As the Supremes get to ponder whether flaming nutjobs like Fred Phelps of Westboro Baptist Church infamy gets to create misery and disgust in order to allow the rest of us to speak unmolested, a new contender for flamer of the year has arisen in Trenton, Michigan,   Her name is Jennifer Petkov.

Turley provides some details:

 There is a horrific story out of Michigan where a couple Scott and Jennifer Petkov are accused of a cruel campaign targeting a seven-year-old girl, Kathleen Edwards who is dying from Huntington’s disease. The Petkov’s alleged posted pictures showing Kathleen’s mother (Laura Edwards, who died of the disease last year at the age of 24) in the arms of the grim reaper and photo shopped a picture of Kathleen with her face above a set of crossed bones.

In addition to the pictures, the Petkovs allegedly allegedly drove their truck named the “Death Machine” up and down their street honking their horn. They later left the truck festooned with coffins in front of the Rose house (though they insisted it is just a Halloween decoration).

Witnesses say that the couple routinely laughed at Laura and her daughter for the neurological disease that causes involuntary writhing movements.

The Petkovs live next door to the Edwards.  Nice neighborhood, right.  And if you think Jennifer Petkov is less than ladylike on paper, she’s even more unpleasant on video.

Taking a glance at 7-year old Kathleen Edwards in the video, one comes to appreciate, again, the cost of free speech.  No sane person can watch this and not be outraged at this sick, disgusting woman.  But the harm of her words and deeds isn’t to us, but to a child.  We suffer outrage.  Kathleen Edwards just suffers.  It compels the question, who are we to say that she must pay the price?

Yet we rationally know that the Fred Phelps, the Jennifer Petkovs of the world are the testing grounds for speech, painful as it is.  Worse still, we rationally know that there are plenty more where they come from.

We can condemn these people for what they say, but it rings awfully hollow.  Turley asks whether there’s some harassment-type crime here, given Petkovs apparent intention of causing harm to this child.  Certainly it’s deliberate and likely to cause pain to a dying seven year old.  While personal protection orders have issued, no arrests were made. 

The question is what criminal or civil liability the Petkovs could face. They have a constitutional right to be horrible people. However, their first amendment rights are limited in cases of harassment, stalking, and other crimes. The most obvious criminal charge would be any violation of the restraining order. Such orders generally do not include limitations on speech such as Facebook sites and public statements. The truck could be an issue if parked within the protected zone. I do not believe Michigan has a cyber-bullying statute. What I am unclear about is why the police did not pursue this as a child abuse case, if it is true that the Petkovs confronted the little girl. If that account is false, there remains the campaign directly against the little girl as a possible abuse or stalking case.

The most obvious course for the Rose family would be a civil lawsuit for intentional infliction of emotional distress. There is probably not an action for privacy violations here, such as intrusion upon seclusion or public disclosure of embarrassing private acts. Likewise, words alone are generally insufficient for assault. However, what is fascinating about the case is Jennifer Petkov’s admission that she wanted to harm the Rose family in taking these actions.

It appears that the Michigan harassment statute addresses personal confrontation rather than intentional harm caused from a distance.  The statute’s definition of “stalking” may apply.

(d) “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

Whether Petkovs conduct meets the proscription is another matter.  Whether the prohibition can constitutionally apply to this speech is yet another question.

While it’s hard to imagine that Jennifer Petkov (or anyone) can hold such malicious and sick beliefs, we know there to be such people around and it’s our rights tested via their diseased mouths.  Even they get to speak, as much as we might like to personally explain to them why we would prefer they not exist.

Before closing, it should be noted that Petkov has since had an epiphany and now realizes that she was wrong.  She apologizes.  No doubt she’s very sincere and that makes it all go away.

The punch line to the joke is that Churchill will be sober tomorrow.  But the Board of Directors of insurer Horace Mann will still be clueless.  Over at Conglomerate , Illinois lawprof Christine Hurt posts about CEO Louis Lower having pleaded no contest to drunk driving in Florida and being sentenced to 60 days in jail.

Lower pleaded no contest to drunken driving Sept. 8 and was given a 60-day sentence after a May incident where he drove on the wrong side of the road and crashed head-on into a sport-utility vehicle containing two teenagers. He refused a police request to perform a field sobriety test at the scene, and was found to have a blood-alcohol content of 0.21 when police drew his blood more than three hours later. The legal limit in Florida is 0.08.

It happens.  Thankfully, no one was killed, but a head-on wrong-way collision is bound to garner some attention locally, though it may not make it all the way from Florida to Illinois.  While there’s no information on the date of the crash, it’s clear that Lower copped out on September 8, and apparently went in immediately.  The Board of Horace Mann was told of all this on September 9, though some execs knew about it from the time of arrest, and Lower resigned his position as CEO.  The Board disclosed this publicly on September 13th.

Before turning to the point of this post, you’re no doubt deeply concerned that Lower will be able to transition from jailbird to law-abiding citizen when he’s released.  Rest easy.

The board said Wednesday it will take no further disciplinary action against Lower because of his resignation. Horace Mann, based in Springfield, Ill., sells car, home and life insurance.

In a filing with securities regulators, the company said Lower’s retirement makes him eligible for a cash bonus of about $250,000 and stock-based awards of about $3.7 million.

Whew.  That will keep him in Ripple for a while.  Facetiousness aside, it’s a shame that Lower’s name comes across the ticker only because of the grave misfortune of being involved in a drunk driving accident.  He could be a brilliant CEO and a wonderful humanitarian.  But for the sheer luck of having attempted to defy the laws of physics, he would have made it home, slept off his dubious judgment and no one would be the wiser, just like so many others have done. No harm, no foul.  Lower, unfortunately, caused harm.

The scenario raised a question as to whether the Board of Directors of Horace Mann Educators Corp. was required to make immediate disclosure of this information, and a reporter contacted Lawprof Hurt (because reporters adore getting quotes from lawprofs, who are just the most credible sources ever when it comes to writing a compelling story).  Apparently Hurt wasn’t familiar with the time of newscycles, and failed to get back to the reporter quickly enough to be relevant.  Not wanting to waste her hard work thinking, she wrote a post.

I think jail could be material; arrest maybe not.  The reporter’s email asked if the CEO was like Martha Stewart.  Due to the fact that Google doesn’t recognize Louis Lower’s name when I type it, I’m going to say the answer is no.  Martha Stewart is MSLO.  No doubt about it.  Steve Jobs may be Apple.  Louis Lower does not appear to be Horace Mann.  So, the fact that he was arrested for misdemeanor DWI (no injuries in the accident), might not be material.  Item 401(f)(2) would require in any mandatory filing that the company diclose if an executive officer “is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses.”  Man, I wish that this were a little more specific. 

Is DWI a traffic violation?  I don’t think running down your cheating spouse with the car is, but DWI might be.  And, Horace Mann filed no mandatory filings during this time.  Is it material enough that it would have to be disclosed otherwise, perhaps on Form 8-K?  The form does not list this as an area for disclosure.  However, is there a substantial likelihood that a reasonable investor in Horace Mann would think this important in the total mix of information?  I just don’t see it.  Courts have held that when the CEO is the alter ego and the pending proceeding, even if not criminal, points to integrity and capability (fraud, breach of duty, etc.), then it is material.  Yes, DWI has a moral turpitude angle to it, but I’m going to say no because no injuries, etc.

Forgive me for breaking up her single paragraph and adding emphasis, but it’s just too difficult to read otherwise.  To almost anyone reading here, the flaw in her analysis is obvious and painful.  Perhaps Hurt could be forgiven for being clueless as to the definition of a traffic violation, as she might have missed that day in first year crim law, but that she nonetheless thinks it’s up for grabs, a subject of her personal opinion, is deeply troubling.  It was a misdemeanor.  That’s a crime.  Speeding tickets are violations.  Crimes are crimes.  There’s no wiggle room.

Despite her neither knowing, nor having the good sense to ask someone who does know, what she’s talking about, Hurt goes on:

But yet he was sentenced to 60 days.  Thankfully, I have no priors about length of sentence for first-time (as has been claimed) DWI, so I’m wondering if the sentence tells us that there are more facts here that would make the arrest material.  Was there anything else egregious that made jail time a probability or near certainty?  If so, then I’m closer to materiality there.

But once your CEO is in jail, that seems like its material to me.  What has caught the media’s attention is that he did not resign at first.  He was an incarcerated sitting CEO.  Since then, he has retired as CEO.  The resignation, termination or retirement of the CEO is per se material and would have to be reported within four business days on Form 8-K.  Here, the board disclosed the fact that the non-terminated CEO was in jail within four business days.  So, the board seems to have thought it was material and so properly disclosed.

It’s been my position, and something I’ve been explaining in excruciating detail whenever presenting to in-house counsel, that the vast mysteries of criminal law aren’t really all that vast.  Rather, there is some monumental disconnect between the corporate lawyers (and corporate lawprofs) upon whom corporations rely for advice and criminal law. 

The dirtiness and nastiness of such banal problems are so fundamentally distant from their preferred counsel’s knowledge and background that they are incapable of providing the most basic sound advice.  In other words, they are so clueless as to devolve into the arrogance of thinking they get to just make it up, 

Did it dawn on the Board of Horace Mann that there might be a bunch of lawyers who, in the course of a brief telephone call, could have provided them with precise advice, that their CEO was convicted of a crime, and that crimes are, by definition, material and must be reported?  Did it dawn on their general counsel, who was no doubt the first person asked when this came to light?  It obviously didn’t occur to Lawprof Hurt to ask a lawprof teaching criminal law.

Of course, materiality is a curious thing when it comes to corporate governance.  Following the announcement of CEO Lower’s conviction and incarceration, the stock price of Horace Mann dropped precipitously didn’t do much at all, suggesting that no one really cared that Lower got drunk, pleaded guilty, went to jail and resigned.  Talk about adding insult to injury for the poor fellow.

At least he has his cash bonus and stock awards to comfort him upon his release.\

As for Christine Hurt, perhaps she will consider asking someone with just a wee bit of knowledge in an area with which she’s completely unfamiliar before spouting off her opinion.  Even professors who teach corporations would do well to have some idea what they’re talking about before opining, and then perhaps we can work on corporate executives, officers, boards and counsel taking their obligations seriously enough to realize that criminal law isn’t something you just get to make up as you go along.

Yes, criminal law can be dirty and nasty, far beneath the dignity of corporate culture.  But there are times when your good folk find themselves in our neighborhood, and we might just have a little something to offer.

H/T Ed at Blawg Review

Apparently, there’s some sort of civil lawsuit happening between soccer player David Beckham and a self-proclaimed prostitute, Irma Nici.  It sounded vaguely familiar, but not the sort of thing that generally interests me.  But when I received a “press release” from Nici’s lawyer, my interest was piqued.

Los Angeles, California, October 9, 2010. California Attorney, Paul Rolf Jensen released stunning photos of Irma Nici, David Beckham’s call-girl. Nici, a gorgeous Bosnian who is a British subject, had to be hospitalized with heart palpitations after an army of process servers, paparazzi and rugby ruffians mobbed her at the W Hotel where she was staying.

“This further proves my client’s claim that David Beckham is responsible for putting my client in the hospital. Between the stress of coming forward honestly and his spurious lawsuit, David Beckham’s reckless behavior has injured my client’s health”. “Beckham’s process server ignored an offer from Ms. Nici and requested by the hotel manager to accept service in private to avoid a media circus which has caused my client to have a nervous breakdown”. said Jensen.

She had “heart palpitations?”  An “army of process servers, paparazzi and rugby ruffians?”  Then there were the links to the “stunning photos” which are, shall we say, utterly meaningless.  Here, check them out for yourself.  Ooh, the last one has a bit of cleavage. Racy.  Does it grab your interest?

So while I still know nothing about the action and care even less, I have learned one thing from this press release.  This lawyer named Jensen makes Gloria Allred look demure.  He goes on to inform:

“I am considering withdrawing my motion to dismiss and taking the matter to trial as expeditiously as possible where I am certain that the 3rd woman in this menage-a-trois will be produced” said Jensen.

Additionally, Jensen announced his intention to call Beckham’s wife Victoria “Posh” Beckham . . .

As much of a fan of the Spice Girls as I may be, or titillated by any use of the phrase “menage-a-trois,” I regret that Jensen does not rise to superstar status by this threat.  Instead, I can’t remember when last a lawyer made such a complete, total fool out of himself.

What’s going on here?  Are lawyers so desperate for public recognition that they will do anything to try to get their name “out there”?  Apparently so, at least for this Orange County PI lawyer.   Even so, the headline to the PR is appalling:

CALL GIRL’S ATTORNEY RELEASES STUNNING PHOTOS OF WOMAN PUT IN THE HOSPITAL BY DAVID BECKHAM’S GOONS

Does the client, Irma Nici, know that her lawyer is attempting to use her, including the pathetic photos, the call girl, to sell himself?  Is this in his client’s best interests?  Is this how she wants to be presented to the world?

Bear in mind, this came to me by Jensen’s choice, not mine.  This is what he sent out blind across the internet in order to seek publicity and promote himself. 

It’s quite likely that Jensen will never represent a client in a matter with as much “sex appeal” as this matter.  Certainly, having a client sued by someone of David Beckham’s stature will give a boost to a lawyer’s name recognition.  It’s understandable that he’s trying to milk this sucker for all it’s worth.  But putting out a press release that’s so laughably bad, so flagrantly nonsensical, isn’t going to turn him into a household name.  He’s no Gerry Spence.

What he is, however, is an embarrassment.  To himself and to lawyers everywhere.  Ironic that in a case involving a prostitute, the worst turns out to be her lawyer.

New York Times op-ed columnist Charles Blow seized upon a study from Iowa to argue for the “pay now or pay later” approach to solving the “crime problem.” Blow, whose background is graphics design, explains:

When times get hard and talk turns to spending and budgets, there is one area that gets short shrift: the cost of crime and our enormous criminal justice system. For instance, how much do you think a single murder costs society? According to researchers at Iowa State University, it is a whopping $17.25 million.

Those researchers analyzed 2003 data from cases in Arkansas, Florida, Georgia, North Carolina, New Jersey, Ohio, Oklahoma and Texas and calculated the figure based on “victim costs, criminal justice system costs, lost productivity estimates for both the victim and the criminal, and estimates on the public’s resulting willingness to pay to prevent future violence.” That willingness to prevent future violence includes collateral costs like expenditures for security measures, insurance and government welfare programs. It’s hard to believe that they could calculate the collateral costs with any real degree of accuracy, but I understand the concept.

Well, that’s an awful lot of money.  Want to stop murder?  Let’s just line up all the inchoate murderers, pay them, say $500,000 to not do it, and we’ll save ourselves a bundle.  Even including my fee for handing out the checks (or maybe we can do it by debit card and save even more), there’s a fortune to be saved here.  And a million dollars saved is a mil earned, to borrow from Uncle Ben.

And what of other crimes?

(They also calculated that each rape costs $448,532, each robbery $335,733, each aggravated assault $145,379 and each burglary $41,288.)

We could probably stop all robberies for under $1000 each (plus my fee).  The savings would be astronomical.  From this, Blow concludes:

Many crimes could have been prevented if the offenders had had the benefit of a competent educational system and a more expansive, better-financed social service system. Sure, some criminals are just bad people, but more are people who took a wrong turn, got lost and ended up on the wrong path. Those we can save.

We have a choice to make: pay a little now or a lot later. Seems like a clear choice to me. But I’m not in Washington where they view clarity as an affliction of the weak.

Except, of course, this effort to pin a price on crime is utterly ridiculous.

I take no issue with Blow’s point, that funding education and smarter social services is both more effective and cost-beneficial than dropping the hammer after the damage has been done, but it’s studies like this, and op-eds that assume some level of credibility, that make sound policy sound absurd.  Want to kill a good idea?  Wrap it up in crap.

To much of the nation, the New York Times is the Liberal Manifesto, and any idea promoted therein is, by definition, a socialist plot to subvert America.  While this shouldn’t impede the Sulzbergers from doing whatever they need to do, it should make them reluctant to print such inanity that undermines good ideas with silly support.

The long-standing tension between tough on crime and smart on crime (notice how I give the side I prefer the “smart” name?) is coming ever closer to resolution, though the potential change in approach that some thought would follow the economic downturn hasn’t quite met expectations, as realization that the creation of more crimes and imposition of longer sentences hasn’t solved much of anything.  On the other hand, notice how every new headline crime begets a new headline law? 

But the effort is hardly furthered by irresponsible publication of laughable arguments. 

I’m not calling the Iowans liars or morons.  I’ve no doubt that the numbers are somehow valid, in some parallel academic universe, applying logic that defies any semblance of reality and, only by suspension of reality, linking together theoretical costs and values that would never otherwise exist (and then only if you hop up and down on your left foot while turning your head to the left and squinting).  No, I’m sure they have a basis for their numbers.

Yet, the promotion of this silliness in the Gray Lady on a subject that needs broader understanding and acceptance does no favors.  I remember some years ago reading an op-ed on a subject of some interest and controversy.  I wrote then that there are great arguments in favor of the proposition and great arguments against.  It was a shame that the author demonstrated no knowledge of either.

We need to stop ignoring the costs of mass criminalization and incarceration, both in terms of dollars as well as human capital.  This, unfortunately, is not the way to do it.  An op-ed like this is so ridiculous, so unreasonable, as to set back the cause rather than move it forward.  If we want to be smart on crime, let’s not be stupid in the media.  Please.

Naturally, long after blawgers have discussed the implications of the Tyler Clementi suicide to death, traditional media is finally getting around to giving the few minutes of thought that fit between commercial breaks.  The teasers speak to “How to stop cyberbullying,” or “The Plague of Cyberbullying.”  Shockingly, the substance begins with the premise that cyberbullying is bad and must be stopped.  Media savvy prosecutors are standing in line for their interview.*

Not one report or discussion that I’ve seen has considered the definition of cyberbullying.  As with most popular evils, it’s relegated to some vague wrong perpetrated by horrible people that does grave harm.  As seen with the calls for the prosecution of Clementi’s roommate, Dharun Ravi, for everything from hate crime to manslaughter, the discussion and anger is moving forward at warp speed despite the fact that no one seems to have a firm grasp on what this evil cyberbullying might be.

There are two very significant directions in which attempts at definition have gone, toward the conduct of the bully or the feelings of the victim.  The former has been described along the lines of:

the use of information and communication technologies to support deliberate, repeated, and hostile behavior by an individual or group, that is intended to harm others.

The latter, focused on the sensibilities of the victim, defines cyberbullying as when a person:

is tormented, threatened, harassed, humiliated, embarrassed or targeted by another child using the Internet, mobile phone, or other type of digital technology.

Clearly, a definition that focuses on the wrongful conduct is far more useful than one that concerns itself with the consequences.  Still, the mens rea component, intent to harm, leaves much to be desired.  Are hurt feelings “harm”?  How hurt must feelings be to constitute “harm”?  What about well-deserved hurt, such as the liar called out online, whose feelings are assuredly hurt but whose own conduct justified or caused the attack? And then, of course, there is the problem of people who are particularly sensitive or vulnerable, and are hurt by statements that wouldn’t normally bother others.

At stake in the need to define this suddenly ubiquitous term is both free speech and the ability to engage in the normal and necessary exchange of ideas.  A harsh reality is that we need to be able to communicate disagreement, even disdain, as part of ordinary discussion.  People disagree, and sometimes angrily, over issues.  Some are important and some trivial, but do we want to leave it to legislators, bereaved mothers or TV talking heads to decide the limits of appropriate communications?

In the blawgosphere, there have been calls to keep discussion “civil and respectful,” usually by those who prefer to set themelves up as the arbiters of propriety for the rest of us and prefer to shield their silly postings from harsh scrutiny.  Parents limit it to children.  Feminists want to make it a gender issue.  Based on the Clementi scenario, it’s now discussed in the context of sexual preference.  Of course, no one owns the problem, even though various groups try to seize it as their own.

The “cyber” aspect of the word obviously refers to the use of electronic devices as the delivery mechanism.  There is some debate on whether it includes text messages, pagers,  or just online activity.  As argued by Anil Dash, the addition of “cyber” before “bullying” is a diversion, a red herring intended to suggest that there’s a fault with electronic media that somehow gives rise to the problem, when it’s merely a new way to deliver an old problem.  

Dash contends that “the persistence of this descriptor demonstrates a consistent agenda focused on blaming these horrible displays of intolerance or inhuman unkindness on technology.”  He notes that in the past, bullying via telephone was never dubbed “telebullying.”  There may be some merit to the idea that putting the word “cyber” before anything virtual has become too fashionable, and tends to turn discussion away from the core problem and blame electronics for human foibles,

Dash’s position fails to account for a significant issue, that online behavior has an element of anonymity, a disconnection between act and consequence, that differs from face to face behavior.  People will post something online that they would never say to another person’s face.  Whether it’s the equivalent of the 98 pound weakling telling off the 230 pound strong man (or the other way around), or the mean teen ridiculing the unpopular teen, the communication strips away an element of humanity and immediate consequences.  No one is forced to look into the eyes of the person to whom the post is addressed.

As discussion of cyberbullying flourishes, and in anticipation of the legislation of new crimes deriving from both the use of electronic media and based upon tragic consequences, there is enormous risk that the current climate is going to do significant harm in the absence of a viable definition.  As the Clementi case shows, little thought or concern is given the nature of Ravi’s conduct due to the horrible (though possibly unrelated) outcome.  It’s long been clear that tragic outcomes drive the discussion, usually off a cliff.  At the same time, cries of cyberbullying have become the facile response of those seeking to avoid criticism or scrutiny.  

Nothing I’ve read thus far has provided a sufficiently clear and limited definition to make a discussion or legislation of cyberbullying work.  Even the lawprofs who should be focused on such mundane matters as definitions seem to gloss over this problem, assuming conduct to fit the bill without offering any rationale or limitations.  As the discussion continues in the absence of a definition, we become increasingly likely to see law and norms imposed by the villagers with their torches and pitchforks that irrationally constrain discussion in the name of protecting the children. 

I have no definition to offer that satisfies all the concerns, but there’s no doubt in my mind that we need one desperately.  In its absence, expect to hear screams of cyberbullying everywhere, and laws that prohibit any communication that hurts someone else’s feelings.  Where should the line be drawn?

*  A story in Newsday, which unfortunately is hidden behind a paywall, gave rise to my concerns.

Now, in an attempt to prevent abusive online activity and educate kids and parents, Nassau District Attorney Kathleen Rice is launching a program called “STOP then Send” to go into schools and spread the word about the dangers of cyberbullying, “sexting,” Internet predators and sharing their personal information on the Internet. The program includes videos featuring teens discussing their own ordeals.

Rice, who was trounced in her attempt to become New York Attorney General, has seized upon the public attention to teach our children about cyberbullying.  So what exactly does she plan to teach?

Lag in Internet privacy laws

Donnelly said that laws on the books often do not fit the misdeeds children commit on the Internet. For example, the charge against the Nassau County teenager – falsifying business records – may seem odd, but there was no better choice in the state penal code.

“Our laws haven’t caught up to what’s happening in our culture yet,” noted the prosecutor, saying she much prefers educating children before they make mistakes.

This is what we have to anticipate, what our children are going to be taught, if neglected.  Of particular note, and a specialty of Rice, is the misuse of law because “there was no better choice.”  As much as this story is local, this problem is clearly national and we would be insane to leave it to others to define the problem at a time when emotion runs high and reason is under indictment.

Client management is invariably part of any lawyer’s repertoire, but one firm in South Carolina took it to the extreme.  Via Jim Calloway :

But one South Carolina law firm has decided to use its web site to make certain their potential clients have realistic expectations about the firm before they even schedule an appointment. Check out the Client Expectations (Realistic or Unrealistic) section of their web page. Some people may be put off by the blunt language with statements like “We do not work on the weekends and do not provide emergency numbers for the weekends” or “Do not think we are perfect.  We make mistakes.”

Blunt.  Honest.  Maybe they thought it best to remove the part about “just send money and leave us alone.”  The lawyers may not be long on client service, but at least they aren’t hiding it from their potential clients.

At a blog called Avoid a Claim, which apparently is favored by lawyers who anticipate a claim, Dan Pinnington writes:

It seems like this firm has made a strategic decision to say “If you are going to a high maintenance client, you’re probably not going to be happy with us and we’re probably not going to be happy with you.” Good on them. They will have happier clients, and they will be happier and less stressed lawyers.

This strikes me as a scorched earth policy toward clients.  The problem with this discussion, aside from the cavalier approach, is that clients generally don’t come to a lawyer asking themselves, how can I interact with this lawyer in a way that makes the lawyer’s life most pleasant.  This has become a recurrent theme lately, with lawyers thinking that clients exist primarily to pay them money and assure them work/life balance.  That the client has a legal problem doesn’t seem to enter into the equation.

Client management is both art and science.  There are some hard realities that impact both lawyer and client, such as the fact that an hour on the phone holding one client’s hand is an hour lost from working on the case of another client.  Serving clients isn’t a matter of catering to their whims and making them think you’re the kindest person on earth, but make them knowledgeable about what the legal system in general, and you as lawyer, can do to achieve their goals, and then providing at least that if not more.

The South Carolina firm that put out its blunt “expectations” page does family law, one of the most miserable practice areas around.  Anxious and angry clients are likely to feel the need to grab hold of someone on a Saturday night when their soon to be ex-spouse calls 27 times in a drunken stupor, complaining of the client’s ancestry.  Even lawyers want some time off on the weekend to play with their kids.  We all get it.

The answer isn’t to say you don’t work weekends, but to manage clients’ understanding of what constitutes an emergency, worthy of disrupting dinner at a nice restaurant with the family.  There are real emergencies that happen at inconvenient times.  Nobody promised that it was convenient to be a lawyer.  Suck it up.  Who else should your client turn to when an emergency happens? 

But the “high maintenance” client is usually a client who has been oversold.  The old adage, undersell and overdeliver, comes into play.  When your clients know that you will contact them immediately upon any news in their case, they won’t call you to ask if there’s anything new.  When your clients know that you return telephone calls as soon as possible, they won’t call 10 times to try to reach you or scream at your receptionist when you’re in court and unavailable. When you don’t make outrageous promises that you can “fix” anything, they won’t become equally outraged when it doesn’t happen.

Ironically, one of the most troublesome ways to deal with clients is to become their best friend.  Clients need lawyers.  If they want companionship, they should get a dog.  It confuses roles when lawyers assume the position of mother, therapist or pet.  Clients often need someone to talk to, to vent, catharsis, during the pendency of a case.  To some extent, lawyers can offer their ear.  But when the ear gets chewed off, we’re appeasing the client but no longer serving him.

Aside from the problem of our not being qualified to offer the comfort or psychological treatment a client needs, we also give away our ability to fulfill a higher function, of providing the hard, detached advice that a lawyer owes a client.  It becomes very difficult to talk a client off the ledge when our relationship is all about handholding. 

The “expectations” page offers some interesting insight into client management, which should benefit both client and lawyer by clarifying our respective roles, explaining how the relationship will be most effective  and providing an honest assessment of what lawyers can do in our service to clients.  But when the “expectations” offer little more than they should not annoy us, it’s time to find a different line of work.  Clients don’t exist to make our lives happier.

Lawyers serve clients.  We do that by being lawyers.  We have no business doing less or promising more, and we help neither the client nor ourselves by pretending otherwise.

Court decisions tend to be comprised of two parts, findings of fact and conclusions of law.  They are, in the best of circumstances, related.  They should be, in all circumstances, reasonably accurate.  This may be a quaint notion.  Via Pro Publica, the decision in the habeas petition of Gitmo detainee, Uthman Abdul Rahim Mohammed Uthman, is otherwise.

District Judge Henry Kennedy, Jr. granted Uthman’s petition and ordered him released.  It turns out the government’s claim against him was complete crap.  What a surprise.  But the order itself became the problem.

A day after his March 16 order was filed on the court’s electronic docket, Kennedy’s opinion vanished. Weeks later, a new ruling [5] appeared in its place. While it reached the same conclusion, eight pages of material had been removed, including key passages in which Kennedy dismantled the government’s case against Uthman.

The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government’s case were deleted. Even the date and circumstances of Uthman’s arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured “in late 2001 in the general vicinity of Tora Bora,” the cave complex where bin Laden was thought to be hiding at that time.

In opinions dealing with “national security” issues, such as detainees, judicial opinions are subject to review to make sure they don’t reveal secrets.  After all, imagine the havoc the terrorists could wreak if they knew the date in 2001 when Uthman was seized.  Judge Kennedy’s decision was vetted, supposedly redacted by cover all the stuff that could destroy the fabric of society, and released.  Later that day, somebody decided that it hadn’t been sufficiently redacted, and it was pulled.

Instead of the blacking out process one would expect, no matter how silly it often turns out to be or how ludicrous the concerns over revelations like mentioning the “general vicinity of Tora Bora,” because bin Laden didn’t know the name of the place where we thought he was hiding a decade ago, this is what our government spends its time doing to protect us from the next attack.

This time, the results were different.  Instead, a second opinion appeared, making no mention of either the initial opinion or the materials deleted.  Instead, it was just a made-up decision.

Legal scholars and classification experts said the drafting of a second opinion was a deception. All previous opinions in Guantánamo habeas cases have noted when material has been blacked out or removed to protect security.

Stephen Gillers, who teaches legal ethics at New York University School of Law, said Kennedy may well have had a legitimate concern about “national security issues.”

“But that concern then inspired him to participate in the creation of a parallel universe that fools everyone except a small circle of judges. We don’t allow the justice system to create false impressions,” Gillers said.

The law relies heavily on precedent, looking to past decisions so that we can determine what is lawful going forward and how the law will apply to similar circumstances.  This becomes particularly difficult when the contents of decisions are fiction.

Gillers is absolutely correct, and it’s outrageous that a decision issued that essentially created a false scenario.  It’s one thing for the court to write that it can’t reveal salient details.  Frankly, that’s bad, as it makes it impossible to ascertain the extent to which the government’s actions were wrong.  We don’t do secret courts here.  At least, we’re not supposed to.

But to fabricate facts in order to conceal the truth is absolutely mind-boggling.  At least when the decision states that facts are concealed, whether rightly or wrongly, we know they are concealed.  The creation of a “parallel universe” in a judicial decision reduces the decision to a farce.  It deliberately puts a fiction out there as truth.  It actively misleads.  It lies.

Under the banner of national security, apparently anything goes.  No longer can we count on reading the findings of fact in a court decision of any meager controversy and believe it accurate.  We won’t be told when the facts are fiction; the parallel universe will look the same as any other court decision.  But for the quirk in this case that brought the manufacture of a parallel universe to light, no one would have ever known.

Maybe there really is a Fringe Division in our government, except it’s in the judicial branch rather than the executive.  That a judge acquiesced in this, actively did this, is simply shocking.  If the facts are so sensitive that they can’t be revealed, then don’t reveal them.  But never should a judge write fiction and call it a decision.

Via Radley Balko, another “isolated incident :”

Cook County sheriff’s police on a drug raid smashed into a Southwest Side house late Thursday night, terrorizing the elderly couple who lives there before admitting they had the wrong house.

Sheriff’s police this morning said they targeted the home and obtained a search warrant based on information from an informant who had provided credible information in the past.

“As soon as we entered the home, we knew this couple was not involved in the activity alleged,” sheriff’s police spokesman Steve Patterson said in an e-mail. “Our officers immediately requested the assistance of an interpreter and, as a precautionary measure, a medic, while also asking the couple to contact a relative who could assist in the situation.”

The Jakymecs. who came to the U.S. from the Ukraine in the 1960s to “escape Soviet oppression,” minded their own business.  Not that it matters, but they don’t “smoke, drink or even watch TV.”  That didn’t stop the police from raiding their home by mistake.

Their son was called to the home, who explained.

“When I arrived the officer explained they had misinformation, but said his job was over, and he was leaving. They left a copy of the warrant, but he absolved himself of any responsibility for the raid or the damage,” Andrew Jakymec said.

He estimated the damage to broken doors, locks and windows at up to $3,000.

“Everything was violently opened. Cabinets were ripped open, clothes and sheets were everywhere, and pieces of wood where the doors were rammed were all over the place,” he said.

One might wonder why, given that the police realized their error “as soon as [they] entered the home,” the still felt compelled to destroy the place, but the warrant authorized them to do so and they would be remiss to pass up a chance to search, 

The police explained how a mistake like this could happen.

Sheriff’s police this morning said they targeted the home and obtained a search warrant based on information from an informant who had provided credible information in the past.

There are two criteria required for the issuance of a search warrant.  That they possess information providing probable cause to believe that a location is being used for, or has evidence of, the commission of a crime, and that the source of the information is credible.  The primary means of accomplishing the latter is to assert the conclusory allegation that the source of the information, the confidential informant, has provided credible information in the past.  What this means is almost always up for grabs, since the cops neglect to tell the issuing magistrates what exactly they are referring to, and the issuing magistrates rarely ask.

The warrant said police were looking for a 23-year-old man, described as Hispanic who lived in the ranch home. Records show a judge last month ruled the man forfeited bond in a drug-possession case. The address listed for the man in court records did not match that of the Jakymecs.

Patterson said the gangs and narcotics unit has served more than 500 search warrants over the last four years “and it is incredibly rare that those searches have resulted in this sort of outcome.”

No doubt it is rare, maybe even incredibly rare, to have this particular outcome.  But it’s not nearly as rare to obtain a warrant with stale information, such that the location once used for a crime has changed hands three times since, or such vague information that they only know it’s one of seven apartments on the third floor, or one of three white houses on a street. 

Most of the time, there are no nice old folks like the Jakymecs living there.  Sometimes the residents are younger, of color, and may have a bit of weed if not the kilo of coke the cops hoped for.  No harm, no foul.  You can bet that search warrants aren’t executed with great frequency in better neighborhoods, and in the rare instance when they raid the mansion, the police make very sure they have the right house.  No need to be quite so cautious in the poorer neighborhoods.

In this particular case, the police were apparently looking to execute a bench warrant for a failure to appear in a drug case.  No threat to life or limb involved.  Their CI told them where the guy was staying, which apparently didn’t jive with court records.  Still, they had an absconder to round up.   The forfeited bail is just gravy.

It took nothing more than some miscreant, who decided that his own butt was too important to squander in the jail shower room, to mumble a few words to police. That was good enough for a judge to issue the warrant to raid the Jakymecs’ home.  Perhaps the miscreant provided police with information that led to a major bust.  Perhaps he gave them inconsequential information which was reasonably accurate.  Perhaps it was a shot in the dark this time.  None of this means much to the Jakymecs.  Nor does it mean much to the cops or the court. 

Anna [Jakymecs] added: “I didn’t believe it was the police. They broke everything. I told them they should have rung the bell.”

They should have taken a few minutes to verify the information, to watch the house before getting a warrant, or at least before executing it, to figure out whether they were about to bring needless misery and destruction to an elderly couple who thought they escaped Soviet oppression.  It really wouldn’t take all the fun out of police work if they spent the time to get things right before causing the damage.

The cat’s out of the bag.  Of course, the fact that Dan Hull sent out a press release might have something to do with it, but what can you expect from a guy who made his bones as Donna Summer’s backup singer in the 70s, his bright future in disco cut short by the tragic kiln explosion.  He’s got bling in his blood.

The idea was to cherry pick individual lawyers in specific niches who would form an integrated network surrounding Hull McGuire’s core corporate litigation practice.  As sad a commentary as this may be, criminal law is now a part of corporate law if you don’t want your mugshot to wind up on the front page of the Wall Street Journal.

It’s not that the concept is revolutionary, but rather intended to be more effective than the routine.  As Biglaw came to realize that its clientele needed access to criminal law, they would pluck prosecutors on their way out to fill the void.  It had its appeal.  It just didn’t serve the clients’ interests very well most of the time. 

Hull took a different approach, after much discussion between us about why corporations and their executives tended to do so poorly in criminal investigations and prosecutions.  Instead of making sure that the criminal law “specialists” had the requisite prosecutorial resume and wore the right clothes, he wanted to be positioned to keep his clients happy and healthy.  He wanted them protected.

Hull and I share many of the same philosophies.  We believe that hard work won’t kill anyone.  We believe that the obligation that comes with a client putting their welfare in our hands came before watching reruns of Gilligan’s Island and munching on Cheetos.  We believe in putting the client first.  Granted, I’m far more laid back than Hull, except when I’m not, but that difference hardly seemed like much of a hurdle.

And so, I’ve become Of Counsel to Hull McGuire.

Just so you know, I got the better end of the deal.  Hull McGuire has some of the most extraordinary, sophisticated clients around, far more knowledgeable and concerned with excellence from their outside counsel than with marble waiting rooms (though the HM offices aren’t too shabby) and shiny objects.  These are the clients that every lawyer wants to serve, the ones who understand and appreciate what we’re here to do.

This alliance also brings me the “resources” that seems to perpetually nag executives who, despite knowing that quality trumps quantity, fear that anything shy of a small army will leave them vaguely exposed.  With the support of Hull McGuire, it’s covered.

All Dan Hull got out of the deal is me. 

It’s an honor to work with Hull McGuire and its clients.  While many may think that we’re far too hard core when it comes to serving our clients and striving for excellence, it’s what we do.  Get used to it.

By now, everyone has heard the story of Mississippi Chancery Judge Talmadge Littlejohn holding lawyer Danny Lampley in contempt for his failure to speak the words he wanted to hear:  I pledge allegiance . . .   After a few hours, Judge Littlejohn relented, though the issue, as far as he’s concerned, remains unsettled.

Tom Freeland at NMissCommentator reports that while Lampley was released after three hours, the order was merely held in abeyance pending further consideration.  When Lampley returned to the courtroom to handle his hearing, he asked the judge to recuse himself, which was refused.  The duty to pledge allegiance was addressed long ago.  Judge Littlejohn has been excoriated across the blawgosphere for his conduct.  Balko, Bennett, Volokh, Frederick, Turley, Mystal, and obviously Tom Freeland, have all had their say. 

No need to restate the obvious.  Judge Littlejohn may see himself as quite the patriot, and his demand that people in his courtroom utter the pledge as perfectly reasonable thing to do, upon pain of contempt.  The law provides otherwise.  Judge Littlejohn may disagree with the law.  Tupelo hasn’t always been on the cutting edge of such matters. 

What cannot be ignored is the power that a judge wields within the four walls of a courtroom.  Whether the most brilliant or most unstable and ignorant, a judge is a king on his bench.  With the wave of a hand, an utterance, a signature, a judge can deprive a person of freedom.  It’s that simple.

Tom Freeland was preparing a writ or mandamus to deal with Danny Lamley’s incarceration, but it was mooted, at least for the moment, upon his release.  It’s not that some nutsy judge’s knee-jerk order isn’t subject to review by less nutsy judges, but that for those few hours, the mere caprice was sufficient to lock a person away. 

And while the reason, this time, was Danny Lampley’s exercise of his absolute right not to utter the magic words that somehow distinguish a good American from a bad one in Judge Littlejohn’s mind, this same power exists when a cellphone inadvertently rings, or a defendant wears clothing that doesn’t meet the judge’s aesthetics.

A judge is given extremely broad latitude to maintain decorum in a courtroom. The rhetoric of the rationale aside, it often appears to be a mini-slap in the face to due process.  “Because I said so” is the ultimate reason why a judge can exert such power.  Not every order has to be put through its paces before being followed.  But as Lampley’s contempt shows, there really isn’t any bright line where the immediate action of a judge stops dead in its tracks.

Why, for example, did the court officers who took charge of Lampley following the order to jail him not refuse?  Why didn’t they instead grab hold of Judge Littlejohn’s arms and walk him briskly from the room, as one who just used his official position to assert authority he didn’t possess to the detriment of another person?  The answer, of course, is that Littlejohn was the judge and Lampley was not.  It’s not for the armed staff to question the judge, and they would never been expected to do so.  The judge gives orders, no matter how bizarre or wrong, and the staff complies.

Incidents like this point to a glaring hole in the system, that some judges are unworthy of the trust, and hence the power, given them. There are those judges who lack the appropriate temperament.  There are those judges whose politics obscure their understanding of their duty.  There are those judges who lack an appreciation of the limits of their authority, like Judge Littlejohn, or the restraint to act upon it immediately.

The reason actions like Judge Littlejohn’s make a splash in the media, and across the blawgosphere, is that they happen relatively infrequently.  That speaks well of the judiciary, given that power corrupts. It’s awfully easy to assert authority on a whim, only later, upon further reflection, recognizing that it was wrong.  It likely happens more than anyone knows, but in sufficiently small doses that it doesn’t make it onto everyone’s radar.

Still, when electing or appointing a person to wear the trappings of power and sit high above mere citizens, we need to do better.  Some years ago, Mark Bennett made the point that anyone who wants to be a judge, who believes himself capable of sitting in judgment of others, is not a person who should be entrusted with such power.  I’ve made the point that judges who see their bench as a bully pulpit to flail their personal issues, whether by haranguing defendants at sentence or refusing to adhere to law with which they don’t agree, have no business wearing the robe.

Once a person gets the robe, however, it’s extremely difficult force them to take it off.  Short of drugs and sex, or the occasional chambers philandering, bad decisions are considered part of the game.  That’s why they created appellate courts is the response, to be followed by a subtle laugh.

Yet when an order of contempt for something so clearly wrong as failing to utter the pledge results, one thing is brutally clear. This is not a judge who can be entrusted with the near-absolute power of a king in his courtroom.  Talmadge Littlejohn behaved like a sovereign, commanding all before him to do his will.  The robe is not an ermine stole.  The bench is not a throne.  Littlejohn is not the king.