” issue isn’t left to Judith Griggs to decide.  Trust me, Judith, it’s not public domain around here.

Ken thinks that Griggs rationale for stealing Monica’s content, that she edited it, makes Judith Griggs an “entitled jackass.” I disagree.  If this were done by one of the “anti-copyright because ideas belong to everyone” ninnies, then “entitled jackass” would be appropriate.  That’s not the case here.

You see, Griggs works for a commercial enterprise.  That means they are in business to make money, and the way they make money is by creating content and selling advertising to food service businesses.  Ironically, this is how they describe their mission:

The Cooks Source mission is to educate our readers in sustainable sources of foods and products, farms, restaurants and businesses; and to assist in readers’ understanding in the joy of simple basic cooking, and healthy, delicious eating… with an occasional decadent delight.

Cooks Source assists food businesses, restaurants and farms in Western New England to market. And you can read about them here within these pages, or look for our publications at food specialty businesses throughout Western New England.

Sweet, no?  Cute little brown cursive writing, leaving readers with that warm, fuzzy feeling about “sustainable sources” of food.  No mention, nary a word, about Judith Griggs stealing the content used in the publication being sold to advertisers. 

How “sustainable” are the “sources” of a copyright infringer?  How about the umitigated arrogance of saying that everything on the internet is “public domain”? 

No, I don’t believe that calling Judith Griggs, or Cook Source, an “entitled jackass” is sufficient, though I find it difficult to come up with an appropriate phrase that doesn’t involve the use of profanity.  And as I said above, it’s my general policy not to use profanity, even when someone is as much of an arrogant, nasty bitch as Judith Griggs and deserves it.

My pal, Mark Draughn, better known as the WindyPundit , is trying to monetize his blog.  My other pals, the Avvo boys, have offered Windy a great deal, $10 bucks for every lawyer (and doctor!!!) who clicks through his blog to claim their Avvo profile.

Look, Windy is a good guy and works hard.  He’s nice to children and small animals.  He takes good photographs.  Help him.  Go now to WindyPundit and click on one of the Avvo buttons . 

By the way, if you haven’t claimed your Avvo profile yet, you’re being foolish.  If nothing else, don’t let it languish there looking sad and pathetic.  You don’t have to do much, but at least take control of your Avvo destiny.

Now go.  Please.  And don’t worry about me (even though Avvo never offered me a sweet deal like it offered Windy).  I’m sure Mark Britton, Josh King and Conrad Saam are doing well enough that they can buy me a beer out of their own pocket.  I’ll be fine.

If enough people click on Windy’s button, maybe Mark will buy me a beer too.

Since Larry Bodine put out his Red Alert post that the sky is falling because of the ABA’s Ethics 20/20 commission. there’s been a flurry of posts by legal marketers.  Some merely adopt the assumptions for lack of any actual knowledge, a defect that rarely concerns a marketer, while others try to counterprogram their message, eating their own to fill the void.  There’s no honor among thieves.

In the meantime, I received an email from my Houston buddy Mark Bennett  last night with a Google search that blew me away.  He searched for the phrase, “I founded this firm on a commitment to set the standard.”  The search returned 22,500 hits.  Lawyer websites all, using the same words to promote themselves.  By the end of the day, there may be more.

I feel a sense of guilt about all of this.  On page 12 of the ABA’s missive, three cases are cited.  The first, Stern v. Bluestone, was mine.  The point of the case was that a substantive writing by lawyers, which contains the lawyers name and identifying information such as office address, telephone number and website, is protected First Amendment speech and not a commercial solicitation.  It’s rather amazing that I, of all people, take ownership of one piece of the law upon which the marketers rely.

As becomes painfully obvious when a lawyer tries to prepare a website, there is only so much to be said about us.  I’ve ridiculed this in the past, noting that we are all “caring, experienced and aggressive.”  It’s a big inside joke.  The marketers, even the ones who have JDs after their name, which by definition means they either failed in the law or were caught doing the dirty and disbarred, spout formulaic rhetoric. 

They don’t want their buyers to know that they have nothing to offer.  They don’t want you to do a Google search.  Even accounting for variations on the phraseology, not to mention the occasional misspelling, there is absolutely nothing to be said that won’t be said by thousands of others.  No, you won’t be special.  Not at their hand, at least.  And these are the legitimate marketers, the ones imploring lawyers to be “authentic” and “genuine,” as meaningless and nonsensical as these words may be.

The problem isn’t that the vast majority of lawyers who employ the services of marketers to create their websites and blogs are receiving worthless, cookie-cutter services at significance expense, as if they are getting bespoke efforts.  They don’t do a Google search, as Bennett did, to see whether there are tens of thousand of other lawyers whose websites say the exact same thing.  The marketers anticipate that any lawyer foolish enough to hire them are similarly too lacking in technological savvy to realize they’ve been had.

The problem is that fraud is pervasive.  Online marketing has become a cesspool of lies, lawyers claiming to be something they aren’t.  There are the wiggle words, like “experienced,” the claims that take advantage of consumer ignorance and play on hope and fear, such as “we get over 90% of our cases dismissed,” or the absurd hyperbole, like the “leading trial lawyer in America.”  And it gets worse, with honors bestowed by non-existent organizations, or testimonials by first name only “clients” who rent the next desk in the rent-by-the-hour office space.

Lawyers are doing all these things.  Lots of lawyers.  They need business and do what they have to. 

The latest spin in the online juggernaut amongst those marketing to the legal profession relates to return on investment.  There is none, which presents a real problem when a lawyer asks the marketer what he gets in return for the marketers’ fee.  The best response thus far is that the ROI is intangible, and anyone asking is missing the whole point of the glory of internet marketing.  Let all the other lawyers make their millions while you stand on the sidelines asking stupid questions:

I mean, why not hold back when you know it will allow your competitors to gain a foothold in the relationship-building spaces we call Social Media?  Also, don’t go to any of those networking events you were intending to go to.  Leave those for your competitors too.

Networking and meeting people?

Leaving an impression with people?

Helping people understand what you’re like as a person?

Helping people see what a great listener and conversationalist you are?

No, no, no…don’t you dare do those things until you can measure every inch of them because it’s much wiser to let your competitors do it first.

Buy now! Don’t wait!  Don’t be left behind!!!  Some lawyers think they’re reasonably intelligent, yet they fall for such nonsense.  Sadly, far too many lawyers aren’t very smart and fall easily for every half-baked bit of silliness that makes them think they can make a buck.  And will allow, if not encourage, marketers to manufacture a completely false online persona if it brings them a case.  It may not be that the want to be a liar, but that everybody’s doing it and they don’t want to be the only lawyer who stands on principle.  You know, the lawyer out on the street selling apples while all lawyers with websites are rolling in dough.

So the ABA is now going to help.  In a sense, Bodine has the better part of the argument, as they will throw the baby away with the bathwater.  I have a blog.  I don’t intend it to be self-promotional, but it can certainly be spun in such a way as to make a credible argument that it is.  Whatever the mandarins at the ABA come up with will likely apply to me, constrain my speech.

I will suffer because others lie.  My speech will be constrained because marketers can’t control themselves.

Brian Tannebaum is willing to pay the price, and Antonin Pribetic decries the marketers’ complaints:

Quite frankly, I am most astounded by Bodine’s phrasing, “ethics burdens on marketing”. Ethics are not a burden, they are a blessing to those who value honesty, integrity and professionalism. These are the hallmarks of what it means to be a lawyer. Whether you are a practicing or non-practicing lawyer, unless you have voluntarily withdrawn or resigned from the legal profession, you are bound by your duty to your clients, duty to the court, duty to the profession generally, and duty to the public. If you’re a “former lawyer qua legal marketer”, until legal marketing actually becomes a recognized profession—subject to licensure, a code of professional conduct and regulation—ethics will remain elusive, unknowable and inconvenient.

I’m less sanguine about the end result.  The ABA group lacks anyone with any in-depth knowledge or understanding of the digital world as far as I can tell.  They will see it from a distance, seeing only the superficial.  There will be the entreaties from the marketers, which will be immediately recognized as vapid rhetoric, the sort that marketing lawyers eat up and then spit out.  Even inchoate lawyers, the babes in law school who think they are cutting edge, are being indoctrinated into this nasty world.

My expectation is that the ABA will address this very real problem with a very big bludgeon.  Not because they don’t realize that a scalpel would work better, even if they don’t know quite where to cut, but because it would be impossible to vet every website, every blog, every twit, for the nature of its content.  The volume renders it impossible to do otherwise.

As Brian notes, the marketers have brought this upon themselves.  They have brought this upon all of us, whether we’re intentionally marketing or not.  I am angry about it.  I don’t want my speech constrained because they’ve had a free hand in crafting an internet filled with lies and deception, but something has to be done about the ethical cesspool.

There will likely be proposed that a bunch of disclaimers to be placed on everything internet.  There may even be some submission and approval process, that will tie things up for long enough to make it impossible for blogs to stay current.  Heck, it may make it impossible to do anything unless the blog is truly anonymous, thus eliminating any conceivable claim that it’s self-promotional.  And yet it probably won’t fix the false claims and misleading innuendo that comprise the bulk of lawyer marketing based upon sufficiently vague claims.  Whatever the rules, those inclined to skirt them will do so.  The effort to circumvent ethics will never go away.

The crux of commercial speech is that it addresses the availability and/or quality of goods or services.  The argument that a blog showcases the quality of a lawyer’s thought is sound, regardless of whether it serves to market (despite the absence of any ROI) the lawyer’s services.  No one, including me, is going to be able to get away from that spin.

For a few years, some of us tried very hard to keep the lid on the self-promotional aspect of the internet, the race to the bottom, the next worst effort to score a case at any price.  During that time, I’ve watched once proud bloggers fall into the abyss, new bloggers by the score put on their hot pants and strut down the boulevard and well-intended but lost lawyers do what they think they must to survive.

Larry Bodine is right about one thing.  I can’t blame the marketers and ignore the lawyers.  Granted, they have been sold a pack of lies, but they are big boys and girls, theoretically capable of knowing better and making a choice to uphold the ethics and dignity of their profession.  No one forces a lawyer to lie.  And yet they do.  We will all pay the price for it.

Update:  Via Nino, marketer   twits (of course, even though she ) her reaction to this post:

Somebody at the University of California, Hastings Law School, thought it would be a really good idea to have a Center for WorkLife Law.  As is the wont of such novel approaches, it invented its very own wrong.

Family Responsibilities Discrimination (FRD) is employment discrimination against workers based on their family caregiving responsibilities. Pregnant women, mothers and fathers of young children, and employees with aging parents or sick spouses or partners may encounter FRD. They may be rejected for hire, passed over for promotion, demoted, harassed, or terminated — despite good performance — simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities.

The thrust of its director, Joan Williams, is set forth in her new book, Reshaping the Work-Family Debate: Why Men and Class Matter.  Williams, as discussed in an interview at the Careerist, seeks to lead the charge for work/life balance for the beta male.

But are men really complaining about the all-or-nothing workplace? How do you know they care about this issue?  
Men come up to me to talk about it all the time

But aren’t those men a self-selected bunch?
There’s a groundswell of men who are interested in the issue. And a growing number of younger men who are insistent on more work/life balance, who want more involvement in their children’s lives.

Let me see if I follow: There are men who would rather spend time with their children than work.  Not entirely shocking.  I know men who would rather play golf than work too, but Work/Golf balance isn’t nearly as catchy. 

Speaking of expectations, you make an interesting point in your book that white- collar men prove their masculinity by working long hours at the office, rather than getting dirty and sweaty like their blue-collar brothers. So is asking men to slow down and share the housework threatening the male ego?
Newsweek recently had an article that was a response to “The End of Men” [an article about the rise of women in the workplace] in The Atlantic. [Newsweek] used the term “re-imagining masculinity,” which I wouldn’t use. Our idea of a successful man is not someone who’s wearing a Snugly. So long as we define success as constant devotion to work, change will be difficult.

So us manly lawyer men do it to prove our masculinity because people will laugh at us if we wear a snugly?  Oddly enough, it’s not my idea that a successful man doesn’t wear a Snugly, though a man with reasonably sound judgment will only wear it inside the home or when attending classes at Hastings.

Do you ever get pushback from lawyers about your ideas to change the workplace?
The more traditional ones will sometimes say, “This is la-la land.” But the younger ones have a different view; there’s already a generation war in the law firms.

There’s a pretty good reason for that, Joan.  You see, nowhere in your interview do you mention, no less consider, what lawyers do.  We represent clients.  Clients put their lives and livelihoods in our hands and trust that we will care for them.  They walk out of our offices confident that there is a lawyer who will be responsible for doing everything possible to protect their interests.

There’s little new about the desire of the young set for work/life balance.  We would all love to have plenty of time available to do the things that make us happy, whether that means watching junior’s little league game or swilling that last beer.  Ironically, most of the young lawyers who “have a different view” don’t have children in need of their masculine devotion, so they can fill that spare work/life balance time with happy hour and maybe a quickie with a coed.  But if they don’t start young, the next thing you know is they get used to hard work and never come home for the excellent dinner Suzie prepared for his pleasure.

But what are you gonna do about the clients, Joan?  Who takes care of them when lawyers leave the office at 5 to make it home for dinner?

What’s striking is that this misconceived approach to professional responsibility has an actual home at Hastings Law School.  It’s like a shelter for beta males, a place where they can be surrounded by empathetic and understanding women who empower them to don their Snuglies.  “Oh yes, you are just as masculine as the lawyer who works all hours.  You are every bit as successful, and look dashing in the leopard skin print.”

This makes one point abundantly, and unfortunately, clear.  Hastings Law School is teaching its students that their career in the law exists for their own convenience and pleasure.  No need to work too hard, little boys, to prove your a man?  The trick is the tie-in to masculinity.  This has nothing whatsoever to do with masculinity or proof of success.  It has to do with the responsibility that comes with being a lawyer.

Think I’m being harsh?  Put this on your website:

I’m an experienced, aggressive lawyer, and I will be there for you.*

* Unless it interferes with a little league game, house cleaning, shopping, happy hour, a TV show I really like, the release of a cool new video game, or is after 5:00 p.m. or before 10:00 a.m.  And don’t even think of me working on weekends or holidays, whether secular or celebrated by any religion of more than ten people.

Let me know how it works out for you, you manly man, you.  And yes, that Snugly does make your butt look fat.

There’s a great solution available to all men who reject the idea that work comes first.  Don’t become a lawyer. 

Judge Royce Lamberth’s decision is brief, at only 8 pages total.  But there’s really no particular reason for it to be longer, since there was only one side to the argument, the government, and he couldn’t discuss the facts since they’re still under wraps.  You see, the issue was whether the government was required to provide notification, albeit belated, of the seizure of emails in a Foreign Corrupt Practices Act investigation.

It’s not surprising that the government won the point, particularly since they were arguing against an empty table.  The decision wasn’t a novel one.  But the decision reflects, again, a major failing of the Electronic Communications Privacy Act.  From Mike Scarcella at BLT :

What little is known about the dispute is contained in Lamberth’s eight-page opinion. The name of the e-mail account holder is redacted. There’s no indication about what the government is looking for and why it wants it.

Lamberth was asked to weigh in on whether a particular provision of the federal rules of criminal procedure applies to the Electronic Communications Privacy Act. Rule 41 requires an officer to give a copy of the warrant and a property receipt to the person from whom the property was taken. In the alternative, an officer is permitted to leave a copy of the warrant and receipt at the place where the officer took the property.

The government, Lamberth said, is not required under the act to give notice to the subscriber of an e-mail account that the government searched. Prosecutors satisfy their obligation when they leave a copy of the warrant with a third-party Internet service provider—in this case, Google.

As if Google cares.  For all one can tell from the decision, the email in question could be yours.  It could be mine.  We won’t know.  We may never know.  But as long as Google knows, then all is well with the world.

The decision falls into line with the mistaken approach of treating the digital world as if it was just like bootleggers of the nearly 100 years ago.  Emails, those dashed-off missives that are so quick, easy and expeditious, which we think are between us and our recipients, end up existing in multiple copies on multiple servers at multiple locations viewable by multiple people.  That’s just the way email rolls, even though it has no particular meaning to the sender or receiver.  Why bother our pretty heads with the technical details of electronic communications when all we want to do is send a stinking email?

But the many copies of our silly little email reside in the hands of others for as long as they choose to hold on to them.  The government doesn’t seek to take a peak at our copy of the email.  If they did, then they would have to let us know about it.  But they don’t, and wouldn’t, because there is no reason for the government to do so.  Why bother with us when they can go straight to Google and get Google’s copy?  What, you didn’t BCC Google when you hit send?  No matter, they get it anyway.

There’s a well-worn path from the US Attorney to Google, where the government just trots over and hands a piece of paper to the Google guy in charge of giving up their copy of your email.  The Google guy says thanks and gives your email up.  The law has been met.  You know nothing about nothing, and everybody is happy.

There may well be sound law enforcement reasons for the government to keep its email grab on the QT at the time it seeks its warrant.  But with other warrants seeking real world physical things, we learn of it when the warrant is executed.   Not here.  When the warrant is handed over to the Google guy, the government has completed all notification required.  Neither then, nor later, nor ever, is the government required to let the emailer know that his communications were seized.

These warrants have a box, which was mistakenly checked off by the Magistrate Judge in this case, and which gave rise to the need for Judge Lamberth’s intervention, that would require the government to provide notice, eventually, to the email subscriber.  Delayed notice is better than no notice at all, though not much.

The bottom line is that there is no requirement that the government notify the true party in interest that a warrant was ever issued or a seizure conducted, as notification is fully satisfied by providing it to the third party, wholly disinterested in what the government is doing. 

Google knows that your email was seized?  Close enough.  Good enough. Notification has been achieved.

Not quite as much fun as naked lawprof mud-wrestling, a grudge match appeared at Brian Tannebaum’s My Law License over the ABA (not the journal, but the actual American Bar Association) initiative to clean up the internet,   The ABA has formed a commission (oh dear!) called Ethics 20/20 to study “lawyer developmental tools,” which is the benign way of saying “marketing.”  Marketers are “alarmed.”

“There is no agenda,” said commission co-chair and Wilmer Cutler Pickering Hale and Dorr partner Jamie Gorelick. ” The paper is designed to reflect some of the questions that have been posed to us.”

But legal marketing consultant Larry Bodine said the paper is the first step down the wrong path for the ABA, which should be concentrating its ethics effort on lawyers who steal from their clients, not lawyers who use Twitter.

Now Bodine is a curious leader for this bunch of misfits, defrocked lawyers and snake oil salesmen.  He’s broken ranks from the crowd from time to time, demonstrating the rarest of marketing qualities, actual thought.  Yet this time, he’s decided to take the lead and rally the troops, and the troops are happy to follow.

The ABA is quietly gathering support to choke off lawyer marketing on the Internet by having the ABA Commission on Ethics 2020 Working Group distribute an “Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools.” 

Please join me in marshalling lawyers to stop this effort by the ABA to burden lawyer marketing on the internet with unneeded ethics obstacles.  Lawyer marketing needs less regulation, not more stifling ethics rules.

Free market lawyering. Yippee!  The comments that follow, from marketers and their sycophants, show the support.

“State bar regulations are hurting both the public and the legal profession. Anyone at the MyLegal conference heard the visceral reaction to the Virginia regulations. Anyone in Florida who has a website that requires multiple disclaimers before seeing anything beyond the homepage. I could go on,” said Conrad Saam, Senior Marketing Manager for Avvo in Seattle, WA.

“My personal opinion is that the rules insult the intelligence of every human being whom the ABA assumes can’t think for him/herself.  The realistic side of me knows it will take centuries for governing bodies like the ABA and state bar associations to see the light and remove or revise the barriers we’ve been fighting for quite a while,” said marketing consultant Nancy Myrland of Indianapolis, IN.   

“I get nervous when the ABA starts sticking its nose too deeply into an issue. How many times has the ABA started out saying it just wants to offer “guidance,” only for it to then decide to take on the role of Big Brother. The ABA just can’t get over being a bureaucracy. It loves to regulate and to lay down hard-and-fast rules. It may start down this road with the best of intentions, but who knows where it will end up. Plus, as Staff Counsel, ABA Division for Legal Services, Will Hornsby advises, these new tools don’t need new rules. When lawyers ask me what they need to know about ethics and social media, I give a two-word answer: ‘Common sense,’” said Massachusetts lawyer Bob Ambrogi.

We all get nervous when the ABA sticks its nose into anything, Bob.  We also feel compelled to upchuck when we see the product of legal marketing spewed across the internet.

Brian takes on the well-oiled marketing machine, where they show discipline that would shame the Spartan 300, arms locked together, voices chanting we shall oversell in unison.

Oh boy. The ABA wants to clean up the sewer that is online legal marketing. What has the world come to when the American Bar Association, the former pillar of the legal community that is now to social media and social media marketers like a screaming teenager is to a Taylor Swift concert, wants to take a look at the online swill?

I oppose further ABA involvement under one condition: lawyers and marketers stop lying. Lawyers and marketers stop creating images of lawyers that are hurting the public by creating impressions of the lawyer that are deceptive, false, and misleading. The ABA isn’t concerned that lawyers are advertising online – they are concerned that lawyers are lying online.

This is where things get dicey.  In the world of legal marketing, there’s no such thing as a lie.  They will tell you to their dying breath that their clients are the most wonderful, most caring, most experienced lawyer ever in the whole wide world.  No really, they are.  Every lawyer who engages the services of a marketer is the bestest lawyer ever.  You can tell because their website, blawg, twitter account, LinkedIn, Facebook, whatever, says so.  And they would never lie.  That would be wrong.

The marketers argue, and correctly, that ethics rules already prohibit lawyers from engaging in deception.  What they don’t mention is the problem with addressing the rules, that there are far too many websites and blogs for anyone to inspect for ethical violations, changing constantly, and that even if it was possible for regulators to do so, the claims are soft, subjective and difficult to prove false.  Of course, we all know they’re total crap, but knowing and proving are entirely different animals.

This is how marketers make their money, teaching lawyers how to say whatever will bring in the next lead.  Been a lawyer for six months?  Sure, that’s “highly experienced.”  Won a case once?  Sure, that’s “one of the most successful lawyers in the state.”  Returned a call within two days? Of course that says “deeply concerned and caring.”    Oh, come on.  What do you expect them to say about their client when there isn’t a single decent claim to be made?  Incompetent, greedy, nasty, sleazebags have to make their Mercedes payments too, you know.

Bodine didn’t care much for Brian’s post, and let him have it in a comment.

When you say “Anything that alarms marketers must mean that something having to do with honesty and integrity is getting too close for comfort,” are you referring to the marketers or the lawyers instructing them what to do?

You’ll be sorry when your blog is strapped with ethics rules that govern what you can and can’t say.

“Man up” and stand in favor of lawyer’s free speech on the internet.

~Larry bodine

Free speech, is it?  Excellent rallying cry, Larry.  We LOVE free speech.  We’re all for free speech.  But if there’s anybody killing lawyers’ right to free speech, pal, it’s the marketers. Tannebaum replies:

Welcome Larry.

“Man up?” Surely you jest. Perhaps you should take a break from your love affair with some of the worst violators of lawyer ethics on the internet, some of the biggest liars spreading their marketing snake oil and read some of my posts. Or do you not look in to the backgrounds of some of the people you promote?

And let’s not try to convince people that lawyers tell marketers what to do. It’s the other way around. Marketers make money off desperate lawyers who can’t make a buck by helping them “tailor” their biographies to stretch the truth.

And I won’t be sorry when my blog is “strapped” with ethics rules. I’ll look forward to the scrambling marketers and talentless lawyers who will be forced to leave the blogosphere because behind their marketing scheme, is nothing.

It’s a shame that it’s come to this, and worse still that it will fall into the hands of as irrelevant and disconnected an entity as the ABA, which will likely come up with inane rules demonstrating why a camel is a horse designed by committee.  But when you create a cesspool of lies and deceit on the internet and then argue that the odor is “success” rather than sewage. this is what happens.

Like Brian says, Larry, marketers started this race to the bottom, and we’re all going to have to deal with it.  As for me, I can live without trotting around the boulevard in hot pants (I don’t have the legs for it anyway).  Of course, that won’t do your clients any good.

Via Doug Berman, the Los Angeles Times offers an editorial on the nagging issue of President Obama’s failure to commute a single sentence, issue a single pardon, in his first two years in office.

Just as a president is entitled to pardon anyone convicted or accused of a crime, he is free to dismiss any petitions for clemency without offering an explanation. Indeed, he can choose never to issue any pardons or commutations of sentences at all. Still, it’s disappointing that President Obama so far hasn’t approved even one request for a pardon or other form of clemency.

It’s not that there is a shortage of claimants. Earlier this month, Obama formally denied 605 petitions for commutation of sentences and 71 pardon requests. It’s hard to believe that none of those was deserving of approval.

It’s not hard to believe.  It’s impossible to believe.  This doesn’t mean that McCain should have been elected, but that Obama has a different definition of audacity than I do.  It leaves one with the sad feeling that our only options are bad and worse.

The LA Times editorial goes on to suggest that Obama’s failure to exercise this presidential prerogative isn’t a reflection of his belief that not a single person in prison, not a single applicant, is worthy of his attention, but that the president fears being perceived as “soft on crime.”

Ideally, presidents would give great deference to the pardon attorney’s recommendations and take a liberal view of the clemency power, exercising it often and on the basis of clear standards. Their reluctance to do so likely reflects not the merits or demerits of particular petitions but the political liability of appearing soft on crime. That reality has led some advocates of more pardons to hope that Obama is waiting to announce grants of clemency until after next week’s election. If so, we hope his first exercise of his clemency power won’t be his last.

This may be correct, and if so, explains why his detractors aren’t nearly as crazy as some think.  If there’s any truth to the view that the man who won the presidency is so afraid of using his position to do what those who voted for him hoped he would do, then what purpose is served in electing him at all?  If the leader cowers in fear, then what?

No one voted for Barak Obama because they believed that he would be tough on crime.  No one voted for Barak Obama because he would out-Republican the Republicans when it came to righting the wrongs of the criminal justice system.  But even that doesn’t begin to satisfactorily explain his failure here, leaving him as the president who waited fourth longest (at the moment; this could change) to exercise this power.  Notably, two of the three who waited longer, though Obama is quickly catching up to them, are Clinton and the second Bush.

The LA Times hopes, as do those of us who believe that not everybody serving life plus cancer deserves it, that President Obama will have his epiphany after the midterm elections and pull out his pardon pen and start signing furiously.  But we do so for different reasons.  The Times appears to forgive Obama for putting politics above principle.  I just want him to do the right thing, even if those whose sentences should be commuted, or whose convictions should be pardoned, have had to sit in prison cells waiting quietly for him to put on his presidential man-pants. 

It’s not hard to understand the political point, nor its efficacy from a purely political position.  Sure, the President was busy waging a half-hearted health-care war and facing a congressional rebellion.  The last thing he needed, politically, was to offer more controversy to his “enemies” on a silver platter.

That, unfortunately, is the price of principled governance.  And principled governance takes audacity.

Or maybe President Obama thinks that everybody who has been convicted and sentenced belongs exactly where they are, and he hasn’t exercised his powers because he hasn’t found anyone worthy.  Maybe he doesn’t really care about the wrongfully convicted.  Up to now, there’s no evidence to the contrary.

When the Supremes created a bunch of warnings to be given suspects in advance of custodial interrogation, they assumed that would be the end of anyone spilling their guts to the cops.  After all, how much clearer could they be, starting with “you have the right to remain silent.”  Did they really need to include, “use it, you moron”?

Experience says they did, as defendants talk anyway.  In fact, it’s almost impossible to shut them up.  Lawyers tell them constantly to say nothing and invoke their rights, and still they talk.  Yes, Miranda was not clear enough.

But in the County of Queens, New York, former politician, appellate judge and now District Attorney Richard Brown doesn’t want to take any chances.  While the Supreme require the administration of the warning, nowhere do they say that Brown can’t start off with a warning of his own.  From the New York Times :

But in Queens, prosecutors take an additional measure, which is not used in other boroughs. Before an interview is conducted, a prosecutor reads defendants a prepared script, notifying them, among other things, that they will have an opportunity to give as much information about their alibis as possible and that the office will investigate anything about the case they request. The script also instructs defendants that this is their only chance to speak with the prosecutor before arraignment.

After these remarks are read, the defendants are read their Miranda rights, as required before any suspect is questioned.

According to Brown, it’s not that they’re subtly persuading defendants to try to talk their way out of the arrest and prosecution (as if defendants would ever try to do that), and in the process creating statements that “can and will be used against” the defendant.  No, no, no.  Brown cares deeply for justice.

“The purpose of the program is to determine the truth at the earliest possible moment,” Mr. Brown wrote, adding that it did not matter if the suspect’s statement hurt the prosecution’s case.

“It was out of these concerns and with the goal of doing justice that the interview program was born, to join the other things that my office does to make certain that we get it right,” he wrote.

Is this an empathetic guy or what?  Unfortunately, some judges don’t think the use of this script to massage a statement out of the quiet defendant is as thoughtful and fair as Brown does.

The issue received renewed attention after a judge questioned the ethics of the process in Queens, and the district attorney’s office responded by filing a lawsuit against the judge, Joel L. Blumenfeld, of State Supreme Court in Queens.

Justice Blumenfeld said he was concerned that part of the script could be a misrepresentation that persuades the suspect to talk, a sentiment shared by some defense lawyers in Queens.

And the last thing Brown needs is a judge who isn’t on board with the program, leading to the action against Justice Blumenfeld.

The Queens district attorney’s lawsuit against Justice Blumenfeld is an Article 78 petition, a device used to challenge the actions of an administrative agency or court. It asks that Justice Blumenfeld be prevented from discussing, as part of a decision on whether to suppress a statement, whether the interview program violates ethics rules. Queens prosecutors say a suppression decision is not the right forum for that discussion.

In short, Brown is trying to obtain a decision from the Appellate Division dictating what a Supreme Court Justice may state in his own decision.  If this works out, I plan to argue against judges using the word “denied” ever again.  It hurts people’s feelings.

The problem is fourfold, in that it not only serves to pressure a defendant to speak rather than exercise his right to remain silent (“this will be your only chance”), but it misleads a defendant into believing that any exculpatory statement will be in his best interest, when in fact a false exculpatory will most assuredly be used against him, it happens when a defendant (especially an indigent defendant) is unrepresented and the time used to interview the defendant delays the assignment of counsel and his appearance before the court for arraignment. 

And why is Brown so adamant?  Because it works.

Since the program officially began in 2007, of the more than 6,000 people whom Queens prosecutors have attempted to interview, three-quarters gave statements. About a quarter of those made confessions.

Notice that this program has been going on since 2007?  Since that time, not a single statement has been suppressed on the basis of the script.

A judge has never thrown out a statement given in such an interview on the basis that the program was improper, the Queens district attorney’s office said. Several judges, however, have been critical of the procedures used in Queens, especially the prepared remarks.

Of course, judges can be as critical of the program as they want, provided they don’t actually act upon it.  One judge tried, adopting the position of former prosecutor, judge and current judicial hearing officer, Thomas Demakos. Inexplicably, after suppressing a statement, he withdrew his decision and allowed the statement. Go figure.

As for the “organized” defense bar, nary a word of criticism (forget about action) has been heard until this Times’ article:

“What differentiates Queens is the script and the trickery,” said George R. Goltzer, the president of the New York State Association of Criminal Defense Lawyers. “They’re tricking these folks into giving up their rights, and they’re delaying their access to the attorney.”

No doubt that’s got Brown shaking in his boots.  Trickery! Take that, you prosecutorial fiend.

What’s quite amazing is that this procedure, clearly designed to elicit statements from unrepresented defendants during custodial interrogations by carefully influencing their exercise of their constitutional rights and suggesting, ever so artfully, that they have a chance to talk their way out of prosecution (or into prison) has never been properly challenged, approved or rejected. 

And yet the only person doing much of anything about it is Queens District Attorney Richard Brown, who knows how to protect his turf, to stop Joel Blumenfeld from being a judge.

Update:  And a paragraph from a brief by our hinterlands correspondent, Kathleen Casey:

Voluntarily or not, people subject to interrogation talk.  Investigators are trained to bear down on and intimidate suspects with psychological pressure to talk from the first moment of an encounter. See generally Miranda v. Arizona, 384 US 436, 445-458 (1966), in which the Supreme Court recognized, astutely, that “[i]nterrogation still takes place in privacy.  Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.” 384 US at 449.  Police interrogation manuals freely explain that the “‘principal psychological factor contributing to a successful interrogation is privacy — being alone with the person under interrogation'” Id. quoting Inbau & Reid, Criminal Interrogation and Confessions 1 (1962).  The Court documented “representative samples of interrogation techniques” and concluded from them that “the setting prescribed by the manuals and observed in practice becomes clear.  In essence, it is this:  To be alone with the subject is essential to prevent distraction and to deprive him of any outside support.  The aura of confidence in his guilt undermines his will to resist.” Id.

It’s not like this crazy notion is anything new, kids.  We try to shut them up.  They try to make them talk.  Inertia is on their side.

When I first heard that Warren Redlich, a DUI lawyer up in Albany who blogged for business, was running as the Libertarian candidate for governor of the State of New York, I chuckled.  Talk about an endeavor without a payoff.  Of course, I had no idea at the time that the alternatives would be a zombie and the only one of Mario’s offspring who got his good looks.  Suddenly, Warren doesn’t look nearly as silly.

Apparently, others are concerned about Warren as well.  In order to screw with him, this appeared:

There are places no one should go, and this is one of them.  Is there a word, lie, defamation, libel, that captures just how twisted this is?

The purported basis for this “attack” is a blog post of Warren’s that questions the prevalence and hypocrisy of Puritanism in America.

The story also hits on how Puritanism is still so prevalent in America. The greatest love interest in the history of romance is at least arguably Juliet from Romeo and Juliet. Juliet was 13 years old. For some reason females become fertile in their early teens and peak before the age of 18. You would think those who believe in the theory of evolution would see this as the design of the species. And in an interesting alliance with Darwin, shouldn’t religious people (and not just those in cults) believe teenage girls should be sexually active (in marriage of course), as that would appear to be the intent of the intelligent design? Instead both groups appear to be together on the opposite side.

Another take is the notion that men who find teenage girls attractive are perverts. If you look at literature like Shakespeare, and at some historical figures like Sir William Johnson (a prominent pre-revolutionary leader in New York), you get the impression that it used to be normal for men, even much older men, to be interested in teenage girls.

While this isn’t something I would have written, and I frankly find it distasteful and, well, wrong, the flier is just outrageous.  Rough politics is hardly unheard of in New York, but this goes beyond the pale and hits a new low.

Warren blames the Paladino campaign for the flier.

Redlich said Paladino was responsible for the ad, without backing up this claim. Paladino spokesman Michael Caputo rejected it on Sunday.

Redlich has said his goal is to get more votes than Paladino on Tuesday, which would give the Libertarian party the second highest spot on the ballot, a big advantage in voting, just below the Democratic Party.

The Paladino campaign denies responsibility.

“That would be like Bill Clinton jabbing Pat Paulson in the 1996 New Hampshire primary,” Caputo said, referring to the joke campaign of Paulson, a comedian. “Never wrestle the comic relief _ you just get clown white smeared all over your suit.”

However, one-time Nixon and Paladino campaign strategist Robert Stone, rather than disavow the flier, argued that it was fair:

Roger Stone, a former campaign consultant to President Richard Nixon who now advises the anti-Prohibition party candidate Kristin Davis and once worked for Paladino, but no longer does, said neither he nor the Davis campaign produced the mailer. But Stone defended its content.

Stone said Redlich has “exotic views on sex with teens,” citing postings on Redlich’s blog. Stone also said Redlich is “crying crocodile tears” after calling Davis a prostitute, when the former Manhattan Madam has repeatedly said that although she ran a prostitution enterprise, she was never a prostitute.

The minor party candidates in New York have been appreciated for bringing some fun moments into an otherwise moribund campaign.  Heck, anything is better than being forced to watch Paladino’s face of death on the telly, and no one will ever forget the Rent Is Too Damn High candidate, whose party name alone said all that needed to be said.  But this gutter politics, outright defamation, goes way too far.  Way, way too far.

Given the views of many in the criminal defense community toward sex offender registries, the gross over-reach of sex offender laws and designations, and the unreasonable prohibitions heaped on those given our modern day demonization, there aren’t many criminal defense blawgers who wouldn’t be staring down a flier just like this should they run for office against someone sleazy enough to smear a candidate in this way.

What cannot be tolerated is the inability to express oneself in the blawgosphere on these controversial issues without exposing oneself to such a wholly unjustified and flagrantly false smear campaign.  To say that whoever did this is a disgrace is insufficient.  The line has been crossed by a mile.

From Grits for Breakfast, the Lubbock Avalanche Journal provides insight on the experience of the Lubbock County, Texas, Special Needs Defender. 

Since November 2009, the office has received 367 qualifying referrals out of 1,777 total referrals.

Of those 367, 208 were accepted, according to data from the defender’s office.

The office represents defendants who are charged with felonies or Class A or B misdemeanors, are indigent and have a qualifying mental health illness or condition like schizophrenia, bipolar disorder or major depressive disorder.

An underlying assumption of the criminal justice system is that people are relatively sane.  We assume that people perceive the world around them in a somewhat realistic way, and that the incentives upon which the system is based will influence their decisions.  This doesn’t work at all when a person suffers from mental illness.  The only aspect of the system that applies in any way is their loss of freedom, protecting others from their actions but doing nothing to prevent it from happening again.

The idea behind the Special Needs Defender is both the appropriate defense of those with mental illness, something that many lawyers are incapable of both identifying and delivering, even if they are sensitive to the need, and providing the ancillary psychological/psychiatric care needed. 

Special needs defendants need more services and attention while in jail than anyone else, said David Slayton, director of court administration for Lubbock County. They need attorneys who are trained in handling those needs because the legal process gets bottled up even more when attorneys don’t know how to handle their clients.

The Special Needs Defender’s Office was able to provide that legal representation without having to expand the county payroll by utilizing private attorneys trained to handle special needs cases, Slayton said.

The office works as a central hub, coordinating with private attorneys and the Lubbock Regional Mental Health Mental Retardation Center.

Both the need for, and efficacy of, this combined delivery of legal and mental health services seems to be so clear and obvious that it’s disgraceful that this hasn’t become an integral part of the criminal justice system decades ago and across every jurisdiction.    In addition, it points to the need to train judges in the impact of mental health, as my experience is that some judges “get it” while others couldn’t care less and see the mentally ill or the intellectually challenged as mere annoyances to be dealt with swiftly and harshly.

One might assume that the mentally ill are “found” during the screening process in jails and prisons, and then provided with appropriate treatment.  Neither is necessarily happening, even where the screening process is done with good intentions.

Slayton said the old mental health screening process wasn’t good enough. Jailers were responsible for asking a few screening questions and didn’t have access to inmates’ state mental health records. “Twenty percent of the people (screened) have mental health issues,” Slayton said. “That would be 20 percent we were missing.”

The screening process in the past was so rudimentary it didn’t catch a lot of the people it was intended to, with questions like “what season is it?” Gerlach said. “If you had an IQ of 50, it was probably going to point that out. It might point out somebody who was in an acute psychotic crisis,” Gerlach said. “Somebody can be pretty psychotic and hold it together long enough to get through something like that.”

The need for programs like this seems manifestly obvious, both from the perspective of helping those with mental illness and preventing harm to society and recidivism.  There doesnt appear to be much call for extensive discussion as to the reasons why, except to wonder whether any competent jurisdiction wouldn’t initiate a similar program. 

This is, without a doubt, a win-win for all involved, and every jurisdiction should have a program to address the special needs of the mentally ill and intellectually challenged who find themselves in the criminal justice system.  To ignore or deny it is inexcusable.  Society is no better off by treating the mentally ill as criminals.