Having been around here long enough to grow moss (if I didn’t keep moving, I mean), there are some n00bs who want to know how they can become part of the gang.  Some come in through the front door, sending me emails asking questions about blawging.  Others try the backdoor, leaving a comment along the lines of, “I posted about this subject too!!! Here’s my post…”  Well thanks, Skippy, but…

It’s not important what I think (as I’m regularly reminded by my immediate family, extended family, close friends and others whose names I don’t know), since I can only speak to the things that push me to tap on the keyboard from time to time.  But since you asked, let me offer one suggestion: If you care about it, chances are far better that you will make me care.

Most blawgers don’t care.  You write because you think you should, or must, as you’re harangued that the future of the practice of law depends on marketing yourself online.  Do it or die, and nobody wants to die.  Even if your blawg doesn’t have the subtle, “and if you find yourself in cuffs, then you need me, a really cool criminal defense lawyer who’s aggressive yet caring, by your side,” the post borne of necessity nonetheless emits an unpleasant odor.  You’re not likely fooling anyone.

Caring almost always involves having actual thoughts and opinions.  No one needs to have a story repeated in the blawgosphere for the 400th time.  There are more legal news aggregators around than we can shake a stick at.  The niche is full, move along. 

But having thoughts and opinions can be a problem, as anyone who has tried already knows.  First, thoughts and opinions are not always universal.  Have one and someone may disagree with it.  Oh no!  Disagreement is the death of marketing.  Love and happiness is where it’s at, baby.  But if you want to be universally loved, you can’t have any thoughts or opinions.  A vicious circle.

For those of you for whom the words of Sir Joshua Reynolds were intended, thoughts and opinions are a booby trap.  Your thoughts and opinions may be brilliant.  They may be, ahem, less than brilliant.  Consider the possibility that if you put your best and deepest thought online, you may reveal to the world that you’re not the sharpest knife in the drawer.  I realize it’s a long shot, but it could happen.  Just something to think about.

A while back a blithering idiot social media guru informed me that my posts are controversial because I’m trying to gain eyeballs.  Not that I don’t admire people who don’t have a clue what drives me informing me of my purpose as much as the next guy, but he was wrong.  I only write about things that matter to me.  If it should be controversial, so be it, but I care enough about it to put it into words.

If anyone bothers to read it, I hope it’s because they care too.  If they don’t, they’ve wasted their time.  I would hate to think that I am the cause of anyone wasting their time.  If my writing doesn’t make you care, then please spend your time doing something more worthwhile.  And if you want others, including me, to spend my time reading what you write, then make me care. 

If you hate posts about the Slackoisie, then skip this one, even if its genesis is this article in today’s New York Times Magazine.  After all, it’s unfair to generalize.  It’s all the boomers’ fault anyway. Every generation thinks the next is a mess.  And Greenfield is just an old curmudgeon anyway.  But this isn’t me telling you to get off my lawn.

Once described by the trend-watchers Neil Howe and William Strauss as “the next great generation” — optimistic, idealistic and destined to do good — millennials, born between 1982 and 2002, have been depicted more recently by employers, professors and earnestly concerned mental-health experts as entitled whiners who have been spoiled by parents who overstoked their self-esteem, teachers who granted undeserved A’s and sports coaches who bestowed trophies on any player who showed up.

As they’ve entered adulthood, they have inspired a number of books on how unmanageable they are in the workplace, with their ubiquitous iPods, flip-flops and inability to take criticism. Stories abound about them as college students, requiring 24/7 e-mail access to professors and running to Mom and Dad for help with papers or to contest a bad grade. A consensus has emerged that, psychologically, they’re a generation of basket cases: profoundly narcissistic and deprived of a sense of agency by their anxiously overinvolved parents — in short, a “nation of wimps,” as Hara Estroff Marano, the Psychology Today editor at large, has put it.

That’s the editor at large of Psychology Today calling you a “nation of wimps.”  While the Slackoisie isn’t limited to lawyers, or more importantly, criminal defense lawyers, that’s my focus.  You can’t defend the accused if its all about your self-esteem, and the first dirty look will send you scurrying into a hole to cry about how unfair life is.

None of the excuses raised, not a single one, means a thing.  You can be 100% right about all of it, but it does nothing to make you any stronger, bolder, more competent or tougher.  If you’re a wimp, then go sit on the couch in the basement of your momma’s house and whine about the misery of your life.  You’ve got no business standing in the well of the court with someone’s life in your hands.  Heck, you won’t be there, because it would interfere with your tweet-up at Starbucks.  After all, the Slackoisie world is all about “me first,” and nothing goes better with “me” than a vente moca-coca-loca-frappucino.

This past week in Chicago, there was a panel on Gen Why?  A year before, I was on that panel.  A year later, the issue remained one of concern.  Accident?  I think not.  For those generational deniers, there’s a reason this issue keeps popping up on the agenda of SuperConference, not to mention the New York Times, Psychology Today and pretty much everywhere else.  It exists and it’s a problem.

Two reports have emerged on the panel, one from a newbie lawyer for whom twitter captures the essence of deep thought and another from a young lady who wrote that legal success can be achieved through “brilliant tweets” (while I couldn’t make this up, apparently Kash Hill did exactly that when pressed for an example of such a brilliant twit).

Both of the intrepid reporters came back with similar comments from the Chicago panel. Neither appreciated its significance.

“One of our young attorneys approached us and said,

‘I’d like to take a year off to live in New Zealand.  Can you hold the for job for me until I get back?’

“We went back and forth on it, but in the end we decided to grant his request and to hold his position for him.  It came down to the fact that he was a very talented attorney, and we didn’t want to lose him.”

How fun!  How wonderful that work won’t interfere with a year in New Zealand!  Cool!  Who wouldn’t want to take a year off while you’re still young and crazy enough to enjoy it?  But what if everyone in the office said, “what a great idea! Let’s all go to New Zealand!”  The phones would ring and ring, and there would be no one there to pick them up. Actions would be commenced but no answers served.  Questions would arise and languish on voicemail. 

Less obvious, however, is that the corporation allowed the lawyer to have his fun because he was “a very talented attorney.”  This is a warning shot across the bow of all you other lawyers who think you’re the best and brightest.  If brilliant Gen Y lawyers were a dime a dozen, as you collectively think you individually are, then there would have been no leverage to get the corporation to go along.  They would have replaced the lawyer in seconds from the vast stockpile of the unemployed.  Apparently, you’re not all that wonderful. 

The other statement that made it onto both reporters’ radar is:

An older baby boomer lawyer in the audience spoke up to say, “I wanted the same things as Jack, but I was not brave enough to ask for it… It was kind of ‘figure out for yourself.’

While the specific words differ between the two, the gist remains the same.  Boomers understand what you want.  You want everything in your life to be fun, rewarding, fulfilling and easy.  Who doesn’t?  Do you think boomers hate fun?  Well, you probably do, but you’re wrong.  We’re hedonists from head to toe, and have a whole decade of our own to prove it.  But we also have the words of one of our generation’s great philosophers, Mick Jagger; You can’t always get what you want, but you get what you need.

As each narcissistic little slacker actually expects his world to be recreated to suit his personal preference, we run into some problems.  You’re too high maintenance.  You’re not worth the trouble.  There’s not enough world to go around.

I know, I know.  We boomers have screwed up the world, sucked up all the fun, including yours, not to mention whatever disposable income you might have had after your student loans were paid off to cover the cost of our jet-propelled wheel chairs and viagra.  So what do you plan to do after putting mommy and daddy on a sled and leaving them in the middle of the forest in winter?

Eventually, the Cheetos will run out and the electricity will go off in your parents’ house.  How will you recharge your iPad then?

While the situation of Gitmo detainees hasn’t been on everyone’s lips lately, as we bore of all things legal in time as funnier and more pressing stories and decisions arise, that doesn’t mean that the government has forgotten.  No, not at all.  Thus, Steve Vladeck’s search of the bowels of a new authorization act at Balkanization discloses that the government still doesn’t love us nearly as much as we deserve.

Buried in the depths of the National Defense Authorization Act for FY2011 (H.R. 5136) is the latest salvo in the war on lawyers. In particular, section 1037 of the Act [page 403 of the PDF], titled “Inspector General Investigation of the Conduct and Practices of Lawyers Representing Individuals Detained at Naval Station, Guantanamo Bay, Cuba,” instructs the Department of Defense IG to “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo and report back to the House and Senate Armed Services Committees within 90 days.

After all, if you’re having problems convicting Guantánamo detainees, the problem must be their lawyers.  What nefarious things do they suspect?  They’re searching for reasonable suspicion that lawyers, military or civilian,

(A) interfered with the operations of the Department of Defense at Naval Station, Guantanamo Bay, Cuba, relating to [non-citizens detained at Guantánamo];

( violated any applicable policy of the Department;

(C) violated any law within the exclusive investigative jurisdiction of the Inspector General of the Department of Defense; or

(D) generated any material risk to a member of the Armed Forces of the United States

That pretty much spells out the evils our government feels compelled to stamp out.  As Steve notes,

Before turning to the disturbing practical and legal implications of this provision, let me make two quick observations about its scope: First, virtually every lawyer that has represented a detainee at Guantánamo has “interfered with the operations of the Department of Defense” at Guantánamo. After all, from the government’s perspective, the representation itself has caused substantial interference, since lawyers have, among other things, informed the detainees of their rights; petitioned the federal courts for the detainees’ release; obstructed the government’s ability to interrogate the detainees

If the government takes the position that their goal is to make sure that anyone within their grasp is shown to be an evil terrorist, then there isn’t much a defense lawyer does that won’t, at minimum, interfere.  Interference R Us.  Of course, from our perspective, we would prefer to think of our role as defenders of the Constitution, fulfilling the promise embodied in that document for even the most hated, most powerless in the government’s grasp.  But hey, what are constitutional rights in the face of Department of Defense policy? 

Steve questions whether this will have a chilling effect on lawyers defending Gitmo detainees. My guess is that it won’t, primarily because those lawyers bold enough to face down the government on matter that will one day grace the history books (unless Texas has its way) as being this generation’s Japanese internment camps.  That Congress has chosen to put its threats into law doesn’t change the recognition by defense lawyers that they have huge targets on their backs.  Teacups do not represent accused terrorists.

The problem with this law isn’t so much as how it’s applied, but how many pages of details the Inspector General can write before his hand gets tired.  It’s almost impossible to imagine that the lawyer are violating any laws in the defense, knowing that they would be nailed within seconds given how great the scrutiny on them and how limited their ability to interact with their clients.  Not that they would, but they can’t anyway.

As for the rest of the investigation, it’s absurd, since their very job is to “interfere” with the government’s getting its way without any lawyer impeding it.  As for generating a material risk to a member of the armed forces, that’s just a matter of perspective and rhetoric.  Under a loose interpretation combined with chaos theory, everything they do creates a risk.  Materiality is just a matter of sensitivity, and the government can be awfully sensitive when it comes to challenging its authority.

Steve notes that the inclusion of this provision comes as something of a surprise:

I had hoped (perhaps naively) that the dust-up earlier this year over the “al Qaeda 7” (and the emphatic response thereto) had finally put to bed the repeated attacks on lawyers that have arisen since Cully Stimson’s spurious critique of the role of D.C. law firms in Guantánamo litigation in January 2007.

So the attack on Biglaw for aiding didn’t play well, but that’s a little different, since all the former Justice folks expect to get lucrative partnerships there later, and have a vested interest  in protecting their retirement funds.  That doesn’t mean that the legal glitterati will turn out for the trench lawyers who stand beside the accused, have the government’s big guns pointed at their heads, but no jobs to offer government officials in the future.

Just as our War on Terror continues, so does the war on those who stand between the government and those who may or may not have any role in it. It would be a shame if we forgot about them and the risk they take making sure the Constitution remains intact while defending the most despised.  Just thought you ought to know.  It’s not like they’re getting rich and famous on this gig, you know.

H/T Ed at Blawg Review

Most criminal defense involves allegations of a crime committed for personal gain or deliberate harm.  Yet every once in a while, the “criminal” turns out to be a quixotic do-gooder, a person whose strong beliefs in right and wrong compel him to take action against an evil committed by others.  The moral quotient is reversed, and the guy in the dock is an angry man.

Dan Harris, famed for his excellent China Law Blog, finds himself on unfamiliar turf, defending Peter Bethune, the angry man, before a Japanese criminal court.  From TVNZ :

Anti-whaling activist Peter Bethune accepts the facts of most of the charges against him but has not pleaded guilty to any of them in a Japanese court, his defence lawyer said today.

In the first hearing in Tokyo yesterday, the 42-year-old denied he had any intention to hurt anyone while accepting details of the other charges.

Lawyer Dan Harris says Bethune is arguing that the Japanese whaling operations are illegal under international law and that he was justified in trying to stop them.

The argument certainly resonates with those of us who share his concern about environment, conservation and protection of endangered species.  But the Japanese take their whaling very seriously, and don’t share our concern.  They are a sovereign and have their own laws on the subject.  Their laws provide a sentence of 15 to 25 years for Bethune’s conduct, which he doesn’t deny, even though Dan argues that no actual harm accrued.

The defence says nobody was ever harmed or in fear and the whole thing is “much ado about nothing”.

The prosecution says Bethune interfered with Japanese business and that he put the Japanese whalers in danger.

Bethune boarded a Japanese whaling vessel in the Southern Ocean in March and it is alleged he threw a substance at a crew member leaving him with burns.

Whether this falls under the heading of fighting the good fight or environmental vigilantism is a matter of perspective.  While there are obvious differences, the same argument is made by anti-abortion extremists who murder physicians; they are just saving unborn babies.  The problem arises from the conflict between beliefs, priorities and law.  It’s one thing to believe as you do, but another go take to the seas to try and make it happen.

Dan has taken a more aggressive stance with a statement that found its way into Time Magazine as the quote of the day:

For Japan to act like it’s enforcing a criminal law is a little disingenuous, when you look at what Pete Bethune did.

His point is well taken, where Japan eschews international law when it comes to its own self-interest, then justifies its prosecution of Bethune by wrapping itself in the righteousness of its own criminal laws.  Can we think of any other country that does that as well?

Dan’s expectation, according to the TVNZ article, is that the prosecutors will seek a sentence of three years, despite the astoundingly serious potential term of imprisonment provided by law.  But that doesn’t jibe well with the attitude of the locals:

Harris says the defence believes the judges are fair and will look at everything that has transpired.

Harris says more interesting than the feeling in the court, was outside the court where Japanese nationalists were calling for Bethune to be hanged.

I told you the Japanese take their whaling seriously.  The problem we face is that as unreasonable, even ridiculous, as this prosecution may seem, it’s as real to the Japanese as our terrorism hunts are to Americans.  Not the same, you say?  It is to them.  Why do we persist in the belief that when a foreigner does something that violates our sensibilities, it’s horrible, yet when we do something that violates theirs, we’re in the right?  Hello, jingo.

Making quote of the day is a huge coup for Dan and Bethune, taking this matter to the larger public forum in a way that will evoke sympathy from many Americans as well as environmentalists everywhere.  But good PR is just one part of the criminal defense puzzle.  Considering that Dan isn’t a criminal defense lawyer, I hope he’s got something more up his sleeve.  Three years is a very long time for being a well-intended but angry man. 

H/T Ed at Blawg Review

Update:  Bethune has taken the stand in his own defense:

Bethune, 45, admitted he had climbed aboard the Shonan Maru 2 in Antarctic seas to confront the Japanese captain for the destruction of a protest ship that sank during the collision a month earlier.

Bethune described how the sinking of the $3 million boat Ady Gil, which he designed and built, still affected him mentally and financially, suggesting its loss was part of his motive behind his actions.

They said Bethune and other activists threw glass bottles containing rotten butter at the Japanese boat, causing them to explode, splashing a crew member in the face and slightly injuring him and obstructing the whaling mission.

Bethune today acknowledged firing four or five bottles of rancid butter from a launcher but didn’t expect they would break into pieces or spread their content onto crewmembers. He acknowledged that rancid butter could cause skin irritation, but denied his intention of assault.

“Definitely no,” he said, responding to a question if he would have still fired them had he known they could hit whalers and cause injuries. He added Watson told him rancid butter was harmless.

Bethune is also accused of slashing the ship’s protective net with a knife that he illegally carried with him when he sneaked on to Shonan Maru 2.

It would appear that things went far beyond the mere attempt to make a citizen’s arrest.  From the audience, Bethune was called a terrorist, a fascist and a racist.  While it likely that there was no choice but for Bethune to testify, it’s unclear from reports whether he’s helping himself or sealing his fate, the latter looking more likely.

Like so many issues in law, it’s largely a matter of the language used to frame the issue.  The New York Senate has passed a law prohibiting workplace “bullying” with bipartisan support that would expose employers to suit for hurting employees’ feelings.  From the Wall Street Journal :

New York’s anti-bullying bill defines bullying broadly and includes the repeated use of derogatory remarks, insults and epithets, as well as conduct that a “reasonable person” would find threatening, intimidating or humiliating.

The law reflects a popular political trend that’s likely to spread across the country, and covers not only the conduct of supervisors, but those of co-workers, holding the employer liable for hurt feelings whether they derive from the boss or the subordinate. 

According to New York lawmakers, between 16% and 21% of employees have experienced health-endangering workplace bullying, abuse and harassment, and such behavior is four times more prevalent than sexual harassment.

Of course, the term “bullying” is loaded, a pejorative word that no “reasonable” person could dispute is a bad thing.  But that’s how law works these days, characterizing conduct in a way that makes it appear awful so that no one could argue the opposite, that bullying is a good thing.  And obviously it’s not.  The problem is that the law doesn’t merely prohibit bullying, but anything that hurts a person’s feelings.  This is where we get into trouble.

Victoria Pynchon, in her new gig commenting for Forbes, takes up arms.

According to the Journal, the law would “allow workers who’ve been physically, psychologically or economically abused while on the job to file charges against their employers in civil court.”

Economically abused????? The mind boggles.

The bill defines “bullying” broadly as  the “repeated use of derogatory remarks, insults and epithets” that the (mythical and chronically overly sensitive) “reasonable person” would “find threatening, intimidating or humiliating.”

Victoria is one of the nicest people around, frequently chastising me for being insensitive to the teacups.  But this one is too much even for her.

Let’s give this proposal a second thought, particularly in the context of legal practice.  We lawyers do endeavor to “keep calm and carry on.”  We have been known, however, to push ourselves and to be pushed past our tempers’ limits.  We’re human.  We’re under a lot of pressure.  And we’re fallible.

It didn’t happen often to me, but happen it did.  The cutting remark to an associate not performing up to expectation.  The curse made too audibly in the staff room.  The harangue visited upon the hapless secretary who failed for the third time to make the necessary corrections. 

The law seeks to take other workplace restrictions, such as discrimination on the basis of race, down the slippery slope of hurt feelings through the use of charged rhetoric and populist sensibilities.  More people are workers than bosses, and there’s plenty of political capital to be gained by propping up the delicate flowers that have grown everywhere. 

The concept ignores to countervailing concerns: First, jobs are not entitlements.  Hate your boss?  Hate your workplace? Nobody’s forcing you to work there, and you have no right to recreate the job to meet your demands and expectations.  Quit and find one more to your liking.  Can’t find one you love? Bummer.

Second, no business can function well based on the concept of homogenization, catering to the lowest common denominator lest one face litigation and damages by the biggest screw-up in the shop.  It defies human nature, since no one likes to be told that they’re lousy at what they do, and yet too many people are, in fact, lousy at what they do.  The days of excellence are not merely gone, but the target of hatred by the Slackoisie teacups.  Today, businesses aspire to mediocrity.

This law institutionalizes the Happy Dynamic.  People are not merely entitled to job, but one where their superiors and co-workers are legally obliged to make them feel happy.  It’s not bad enough that people confuse unwarranted self-esteem with self-respect, but they should be entitled to it as a matter of law upon pain of damages.

As Vickie notes:

Combating bullying is a worthwhile – even necessary – ongoing business project.  Making a federal (or state) case over the  day-to-day management of any work force and the personal relationships team work requires is just plain nuts. At best, it is a jack-hammer solution to an Emily Post problem.  At worst, it is a new scheme for extortion.

No one is saying that the employer has a right to flog her employees in the business square, or subject them to true humiliation.  But laws that deny our humanity and the ordinary range of human emotions will prove ruinous to businesses, and consequently employees as well.  This is the proverbial shooting of a fly with an elephant gun. 

Employers have a strong incentive to keep the peace in the workplace, or they will lose employees and be incapable of operating.  If an employer harasses his staff, he’s going to be a very lonely boss.  But short of never saying an unpleasant word to an employee, someone is invariably going to be unduly sensitive and take umbrage to criticism, whether deserved or spoken in the sweetest, most dulcet tones ever.  There are overly sensitive people out there (and increasingly more so), and you will never please them all.

I would take it a step farther, however.  The undercurrent of this trend is that we’ve become a society of fragile teacups, ready to shatter any time someone looks askance at us.  We’ve gone from the home of the brave to the land of the delicate.  Toughen up, for crying out loud.  Maybe the reason your boss called you a moron is because you’re a moron.  And if you’re not, don’t cry about it but show her what you can do.  No amount of whining and complaining is going to improve the quality of your work.

Instead, legislators are enacting the Teacup Protection Act.  Respect is earned, not legislated.

Update:  A group calling itself the Workplace Bullying Institute had this to say:

WBI counters the distortions

In the Greenfield (Simple Justice) blog: Equating bullied targets, many who suffer PTSD, with delicate teacups is assinine. Greenfield is a media-seeking lawyer, say no more. My longer response to his insensitivity can be found in the comments linked to the article at his blog. Why not re-name his blog, Justice for Simple Minds. For thoughtful legal mindfulness, visit Minding the Workplace, a blog penned by WBI’s favorite law professor.

They called me names.  They hurt my feelings.  Maybe I should sue?  Nah.  Lame attacks on me and Vickie (who they argue is a corporate tool!) do nothing to make bad law and unsound reasoning better.  Their issue is grounded in false claims, that employees have a right to a job, a right to a work environment that suits their personal sensitivities and a right to remain in that job, enduring what they perceive to be abusive conduct by others, and sue for monetary damages rather than quit and find a workplace more suitable. 

This isn’t, as they would argue, a matter of lacking compassion, but a matter of manufacturing “rights” that impose a duty on others to make them happy.  While Title VII discrimination in the workplace had a conceptual ledge to stop the slide down the slippery slope, immutable and irrelevant characterisistics, this trend is has none.  Everybody has a right to everything they want to make their world happy for them.  And anybody who makes them unhappy is evil and should have to pay.

Indeed, they argue that neither Vickie nor I realize that mean words are “violence”.  So much for words having meaning.  The one things that flows from this insufferably emotional and irrational gang is that they embrace self-serving regulation to the exclusion of personal responsibility.  They have no argument, just wild and silly accusations in the hope that others won’t notice that they are a bunch of irrational teacups.  Thanks for proving it conclusively, guys.

This has nothing to do with compassion or empathy.  Normal people feel badly for anyone in pain, even if they could have avoided it themselves by making sound decisions.  But it doesn’t follow that every individual’s suffering necessarily begets a misguided law. 

Agility is one of the hallmarks of the web, and the blawgosphere is nothing if not in a constant state of flux.  And so this morning brings news that Packratt, of Injustice Everywhere, is gone, gone, gone. 

I generally try to keep my real name off the site and tend to be uncomfortable having my name associated with the site… though it’s not hard to find my name associated with the site in a number of places already.

The reasons for that have been two-fold. First it would hamper my ability to find and maintain a job in the industry I work in if it were common knowledge that I’m a police accountability activist. Believe it or not, speaking out against police misconduct isn’t looked upon positively by most people in our society.

The second reason is due to the risks anyone takes when they do speak truth to power… being that those people in power that you speak truth to generally don’t like that truth to come out and, sometimes, they decide to use that power against you for doing it.

Unlike blawgers like me, whose work inherently involves the risk of invoking the ire of power, a guy like Packratt took a huge risk in starting his National Police Misconduct Statistics and Reporting Project, a project that has provided an enormous amount of information for the rest of us and proven to be a huge, critical resource.  Still, doing good helps little as the baton descends in its arc toward a skull.

I will shed my pseudonym here and just post under my real name since keeping my name off the site has grown less and less effective as time has worn on. Hopefully, by doing so, it will give the project a little more legitimacy in people’s minds while also allowing me to be more active in speaking to the issues of police accountability and transparency in public settings… even though I know there is likely to be a price to be paid at some point for doing so.

So says David Packman. It takes guts to go from pseudonymous to open, particularly when you realize what drove David to start this project.  Yet he’s made the decision, both because it was happening around him anyway and because he didn’t want the pseudonym to undermine the integrity of his work.  It was a bold move.  Let’s all do whatever we can to make sure that David never suffers for the help he’s provided and the risks he’s taken, if you get my drift.

Elsewhere in the blawgosphere, Berman posted of a new sentencing blog sponsored by FAMM, Families Against Mandatory Minimums.  The blog is called SentenceSpeak, and states its purpose to be:

a forum for educating the general public about sentencing injustices and engaging and finding common ground with “unlikely allies” such as fiscal conservatives, former prosecutors and judges, law enforcement, and members of sentencing commissions. SentenceSpeak is a place for sharing unique perspectives on sentencing policies.

The writing is easily understood and quickly digested, and the content is controversial.  There are two authors of the blog, both pseudonymous.  FAMM has proven to be a highly credible source of information and done some great work in the sentencing field.  As for the blog content, it’s unclear whether it represents FAMM’s position or just that of the unknown authors.  

I would expect that it will be directed toward non-lawyers, and thus be a bit on the simplistic side as shown by this post about sentencing for unconvicted conduct, but still a great resource for those who would otherwise have neither knowledge nor access to this sort of information.  And it uses some pretty interesting graphics to spice things up.

For non-lawyer sentencing nerds (their description, not mine), this is a very interesting blog and something that you might want to let the families of convicted clients know about.

The job of parole officer requires a deep understanding and interest in one’s charges.  This interest can go too deep, as alleged against 50 year old Albany P.O. Nicholas Kordas.  From the Albany Times Union :

An Albany-based parole officer is under investigation for allegations he handcuffed and raped a 24-year-old parolee during a visit to her residence in January, and threatened to kill her if she told anyone, court records show.

The woman accusing Kordas of rape served five years in state prison for first-degree assault before being paroled in 2008.

Police records show she went to Albany Medical Center Hospital with her mother immediately after the encounter with Kordas.

This opens the door to many questions and possibilities.  Given that Kordas is 50 years old, it’s a little hard to imagine that he’s suddenly decided to use his authority and entree as a parole officer to commence a life of rape.  Still, it could happen.  Or they could have had consensual sex, and the parolee, having learned the ways of the world while in state custody, is using it to manipulate the situation.  But being on parole generally doesn’t demand a whole lot in the manipulation department.  Or it’s a lie, but the DNA test will show the problem there right quick.  Or it did happen.

Until the DNA test is completed, we won’t know whether there’s anything here at all.  Even after the test is completed, it doesn’t prove that it’s rape rather than consensual sex, still wrong but certainly a different wrong.  What this points to is the vulnerability inherent in the relationship between parole officer and parolee.

A parole officer has the authority, and the responsibility, to have essentially total access to the parolee.  His duty is to make sure that she’s not engaging in crime or otherwise violating the terms of her release.  She has no privacy from him, no right to be free from his searches.  Certainly, this provides ample opportunity for a parole officer inclined to engage in rape to do so.

But the duty also provides an opportunity for the parolee to allege wrongdoing as well.  It would hardly seem surprising that the DNA test of the woman, whose name is being withheld based on the nature of the allegations, will prove positive.  One would surmise that she wouldn’t make an allegation like this, and go immediately to the hospital for testing, if the test wasn’t going to bear her out.

As a person under supervision, a female parolee must be protected from the sexual advances of a parole officer.  But doing so would undermine the male parole officer’s ability to do his job.  One possible answer would be to have only female parole officers supervise female parolees, though even that isn’t an ironclad guarantee that nothing bad will happen.

And then, parolees aren’t necessarily the most honest of sources for accusations.

One point that seems abundantly clear is that no one in a position of supervision over another has any business whatsoever engaging in sexual relations under any circumstances.  Even if they are “in love,” there must be a wall separating them until such time as the parolee has completed supervision, so that there is no suggestion that the relationship is the product of coercion or undue influence.  The potential for impropriety is simply too great, and they can keep their pants zipped until parole is over. It won’t kill anyone.

What a nightmare.

Update:  Via News10 Albany :

Police say 50-year old Nicholas Kordas allegedly raped the 23-year old parolee while conducting a curfew check at her home in Guilderland back in January.

Kordas was arraigned at Guilderland Town Court and released on $75,000.

An investigation revealed no other victims, but the State Division of Parole says they have taken immediate action to assure the safety of all the parolees Kordas supervised.

Guess that clears up the DNA issue.  As Kordas claimed it never happened, it appears he’s sunk himself. 

H/T David Giacalone

Go to any gathering of lawyers and you’ll find someone there from Lexis, whether spinning wheels or handing out umbrellas, with broad smiles to earn our love.  About the only place Lexis shows no love is the blawgosphere, as lawyer W. Lawrence Wescott II found out when he received a love note from its lawyers.

Via Bob Ambrogi,

Until yesterday, the URL www.electronicdiscoveryblog.com led to a blog on e-discovery law written by lawyer W. Lawrence Wescott II. Today, that blog is gone. Wescott took it down after a lawyer from LexisNexis threatened legal action over a claimed unauthorized use of LexisNexis cases. The blog was among the ABA Journal Blawg 100 honorees in 2007.

Chances are the e-discovery, sexy though it may be to so many of us, wasn’t on many people’s radar, and they may not have been regular readers of Wescott’s blawg.  Still, the idea that Lexis would be so deeply offended by his sending readers to a handful of their cases (and wondering what exactly that means, since the content is produced by courts, not Lexis-ites elves in a backroom somewhere) is shocking for all of us. Including me.

When Wescott started his blawg, he obtained permission from Lexis to use up to 1000 of “their” cases per year.  I assume that means court decisions, via Lexis links. Big deal, right? These guys from Lexis are dying to get our business, and Wescott was doing more to put their service in front of people than handing out 1000 umbrellas.  Except when it’s raining outside, but then it never rains in the blawgosphere.

To a large extent, we rely on a wide variety of sources for links to stories, posts and court decisions in the blawgosphere.  For most, it’s a matter of fair use, since we aren’t selling them and provide “value added” commentary about the content.  On the other hand, it’s not like we (as opposed to Lexis) are making the big bucks off this.  I would guess that most blawgers, like me, do it only for the fame, since there’s no fortune to be had.  If some corporation wants to litigate our efforts to death, and suck the life out of us in the process, there’s no incentive to fight. 

It’s occurred to me numerous times that businesses that cater to lawyers, not to mention pay walled news sites, should be begging blawgers to link to their stuff and should give us free, unlimited access to their content.  We promote them, often better than they could ever promote themselves.  But if we can’t get in there, or use them, then they cease to exist for us.  Is that really what they want?  Is the quick buck worth the loss of attention (or outright anger) of the blawgosphere?

So even if e-discovery isn’t your thing, the sad demise of the Electronic Discovery Blog at the hands of Lexis is a shame; a concern for all blawgers and a disgrace for Lexis.

Memo to Lexis:  Hope your savings from the purported unauthorized use is worth it.

While lawyers like Patrick Lamb travel around the country preaching alternative fees to the billable hour crowd at civil law firms, criminal defense lawyers chuckle.  We’ve always done flat fees, yet the ABA Journal thinks doing the obvious makes one a Legal Rebel (along with not wearing wingtips).  Naturally, this opens the door to Norm Pattis, who wants his very own Legal Rebel skateboard, to challenge the status quo.

There are cross-cutting incentives in a flat-fee case. The client has paid for a lawyer and wants her expectations, no matter how unreasonable or unnecessary from the perspective of the experienced lawyer’s judgment, met. The lawyer, on the other hand, has an incentive in effectively presenting the case in as efficient and cost-effective manner as possible. Both client and lawyer can err given these conflicting imperatives. A client can demand too much; a lawyer can do too little. Discontent lurks at the periphery of every flat fee case once a black hole opens up, sucking time out of the world as if there were an infinite amount of it to be had.

While Norm’s issue may be real, he’s solving the wrong problem.  The black hole of client demands on a lawyer’s time isn’t a fee issue, but a client management issue.

Although this has been discussed here many times, I’ll recap the rationale for flat fees.  The incentive for criminal defendants to pay their lawyers exists up front, when terror strikes and they realize the need for representation.  Many will happily promise more than they can give.  Many want to pay only for results.  Many have unreasonable demands and expectations.  And some are just criminals, as happy to scam their lawyer as anyone else.  They aren’t amenable to threats or lawsuits; they are bloodless rocks.  Get paid up front or not at all.

The fee is based, as Norm correctly notes, on the lawyers’ experience with cases and anticipation of how much time will be required to handle it.  Then comes Norm’s black hole problem, which is really two wholly separate problems.  On the one hand, there can be a development in a case that removes it so far from the norm that the lawyer could not have anticipated the change, demanding a concurrent change in the amount of time necessary to defend.  On the other hand, there are clients and their families who want the lawyer to hold their hands 24/7. 

With regard to the former, a real change in circumstances, unanticipated and unanticipatable, may call for a discussion with the client and reflect a need to modify the fee.  I say “may” because we always recognize that circumstances aren’t guaranteed to be normal.  There is no such thing as normal, and we know that going in. 

It’s not enough that we just happen to need to work a little harder, a little longer, than our best case scenario.  When that happens, the lawyer should eat his time.  That’s not a real change in circumstances, and the whole point of the flat fee is defeated if it’s only a one way street, always favoring the lawyer.  It’s hard work to be a good lawyer, so suck it up and do your job.

As for hand-holding, a certain amount is almost invariably involved in any defense.  Clients have fair questions, and it’s our job to answer.  Clients need to know about one of the most important things to happen in their lives, and it’s our job to tell them, and explain it to them, and sometimes explain it again.  But we also know that some clients demand more, which is where Norm’s conflict comes in.

There is no good way to charge for legal services, I am persuaded. Clients come in need. They are afraid and angry. They want a hero, a savior, a warrior. You offer them what you can. Most often it is enough. But sometimes it is not. A client grows disenchanted, angry, they want what you cannot give. It is a risky thing to agree to represent a person in crisis. You cannot tell where people will turn in the dark of night. What to charge for this work is a topic about which I am not at peace.

This is where it all goes careening off the tracks and into the abyss.  Lawyers are not psychologists, social workers or the pet dog.  Sure, we understand and we’re empathetic, but that doesn’t change the number of hours in the day.  We can either spend our days doing our jobs, or taking phone calls from depressed, frantic, angry, scared clients.  We can’t do both.  When we fail to recognize this, we get both ourselves and our clients into trouble.  Our days are lost to hand-holding, and our clients are not receiving the representation we owe them because we’re too busy holding hands to do our jobs of defending them.

This isn’t a money issue.  This isn’t about allowing clients to talk to us for hours on end, and then charging them for the empathy.  It’s about making our role clear to our clients, that we are not their therapists but their lawyers.  There are therapists out there, better trained and far more capable of dealing with their moods and feelings than we are, and if the client needs one, we should be the first to point them out.  But we need to similarly appreciate our own limitations.  Most importantly, we need to recognize what our job is, criminal defense.

Others argue that lawyers should be faux-therapists, hand-holders, the pet dog offering unconditional love and support.  They are wrong.  They are both narcissistic, in the sense that they believe they can do it all and are half-capable of providing the therapeutic help some clients need, and weak, in that they lack the fortitude to tell a client when he’s crossed the line. 

Many lawyers never want to do anything that could potentially upset a client, and will suffer endless hours of hand-holding just to keep the client happy.  It’s actually quite ironic that a lawyer, given the ability to put an end to a client’s excessive demands for time by simply telling the client that he can either have the lawyer spend his time defending or hand-holding, but not both, will simultaneously want additional money for showing the love. 

What this really means is that the lawyer wants to take the weight off his back for being the bad guy by being able to say, “hey, ask as many question as you like. The clock is running.”  The fact is that sometimes we have to say enough, manage our clients emotions and expectations so that we can perform our work.  We have no business charging clients for hand-holding, as we have no business holding their hands for too long in the first place.  We’re lawyers.  We defend people accused of crimes.  We are not therapists, no matter how empathetic we want to come off to the client. 

Before closing this post down, Jamison Koehler has chimed in, and Brian Gurwitz adds his two cents in the comments to Jamison’s post.  Combining their experience as criminal defense lawyers together, they’ve been at this about 47 minutes. 

For me, without Pattis’ vast experience, the jury is still out.  Yes, the hourly rate does offer many advantages.  It assures that the lawyer is compensated for every hour he or she spends working on the case.  And it prevents the client from paying for hours the lawyer has not devoted to the case.

No, no, no.  It does nothing of the sort. Hourly billing is one of the most notorious scams going, where a lawyer puts down a tenth of an hour (6 minutes) because the client’s name passed his lips, or charges for 12.7 hours for preparing motions when most of the time was spent playing spider solitaire as he pondered the issues.  The same issues, that the client has no clue what the lawyer does except in court, exist, and create the pretense of transparency without any reality. 

At the same time, based on what I know now, I still prefer the flat fee, at least for the type of cases I currently handle.  The flat fee allows the client and me to deal with the money issues upfront and then to put them behind us, without the continuing distraction.

Distraction?  It’s hardly a distraction, but an outright war when there’s a money dispute in the middle of a defense.  Norm fears a conflict?  This is a conflict, the lawyer fighting with his own client over money in the midst of battle.  What Jamison should also note is that he’s paid, as opposed to his client sheepishly telling him, “I know, but I don’t have any more money.”

Jamison says that fees are different for street crime, which is the type of practice he has, and “white collar.”  It’s not so much that the fees are different, as that corporate/financial crime defendants are susceptible to being billed on an hourly basis, as they are more likely to have assets that can secure payment of the fees and are used to paying monthly bills.  It’s got nothing to do with nature of the crime, and frankly most defendants accused of corporate/financial crimes would do far better with flat fees.

The last note to be made is that I haven’t distinguished between true flat fees and hybrid flat fees, with a fixed price for various stages of the proceeding.  I use the hybrid because I consider it inappropriate to charge for work when there’s no clue whether it will be necessary.  This means that there’s a risk of nonpayment when trial comes around, but dealing with that is an issue for another time. 

I raise this only to offer a thought to any defendant who is charged a straight flat fee for a case, soup to nuts.  Take the fee and divide it by a reasonable hourly rate that will cover costs, fixed and variable, and leave a few shekels over to buy the kids new shoes.  How many hours do you get?  If there aren’t enough to cover the time to get to trial and then try the case, guess what you’re not getting. 

Forget about hand-holding. That lawyer has no plans to do anything beyond pleading you guilty the first chance he gets.

Via Doug Berman , Attorney General Eric Holder demonstrated the substantive difference between a Democratic and Republican administration’s approach to imprisoning its citizenry:  Not much.

By Memo dated May 19th, Holder writes:

The reasoned exercise of prosecutorial discretion is essential to the fair, effective and even-handed administration of the federal criminal laws.  Decisions about whether to initiate charges, what charges and enhancements to pursue, when to accept a negotiated plea, and how to advocate at sentencing, are among the most fundamental duties of a federal prosecutor.  For nearly three decades, the Principle of Federal Prosecution, as reflected in Title 9 of the U.S Attorneys’ Manual, Chapter 27, have guided federal prosecutors in the discharge of these duties in particular, and in their responsibility to seek justice in the enforcement of federal criminal laws in general.

What a set-up.  What a start.  And so where does this talk of justice go?

The purpose of this memorandum is to reaffirm the guidance provided by those principles.

Move over Dick Thornburgh.  Step aside John Ashcroft.  Holder’s moving in.

Berman notes that there is a hint of a difference in approach.

Distilled to its essence, it seems that instead of a general policy that federal prosecutors “must” charge and pursue the most serious offense and must advocate a within-guideline sentence, this new Holder memo now asserts that federal prosecutors “ordinarily should” charge and pursue the most serious offense and “should generally” continue to advocate a within-guideline sentence.

It was never exactly true that federal prosecutors in various districts around the nation truly complied with any of the directives out of D.C.  There are always human beings who act in accordance with conscience, propriety and proportionality.  Then there were the zealots, who would have the death penalty apply to everything. 

But as AG (and later Justice) Robert Jackson noted in 1940 ,

The prosecutor has more control over life, liberty, and reputation than any other person in America.  His discretion is tremendous.  He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.  Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.  The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.  He may dismiss the case before trial, in which case the defense never has a chance to be heard.  Or he may go on with a public trial.  If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.  While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

Back then, the Attorney General sought to instill in prosecutors a sense of the awesome power they possessed, and the obligation of using it with discretion.  But what did he know, when he could have directed his troops to blindly do as much harm as possible. 

At least Holder allows for the tiniest possibility of humanity to enter into the federal prosecutor’s job.  The question then becomes whether any AUSAs possess such a quality, or have the guts to use it within a culture of highest charge and harshest sentence.