It goes back a little over a year now, when  Dan Hull asked me what I thought about writing an article for the ABA Journal on the subject of mentoring.  Both of us shared a concern with new lawyers, from the perspective that far too many of them were slackoisie, and far too few were being adequately mentored so that they could take their place in the profession without either disgracing it or harming clients.

We decided it would be a good idea.

Hull contacted Molly McDonough on March 13, 2011 and pitched the project.  She liked it, and carried it to Allen Pusey, publisher of the dead tree ABA Journal. He liked it too, and we were given the green light.  The idea was that it would be ready for print by the summer.

We were given a 2500 word limit and an editor, Jill Chanen, and we went to work.  With some fits and starts as we decided the scope and breadth of the piece, we nailed down an outline, and received raves about how wonderful it was, how much everyone loved it and how thrilled they were. And so, Hull and I crafted the article.

It was to be a feature, and we took it very seriously. We had a mission, to make a persuasive case to shift the trend we had both experienced away from new lawyers being left to flounder or pretend they knew what they were doing when they didn’t, and old lawyer caring only about cranking out hours or collecting the next fee.  Both Dan and I saw the looming crisis, where the emphasis on the business of law left neither time nor concern for the profession of law, the focus on client and competency. 

We proposed the New Mentoring, which rejected the facile lip-service being paid on the internet in favor of substantive effort on the part of both new and old lawyers that would produce no direct financial benefit, but would sustain the purpose for which society gave us license to hold other people’s lives in our hands. 

This was no blawg post. It wasn’t snarky or cute.  It didn’t capitalize on the flavor of the moment, and we meant it to stand as an evergreen piece, an idea that would retain its merit over time, as this was a long term issue.  Being in an age of 10 second attention spans, and issues with shelf lives of mere hours, we recognized that an idea requiring long term commitment and produced no quantifiable gains was decidedly unsexy.  But it was crucial for the perpetuation of the legal profession.  We worked hard to make the article say what we believed needed to be said.

Through dedication to our cause, we produced an article within the word limit and time frame sought by the ABA Journal.  We worked hard to do so, and we did so.  A great deal of time was put into this project, which could have been spent working on client matters and making us huge sums of money.  While we expected the usual magazine compensation for the effort, it was nothing compared to what we would have earned working on pending cases.  But we were willing to make the sacrifice because we felt the article had a message that needed to be sent, and so we sacrificed our own pecuniary interest.  We turned it over to our editor, who in turned it over to hers.

They loved it. Not just liked it, but loved it.  At least they said they loved it.

There was some additional editing along the way, questions about particular words or ideas, and one day it needed to be shorter, and another it needed to be longer. The idea was raised about adding in a sidebar with someone who was of the view that mentoring in the digital age could be done via twitter, which concerned us since the ABA Journal has a unnatural fondness for technology which tends to make it seem less stodgy and more hip, even though it’s an approach more appropriate for People Magazine. 

Dan and I were concerned that the focus would shift away from mentoring toward technology.  While tech was an element of our articles, it’s relationship was tangential at best.  Only those with a direct financial interest in promoting superficial notions like mentoring on Facebook would consider it worthy of discussion, no less a serious alternative.  They eventually came to this realization as well, from what we were told, as our weighty perspective was juxtaposed with the frothy silliness of virtual mentoring.

When the September issue of the ABA Journal came out, I looked at the cover. Our article wasn’t there. I looked inside, and it wasn’t there either.

Same with October. And November.  We made inquiries, and were told that something more pressing pushed it down the road a bit.  That can happen.

Then a call came from Jill Chanen, informing me that because of some amorphous “politics” at the ABA Journal, our article was killed. Dead and buried. Sorry, have a nice day.  It was odd that the call came from Jill, as she wasn’t involved in the decision to have us produce the article, and was merely the messenger.  No reason to kill the messenger, since this isn’t Sparta.

Dan reached out to the publisher, Allen Pusey.  No response.  He tried again, and Allen told him he was busy but would get back to him the following week. Then nothing. Dan tried again. And again nothing.  Allen must be a very busy man.  And apparently the monumental waste of our time in producing the article they loved and wanted so badly means absolutely nothing because we’re inconsequential in comparison.

Granted, our article wasn’t sexy cool.  It wasn’t controversial, nor did it deal with a hot topic, the sort of trendy thing that fascinates people for a few hours.  But it was a damn solid piece of writing, and it was meant to do something that would matter to lawyers and clients.

And because the ABA Journal, having asked us to write it, having implored us to write it, having told us how much they loved it, having us go all the way down the road to produce a feature article for their hard copy magazine, has decided to kill it, you will never read it. And I’m pissed.

Don’t blame us. Dan Hull and I wrote it for you.

When Ken at  Popehat broke the news of yet another lawyer sending yet another cease and desist letter, there wasn’t much reason to take notice.  First, Ken was on it, and he likes his role as defender against censorious asshats. Second, it happens all the time, and is usually dealt with swiftly and harshly by the ordinary dynamics of the Streisand Effect.  And third, it involved  FunnyJunk and the Oatmeal, which is largely like watching two 12-year-olds rolling in the mud.

But Matthew Inman, who does the Oatmeal, put the lawyer Charles Carreon’s letter demanding $20k on the web, with his own special touches, in a masterful response, one aspect of which was that rather than succumb to Carreon’s demand, he would raise some money for charity.

It’s not part of the job, but one of the things that comes naturally after the parenting hormones kick in is the desire to be paternal toward one’s clients.  What one sees with great frequency in criminal defense are clients who, at minimum, need a damn good talking to.  Often, they need a spanking.

They may have gotten some decent beatings in their life, but never a spanking.

Much of what walks through our door is swagger and stupidity, a toxic combination. No one ever taught them responsibility or humility.  They never learned the basic lessons of life that comprise the building blocks of a successful, happy life. Instead, they were neglected and learned on the street to indulge the devil whispering in their ear.  Many never knew their fathers.  Some knew them only too well.

In more instances than I can count, I’ve tried to play father to young men and women who sat in front of me.  I had the basic tools, a grey beard and eyes old enough to count while still strong enough to stare them down.  The lessons I tried to impart were pretty basic, as that was really all I could do given that I was just the lawyer.  Be responsible. Actions have consequences. Man up.

But I wasn’t their father.  The deal with parenting is that it’s a two way street, where there is a devotion toward your child and a devotion in return.  My children don’t listen to me because I’m right, or because I know better (an issue that’s challenged every second of every day). The ultimately listen because I’m their father. In their hearts, they know that that there is nothing I wouldn’t do for them.  I would take a bullet for them. That carries some weight.

My time with clients is brief. While cases may go one for a few years, it’s nothing like a lifetime, and it’s not a daily dose of parenting where every evening we sit down to eat and annoy them by asking what they did that day.  Even the few basics can’t be taught that quickly.

Over the years, a surprising number of clients have asked me to care about them as if they were my own.  I cringe every time someone says this to me.  It rarely works out well.  While I can be retained as a lawyer, I cannot be hired as a father.  For one thing, they need me to be their lawyer first, detached and unemotional as I do the nasty work of defending them.  For another thing, the relationship of father and child is a two way street. They seek devotion, but don’t give it.  I don’t blame them for this, but it’s a critical aspect of the relationship that, when missing, renders the effort a waste.

With my children, I may explain things in a way that’s intended to provide template to guide them in their own life and choices, a way for them to learn how to live their lives going forward as well as make the decision before them at the moment.  My children tolerate my explanations until they get bored and start drifting off.  When their eyes glaze over and their jaw goes slack, I eventually come to the realization that my explanation has run its course. That’s when I tell them to just do it my way or else. Sometimes that works because they need something from me and realize that they won’t get it if they don’t succumb to the strength of my logic or my willingness to finance their choice.

It doesn’t work with clients, however.  And if it did, I wouldn’t use it anyway.  They need to own their choices, which is part of the reason they find themselves in my office in the first place.

They may need a father desperately, and I am happy to offer some fatherly advice.  But I can never do the job, and the truth is that they really don’t want me to.

It’s sad to realize that a surprising number of criminal defendants might have avoided some of their worse choices if they had better (or any) guidance growing up.  There are some bad dudes, but most are pretty normal people, with both better and worse angels within them.  To outsiders, they are one dimensional, all good or bad based on one thing they’ve done, the crime with which they’re charged.  Even a young man who has engaged in a life of crime has aspects of his nature that reflect his humanity.  He may sell drugs to kids, but will save a kitten from a tree. 

If their father had done his job, they might have gone on to college and become an engineer.  Or maybe just gotten a solid job with dreams of a family of their own one day, where they would sit down for dinner every night with their own kids so they could annoy them with questions like I annoy mine.  But for whatever reason, often because daddy was in prison, they had no one to guide them. They never knew what it was like to have a father who was devoted to them.  Their father might take a bullet, but not for them.

To the fathers who did their job, happy fathers day.  To those men and women who need a father, I wish I could have done more for you, but I’m just your lawyer.

When he isn’t offering his services as an expert witness that  false confessions are a fraud and the earth sits on the back of a turtle, Paul Cassell’s holds himself out as th patron saint of victims.  For reasons unknown, this was a sufficient reason for  Slate to give Cassell’s the opportunity to write about his dream of a Victims Rights constitutional amendment

If you call a tail a leg, how many legs does a horse have? Four, calling a tail a leg does not make it a leg.

The problem with Hunter is that if you focus on the content of the communication that was the subject of the discipline, i.e. This Week in Richmond Criminal Defense, it would appear to be political discourse and not commercial speech, as opposed to the rest of his website. Hopefully Hunter appeals this and the outcome will be a determination that a blog is simply a neutral platform that could be used for advertising, but doesn’t need to be, and that it depends on the content. 

To which I say: so what? What hypothetical client out there didn’t know that cases were different but now realizes there’s no guarantee of success in any legal matter? And what’s to stop the lawyer from later implying or outright stating to the client some form of promise or assurance or guarantee of a particular outcome?

It’s ethics theater, it’s not a real solution to the problem of unrealistic client expectations (or of deceptive advertising).

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.

Many of them don’t even know they’re innocent.

And the feds have no plans to tell them.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

“We can’t be outcome driven,” said Anne Tompkins, the U.S. attorney in Charlotte. “We’ve got to make sure we follow the law, and people should want us to do that.” She said her office is “looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent.”

Perhaps the government is only allowed a limited amount of “outcome driven,” and they’ve squandered it on putting these people into prison. Now that they’re legally innocent, there’s no “outcome driven” left to get them out. 

The nature of the problem arose from one of the happiest/saddest aspects of the law, the appellate reversal.

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

The rule of thumb was always that courts would interpret a statute in such a way as to criminal the fiction over the reality, under the theory that no one should avoid imprisonment because they didn’t actually do the wrong alleged.  It was enough that they could have done it. That, the courts would smugly announce, will teach others to keep their noses clean.  Deterrence is also, frequently, a fiction.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit’s decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina’s state courts over the past decade were for offenses that no longer count as felonies under federal law.

Hooray for defendants going forward.  Bummer for defendants already imprisoned.  This doesn’t alter their factual conduct, that they had a prior conviction and possessed a weapon.  Rather, it just says that the crime for which they were convicted is now an un-crime.  But as long as it was a crime at the time, even if only because the courts screwed up by misinterpreting the law, “justice” allows you to rot.

While the USA Today investigation focuses on one somewhat parochial offense, what we delightfully call “felon in possession,” this is hardly a unique situation. The same happened with “use and carry” in connection with drugs, and of course there’s the glorious crack cocaine sentencing disparity that took Congress a few decades to straighten out.  And a biggie, the Supreme Court’s Booker decision, holding the Federal Sentencing Guidelines “advisory” rather than mandatory, rendering all those sentences rammed down judge’s throats an unfortunate exercise of misinterpreted obligation. 

Sorry, defendants. I would have given you 24 months, but the guidelines made me give you 121.  But not to worry, you ‘ll be out soon enough. Maybe. If you live that long.

Expectations that the courts, as the majestic arbiter of justice, will not only clean up its own mess, but make it right, rarely turn out as well as one might hope. It’s not that judges don’t eventually get it right, sometimes, but that it can take years, decades, before they finally say, “oops, we’re sorry, but we got it all wrong.”  And the fact that it cost a human being his life, it cost children and spouses a substantial part of their lives, and fundamentally changed the future for thousands of human beings who suffer the consequences for these interpretive errors, can’t be helped.  It takes time, you know, to get it right. A whole lot of time.

When you talk to a fellow through a plexiglass partition about why his frustration, his bewilderment, at how wrong all of this is and how the interpretation by a bunch of robed people is so utterly detached from reality, there’s really no good explanation. At least nothing that will soothe their anger.  It understandable that they hate us, their lawyers, for participating in a system that can perpetrate such outrages in the name of a silly mistake.  That we didn’t do this to them is of little comfort. We didn’t stop it either.

But when we disconnect fundamental concepts like mens rea from crimes, or when Congress enacts vague, facile laws to fix the evil du jour that the public is told will give us a perfect world, you end up with a bunch of people prosecuted, convicted and sentenced who, when the heat of the moment passes and calmer minds consider, committed no crime.  At least, committed no crime in retrospect, as if it makes them feel better to find out after it’s too late that they’re now an un-criminal.

Meet former Westminster, California, police detective Anthony Nicholas Orban.


He was just a normal law enforcement officer, until one night he had a yearning for a woman.  No woman, apparently, had a yearning for him.  And so he took matters into his own hands.  Well, to be more precise, he took his semi-automatic service weapon into his own hand and shoved it into the mouth of a waitress under the ill-conceived assumption this would make him more attractive.  It did not.

From the Los Angeles Times :

“He was a highly trained officer who wanted to have sex. He had sex on the mind. Don’t forget that,”  Deputy Dist. Atty. Debbie Ploghaus told jurors in her closing arguments earlier this week.

The woman, then 25 and working as a waitress at Ontario Mills Mall, testified that Orban chambered a round in his semi-automatic service pistol, shoving the barrel deep into her mouth as tears rolled down her cheeks. “He said if I cried, he would kill me,” the victim told jurors. “Then he pulled the gun out and said, ‘I think we’ll continue this in the desert.'”

At trial, the defense was a variation on the twinkie defense; Zoloft made me do it.

Defense attorney James Blatt had argued that Orban was rendered “unconscious” by use of the antidepressant, and therefore was not responsible for his actions in the brutal 2010 attack in Fontana.

A defense psychiatrist testified that Orban had stopped taking the prescribed antidepressant, then resumed it at full dose, provoking a psychotic break during which he was not fully aware of his actions.

The prosecution ridiculed the defense as “baloney.”  After all, it’s outrageous to suggest that drugs created to be mind-altering might be, well, mind-altering.

The jury didn’t buy it.

The jury of eight women and four men began deliberations late Tuesday and reached the verdict Wednesday morning. It found the defendant, Anthony Nicholas Orban, a Marine veteran of the Iraq War, guilty of two counts of rape, two counts of forced oral copulation, two of sexual penetration with a foreign object, one count of making a criminal threat, and a sentence enhancement of using a firearm in commission of a kidnapping.

The underlying facts, of Orban going out to a bar to get drunk and find a woman, suggests that what came later wasn’t the product of a psychotic break.  His conduct was calculated, not merely to commit a rape but to do so in a way that would prevent his getting caught by taking his victim to the desert where he could rape her unobserved. 

But that doesn’t mean that the ingestion of the SSRI sertraline hydrochloride played no role, and more importantly, should be so easily dismissed.  The prosecution argued that raping women wasn’t a side effect of Zoloft, which may be accurate as far as it goes. But disinhibition, the inability to control impulse, is a  known side effect, and disinhibition gives rise to an individual acting upon his worst impulses without the control of rational thought.

In other words, it’s quite possible that Orban’s conduct was affected by Zoloft.

The twinkie defense, and its various permutations, has been the subject of such enormous public ridicule as to be easily rejected by a jury despite medical testimony to the contrary.  In a way, it’s much like false confessions, something that jurors refuse to accept because it fails to comport with their experience.  After all, they’ve taken medicine and it never made them rape anyone.

On the other hand, the defense is facile, a ready excuse for inexcusable conduct.  Is society prepared to give every Zoloft user a free rape?  Or worse?  Not likely.

That a defendant who has otherwise demonstrated no inclination toward criminal conduct suddenly engages in something horrendous, as did Orban, seems to suggest that this isn’t his character, but his medication, at work.  But this too is a slippery slope, since accepting the premise that mind-altering drugs can cause an otherwise law-abiding person to engage in a terrible act doesn’t change because of an alleged propensity. If it’s the drugs, it’s the drugs. If it’s not, it’s not.  Guessing games don’t prove anything either way.

This is a particularly difficult issue, since drugs (which can include all manner of things that alter a brain’s chemistry) can obviate the mens rea, and most of us remain of the belief that it’s the intent rather than the mere outcome that distinguishes a crime.

But how to know?  As more mind-altering drugs become available (and are even sold over the counter), and as more people take drugs to achieve their personal level of “normal,” this problem becomes more acute.  The answer, unfortunately, remains elusive, and to the extent that drugs are a very real defense to the formulation of criminal intent, are increasingly unlikely to be accepted by a jury.

But for one factor, Louisiana criminal defense lawyer Claiborne Brown’s handling of his realization that he could not defend his client would be a textbook example of doing it right.  The defendant, Joshua Cumberland, was accused of raping two girls, ages six and nine.  Brown found that he just couldn’t do it.

…the defense attorney stood and confessed to the judge that he’d done an inadequate job representing his client, a 25-year-old Slidell man accused of raping two young girls. Attorney Claiborne Brown refused to proceed, despite the judge’s threats to hold him in contempt of court.

And Judge William Burris did exactly what he threatened to do, holding Brown in contempt of court for refusing to “perform his duties.”

Note the specifics of Brown’s position.  He blamed himself, not his client.  He did not throw his client under the bus, justifying his decision by disclosing client confidences.  Rather, he laid his decision solely on his own shoulders, that he could not satisfy the defendant’s right to competent counsel. 

Even when faced with the threat of contempt, Brown put his duty ahead of self-interest.  No doubt he realized that Judge Burris wasn’t joking, making empty threats to see if he could scare Brown into line.  Yet, Claiborne Brown didn’t waiver in his position. He did not blink.

But Brown did not concede. “I cannot further participate,” he insisted.

“We’re not going to play these games,” Burris said incredulously. “That’s all I see this as — game playing.”

Brown apologized but held his ground. “Is there any reason I shouldn’t hold you in contempt?” Burris asked.

“No, your honor,” Brown replied. He then was led out of the courtroom by the bailiffs.

The irony appears to be that Brown shouldn’t have been the lead counsel at all.

Cumberland hired an attorney from out of state, who hired Brown as his local co-counsel. The out-of-state lawyer did not show up for the trial or any prior hearings.

Brown has been practicing law in the state since October 1998, according to the Louisiana State Bar Association.

By Tuesday, Brown filed a motion describing himself as unqualified to provide adequate counsel. The defendant’s family hired a consultant to watch over Brown’s shoulder, the judge said from the bench. That consultant found him to be incompetent, and Brown agreed.  But Burris denied the motion.

The article neither names nor explains what became of the out-of-state lawyer who should have been the primary defender,  As Brown came into the case as the carpet-bagger’s local counsel, it was never his intention to serve as lead. Nor does the article explain the role of the consultant, though all of this suggests that the defendant had the wherewithal to retain a lawyer well-suited to the case.

So what gives rise to the reservation about Brown’s handling of himself, and his inability to proceed as lawyer for the defendant?  Claiborne Brown’s motion to be relieved came two days into trial, a jury selected and seated, and following opening statements and two witnesses.

A jury was seated, and the state had called two witnesses, totaling at least $2,000 in expenditures, Burris noted. The two little girls traveled hundreds of miles to testify.

It would set a “horrible precedent” to call off the trial with no obvious signs that the lawyer was incompetent; Brown had given a fine opening statement and adequately questioned witnesses, Burris noted.

Whether fears of a “horrible precedent” are real can be subject to debate, but it’s hard to conceive of why Brown’s epiphany came two days into trial rather than, say, the day he was retained or any time in between.  There reaches a point of no return, and clearly that point comes before the jury is sworn.

That Judge Burris, noting that a defendant on trial isn’t entitled to a good lawyer but merely one who isn’t overtly incompetent and doesn’t sleep through the truly critical portions of testimony, disputes Brown’s (and the defense consultant’s) assessment of his work.  Brown says he is inadequate. While a judge may blow some smoke for the purpose of moving the case forward, a declaration of incompetence is tough to overcome.  After all, no one knows better than Brown what he should be doing for his client.

It’s understandable that Brown may find himself incapable of providing the degree of zeal his oath demands. Not every lawyer can stomach sex offenses, particularly when they involve something as horrific as the rape of children. Indeed, I’m one of them, and I don’t take such cases because of it.

But then, this isn’t something that you figure out in the middle of trial.  If the nature of the case precludes a lawyer from providing a zealous defense, then don’t take the case in the first place.  If you thought you could do it but, after learning more about the case, find it impossible, then get out at a stage when no prejudice will accrue to the defendant.  Give the defendant an opportunity to retain a lawyer who will provide him with the defense he deserves. Mid-trial is not the time to figure out there’s a problem.

While there is much to say about Brown’s handling of this flagrantly awkward and prejudicial situation, particularly that he didn’t suggest in any way that his client’s conduct, his client’s guilt, was so repulsive that he had to run away.  But the failure to realize this in a timely fashion is inexcusable. 

The situation before Judge Burris was untenable, as he was right to question Brown’s midnight confession of inadequacy, and likely had no choice but to hold him in contempt.  While his conclusion that Brown was competent because he was able to say “howdy” without tripping over himself doesn’t prove competence, he was similarly confronted with a box full of happy jurors and a defendant who was entitled to have them decide his fate.  It’s hard to blame the judge for the defense lawyer’s egregious error.

It’s okay to decide that a case, a defendant, a crime, isn’t for you. Do it up front.  Once you’ve assumed the obligation, and once your change of mind inures to the defendant’s prejudice, the time to change your mind is over. Fulfill your duty.

H/T ABA Journal

I’m deluged with lawyers, marketers, the ABA, and pretty much anybody with email or internet access, telling me how the internet is going to save us.  By “us,” I mean lawyers and those who use lawyers. String together as many vague, fuzzy words as necessary, which proves that it’s where lawyers will find the path to wealth and prestige.

Which compels me to wonder how to account for reality.  Over at Popehat, Ken talks about the latest internet crazy. As anyone who has either spent some time online, or taken a stand on anything remotely resembling principle, has learned, the internet is filled to the brim with crazy.  Ask Marc Randazza. Ask me too.

Or then there are the lawyers who believe their next legal fee is coming via the internet, only to learn that they’re the latest targets in the Nigerian scam that’s been around for at least 30 years, but has gained incredible new life online. An email comes in from a “new client” and a lawyer is thrilled. After all, isn’t this how clients will be finding counsel in the future?  Isn’t this what lawyers are counting on?

Or maybe it’s just the tire kickers, the clients without money or who read the “how to hire a lawyer” advice on co-op advertising sites that scam lawyer and client alike in order to sell advertising at a penny a click.  These are the one who believe you need to interview a few hundred lawyers and ask insightful questions like “how many cases like this have you handled” before they demand pro bono representation.

Years ago, the sound of a ringing telephone brought a smile to my face. If it was a new client, they would come by way of a former client or a lawyer who knew me, and who knew the nature of cases I took, the quality of work I did, and the fees I charged.  It was rarely someone who was considering retaining me, but someone who sought my representation.  The first meeting was not an interview, but getting started.

Today I cringe when the phone rings.  What will it be now, a shop-lifting case in Phoenix?  A post-appeal request for pro bono?  Maybe some incomprehensible harangue about the evils of the system and why I (you da lawyer, you supposed to fix it) am obliged to end it?

A while back, I noted that the blogosphere is the great equalizer.  We don’t always know who we’re dealing with, whether male or female, black or white, young or old. The problem is it extends far beyond the positive, the elimination of irrelevant bias, and deep into the realm of more troubling humanity.

Twitter sends me emails about new followers, and sometimes I look to see who they are, pondering the essential question of why anyone would want to follow me.  Most of the time, the bio is a flagrant advertisement, whether it’s for their legal, marketing or SEO services.  The child-like come-ons, once slightly novel, have become utterly predictable in begging that I follow their journey to whatever they want me to buy.

Buy?  I don’t know who you are. Are you a nutjob, a tire-kicker, a Nigerian prince?  Some of you might be great lawyers, or great people, and if I ever had a chance to know you, I would want to go to dinner with you and send you business.  But I will never know because there’s nothing about the internet that allows me to generically distinguish you from the liar, the moron, the incompetent and the dishonest.  It’s not that you’ve done anything wrong, but the internet, the great equalizer, makes everyone look the same.

I’ve learned this the hard way.  There are people with whom I’ve interacted online for years, only to learn later that I was very wrong about them.  Whether I was naive or just stupid is hard to say, but as my mistake smacked me upside the head, I learned.  Just because you retweet something I wrote doesn’t make us best friends, or make you my new go-to guy for personal injury.

My purpose in writing this isn’t to thwart the myriad businesses and well-intended scams of hungry entrepreneurs who are certain that their future wealth will be found on the internet, but rather because it’s painful to watch others endure the suffering that comes at the hands of the internet.  It struck close to home when I read Ken’s post about his internet psycho, or Marco’s story about how websites in the name of his wife and daughter had been purchased by an internet nutjob.  And for those who haven’t figured this out yet, some of the crazies playing lawyer online are, in fact, lawyers. And crazy. And dangerous. 

Every day, new lawyers come aboard the speeding internet train, praying it hasn’t already left them behind.  They use all the tool marketers tell them they must, writing happy posts and retweeting anything they think will get them a new friend. They phrase their bios and websites and toss in a video to prove their sincere. Some leave out the unpleasant details and show only a perpetual smile.

What they don’t realize is their friends are at best others hoping for the same as them, to get someone to throw them a bone. At worst, they’re following a crazy person or a Nigerian lottery winner.  And when their phone rings, and the caller says they found them on the internet, they will come to the painful realization that they’ve put in this effort, spent their money, for nothing.

It’s not that I don’t enjoy and appreciate the internet. I do, even with all the problems it has. But then, I realize the problems exist and have become generally savvy enough to avoid many of them.  I’ve been around here for a while.  Many others are new and hear only about the joys and wonders of the internet.

It’s unlikely that any lawyer seeking their fortune on the internet is going to heed my words.  It’s been a while since any bar association asked me to participate in a CLE about social media, as they much prefer those who have happy and positive things to say rather than warnings about scams, liars and nutjobs.  Nobody wants to hear the downside. It’s unpleasant.

But once a lawyer has made the mistake of buying into “the future,” they may find their way here.  Maybe some lawyer’s family won’t have to endure a psycho stalker putting up websites about how they’re pedophiles.  The internet may not save you, but it can do you a lot of harm. Maybe I can help somebody avoid that harm. 

There’s an undeniable element of Schadenfreude  in the words of Indiana Fraternal Order of Police president, Tim Downs:

It’s just a recipe for disaster,” said Downs, chief of the Lake County police in northwest Indiana. “It just puts a bounty on our heads.”

(i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:

(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;

(2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or

(3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.

The expanse of this law is broad, covering not just entry into a home, but trespass on the curtilage (the lawned area surrounding a home) and even an occupied motor vehicle.  It calls upon a person to exercise a degree of discretion to distinguish between a lawful entry or attack and an unlawful one.  This isn’t an easy thing to do.

Tim Down is afraid, and may well have damn good reason to be afraid.  Then again, so should everyone else in Indiana. As much as the right of a person to defend himself against unlawful force should be a core principle, it also presents a very dangerous problem. A cop afraid is a cop who shoots first.  His fear may be irrational and baseless, though you can bet he’ll come up with a reason for firing before the ambulance arrives, but the First Rule of Policing can never be ignored.  If someone is going to die, you can bet the cop prefers it be you.

Behind this law is the belief that no one, public servants included, have the right or authority to break the law and unlawfully violate your rights.  It’s a beautiful concept, and one that every American, cops included, should hold dear. There is no freedom if it can be wrongfully taken without recourse.

While this seems at first blush to level the playing field, to give police a good reason to pause before engaging in unlawful conduct such as occurred in Barnes, it’s never quite a fair fight.  First, the police will still be the ones to initiate action, meaning they can do so, plan it, execute it, in a way that will invariably favor them and their safety at the expense of the citizen. 

Second, the cops have weapons, and more of them, that you don’t have. Whether tanks, drones or merely a few dozen automatic assault rifles, they are nothing if not well armed.  What are the chances a guy, half asleep, is well-positioned to fend off a SWAT team?  He may get one of two, but his chances of survival are slim to none. Once bullets start flying, the police aren’t going to stop until someone goes down.

Third, the police officer who stops your car, whether you believe rightfully or wrongfully, is coming at you with a serious concern that might not take the stop with equanimity.  He’s going to have his hand on his gun, and he’s going to be ready to use it.  Reach for your registration and it’s a furtive gesture. Boom. Don’t expect the cop to hesitate, and don’t expect the legal system to blame him for it.

If this law restores some degree of balance, appropriate concern without undue fear, then it may well accomplish its goal of telling the Government that it is not entitled to illegally storm a home simply because it can.  Certainly the courts are incapable of stopping this from happening, as if the police had any concern about what a court might say.  That something more was needed to remind the police that they don’t own us is beyond question.

Yet, this may be a recipe for disaster. Not the disaster that Downs fears, but the disaster of cops shooting people first because they fear people exercising their lawful right to resist with force.  As I’m not from Texas, I don’t want to see anyone die. Not cop. Not citizen. No one.

Perhaps the tension this creates will make the police think hard about engaging in unlawful conduct, and potentially breaking the First Rule of Policing.  Perhaps this will produce a blood bath, with the citizen invariably on the south side of a tank rolling north.  The simple answer is for cops to stop engaging in unlawful conduct, but then, the police never seem to grasp why they aren’t entitled to do whatever they please. 

Regardless of who’s to blame, let’s hope that this law serves its purpose and doesn’t become an excuse for roadside murders.  Of anybody.