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The Cutting Edge

In a time of universal deceit, telling the truth is a revolutionary act.

George Orwell

Chatting with another criminal defense lawyer yesterday, one who has a decade on me in the trenches, we talked about the truth and what’s become of our fellow “gladiators”. Between spin, sugar-coating and outright lying to avoid a harsh reality, deceit has become essentially a universal norm. Despite our self-image as tough, hardened to the choices we make daily in the trenches, even criminal defense lawyers have come to cherish deceit in the name of getting along, ruffling no feathers, being liked, offending no one.

Following a post here yesterday, a reader recommended it, twitting that it was “edgy”. What made it edgy is that it was blunt and clear, no equivocation or apologies for saying what it was meant to say. I asked my lawyer friend what happened to us, that makes it edgy to speak one’s mind without trying to soften the blow, or the point. How did we reach the point that sugar-coating is the norm, and anything else is considered edgy, even harsh?

We’re not very good at hearing the unpleasant news that someone, somewhere, disagrees with us. Whether it’s that someone doesn’t like us very much, or thinks we’re dead wrong, or merely disagrees, our new-found sensibilities demand that if we express it at all, and many wouldn’t even think of expressing an actual idea for fear that it would boomerang and shine a bad light on them, we are required to do so in a way that makes it palatable. The idea of just saying so is outrageous.

I’ve often called the slackoisie “teacups”, too fragile to hear anything critical without cracking into a million shards. They love to hear how wonderful they are. They can’t bear anything else. But this trend isn’t just a slackoisie issue; it’s become increasingly pervasive. The old maxim, if you can’t say something nice, don’t say anything at all, was taught to every child when engaging in polite conversation. It was not, however, meant to spell the end of honesty when engaging in substantive commentary on issues of significance. It was to avoid creating an awkward moment at the tea party.

While dealing with comments in the post yesterday, the two subjects of the post, Jason Falls and Tamar Weinberg, complained that I was being unfair to them. The issue at hand was whether bloggers owed PR people, who approached them with unsolicited pitches, a duty to be nice and polite to them. I thought not. They disagreed, but their complaint was that I was too harsh on them, that we should all play nice with each other. Their comments were couched in dulcet tones of peace and reconciliation. Mine not so much.

The conciliatory words in the comments here belied the truth exposed on twitter. After Falls issued a call to arms to the PR crowd, one responded by twitting :

That’s rich! @ScottGreenfield (A LAWYER!) is questioning the morals & ethics of @Tamar & @JasonFalls on PRs vs Bloggers

Put aside that he completely missed the point of the post, which wasn’t about morals or ethics, since it’s not like PR people can be expected to easily follow language, and note that his thrust was A LAWYER would question a PR person. Hah! But then, it’s not like Jason or Tamar have any say over what their followers think, and the mere twit by a third party in no way suggests their agreement.

On the other hand, Tamar’s responsive twit thanked him for the laugh. Falls twitted back that he was Falls’ new hero. The twitterer may be a moron, but at least he had the guts to talk straight. Tamar and Falls, unfortunately, was revealed as cowards and liars. Though I never questioned their morals and ethics, their own words belied their deceit. If they hate lawyers, have the guts to say so. If they want to call me a “twat”, then do it. But neither had the guts to say what they meant here. It was all sugar-coated nonsense, concealing what they really thought.

One of the reasons I began Simple Justice was as a vehicle to express ideas. Not to make anyone love me (or even like me, as the case might be), to “engage” with anyone, to entice potential clients to hire me. This is about straight talk, even if it means that someone’s feelings are hurt. It’s not for the purpose of hurting feelings, but for the purpose of speaking the truth as I see it. Your mileage may differ. If you find unvarnished commentary too harsh for your sensitive eyes, then this is not the blawg for you.

But if you want to speak out, whether it’s in agreement with me or disagreement, don’t lie. Don’t feign being conciliatory when you mean something else. And if I find out that you’re lying, expect me to call you on it. It was my opinion that Tamar Weinberg and Jason Falls were totally wrong, but I had no reason to question their honesty. Now, they’ve made it clear that they weren’t being honest. They might call it being “respectful”. I call it being deceitful. Tell the truth, whatever that truth is to you. It would have been a far more interesting discussion had they told the truth.

And if you can’t take the truth, then shield your eyes, avert your gaze, look elsewhere for something to read. You will most assuredly find Simple Justice way too edgy. And don’t urge me to join you on the shelf with the other teacups.

H/T Seth Godin, for the Orwell quote (irony duly noted).

Advice Between Friends

Murray Richmond is the last of the old-time gunslingers. Back in the days when criminal defense lawyers were divided up as “trial guys” and “law guys,” Murray was the epitome of the trial guy. I’ve known him for more than a generation, and learned things from Murray that could not have been learned from anyone else. It’s not that he’s the perfect lawyer; no one is. But there are some things Murray does better than anyone else.

Over a half century of lawyering in the Bronx, you make a lot of friends (and enemies), and one of the friends he made was Efrain González, a former state senator who found himself on the wrong end of a federal indictment. Without a pot to piss in, González turned to his dear friend Murray. That’s where things turned ugly, according to the New York Times.

“Are you pleading guilty to each of these crimes because you are guilty?” the judge asked.

“Yes, your honor,” Mr. González replied.

Asked whether he was satisfied with his lawyer, Mr. González said he was.

But Mr. González later decided that he was neither guilty nor happy with the work of his lawyer, Murray Richman, his close friend for more than 40 years.

After obtaining new counsel, González moved to vacate his guilty plea. He wanted to go to trial.

Mr. González, 61, who is free on bond, declined to comment through his new lawyer. But he said in an affidavit in support of withdrawing the plea that although he “never wavered” in his desire to prove his innocence, “it was obvious to me that Mr. Richman seemed wholly uninterested in trial preparation, wanted me to plead guilty and was pressuring me to produce this outcome.”

To appreciate the significance, both of the claim and the conflict, you would need to know that there is probably no lawyer in New York City more willing, no, thrilled, to go to trial than Murray. Murray loves a trial. Sure, he appreciates a good disposition as much as the next guy, but Murray would never shy away from trial. It’s his sustenance after 50 years in the well. Murray can quote every half applicable bible verse on summation from memory, and there isn’t a trick on cross he hasn’t pulled. Murray loves trial.

But that’s Murray, the gunslinger. This was Murray, the friend. Murray defended González gratis, and Murray is more of a capitalist than me.

He agrees that not charging his clients can be especially problematic. He even has a display in his office with one of his favorite sayings, “Three things work for nothing: a mule, a tool and a fool.” But he has been known to violate that maxim where friends are involved.

For Murray to handle a case without fee, especially that of a former senator (meaning that González had nothing to offer, his day in power over), it must have been friendship. Murray has relished the nickname “Don’t Worry Murray,” along with his collection of screaming loud ties, over the years. But when it comes to friends, lawyers worry.

Mr. Richman explained to the judge that their disagreement centered on how they viewed the evidence. Mr. González felt it proved his innocence, Mr. Richman said, adding, “I am of the opinion that, frankly speaking, that it does not.”

In other circumstances, the lawyer would likely take a long, hard look at his client and tell him, it’s your life. I will fight my heart out for you, but I think you’re going to lose. I think you’re dead wrong. The call is yours. This comes from honesty combined with the detached perspective of the case that a lawyer brings, and is supposed to bring, to the case. Friends aren’t detached. Friends want friends to do what’s best for them. No longer is the lawyer detached, but a participant in the decision making process, even if it means overcoming the defendant’s decision making authority when it comes to the rest of his life.

Almost any criminal defense lawyer would be there for a friend. Most won’t charge a friend, money almost always being a complicating factor, even when they happily offer to pay. We just want to help.

There’s a lesson here, naturally. Some might attribute what happened here to money, to González’s fear that Murray’s advice was tainted by the lack of a payment to take the case to trial, to spend the time necessary to prepare and lose that time to paying customers. It doesn’t seem likely to me, Murray having made a ton of money in his career and being at an age where the marginal dollar doesn’t mean very much in his life.

It strikes me that the conflict arose from familiarity and the lack of detachment. From González’s perspective, Murray was a friend who happened to be a gunslinging criminal defense lawyer, and his familiarity with his buddy Murray caused him to discount Murray’s advice. From Murray’s perspective, he wanted what he believed to be the best outcome for his buddy González, and pushed it beyond the limits that would ordinarily constrain a detached lawyer.

It’s a problem to represent a friend. And yet, how could you say no to a friend in need?

H/T Andrew Bluestone

PR to Bloggers: You’re Ugly and You Dress Funny, You Idiots

About a week or two after you start a blawg, you start receiving emails from public relations people. They announce important things, like the law firm of Smith & Smith has finally gotten a retained case, or just purchased a new scanner, and ask you to write about it because they are sure that your readers will be fascinated. You delete the emails, but the PR people just keep sending them, often the same ones with a note attached that they didn’t see your post on this critical news to the legal community and you’re not doing your job.

There are plenty of permutations on this theme, from announcing the new movie on William Kunstler (but no offer to provide a copy for review) to a symposium on the fertile octogenarian rule (but no offer to attend). What they want is simple: Promote their stuff. They get paid by somebody to try to interest you in whatever they’re selling. There’s nothing in it for you, but that’s what they do for a living.

It’s been interesting to follow the efforts of the PR gang in attempting to coax me into becoming a cog in their marketing wheel. I marvel at the chutzpah, that my purpose (as far as they’re concerned) is to be their free advertiser. What I neglected to give sufficient consideration to is how they feel about the subject. Two posts from publicists have changed all that, and I now correct my misguided understanding.

At Social Media Explorer, Jason Falls posts about What Bloggers Should Know About PR and Advertising.

I was dumbfounded when I read a recent New York Times article about mommy bloggers that indicated a conference session topic at an event called Bloggy Bootcamp was how to let public relations firms know you don’t work for free. A few months ago, I reached out to a prominent mommy blogger on Twitter to let her know that I had a client whose products she might be interested in – not a pitch, just a light toss that indicated I may pitch her down the road. She responded by saying, “I’ll be happy to work with your client. My fee is $125 per hour.” I was stunned.

It seems that some bloggers (not just the mommy kind) have a vast misunderstanding of what public relations professionals are supposed to do or be used for. It also seems that some think receiving a pitch for a product somehow entitles them to call themselves consultants and charge hourly rates to someone else for writing content for their own website. Far be it from me to criticize a blogger’s ability to make money, but these attitudes deeply concern me. While the media landscape is evolving to account for new media roles, blogger ignorance to how traditional communications and marketing works may forever ruin the notion of an unbiased media.

Do you think that Jason, maybe, missed the point entirely? Is it possible that the mommy blogger wasn’t really trying to get paid, as much as send a message that her blog doesn’t exist so that Jason can get his client, for which Jason is getting a fee, some free publicity? Nah. Bloggers are ignorant. It can’t be the myopia of self-serving public relations people. After all, they are professionals, and the mommy blogger is just, well, a mommy.

He goes on to acknowledge that bloggers are under “no obligation” to go along with their pitches (very kind of him to say so), but they are obliged to treat public relations people like the “professionals” they are. After all, what possible reason would a blogger, receiving an unsolicited pitch from an unknown flak seeking to get some free publicity for their paying client on some nonsense issue have in not owing the flak a duty of being nice to them? Bloggers. What a bunch of dolts.

And then we have Tamar Weinberg at Techipedia who has graciously provided a Miss Manners-type resource for blogger etiquette. No, Tamar is not a blogger, but a public relations person who, no doubt as a public service, created rules for bloggers to be nicer to public relations people. She explains the purpose of her rules, oh the pain of being a professional PR person forced to deal with those evil, nasty bloggers.

What if you were involved in the task of blogger outreach? Let’s say you worked with a client to give away a freebie to readers of specific blogs. The client approves the pitch, which you targeted to the blogger, and you send it off to the chosen bloggers.

Now let’s assume one of the bloggers responds with, “I have read your email carefully and it would appear that you have omitted the part where you request my advertising rate card.”

(Yes, forget about organic promotion. The money is where it’s at for some bloggers, and story tips or ideas are unwanted. I bet you’d wonder what the FTC would say, especially given that this particular blogger has a disclaimer stating that they will never post sponsored or content where money exchanges hands.)

Instead, you decide to clarify your specific role in this initiative. You say, “this is merely a story idea as there’s no advertising budget. Would you like to run with the story?”

The blogger responds with something that goes along the lines of, “they could pay you to email me, maybe they should pay me to blog about it.”

They then write two nasty tweets about a poor approach that they likely thought you never saw.

Tamar is so right. I never thought about it that way. They’re just trying to make a living, pitching their client’s promotional stories just in case we’ve got nothing else to write about. Is that so bad? Why do we take offense at their efforts to turn our blog into their promotion machine?

Seriously, they are right to some extent. Blog and you’re going to get pitched, for stories, products, whatever. To the extent you have readers, other people want to get their message before them, and that’s how they roll. If you’re not interested, there’s always the delete button. The PR people know that it’s a shot in the dark that you’re going to take them up on their offer, and that’s the nature of their job.

But this, like most things, is a two-way street. When some PR firm decides to target you, it may well result in a dozen emails a day for things that hold no interest whatsoever. And the emails inform you that you are receiving them because you requested them, shifting the burden to you to “unsubscribe”. A wee bit disingenuous? Then there are the ones that want you to promote a product or the movie, but don’t want to let you use the product or see the movie. A wee bit disingenuous?

Then there are the overly aggressive flaks, who email over and over because “you didn’t respond to my last email,” until you get the email telling you what a jerk you are for not showing them the respect of responding.

The problem with PR people demanding respect in return is that nobody asked for them in the first place. They assume, as one would expect from a job (no, it’s not a profession) demanding thick skin and facile rationales, that they are doing the blogger a favor. As both Tamar and Jason argue, bloggers are going to need them one day. Don’t be too sure of that. You may be giving yourselves way too much credit. Somehow, I suspect I’ll manage just fine without you. When you show up unwanted and unneeded, you really don’t get to demand much of anything.

Bloggers don’t really expect you to pay them to promote your wares. Jason said he was “stunned” by the mommy blogger. He apparently stuns easily. Rather, bloggers are trying to make it clear that they are not your freebie promoters, and they are not interested in being your freebie promoters. It’s not that they might be against the idea of making a little pocket change on their blogs, and yes, we are all aware of the FTC rules and are happy to comply (do you really think nobody knows anything about anything except you?), but we similarly know that you’re trolling for free publicity. For somebody who thinks they are a “professional” in sending messages, you’re not very good at receiving them.

I’m just trying to be friendly and helpful, in a Miss Manners type of way.

18-B Lawyers Ready For Battle

The New York Law Journal reports that the City’s 18-B lawyers aren’t going down without a fight.

[A] joint resolution issued by five county bar associations last week raised legal issues that could provide ammunition to 18-B lawyers should they sue to block the plan and raised the possibility that the bar groups themselves might sue.

The resolution expressed sympathy for the plight of the city’s 1,100 18-B lawyers, saying the proposed change would make “an immediate and far reaching overhaul” in the system for representing indigent criminal defendants by “virtually eliminating” the work of 18-B lawyers.

The resolution was approved by the New York County Lawyers’ Association and the Bronx County, Brooklyn, Queens County and Richmond County bar associations.

The subject of 18-B, the representation of indigent defendants by private lawyers assigned by the court, has long been controversial for many reasons, last seen during the fight for reasonable compensation (now $75 per hour for felonies, $60 for misdemeanors). Some are just awful lawyers incapable of maintaining a real private practice due to the inability to provide the level of representation and service that would enable them to get real clients. Some are lawyers starting out who have yet to establish a reputation. Some are lawyers who use 18-B to fill the gaps and down-time.

It’s long been my position that 18-B should not be used as “welfare for lawyers,” where those who can’t maintain a viable practice believe they are entitled to earn a living off the backs of the indigent. I would have a limitation on 18-B so that no lawyer can depend largely, or worse still entirely, on 18-B to survive. But this is different. This is the evisceration of 18-B, and with it, the end of the road for many lawyers who needed the added boost of 18-B revenue to make their nut and feed their kids. These are people with real practices, real clients, real skills. These are real lawyers, and they will go down with the ship.

[Addendum: It has already been pointed out to me that the paragraph above might give the impression that 18-B lawyers are second-stringers. Some of the best criminal defense lawyers in New York are on the 18-B panel and take on 18-B assignments. I took this for granted, but thought it best to point this out lest anyone either misperceive my meaning or take offense. The same, by the way, is true of lawyers who work for institutional defenders. There are some great lawyers involved in each of these areas, and by no means do I suggest otherwise.]

Not having done 18-B work in more than 25 years, I’ve got no personal horse in this race. Being a criminal defense lawyer, I do. It might behoove me to watch from the sidelines as my brethren are crushed by the City’s desire to save money, itself a fair goal for the welfare of the taxpayers, which would mean less competition for the increasingly scarce animal of retained criminal cases. But that’s not where I see my interests or the interests of the criminal defense bar. I fear that this will give government far too much control over the criminal defense function, and I fear that those private criminal defense lawyers who remain will have insufficient clout to push back against the tide of law and order, the courts’ inherent presumption of regularity in the arrest and prosecution of individuals.

No doubt, the institutional defenders who will pick up the cases that were once served by 18-B lawyers will hate me for saying this, but the very real fear is that they won’t pick up the slack. The 18-B lawyers were 17 times more likely to take a case to trial than the institutional defenders. Seventeen times. That’s a mind-blowing number. And they can praise their lawyers to high heaven, puff out their chest as far as possible, dare the rest of the bar to call them names to their faces (no one wants to call them out, as they too are an important part of the defense side of the equation), but it won’t mean a thing to all those defendants who will never go to trial. Seventeen times. There’s no getting around that number.

They’ve put together a war chest of $100,000. Whether there is a viable basis to challenge the City’s RFP to give almost all indigent defense work to institutional defenders remains unclear. The money will go toward lobbying as well. Whether it will work has yet to be seen, but they aren’t going down without a fight. The continued existence of a viable private criminal defense bar depends on winning this fight.

Real criminal defense lawyers know right from wrong, and don’t fear doing what’s right. Real criminal defense lawyers have the guts to fight. The five criminal defense bar associations for New York City have done themselves proud by standing up for the criminal defense bar.

It’s Not Punishment If It’s Regulatory

Via Doug Berman by way of Howard Bashman from the Atlanta Journal-Constitution (whew), the Georgia Supreme Court upheld sex offender registration for people convicted of non-sex related offenses in Rainer v. Georgia.

Writing for a 5-2 majority, Justice Harold Melton rejected arguments that the provision, as applied to Rainer, was cruel and unusual punishment. Sex offender registry laws, Melton wrote, “are regulatory, not punitive, in nature.” “Because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is ‘sexual’ in nature before being required to register,” Melton wrote….

No consequence? It’s likely of a great deal of consequence to anyone who’s required to comply with the SORA requirements, not to mention be held out to the world, and more importantly his neighbors, as a sex offender when he isn’t.

Once again, legal fiction overtakes reality. By calling sex offender registration regulatory rather than punitive, the court was able to sidestep the issue and pretend that something which is patently punitive is benignly regulatory. It’s a miracle, like calling a forfeiture civil and thus removing all the rights that go along with criminal sanctions.

This detail did not go unnoticed in the dissent:

Writing in dissent, Chief Justice Carol Hunstein said that although registration as a sex offender may not be considered punishment, “it is no mere administrative formality or minor inconvenience.” Hunstein added that an offender who commits a sex crime while kidnapping or falsely imprisoning a victim “would clearly be covered” by other provisions of the registry law.

Unfortunately, the Chief Justice obviously lacked the ability to sway the majority and, perhaps in an effort to avoid being seen as overly brazen, was somewhat underwhelming in her criticism. To say it is “no mere administrative formality” hardly clarifies the impact of being placed on a list of the most hated people in this nation, forbidden from living in most places, largely incapable of obtaining lawful employment, tainted for years if not life as someone to be reviled. No mere inconvenience indeed.

The problem isn’t so much the legal analysis, as the willingness of courts to ignore the punitive aspect of legislation by defining down the obvious impact, or simply ignoring it altogether, and pigeon-holing laws to avoid acknowledging the punitive consequences. Without regard to how one feels about real sex offenders, the point here is that the law swallows non-sex-offenders whole, reducing whatever rationale existed for its inception to a farce. If they aren’t “really” sex offenders, than what justification is there for including them on a sex-offender registry? Instead, the court considers the law from the far side, where it concludes that since inclusion in the registry is “merely regulatory,” it need not consider whether the rationale justifies the rubric.

Should this trend continue, and states come to realize that they can get plenty of mileage out of increasing the inclusion of people convicted of general crimes in sex offender registries, this could be the growth segment of political grandstanding for the future. After all, so what if jaywalkers are included in the sex offender registry. It’s only regulatory.

Hanging At The Spamalot General Store (LOLCat Update)

Come on by. Play checkers. Have a nice cold cola, and enjoy life in Spamalot. Despite my annoyance at the first thousand spam comments received from “just people” who are trying to game Google by getting backlinks at my expense, I’ve come to appreciate the next thousand, most of which you haven’t seen as I’ve not let them make it to the screen.

It’s quite the fascinating study, seeing what the nice folks who are trying to sell you everything from diet pills to SEO to electrician services in Bismark have to say. Some put in quite a bit of effort to their comments, clearly having read the posts and trying desperately to offer enough to the conversation to make it past my scrutiny. Others, of course, insert links to dog grooming services. Still others think they’ll make it past the guard house with comments like “nice post,” or “I agree” or “this is so interesting.”

What I’ve learned from this experience is two things. First, the sheer numbers of people who are trying to game the system, get their business on page 1, make a living off the internet by doing anything they have to do, is unbelievable. They’ve been coming at me in numbers that blow my mind, and they’re still coming. Waves of them. A Tsunami of them. A lot of people.

Second is that even when they try, they are running on empty. Their best efforts at trying to get a comment with staying power are just absolutely awful. It’s not just that their ideas are worthless, but that they don’t really have ideas. Of course, it may be that this is a by-product of the fact that their real purpose is to spam me, to get me to allow them to comment so that they can get the backlink, but I suspect that the ones that write lengthy comments, with at least the appearance of effort, are actually doing their best to contribute to the conversation even as they try to get their backlink in there. But they’re empty.

I let one go (after deleting the backlink, natch) yesterday just because I was feeling generous and saw the amount of effort the spammer put into the comment. And it sucked.

I still spend about an hour every morning cleaning up the mess that the spammers leave behind from the night before. It’s a monumental waste of my time, and it interferes with my posting. It was my hope that after a few thousand comments deleted, they would get the message and go elsewhere. I thought they would realize that they are not welcome here, and that their time was wasted since I wasn’t going to let them get the link love they crave. And still they come.

This crazy thing called the internet is filled with these people, hoping desperately that you, and I, will succumb to their charms and pay them money for eyebrow braiding, or whatever it is they have to sell. Next time you click on a link on page 1 of Google, say hi to them for me. They are the folks hanging out at the Spamalot general store.

From the mind of Amy Derby

Let’s Play “Where’s The Flaw?”

Michael Seringhaus, a student at Yale Law School, had an op-ed in the New York Times that bugged the heck out of me. He advocates for a national DNA database, as President Obama appeared to support during his appearance on John Walsh’s America’s Most Wanted television gameshow.

In truth, however, this is an issue where both sides are partly right. The president was correct in saying that we need a more robust DNA database, available to law enforcement in every state, to “continue to tighten the grip around folks who have perpetrated these crimes.” But critics have a point that genetic police work, like the sampling of arrestees, is fraught with bias. A better solution: to keep every American’s DNA profile on file.

Like many others, I have my laundry list of reasons why this is a bad idea at the ready. But Seringhaus didn’t come unprepared.

Your sensitive genetic information would be safe. A DNA profile distills a person’s complex genomic information down to a set of 26 numerical values, each characterizing the length of a certain repeated sequence of “junk” DNA that differs from person to person. Although these genetic differences are biologically meaningless — they don’t correlate with any observable characteristics — tabulating the number of repeats creates a unique identifier, a DNA “fingerprint.”

The genetic privacy risk from such profiling is virtually nil, because these records include none of the health and biological data present in one’s genome as a whole. Aside from the ability in some cases to determine whether two individuals are closely related, DNA profiles have nothing sensitive to disclose.

Is this true? If the DNA database was limited to genetic profiles, would it eliminate all personal information risks and limit the information to which the government has access to matching the identity of a person? Seriously, I don’t know.

My problem is that if Seringhaus is correct, then my arguments against the creation of a nationwide DNA database fail. Sure, there’s the genetic Big Brother position, but we’ve already lost that battle with social security numbers and the wealth of other information we regularly provide the government about ourselves in order to keep the monster well fed and happy.

There is no right to commit a crime and demand that the government not be able to identify the criminal. We leave our DNA all over the place, so it’s not like we’re giving up some deep, dark, personal secret. If the information in the government’s hands does no more than provide a basis for personal identification, without giving up the private aspects of our being contained in our DNA, then I’m having some difficulty in finding a decent argument against this. It’s not that I’m for it, but in arguing against it, am I shooting blanks?

This doesn’t alter the flaws that otherwise exist with DNA identification, from partial or decayed DNA to the grossly exaggerated claims of one in a trillion chance of it being wrong when the real number is more like one in twelve. But these, as courts love to say, go to weight and sufficiency.

What am I missing here? If there’s a flaw, I’m not seeing it. And I want to.

Seizing Emails, 36 Ways To Lose

Despite my admiration for Orin Kerr’s mix of scholarship and practicality, one area where I disagree strongly with him is his “technology neutral” approach to search and seizure, where he essentially seeks to apply the law developed over the years to deal with brick and mortar, car chases and snail mail, to the digital world by analogy.

Dealing with search and seizure in the digital age is one of Orin’s primary areas of scholarship, and (unfortunately, to the extent he disagrees with me) his thoughts carry far more weight than mine. It’s a problem if we have any hope that the disastrous development of 4th Amendment law over the past century, you know, where the courts have developed a half dozen exceptions to every platitude about our being secure in our persons and effects so that pretty much every warrantless search is okey-dokey, won’t serve as our baseline for the future.

Case in point, Orin writes about an 11th Circuit decision last week, Rehberg v. Paulk :

The Eleventh Circuit held that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages.

Orin strongly disagrees with the decision. Not, mind you, because emails are the techno equivalent of what we would like to believe is a private communication, but because of the rationale employed.

I think the Eleventh Circuit’s analysis is wrong. To see why, let’s start by considering Rehberg’s outgoing e-mails, which seem to be the focus of the Eleventh Circuit’s opinion. It is true that when information is disclosed to a third party, the Fourth Amendment no longer protects the information disclosed. That’s the teaching of Miller and Smith (and, for what it’s worth, and I think those teachings are correct). But when many copies of information are made, you have to treat different copies differently. As a result, the fact that one copy of the communication has been received does not mean that all copies lose Fourth Amendment protection.

Got a headache yet? Can you imagine how far into the argument about how different copies of emails have to be treated differently before the judge said, “get to your point, counselor?”

For these reasons, the court should have analyzed access to the e-mails stored with the ISP based on whether there was a reasonable expectation of privacy in that remotely stored copy accessed, independently of delivery of another copy. Given that we’re only at the 12(b)(6) stage, and we don’t yet know all the facts, I don’t think we have any basis to conclude that Rehberg did not have a reasonable expectation of privacy in the e-mails obtained.

Orin then goes into the alternative rationales, however, that would allow the same result under different theories, not that he necessarily agrees with them but that there are numerous approaches to emails that have been employed by the courts, all of which end up with the same result. The government gets them, provided they serve the right paper to the right party. His points are highly nuanced and not easily captured in brief here. Read Orin’s post if you want to have a firm handle on his arguments, as I’ve done a poor job of explaining them, and despite my good intentions, can’t figure out a better way without incorporating his entire post into this one.

All of these legal shenanigans are caused by the fortuitous mechanics of our digital life, that my email to you goes through something called an ISP, that has something called a server, where my email is stored along with a gazillion other emails both between sending and receiving and afterward. Even though in my dinosaur brain, the email is between the two of us, the reality is that it’s between and us and my ISP as well. If you have a different ISP, then we’ve got another intermediary and another server involved. According to how our ISPs work, there could be more intermediaries that we don’t know anything about.

There is a bottom line question to all of this, ignored almost entirely by the elegant, sophisticated and, in my view, ultimately irrelevant arguments made in trying to jam the round email peg into the square search and seizure hole. Should any of the mechanics of email transmission have anything whatsoever to do with our right to be secure in our persons and effects?

We’ve been offered a plethora of new techie means of communicating, and particularly problematic is that the means by which they fly through the air changes hourly, rendering any court decision based upon the particular means employed outdated by the time the hard copy opinion is issued. But none of this is floating through our heads as we hunt and peck our email, of DM, or whatever means of seemingly private communication is devised tomorrow. We believe that our communications are private. We want to believe this. We are, unfortunately, gravely wrong to believe this.

Throughout Orin’s post, he analogizes his theory to real world application, such as the arguments applicable to snail mail. Given how technology has changed the behind the scenes mechanics, we will ultimately, and invariably, lose the battle for privacy. There will always be a ton of other people’s fingers in our communications pie going forward, and to the extent that we perceive our communication as existing only on our little computer and our recipients, it will never be so again.

Indeed, given the nature of digital communications, there could be a million copies of every email we send floating around servers all over the world, and we would never really know it. Is it hard to imagine the government getting our friendly neighborhood ISP to route everything through a server in Latvia so that it can access anything it wants over there? On a less conspiratorial note, if a mere subpoena is all that’s needed for the government to get its hands on our communications in the hands of third parties,

Here’s the point: Given that emails and other electronic communications are our future, and given that the means by which they are transmitted will never eliminate the involvement of third parties and the maintenance of copies on somebody’s equipment somewhere, are we satisfied to be arguing over the arrangement of deck chairs on the Titanic (see, I can use analogies too)? Unless we develop a brand new approach to the future of communications, that does not rely on hard copy precedent and recognizes that people want to have a secure means of communication available to them in the future (and the future is a very long time), we’re watching the death of privacy in our own communications happen before our eyes.

This does not meet my reasonable expectation of privacy. We need to rethink the approach, start to finish, to deal with the digital world and whether we will have any privacy whatsoever in our future communications. How about a simple new rule: Emails are private communications and require a warrant upon probable cause as determined by a neutral magistrate? Who cares about ISPs and servers, multiple copies stored on servers worldwide. We are people, not merely the end of technological pipelines.

To Serve Or Service: Crappy is in the Eye of the Beholder (Update)

Brian Tannebaum discusses one of the most curious questions confronting a lawyer at My Law License. Raised by Lee Rosen at Divorce Discourse, he asks why crappy lawyers have happy clients.

I know one personally. She’s a terrible lawyer. She can’t read and understand a court opinion. She misreads statutes. She’s an embarrassment in court. Her pleadings are poorly drafted. Her correspondence is filled with errors. She says things in chambers that make her look like an idiot. Her objections are overruled. Her court appearances are dominated by illogical arguments.

She’s a really crappy lawyer.

Her clients, however, love her. They refer business to her like crazy. She spends nearly nothing on marketing and is making a freaking fortune. She can’t see a new client for weeks because she is solidly booked.

How many lawyers can say that they are booked solid for weeks? How many lawyers can say that clients love them? How many lawyers suck? Tannebaum breaks it out:

We all know that clients hire lawyers for the strangest reasons. Something, one thing the lawyer says or does can determine the client’s happiness with the lawyer. In the criminal practice we all experience the difference in the client who barely shakes your hand when you win his case, and the client who hugs you after you lose his case and before he’s shipped off to jail.

From a client’s perspective, the definition of a “crappy” lawyer is completely different from that “within” the profession.

There has been an ongoing discussion, if not dispute, about the ability of clients to distinguish competent counsel from likable counsel in making the determination of who to retain. Bennett has long argued that, through a personal meeting, clients can tell. I’ve argued that they can’t, and frequently choose a lawyer for all the wrong reasons. Bennett argues that likability and competence are connected:

“Likability,” says Scott, “bears no connection to the lawyer’s skillset.” I disagree. Likability bears a great connection to the lawyer’s skillset — criminal defense trial lawyering is about communication, and better communication skills make a person more likable. If all else is equal, an accused is going to do better in a jury trial with a lawyer that the jury likes than with one that the jury doesn’t like.

While likability doesn’t invariably mean that a lawyer isn’t competent, or great for that matter, wrapping it up in a ribbon by calling it all part of communications is way too facile for my taste. Chatting up a client in an initial evaluation doesn’t translate to being great in front of a jury. Nor is being great in front of a jury enough of a skill to define a competent lawyer, no less a great one. More importantly, what makes clients love their lawyers goes well beyond the initial evaluation, and into providing the client with what the client perceives to be important, even if it’s actually horribly counterproductive to the legal interests.

Lee explains the virtues of his crappy lawyer:

Here’s the deal. She does things that make it clear that she cares about her clients. She rants and raves in court, like a maniac, on behalf of her clients. She crosses over every line and gets personally involved with her clients. She laughs with her clients, she cries with her clients. She returns calls, she calls at night, she stays on the phone forever. She loves her clients and it shows. She knows it and her clients know it. She’d do anything to help them. They are her friends.

Her clients love her. They love her when she wins, they love her when she loses. They know she’s committed to their cause. They know she did her best, even when her best isn’t good enough.

So the lawyer meets the client’s criteria for wonderful, even though she fails to demonstrate competence from every other metric. That’s because clients don’t know better. Notably, many of the things the lawyer does, and the client loves, are the sorts of things that no competent lawyer would ever do, such as ranting and raving in court like a maniac, at the expense of credibility before the court. Forget that “communications skill” pap, clients love it when the lawyer is their lunatic, saying and doing all the things that enable the client’s catharsis. Which leads inexorably to the bottom line.

It all makes me wonder whether she’s really a crappy lawyer or whether I have ideas about what’s important that might be irrelevant. Who sets the standard for crappy? Lawyers or clients? Maybe my idea of crappy doesn’t really matter?

This makes for a brutally painful choice. It also explains why the internet is replete with lawyers trying desperately to appear to be “caring and concerned and empathetic” rather than skilled. After all, what good is being competent if no one retains you?

There is, however, an alternative way to view this. While there will always be lawyers whose business is built solely on their likability, despite their either being incompetent or engaging in conduct that pleases the client but destroys their professional credibility, there are also practices built on outcome and effort. Granted, it requires a better, more knowledgeable clientèle to appreciate skill over empathy and long telephone calls, but they are out there and have more mature expectations of counsel.

Moreover, rather than do your utmost to appeal to the lowest common denominator, lawyers can make the effort to educate the public as to what they should be looking for in a lawyer, as Tannebaum has done in his free eBook, The Truth About Hiring A Criminal Defense Lawyer. No one is arguing that lawyers should be dislikable, but the willingness to sit on the phone for hours on end listening to the client vent isn’t exactly what most of us would call our best feature. Nor are we paid to become our clients’ best friend, especially when it masks the fact that the lawyer is crappy.

It’s up to each of us to decide what type of lawyer we want to be. The question seems to come down to whether it’s more important to get the clients’ money by meeting the clients’ likability needs or to provide the client with great legal service. The irony is the client may well love us more if we’re better friends and worse lawyers.

Update: While non-lawyers may appreciate the way the way Lee’s “crappy lawyer” makes her clients feel, Mike at Crime & Federalism has tapped into the other side of the equation:

Most clients want to feel the love. They want validation. They expect you to answer their calls to discuss the same issues over and over again. They expect you to file every motion their reading of USA Today has told them is relevant.

Most lawyers resent this. “Didn’t we discuss this already?” “That motion won’t work.” “No, I’m not going to tell the judge he’s biased. I have a reputation to uphold.” “How dare these clients tell me how to do my job?!”

Yet tapping into a client’s need for constant validation is profitable. Why do you think family lawyers make so much money?

Feeling the love yet? Is this really what you want to pay for?

The Shame Of It All

While shaming may serve as a more effective deterrent, and hence a viable substitute for regulation, when it comes to lawyer marketing excesses, it’s not the best solution in all instances. At the WSJ Law Blog, Ashby asks whether shaming is the new punishment for corporate crime:

Last June, we blogged about an interesting sentence handed down by a New York federal judge — he ordered a former pharma executive convicted of making false statements to regulators to write a book about his experiences connected to the case.

Is the shaming movement catching on? According to a recent NPR story, the answer might be yes — and shaming might be moving into the corporate arena. According to the story: “Increasingly, companies that plead guilty to crimes that harm the community — polluting, for example — are being required to publish an apology as part of their punishment.”

While Judge Urbina hasn’t moved from Washington to New York as far as I’m aware, and a pharma executive isn’t the same as a corporation, the former wearing pants and the later wearing pro formas, the point is still noted. The problem, of course, is that punishments that may well be effective for individuals simply don’t apply well to corporations, or have the desired deterrent effect.

At Business Law Prof, Stefan Padfield doubts that shaming will do the trick.

Personally, I have been unimpressed by the idea of shaming as an effective form of deterrence or punishment ever since I heard the comments of a Big Corp board member effectively affirming what I had long believed to be true: That at least for the top execs, they’ll gladly take your shame all the way to the bank. They don’t live in the same circles as the rest of us and they are about as impacted by our scorn as I would be by the disapproval of my cat (actually, I hate when my cat views me with disdain–so that’s not a great example). Now, I can’t remember the source of the comment so I have to submit it as apocryphal. But my point is nicely summarized by a comment I received from someone else in connection with this story: “Really? Who is supposed to be ‘ashamed’? The entity itself? The people who run it (and who can simply move on)? I am very dubious.”

This lays out the problem fairly well. Corps can’t be imprisoned, and the rest of management is happy as a clam to see some COO take a bullet for the team. They will feel terrible about it for hours, but they’ll get over it. An apology, or book, or public service ad? No problem. They’ll give you two, if it means they get to skate. Shame? There’s no shame to be had. Sure, they would prefer nothing, but they will trade off the prosecution for shame any day of the week. For corporations, this is just a businesses judgment. Unlike individuals, there’s nothing personal about it.

While Padfield equivocates, as lawprofs occasionally do, on shaming, he defaults to fines and imprisonment:

Ultimately, this is an empirical question. And I am certainly willing to be convinced that shaming has an effective role to play in the punishment of corporate offenders (both as to the corporate entity and the individuals who run it). But for now, if more punishment is actually warranted I’d prefer to see more jail time or fines.

Fines don’t cut the mustard, as Judge Rakoff made clear in the Bank of America settlement. Money is what corporations gain and lose, and a criminal penalty is just another line on a statement. More importantly, the people who run corporations aren’t the people who have to pay the fine; no money is taken from their pockets. The folks who pay are the shareholders, who have absolutely no say in the corporate decisions that gave rise to the wrongdoing. To the extent it’s a good smack, it’s the wrong face.

The jail time alternative is interesting. How big a cell do you need to keep a corporation on ice? One big enough to hold a sheet of paper, since corporations are paper entities. Executives or directors are one thing, but they aren’t the corporation. Just regular guys in a custom made suit with golden parachutes. You know, like you or me.

One substitute often suggested is that management and the board of a corporation engaged in criminal conduct, where the crime can’t be attributed to any particular individual (as is often the case), share in the pain. The problem here is that it’s an imposition of criminal punishment on people who’ve not been proven to have committed a crime or had the opportunity to defend themselves. It’s just one of those little details that are system won’t permit, even if we prefer to have those closer to the source of the crime suffer in the place of those who had nothing to do with it.

It’s a problem.

The fact is that the law has yet to craft a punishment that applies well across the board to corporate crime. While one may work under certain circumstances, it’s rarely the solution for all situations. Often, there are individuals prosecuted simultaneously, and any of the normal sentencing options serve their purpose. But this does nothing to deter the corporate entity from engaging in wrong, as long as there is another executive sitting around who can be thrown under the bus for the sake of the company. As much as executives and directors believe that everyone else down the hallway loves them dearly, when push comes to shove in corporate investigations and prosecutions, they are all too willing to watch their golf buddy go down the tubes in order to preserve the corporation. They will toast to their memory at the club. Adieu, good soldier.

Which brings us back to shaming as a deterrent. Ultimately, the question isn’t what sentence is the most effective,or satisfies the purposes of 18 USC 35539(a), but what is the least problematic with at least some hope of having a deterrent effect. The real problem isn’t with the absence of having a viable sentence available, but with the concept of holding a legal entity, a corporation, responsible for criminal conduct. Crimes only work with real people. And that’s the real shame.