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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The story began to change.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do what? From the ABA Journal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

At the WSJ Law Blog, Nathan Koppel posts about corporate fear of the whistleblower provisions of the Dodd-Frank law. 

More than 260 companies sent a letter to the SEC warning that the whistleblower provisions could turn financial fraud into a “gold mine” for employees, according to this WSJ article.

Whistleblowers, under Dodd-Frank, stand to earn rewards of 10% to 30% of fines and settlements reached as a result of their tips.

Lawyers at such companies as Delta, FedEx, Gap and Pfizer said the new rules could work against existing internal compliance programs, because they “disincent employees from looking for ways to improve or correct corporate behaviors, and incent them to find ways to profit from corporate wrongdoing,” according to the letter, which is due to be released today.

While the obvious knee-jerk reaction is that anyone who uses the word “disincent” deserves anything they get, and few outside of upper management are likely to shed a tear over this provision, it is a problem.  Not necessarily because it impairs management’s efforts at internal compliance, but because the “rewards” can be monstrously huge. 

Historically, the problem is that internal whistleblowers haven’t been well-treated.  Tell someone that they’re ugly and, for some odd reason, they don’t tend to take it well.  Next thing you know, you’re not invited to the taco party outside Bill’s office.  Oh yeah, and your career is over.

It’s not that upper management doesn’t want to encourage employees to disclose problems so that they can be corrected, but that the complexity and numerosity of those in the command chain and working around the person complaining get in the way.  In other words, things are never as simple internally as they might appear, or one might hope, from the outside. 

At the same time, people complain about a lot of things, some of which are problems but most of which are either pet peeves of some disgruntled employee or a personal vendetta played out in a corporate format.  Distinguishing between real corporate compliance issues and things that piss Joe off can be difficult and mind-bogglingly expensive. 

And when some punk kid AUSA later decides that an issue no one with more than twelve minutes business experience would take seriously is, from his prosecutorial perch, the crime of the century, the outside world wonders how a respected corporation could have been taken over by such fools or gangster.  It can happen.

That corporate counsel doesn’t like the Dodd-Frank law comes as no surprise.  If you were in that job, you wouldn’t either.  But that doesn’t make them wrong about the incentives.  There’s very little that happens in a corporation of any size that doesn’t equate, with minimal effort, to millions upon millions of dollars in the fertile imagination of the government.  This means that the whistleblower, looking at rewards of more than 10%, could hit the lottery.  That’s a problem too.

Whether it serves to make the disgruntled employee seek out impropriety under every rock, or sit quietly by as small problems fester into big ones, or, worst still, fan the flames of impropriety in order to have something to blow the whistle about, the financial gain makes it all pay off.  Hard as it is to imagine, some employees really don’t love their company enough to ignore the potential for vast riches in favor of corporate compliance.  Go figure.

What’s missing is a rational tipping point, a place where the incentives to work within the system are in balance with the incentives to give corporate impropriety a gentle push and then blow the whistle when things get bad.  It’s unclear whether there can be a single tipping point, since corporate employees differ in their degree of integrity and loyalty, some hating the person who signs their paycheck and waiting in the shadows for the opportunity to rat them out. 

But the incentive system in Dodd-Frank seems incredibly rich, so much so that it encourages even the most loyal employee to keep budding impropriety under his hat in the hope of a huge payday down the road.  Even the most ardent populist should recognize that too much greed presents a problem.

Those inclined toward corporate conspiracy theories, where every CEO has a poster of Dr. Evil on the wall and spends his evenings scheming for new ways to cheat the public, there’s no incentive structure that’s too rich for their liking.  Experience, on the other hand, suggests that most are risk averse, recognizing that every investigation costs a corporation huge amounts of money, prestige and credibility, and gets in the way of what they really want to do: make a fortune performing the corporation’s core functions.

This isn’t to say that the fear of the whistleblower doesn’t serve the purpose of keeping the overly greedy or disreputable in line, providing a sound basis for their risk aversion. Rather, that the efficacy of the law designed to keep corporations from getting crazy, engaging in improper and criminal conduct, depends on a delicate balance. 

We need corporations.  They provide jobs that pay us. They provide the goods and services we use.  They are, at worst, a necessary evil. And we need them here, and not just in Beijing, where the whistleblower is treated somewhat differently.  It’s fine that we expect a higher degree of integrity from our corporate executives then other countries, but if we go too crazy, we’re going to be awfully unhappy with the consequences.

District Judge Howard Riddle  set bail yesterday for this year’s most notorious Aussie, Julian Assange.  And yet Assange sits in custody.  It’s not as if Judge Riddle gave him a free ride, the bail amount and conditions being rather stringent.

Mr Assange was granted bail on condition he provides a security of £200,000 to the court, with a further £40,000 guaranteed in two sureties of £20,000 each.

Mr Assange must also surrender his passport, obey a curfew at an address in Suffolk, wear an electronic tag and report to a local police station every evening.

Short of keeping his grandmother in shackles, this seemed calculated to assure his return to court, plus some.  Not wanting to be unduly naive, given who this is about, at least Judge Riddle found a way to release Assange despite the overwhelming scrutiny of the world and the less-than-secret reason for it.

And yet Assange sits in custody.

But he will remain in prison pending an appeal against the bail decision lodged by Swedish prosecutors.

Curiously, the Swedes had a voice in a British courtroom.

Lawyer Gemma Lindfield, representing the Swedish authorities, argued on Tuesday that the court had “already found that Mr Assange is a flight risk” and “nothing has changed since last week to allay the court’s fears in this regard”.

But District Judge Howard Riddle disagreed, saying that questions about Mr Assange’s place of residence and the circumstances of his arrival in the UK had both now been cleared up.

Not being a barrister, and in fact lacking even such basic accoutrements as a horsehair whig. this procedure strikes me as bizarre and inexplicable.  One might assume that there would be person speaking for the Crown as to whether Julian Assange should be allowed to walk free on British soil during the pendency of his extradition proceedings, playing the role of prosecutor.  From my mindset, that would be the person to speak out, whether for or against, bail for Assange.

Apparently, there’s a Swedish exception, with Gemma Lindfield filling the post on behalf of a foreign nation’s mouthpiece.  Perhaps some Brit lawyer can explain why they let a lawyer representing a different sovereign play second prosecutor.

That the Swedes might take issue with the decision of Judge Riddle to set bail isn’t controversial.  When they picked back up the dropped charges against Assange, it became clear that certain Swedish powers were determined to make sure that Julian Assange was nailed to the wall.  That much is clear, as the charges belying his custody just can’t explain the Swedish action or reaction.

What doesn’t make a great deal of sense is that an appeal by the Swedes of Judge Riddle’s bail decision (assuming they have any right to appeal a decision in a British court at all) keeps Assange behind bars.  That’s the whole point of bail, to not hold a person in custody.  Does the mere incantation of the words, “I appeal,” suffice to stop the process dead in its tracks and keep a human being in jail until such time as an appellate court decides?

Well, apparently so.

The idea of maintaining the status quo ante isn’t novel, but we aren’t talking about a stay of judgment here.  This is the freedom of a human being at risk, and every week, day, second, imprisoned is one that he’ll never get back.  It’s not as if the prosecution can take an elevator ride to the higher court and obtain an immediate hearing.  Assange is sitting in a cell despite the fact that the last decision is one that granted him bail.  And he waits while the lawyer for a foreign power disputes the conclusion of a British judge.

Perhaps this process seems perfectly normal to lawyers across the pond.  I realize that others take a different view of freedom and due process, and it may well be that a few more days, weeks, months in a jail cell awaiting a determination despite the fixing of rather onerous bail conditions for release remain in place. 

But to these old, Yankee eyes, this strikes me as an inexplicable process that demeans both the decision of the British judge as well as the value of a person’s liberty.  If the Brits want to let the Swedes intervene in their court system, that’s their business as much as it seems absurd to me.  The Swedes will get their chance to do damage to Assange when and if extradition is granted.

In the meantime, let Assange meet the bail conditions set and breathe free air.  Until he has to report every evening to the bobbies, of course, since an ankle bracelet obviously isn’t good enough to let them know where he is.

Update:  Julian Assange’s bail has been upheld, and assuming its posted, he’ll be off to the country for the holidays.  (I’m awaiting an invite to join him in a toddy, by the way).

On the downside, the time between the grant of bail, not to mention his initial bail application when bail should have been granted, and the rejection of the Crown Prosecution Service’s appeal is lost forever.  I can’t help but wonder whether this makes Sen. Joe Lieberman happy or sad.

Have you wondered to yourself, where can I meet the Who’s Who of [the] Legal Fraternity of India?  I know, who hasn’t?  Fortunately, the answer arrived by email today.

Cerebral Business Research is organizing a conference on the need, relevance and the implications of technology in the legal systems titled “Legal Tech India 2011” on January 22, 2011 at Hotel Imperial, New Delhi. The objective of the conference emphasizes on the growing and vast avenues prevalent for technology in the legal arena and how legal systems can evolve to a simpler, systematic and a cost effective modus operandi. The conference aims to bring together expertise, competence and technology in managing all the constituents of legal affairs including LPO.

This forum is expected to be attended by 120+ senior level delegates from leading Law Firms, Corporate Counsel, Senior Advocates and Solutions / technology providers. You will get an opportunity to meet the Who’s Who of Legal Fraternity of India.

The discussions to be delivered by the legal luminaries of India in partnership with the technology experts would extend great value to the entire legal fraternity and by participating in this conference, the whole legal value chain stands to gain from the various technology advancements. You can be a spectator to the wide range of leading thought leaders assembled at a common platform to share their views on how technology implementation and up-gradation have helped their businesses.

I care about the “need, relevance and the implications of technology.”  I write about stuff like that all the time.  So when this email arrived, I was immediately sucked in by this tickler of an opening, wondering, how can a regular guy like me join 120+ senior level delegates (?) to learn about such stuff? 

So I kept reading, down the page, down, down, to see where the good offer came in.  I scanned the email, and figured I must have missed it.  I read it again, this time more carefully.  It wasn’t there.  Nowhere to be found.  It did not say a word about their flying me to New Delhi first class, and putting me up in a suite at the Imperial Hotel, with sumptuous meals (with or without monkey brains) and maybe even an elephant ride during the conference down time.

Did these guys think I would fly to India on my own dime so that they could sell me on outsourcing?  Frankly, I don’t even like the food.  And it’s a one day conference!  What about a golf outing to give the trip a little kick?

Still, having read that much, I decided to check out the speakers.  You never know where Adrian Dayton will show up, and since he’s kind enough to show up for my presentations, would it kill me to return the favor?  But no Adrian.  In fact, no anybody, except the conference chair, who may be (or may not, since they don’t actually specify) Suhail Tak.

Now I don’t know Suhail Tak.  Maybe he knows everything there is to know about sucking savings out of a client’s pocket that can go straight into the pocket of an American lawyer.  Nothing to sneeze at there, if that’s what you’re aiming for.  And he’s got some big time support behind him.

Yup, the good old Indian Law Firms Society is backing this conference.  It’s a flat, flat world.

Sadly, I’ve decided to pass on this conference, despite my desire to be “a spectator to the wide range of leading thought leaders,” which is certainly better than the following thought leaders or the leading thought followers.

Now if only this conference was in Mumbai or Bangalore.  Maybe next year.

Via Linked In Blog, the top ten “overused” buzzwords in LinkedIn profiles.

Top 10 overused buzzwords in LinkedIn Profiles in the USA – 2010

1. Extensive experience
   
2. Innovative
   
3. Motivated
   
4. Results-oriented
   
5. Dynamic
   
6. Proven track record
   
7. Team player
   
8. Fast-paced
   
9. Problem solver
   
10. Entrepreneurial

Manu Sharma explains why this fails.

Wonder what really makes people cringe when they look at your LinkedIn Profile?  It’s those clichéd words and phrases. You know what they are — those ambiguous ones that really don’t tell you anything.

Some days, I sit and marvel at the nonsense I read online, whether from marketers or social media gurus, and sadly even fellow blawgers who purport to write about substantive issues.  I see lots of words strung together that give the impression of, what, something.  But I’ve got no clue what they actually say. 

I wonder whether I missed the memo that explained why a word that otherwise has no particular meaning is now a very important word, chock full of particularization.  Am I the only one who doesn’t understand it?  Am I the only one who reads every word, sometimes twice, and finds myself clueless as to what the point might be?

Adding to my bewilderment are the comments, applauding the string of vagaries for their brilliance, insight, illumination.  Reading the comments, my concern grows deeper.  Do these people realize that nothing whatsoever was said?  Not a single idea was transmitted, and yet they are ready to compare this with Plato. 

Am I missing something?  No seriously, am I the village idiot, the only one too dense to appreciate the depth and genius of this string of words that means absolutely nothing to me?

Obviously, I realized that the marketers and social media gurus sucked up to one another despite the wholesale absence of anything resembling thought because it was in their mutual best interest to do so.  If they didn’t spend their days thanking each other for their brilliance and retwitting, they would have nothing whatsoever to say. 

I recalled the self-proclaimed social media rockstar, Tamar Weinberg, one of the most  vapid  twinkies in the blogosphere, who  went bonkers when someone told her she was an empty bore.  It was shocking to me to learn that this wasn’t a conspiracy of the thoughtfully manipulative, a corps of schemers who realized that they were pulling the leg of every dim-witted sycophant in the digital world.  They had no idea that they were living in an intellectual void.  They believed that strings of empty words meant something.

There isn’t much to be done with people who are no deeper than a puddle. 

But it’s the blawgers and their lawyer readers that continue to trouble me.  One purpose of law school used to be to develop the skill of critical analysis, Prof. Kingsfield’s “think like a lawyer.”  Are they still doing that? 

It’s not that all young lawyers and law students are a bunch of dopes, as there are many who strike as remarkable smart, analytical and incisive.  The problem is that there are a lot who aren’t as well, Whether it’s because of their applauding content that says nothing, assertions without substance or irrational arguments, or whether they read a post that makes a clear, well-reasoned point, and completely miss it.

Buzz words are cool, happening and cutting edge.  Use them and there’s an awfully good chance that some people will respond that you are a “thought leader” and a “game changer.”  Maybe they will fear that anything short of complete approval will reveal them as unhip.  Maybe they just seek approval in return.  Maybe they’re too stupid to realize that it’s just a string of letters without any meaning.

If you’re a lawyer, however, this isn’t good enough.  You are supposed to be capable of thinking.  You should be able to discern the difference between substance and “those ambiguous ones that really don’t tell you anything.”  If you can’t, it’s a problem.  If you won’t, then that’s pathetic.

There are many of us reading, both the blawg posts as well as the comments, not to mention the twits, to see if there’s anything interesting in there.  We see that bad as well as the good.  Most won’t tell you that we’re seeing insipid reactions to vapid content.  But they will think to themselves, what a moron. 

I’m not the only one who sees this.  If you don’t, then there’s a good chance that you’re the person I’m talking about, the one who can’t distinguish between a meaningless buzzword and actual thought.  Are you on the side of thoughtful substance, or do buzzwords suffice?