Search Google. Look in a legal directory. Find a “prequalified” lawyer near you who is waiting by the phone to answer your questions.  Select a lawyer who provides free answers to your legal question on the internet.  These are not the way to find a lawyer.

In discussing the methodologies used by legal marketers to fake out methodologies used by search engines to prevent people from gaming the system, one of the reactions came from a legal marketer who saw this as an opportunity to smear his competition (sure, the others are lying scum) while promoting himself (but not me, I’m the real thing and make people fabulously wealthy!!!)  My tolerance for such shenanigans is very limited.

While I’ve written quite a bit in the past about unethical or deceptive marketing by lawyers, directed toward lawyers not putting on hotpants and strutting the boulevard to score a buck, and about what potential clients should do to find the right lawyer for their case, I haven’t written as much about what’s wrong with the dreck cottage industry of legal marketing that seeks to deceive potential clients through slimy lies.

Mind you, individual lawyers who use marketing services aren’t necessarily bad lawyers. In fact, some lawyers who engage in awful marketing schemes are quite good, D.C.’s  David Benowitz coming immediately to mind.  The point is that a lawyer who markets isn’t necessarily a bad lawyer, but the marketing effort is a red flag that tells the potential client to think twice. And probably, stay away.

There are dozens of “lawyer directories” on the internet, most proclaiming themselves to be the foremost. They’re lying. They use vague words like “Number One!!!” or “Premier,” which mean nothing and are mere puffery. But that’s just the start.

These are nothing more than “coop advertising” schemes, where lawyers pay a monthly fee to advertise their availability.  The website owner puts in as much puffery as he can fit, with a disclaimer in tiny print somewhere off the screen that everything it says on the website is a lie and he guarantees absolutely nothing.  Look around, It’s there somewhere, if you can find it.

The scheme is to deceive potential clients into believing that the lawyers are “prequalified,” suggesting that these are at minimum competent lawyers, at best fabulous lawyers.  Prequalified means that they are in fact license to practice law somewhere, and paid their monthly fee.  It doesn’t mean they actually practice what they claim to practice or are any good at it. It’s just a scam.

Marketers will not only deny this with their dying breath, but use every marketing trick in the book to conceal the truth.  They have to, as they make their living off lying to you.  If they can’t produce potential clients, lawyers won’t pay them money. 

They anticipate that most potential clients are too naive, stupid or desperate to see through their meaningless marketing jargon, and they’re mostly right. People still have this bone in their head that makes them think that if someone says something in writing, it must be true. It’s not, but more important, it doesn’t really say what you think it says.

But it takes a fairly sophisticated understanding of language and law to appreciate the nuance that allows them to lie with relative impunity.  You might think that if this just a big old scam, lawyers wouldn’t participate in it. Sadly, there are many lawyers who will do anything to make a buck.  And in a lousy economic environment, lawyers tend to close their eyes and ears whenever it’s convenient, just like anyone else.

And then there’s the loss leader, the websites that offer free answers from real lawyers to your legal questions. This is a come on. The answers are almost invariably worthless, not because the lawyers who answer are necessarily incompetent or failing to try to be helpful, though that happens regularly, but because your questions suck. In order to provide a response to a legal question that’s even modestly worthwhile, a great deal of information, details, specifics, is required.

Your question tend to be awful, failing to provide anything remotely close to the level of specific, accurate, complete info necessary for an even remotely useful answer. It’s not that you don’t try, but you don’t know what’s needed for a valid response. And the responses you get are based on the information you’ve provided, making them utterly worthless, perhaps even dangerously wrong.  Yet, everybody loves the idea of getting free legal advice. Free is better than good.  Heck, for free, people are willing to accept awful. Think about it: do you really want dangerously wrong legal advice, even if the price is right? That’s what you’re getting.

So what are the things you should look for to not find a lawyer?

• Any website that says it can find you a lawyer in your area.
  
• Any website that says its lawyers are “prequalified.”
  
• Any website that offers free answers to your legal questions.
  
• Any lawyer who claims to have won a non-existent award (unless it’s obviously a joke), belong to a nonexistent group or be on a sham list of 100 best lawyers, blawgers, whatever.
  
• Any lawyer who promotes that he’s a SuperLawyer, Best Lawyer, Super-de-duper Lawyer, or any variation on this theme.
  
• Any lawyer who provides a partial resume, including the details that he thinks will impress you while concealing the ones that won’t.
  
• Any lawyer who posts client testimonials on his website.
  
• Any lawyer who uses bogus “guest posts” on his blog.
  
• Any lawyer who uses a ghostwriter to produce content.
  
• Any lawyer who uses stock photos of others on his website.
  
• Any lawyer who uses stock content/language on his website.
  
• Any lawyer who claims to specialize in every practice area there is.
  
• Any lawyer who claims to be an “expert.”
  
• Any lawyer whose physical location is not in the jurisdiction where he’s admitted to practice.
  
• Any lawyer who doesn’t tell you where he’s physically located.
  
• Any lawyer who writes about his fabulous wins, unless he also writes about horrible defeats.
  
• Any lawyer who uses language to suggest he’s the “best,” “number 1,” “foremost,” “premier,” “leading,” in his field.

Dear Jack,

Today is going to be a very tough day for me.  You will  be fencing in your first conference meet, MIT against five other schools, UMass, BU, UNH, Brandeis and Sacred Heart. It’s going to be a long day. I’m sure the epee squad will do well, as there is some real talent there, as reflected by the fact that MIT epees took first, second and third place at  The Big One at Smith College.  You did really well, but this is a tough crowd and some of them will want revenge on you today.

But you probably aren’t thinking about this the same way I am.  You see, I remember your first competition, the Peanut Butter Cup, back in 2006. You were 12-years-old, and wanted desperately to win. You got your butt kicked. It was better after we went out for an ice cream sundae, but that was a rude awakening.  You could have run away from fencing that day, but you didn’t.

You clawed your way up from there. If there was a mistake to be made, a bad thing to happen, it happened. From equipment failures to bad calls to mental errors, it happened. But you learned from each and it rarely happened twice. You have so many medals hanging on the sconce in your room that I’m afraid it’s going to fall off the wall from the weight.  And you have a few medals, plaques and the silver trophy that really mean something to you, that you accomplished things that counted. Nobody gave you these for showing up. You earned them, just as you suffered the bad days when someone wiped the piste with you.

Remember how we traveled around the country, to such fabulous places as Memphis, Des Moines and Milwaukee, to fence in the North American Cup?  Remember that nasty looking barbecue place that had the best ribs ever? We were afraid to go inside, it was so creepy, but had the best time there.  I can’t remember how you fenced the next day, but I’ll never forget that rib joint.

Today will be the first time you compete and I won’t be there.  I asked you if you wanted me to come up to Cambridge, and you told me “no.”  I asked again, and you told me not to bother.  I asked a third time and you finally came clean.  You told me, “Dad, don’t come.”

I get it. You’re not 12 anymore.  You don’t need me to fix your weapons, to make sure you drink water, to calm you down when you’re too hot and to remind you of your mistakes when you’re overconfident.  You’ve grown up, and don’t need daddy to hold your hand anymore. I understand.  It was exactly what I hoped you would get out of fencing.  You can take a beating and still maintain focus and push through for the win.

Don’t think I didn’t notice how you pulled your nuts out of the fire when you were down 14 to 10 in that direct elimination bout two weeks ago (15 touches wins).  Most fencers would give up. Nobody comes back from a deficit like that. But you did. It wasn’t that you won the bout, but that you didn’t give up. You showed remarkable fortitude, a toughness far beyond your years. I saw it. Your coach saw it. I couldn’t have been prouder of you, regardless of whether you ultimately won the bout.

And the final touch, a call disputed by your opponent, where you refused to gloat over the win because you understood why he challenged the touch. Your integrity kicked in, and you never shrugged off a touch when a bad call went your way.  You were the first to tell the ref that he was wrong, that you didn’t deserve the touch. Your opponents were often shocked that you gave away a touch, but you didn’t want anything you didn’t earn. This was the way you rolled.

You see, it was never about fencing. Fencing just gave you the tools to mature, to develop that fortitude, that toughness, the ability to stare adversity in the eye and push through it.  To suffer a loss and keep fighting. To face an opponent bigger, stronger, better, and refuse to back down.  You never disappointed me. In fact, I always wondered what I did right in my life to deserve a son like you.

So today will be a very hard day.  Not so much for you, but for me. You will fence and do your best, pushing yourself to win in bout after bout.  Maybe you will have a great day and win all your bouts, but maybe you will fight your hardest and still lose a few. That’s the nature of competition, and you will be fine with it as long as you know you’ve done your best.

But I won’t be there to watch you do it.  And I can’t tell you how much I’m going to miss being there today, to share in the wins, commiserate in the losses and just be damned proud of you.  Fence well today, Jack. But more importantly, have a great time.   And call me when it’s over and let me know how it went. Give me that much, please.

Love,
Dad

Results Update :

The MIT men’s fencing team defeated UMass Amherst (23-4), University of New Hampshire (25-2), Brandeis University (16-11), and Boston University (22-5) but fell to Sacred Heart University (15-12).

Jack went 12-2 for the day. I know it because I read it in the recap.

The National Association of Criminal Defense Lawyers (NACDL) has  rejected by Colorado Judge John Kane when there wasn’t a specific factual basis to justify its inclusion as part of the deal, and/or a waiver of collateral attack, as might be raised under federal habeas law, 28 U.S.C. §2255.

For anyone unaware, what this really means is that you are waiving the defendant’s ability to later claim that the plea was the product of ineffective assistance of counsel. Perhaps it’s because he wanted to cop out after motions were lost, and it turns out that motions were lost because the defense lawyer overlooked something. Or perhaps there was a lack of investigation that would have produced exculpatory evidence and altered the outcome. Whatever.

It is the opinion of the NACDL Ethics Advisory Committee that, aside from whether the courts might give such waivers, the rules of professional ethics prohibit a criminal defense lawyer from signing a plea agreement limiting the client’s ability to claim ineffective assistance of counsel. The lawyer has a conflict of interest in agreeing to such a provision because it becomes a prospective limiting of liability. Therefore, the lawyer is duty-bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to such an agreement with such language in it.

It is the opinion of the NACDL Ethics Advisory Committee that such a plea agreement provision creates a personal conflict of interest between the criminal defense lawyer and the client that rises to the level of denial of the right to loyal counsel under the Sixth Amendment. It is also a violation of due process of law under the Fifth and Fourteenth Amendments. Defense counsel has a duty to see that the offending provision is removed by the prosecutor or the court because of the inherent conflict it forces on the accused and his or her defense counsel.

All of this is both fine and, frankly, accurate, even though most lawyers wouldn’t think of, or be concerned, with, any limitation on their liability.  Initially, it’s just not a serious concern, but more importantly, few criminal defense lawyers ever think of malpractice liability in the management of their clients or the conduct of their defense.  We’re a pretty tough group by nature and nurture, and use up all our worrying on the welfare of our clients. We do not tend to worry too much about ourselves, at least in this regard. Getting paid is another matter entirely.

But neither the government nor the courts tend to worry too much about the wholesale evisceration of defendants’ rights in the process of disposing of cases.  If they could figure out a half-baked legitimate way to toss into a plea agreement a waiver of producing offspring, they might do that as well, and there aren’t too many judges (like Judge Kane) who would give it a second thought.

The problem is that the government seeks to impose such collateral terms and conditions by unilateral fiat. They aren’t a subject of negotiation. They often aren’t even mentioned in the negotiation process. They just show up in the plea agreement, after the deal has been struck and everybody has exhaled.

The defendant has a primary concern: how many years is he going to have to spend in prison. This, by a mile, is the core of the plea, and trumps all other issues at that moment.  If he gets a deal he can live with, is he inclined to blow it, to put his foot down and say “I reject the deal” because there are some collateral waivers snuck into the papers at the back end?  Not likely. 

First, he won’t see the waiver as particularly significant, unless the lawyer tells him that there is a serious concern that he’s giving up an important right that might later serve to get him out from under the plea.  Second, the alternative is going to trial, where he faces his worst nightmare, the million years suggested by the Sentencing Guidelines.  Chances aren’t good that he’ll refuse the plea, with its hard benefits, because of a speculative waiver of dubious worth.

This is why the NACDL’s advisory opinion is important. While it’s only advisory, it provides a well-conceived argument to go back to the government, and to argue to the judge if he will give a few moments of his important time to such banal matters as a plea agreement, that the inclusion of the waiver would place you in an untenable position of engaging in unethical conduct. It’s not that you don’t want the plea, but that you cannot be unethical. “Judge, what am I supposed to do? I can’t agree to an unethical waiver in a plea agreement.”

The best that could come of this opinion is that the issue is resolved by the circuits holding that waiver of the right to collaterally attack a plea based on ineffective assistance of counsel is unethical, and courts must reject plea agreements containing such waivers.  This may, and should, happen, but it will take years before the issue ever reaches the circuits, and there is certainly no assurance that they will come out on the right side.

In the meantime, the NACDL ethics opinion provides a well-reasoned basis to refuse to agree to such waivers, and the basis to argue that the government’s insistence on a waiver puts defense counsel in an untenable position, as you cannot enter into an agreement that is inherently unethical. Hopefully, district judges will appreciate the problem and refuse to allow the government to ram such waivers down defendants’ throats.

H/T Michael K. Bachrach, President, New York Criminal Bar Association

It’s not that police testifying to whatever it is they need to accomplish the greater good of convicting people they decide deserve convicting is new.  But even when caught lying, there was always an excuse, an apology, a rationalization to cover it. And life went on.

This is what makes the conviction of two Los Angeles cops different. They got caught lying and they were prosecuted.  Not only were they prosecuted, but they were convicted. They were convicted of perjury.  From Southern California Public Radio :

Officer Richard Amio and former officer Evan Samuel testified that they chased a man into his apartment in Hollywood in 2007 and immediately saw him toss a black object that contained cocaine. A surveillance video showed it actually took four officers more than twenty minutes to find the drugs. 

LAPD Chief Charlie Beck said in a statement the officers actions were unacceptable.

Unacceptable? I can live with that. Reprehensible might have been better, but we take what we can get.

“I am truly saddened by the events that led to the perjury conviction of a current and a former Los Angeles Police Officer,” Beck said int he statement. “As I said when the charges were filed, I do not believe their intent was evil, just extremely misguided. The character of our organization is defined by the conduct that we condone. These actions were entirely unacceptable.”  

Unacceptable again? Fair enough.  As Chief Beck notes in his attempt to minimize the nature of the wrong and distinguish his cops from “real” criminals, “their intent was [not] evil, just extremely misguided.”  What he means is that they only lied to get the bad guy.  Yet again, the late Murray Kempton’s words ring true: “There they go again, framing the guilty.”

Aside: A quick search of the Kempton quote revealed that an  old post of mine where I used it was copied in its entirety and posted by Ademo Freeman at Copblock without attribution, or even a link back to the original. While I’m happy he thought the post worthy of taking, I’m not as happy about my content being stolen.  How about a little integrity, guys? It would be nice of you to ask first, but posting without attribution as if you wrote it isn’t cool.

There isn’t much explanation or discussion needed about the fact of perjury.  Cops believe that trials, testimony, swearing to tell the truth, is a game that’s played to give the impression that there is a legal system so the natives don’t get terribly bent out of shape. As long as citizens believe we have a system, they sleep well at night.  They also sleep well at night knowing that their brave officers keep the streets safe from murderers and rapists by putting the bad guys in prison. All is well with the world.

You see, we’re naive and silly. The cops understand their job. Rid of us criminals. Only children and defense lawyers think they’re actually supposed to tell the truth. They know better. They laugh about it over beers after a day in court.

So when the video conclusively showed these cops to be perjurers, one would expect them to get a very stern lecture from some mid-level supervisor telling them to never get caught again.  Instead, they found themselves on the receiving end of an indictment and, even more surprising, a guilty verdict.

And the Chief of Police called the conduct unacceptable.  Not evil, but misguided. 

Does this mean the rules are changing? Is it unacceptable to lie to make sure the bad guys go to prison?  it’s not likely. After all, rarely does a cop get caught.  Even when judges believe the cop is just making up a story to justify the bust, they will never find the cop a liar in the absence of irrefutable proof. Never. Their testimony is credible, even when it falls off the precipice of the absurd, because to do otherwise would destroy a finely tuned system that fools the happy natives and keeps the police unions, district attorneys and supervising judges off their backs.

But this time, the cops were convicted.  Without the video, they wouldn’t have been.  Even with video, chances are poor that anyone would face a judge, no less a jury.  There are a bunch of excuses available, including the ubiquitous “we’re going to investigate” until everybody forgets about it and moves on to the next scandal. 

Yet, this conviction, particularly in light of some other verdicts in LA and Chicago, suggests that attitudes toward the police, toward their lying, toward their violence, may be changing. Just a little. But changing. It’s a start.

Five years ago, the question around the blawgosphere was when lawyers would finally, finally, realize that the internet was here to stay and start becoming a part of it.  Most of us who engaged in it were surprised at how few lawyers had ever taken the time online to do more than google where to buy some doodad or get directions to an address.  Actually, we were shocked at how few even knew how to do that.

Times are beginning to change. Sadly, not for the better.  I’ve been fighting a war over the past five years against those who saw the potential to make a quick buck off stupid lawyers by selling them a lie. Knowing how few had a clue what was happening online, they promoted the idea that it was a magical secret marketing place where all the paying clients were going to find lawyers, shell out big bucks and make them fabulously wealthy. 

At the same time, business in general stunk and lawyers, tired of waiting for the phone to ring, wondered where their next case was coming from.  To the internet!  With all these marketers screaming about the money, the connections, the engagement happening, how could they continue to ignore it?  And step by step, lawyer by lawyer, the lie grew.

The failure of the concept would have been fairly obvious to anyone who gave it much thought.  But when things are going poorly, and the shine of new technology blinds one’s vision, putting much thought into it is a waste of time. If so many people say there’s money to be, there must be. There just must be.

Twitterers craft brief bios about themselves, touting their practice, their success and their high esteem. They think someone is going to retain them because of their twitter bio. Their marketer told them so. And so they follow 500 other twitterers and have 7 followers in return. Who wants to “engage” with someone whose bio says they are desperately seeking business? Their twits are promotional or worthless. No one needs you to be the 319th person to retwit a news story that has already been spread by people with thousands of followers. Don’t you get how this works at all?

The simple answer is that they don’t get it. They won’t make friends. They won’t get business. They’re just embarrassing themselves, all because they came here to market and followed the instructions of their marketer.  And once you’ve firmly established yourself as sleazeball, there’s no going back.

The same is happening with blogging, supposedly the way to establish credibility and expertise. Because we need another post about “what to do when you’re stopped for DUI.”  The last ten thousand aren’t enough, right?  But the marketer has a formula, and promises if you just follow the formula, riches are yours for the taking.  You don’t think about the 100,000 lawyers who followed the formula before you, and that they never found those riches. Or to the extent the formula ever worked, it has long since been maxed out. Sorry, but the train left the station a long time ago.

Years ago, in speaking to an audience of lawyers about social media, I said anybody can blog, but everybody cannot. Maybe it’s because your writing stinks. Maybe it’s because you don”t have the chops to keep it up. Maybe you’re not as smart as you think. Maybe it’s because you’re a bore and nobody will want to read what you write. Maybe it’s because nobody needs 100,000 blogs writing about the same crap. You may be able to keep atop ten blogs a day. Maybe 100. A thousand? Forget it. Nobody has that much time, and there aren’t a thousand worth bothering with anyway.

But the marketers tell you to start a blog and fill in the blank space. They tell you that your ideas are wonderful, even though they’re not. Even so, you run out of steam. Writing is hard work. Thinking is harder still. You can’t pull it off.

And so, when the emails come offering to provide guest posts to fill in the blank space on your blog, you seize the opportunity. Crap? Perhaps, but no worse than the empty shell of thought that you come up with on your own.  And really, isn’t the point just to scam google into putting you on page one when people search for a lawyer in Peoria? Any crap will do, as long as it’s new crap, to game the SEO gods. Just do it, the marketers tell you. You must post something new, no matter how empty your personal tank may be.

And you get to be like Bitter Lawyer, trying desperately to make a joke of getting caught empty-handed.  Or The Mac Lawyer, an effort that never had legs to begin with, gasping for breath with a link back to Baby Changing Stations.  No, I didn’t make that up. That’s what it says. That’s how low, how absurd, it gets.  And when you do, one of the handful of  real blawgers will ridicule you for being disgraceful. And your marketing strategy will result in your abject humiliation, and you will wonder how it all went so terribly wrong.

Instead of being a self-proclaimed hero on the internet, you will destroy yourself, ruin your reputation and, worst of all, make no money.

No one publishes guest post garbage unless they’ve run out of anything else to say. They’re dead. They’re empty. They’ve got nothing else to say. The only option left is to leave the space intentionally blank. For the most part, they never had anything to say. It was just crap to begin with, and even that’s run dry.

But you, lawyer new to the internet, won’t find any of this out until you’ve posted your twitter bio proclaiming how special you are compared to the 10,000 other lawyers whose bio says the same thing as yours, whose website proclaims how you’re experienced, caring and aggressive, using stock photos  your marketer dug up for his last 50 blogs.

You won’t read Turkewitz’s admonition, outsource your marketing and you outsource your ethics, until it’s too late. And me, what could I possibly know? I give this away for free. What a loser I must be, having a blawg that makes no money. Why would anybody do that? I must be nuts.

You won’t get rich marketing on the internet. At best, you will fade into obscurity after pissing away a few grand to some jerk whose last real job was assistant manager at Dairy Queen. At worst, you will humiliate yourself and show up in google as a disgraced lawyer for all eternity.  Not even baby changing stations will want anything to do with you.  But you won’t know this until it’s too late.

And as you embarrass yourself, you bring all of us into disrepute, which is why I try so hard to stop you. But your marketer doesn’t care as long as he’s paid. And you don’t care as long as you believe it will make you a buck.  We would all do better to just leave the page intentionally blank. At least you won’t humiliate yourself or disgrace the profession. But you won’t know this until it’s too late.

Life on wheels can’t be fun.  Not cool wheels, but a chair, without which you go nowhere.  And it’s hardly too much to ask that when a structure open to the public, inviting the public to enter, is built, it be capable of accommodating those people who depend on wheels.  Not your issue? It would be if your legs didn’t work right, and it’s not outside the realm of possibility that your legs, or your kids’ legs, might not always move as well as they do now.

But what of structures from the old days? 

The Upper West Side of Manhattan is a thing of beauty, built of brownstones and tenements, and famous for generations of kids playing the quintessential New York game, stoop ball. I love old buildings. I love their look, their feel, the handmade bits of brass hardware that requires polishing to bring its richness to the surface. It’s New York’s history, and a reminder that there was once a time when people took pride in their design and craft. 

Brownstones are not, however, good for wheels.  Stoops are a problem, as each step is barrier that a wheelchair can’t surmount. At least not on its own.  From the New York Post :

Wheelchair-riding Linda Slone, 64, is suing 39 shops in her neighborhood for not being handicapped-accessible.

The legal crusade is netting her thousands, but Slone, who cannot walk because of polio, insists she is simply championing the rights of the disabled.

“If you think this is a money-making scheme, you’re dead wrong,” said Slone, a speech pathologist. “I, along with anybody else with a disability, has the right to go wherever they choose to go and not have to be dissuaded or inconvenienced or even apologetic.”

Last month alone, Slone filed papers against eight shops on or near Columbus Avenue, aiming to force them to install ramps and other accessible features.

In each suit, all filed in Manhattan federal court, she demands $500 in damages, plus lawyers’ and experts’ fees, which could run up to $15,000.

Unrelated in substance, two bits of guidance issued yesterday that criminal defense lawyers ought to be aware of.  First, the Department of Justice issued its long-awaited “guidance” on the Foreign Corrupt Practices Act, a law that has been so lacking in cognizable parameters as to render it incapable of compliance or review.  Vague much, Congress?

But the government is here to help, and  issued its guidance. All 130 pages of guidance. Imagine how much fun it would be sharing these guidelines at parties with your friends!

Fortunately,  WSJ Lawblog’s Ashby Jones has done a bit of vetting of the verbs and provided some outtakes.

In enacting the FCPA, Congress recognized that bribes can come in many shapes and sizes—a broad range of unfair benefits—and so the statute prohibits the corrupt “offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to” a foreign official.

An improper benefit can take many forms. While cases often involve payments of cash (sometimes in the guise of “consulting fees” or “commissions” given through intermediaries), others have involved travel expenses and expensive gifts. Like the domestic bribery statute, the FCPA does not contain a minimum threshold amount for corrupt gifts or payments. Indeed, what might be considered a modest payment in the United States could be a larger and much more significant amount in a foreign country.

Regardless of size, for a gift or other payment to violate the statute, the payor must have corrupt intent—that is, the intent to improperly influence the government official. [It] . . . is difficult to envision any scenario in which the provision of cups of coffee, taxi fare, or company promotional items of nominal value would ever evidence corrupt intent, and  neither DOJ nor SEC has ever pursued an investigation on the basis of such conduct. (Page 14-15)

A small gift or token of esteem or gratitude is often an appropriate way for business people to display respect or each other. Some hallmarks of appropriate gift-giving are when the gift is given openly and transparently, properly recorded in the giver’s books and records, provided only to reflect esteem or gratitude, and permitted under local law. Items of nominal value, such as cab fare, reasonable meals and entertainment expenses, or company promotional items, are unlikely to improperly influence an official, and, as a result, are not, without more, items that have resulted in enforcement action by DOJ or SEC. (Page 15)

• the nature and seriousness of the offense, including the risk of harm to the public;

• the pervasiveness of wrongdoing within the corporation, including the complicity in, or the condoning of, the wrongdoing by corporate management;

• the corporation’s history of similar misconduct, including prior criminal, civil, and regulatory enforcement actions against it;

• the corporation’s timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents;

• the existence and effectiveness of the corporation’s pre-existing compliance program;

• the corporation’s remedial actions, including any efforts to implement an effective corporate compliance program or improve an existing one, replace responsible management, discipline or terminate wrongdoers, pay restitution, and cooperate with the relevant government agencies;

• collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution;

• the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance; and

• the adequacy of remedies such as civil or regulatory enforcement actions. (Page 53)

But we don’t have to get deeper into the proximate cause briar patch. Before a judge gets to the issue of proximate cause, he has to determine what the defendant caused. Amy’s and Vicky’s brief misses this point in stating (a proposition not wholly true, but we’ll ignore that qualification) that “a tortfeasor cannot say he should escape liability for sinking a barge because someone else’s acts would have sunk the barge regardless.” The statement is an allusion to a discussion in W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 52, p. 347 (5th ed. 1984), of a class of tort cases best illustrated by cases concerning not barges but “multiple fires of negligent origin. If each fire would have destroyed the plaintiff’s property, so that all the fires were sufficient conditions of the harm but none was a necessary condition, nevertheless the firemakers would be jointly liable whether or not they were acting in concert.” Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011). Otherwise there would be two wrongdoers, a harm from the wrongdoing—yet no liability.

Is this such a case? Amy’s and Vicky’s brief states that “apportioning [their] harm among the numerous past, present, and future defendants is all but impossible. But all of them have contributed to Amy and Vicky’s images going ‘viral’ on the internet.” It’s an open question whether the defendant in the present case uploaded any of Amy’s and Vicky’s images to the Internet—if he didn’t, then he didn’t contribute to those images “going viral.” If we consider only his having seen those images, and imagine his being the only person to have seen them, Amy’s and Vicky’s losses would not have been as great as they were.

Lest you think this is just the needless murder of words leading nowhere (with the gratuitous smack in the head to Bryan Garner, in the last paragraph of page 14, in his capacity as editor of Black’s Law Dictionary and co-author with Justice Scalia in the curious tome, Reading Law : how not to write like Posner), Judge Posner actually answers the question eventually.

But if the defendant in this case is not responsible for the viewing of the images of Amy and Vicky by even one person besides himself, joint liability would be inappropriate. Amy and Vicky argue that psychological harm is always “indivisible.” But it isn’t. If separate fires join and burn down the house, the harm is indivisible: the house is gone, and all the firemakers are liable even though any one of the fires would have destroyed the house. And in our distribution example, the distributors may be jointly liable though again the entire harm might have occurred had there been only a single distributor. But often psychological harm can be greater or less, and it would have been less in this case if instead of tens of thousands of images of Amy’s and Vicky’s rapes being viewed on the Internet one image of each had been viewed by one person, the defendant.

Still less than clear? Boy, are you demanding.

To summarize: The defendant’s prison sentence is affirmed. The calculation of the crime victims’ losses is affirmed too, except that the judge must determine how much to subtract from Amy’s losses to reflect payments of restitution that she has received in other cases. The order of restitution is vacated and the case remanded for a redetermination of the amount of restitution owed by the defendant; that will require, besides the subtraction we just mentioned, a determination whether the defendant uploaded any of Amy’s or Vicky’s images. The defendant will not be permitted to seek contribution from other defendants convicted of crimes involving pornographic images of the two girls. And Amy and Vicky will not be permitted to intervene in the district court.

So there you are. Problem solved.  Tomorrow, guidance from the government on how to screw in a light bulb in a union courthouse.

It’s become sadly common for criminal defense lawyers, busily puffing themselves by twitting about their days filled with exciting and remunerative work, engaged in some silly vanity program one day and starting a serious trial the next.  It makes me cringe, wondering why they weren’t spending their time preparing. 

Preparing. Another archaic concept.

In Lockport, New York, a defense lawyer found out the hard way that preparation matters when it turned out he was the only person in the room who hadn’t bothered to watch a video of his client’s interrogation.  His client was charged, along with two others, in the shooting of another human being. A serious case. Even for those lawyers who only think effort is worthy of exertion on serious cases, this one met the bar.
 
From the Buffalo News :

Meanwhile, co-defendant Paul E. Buck Jr., 23, asked for a new lawyer.

Assistant Public Defender Matthew P. Pynn said in court that Buck told him he lacked confidence in him.

When presented Tuesday with Buck’s vote of no confidence in Pynn, [Judge] Murphy at first said, “I have a great deal of confidence.”

[Det.] Conti testified in an evidentiary hearing Oct. 2 that Buck never asked to stop the interrogation. Murphy said that was belied by a 70-minute DVD of the interview, which the judge said showed Buck asking repeatedly to leave.

Two weeks ago, Murphy asked if either attorney had actually watched the video. He said, “If I were to make a decision on this record, the defense attorney would be subject to a claim of ineffective assistance of counsel if there were a conviction.”

But moments later, the judge conceded, “Under the circumstances, I can see how Mr. Buck would come to that conclusion.”

It likely comes as a surprise to those who think old lawyers are just mean-spirited and unhelpful to younger lawyers who come for validation of their wants and desires, but I get a fairly regular stream of lawyers calling for advice.  Even though they know there is a risk they won’t get the answer they want, they still call. And I do my best to be honest and helpful, even when I know it’s not what they want to hear.

But it’s not that often that I get a call from a lawyer who has been in the game more than ten, fifteen years, so when Brian Tannebaum told me he had a serious question, I figured he meant it.  I settled into my chair and listened.

Brian has a great practice.  A mix of state and federal criminal work. A mix of criminal defense and bar disciplinary cases. A reputation of skill and effort, for which he’s well respected.  He does well, even if he suffers the same ups and downs that every small or solo practice endures. Revenues can be spotty, and hot months are followed by cold months, always wondering if the month after will be hot again. That’s solo life.

The dilemma Brian faced was one that a great many lawyers would love.  A biglaw firm wanted him.  What should he do. 

He left the question hanging.  He didn’t give me any further indication of why he was asking me, whether he just wanted a sounding board or whether there was something I could bring to his thought process that might not be on his radar.  I decided that the best I could offer was the perspective of an older lawyer, one who could only see 18 years of practice in the rearview mirror.

There was a time, way back when, that a call came in asking whether I would be interested in hooking up with a law firm.  At the time, I was still climbing the mountain, enjoying the struggle to see what could be accomplished and looking forward to the bright lights ahead of me.  Midlife still seemed far away, and the future was mine for the taking.  I had already tried a bit of law firm life, and it was unpleasant, to say the least. 

Having my choices, my decisions, subject to other people’s approval felt like a lead weight on my back.  Dealing with personality conflicts, whining, complaining, jockeying for position, wasn’t my idea of practicing law. Who needed to deal with all that crap, when fighting it out in court was where all the fun was?  And there was no more money for doing so.

Sure, the revenues evened out better with more lawyers, as each brought in cases at different times, and one lawyer’s low month was another’s high.  But at the end of the year, it was pretty much even, and all the aggravation that went with managing people was a burden for which there was no reward.

Some of my friends also got the call, and went with it.  Today, they sit in corner offices down the end of long hallways.  Some haven’t seen a courtroom in years.  They manage. They advise. They send young soldiers off to war and pray they come back unharmed.

Some still try to get into the courtroom as much as possible, hoping to feel that burst of adrenalin when they’re offered the opportunity to give the jury an opening statement.  But they have to get back to the office for conference calls, feeling their blood pressure level off and their butt flatten.

At 40, the idea of sitting on conference calls and listening to associates whine about assignments is like death.  The bright light fades to a fuzzy glow; you know it will always be there but it will never be bright again.  From there, it’s just waiting until the last meeting when they hand you the gold watch and carry the box of your life to the waiting car.

At 50, however, it looks a little different.  This was the perspective I could offer Brian that he wouldn’t be able to see on his own.  The thrill somehow disappeared one morning, as you wake up and find parts of your body hurting that never hurt before.  You’ve done enough openings. Closings. Crosses. More importantly, you hear yourself explaining things to potential clients that you’ve said too many times before.  The novelties of youth have grown old.  It’s not that you don’t want a challenge, but that you reached the peak of the mountain.  That was it. The rest of the time would be standing there.

I told Brian that the great moments of solo practice would lose some of their luster soon.  Not that a “not guilty” verdict wouldn’t thrill him, but that the thrill wouldn’t last much past the next day.  I told him that hanging out in bars and restaurants with clients until the wee hours of the morning would give way to wishing you were in bed by 10 because you’re exhausted.

The thrill of scoring the next big case diminishes, while the knowledge that there will be a check every other week becomes comforting. A couple of kids in college, the cost of maintaining the big house and a few cars hangs over you.  Where before you felt compelled to accumulate the things that bring you pleasure, you begin to wonder why you need all this stuff, and what you’re going to do with it.  You begin to feel as if it owns you rather than the other way around.  And big kids need big things. And eat a lot more than little babies.

But when this realization hits, that there is virtue in stability and a slower pace, a funny thing happens.  You’re no longer the up and coming young buck with a proven track record and a glorious future. You’re a fixture, a known quantity that’s hit his stride. You’re too expensive for the investment, and can’t promise enough good years left  to guarantee that a significant investment will pay off. 

I told Brian that when he reaches my age, there won’t be a call from Biglaw asking him to come aboard.  His opportunity to make the change is now. 

I neither advised him to take the job or pass. I tried to give him a flavor of what the future might look like so he could make his decision with an understanding that you don’t stay 40 forever, and that life brings changes in perspective and concern.  No one told me that when I was younger.  I passed on a few opportunities, firms, bench and teaching, that had little luster at the time but are far more attractive today. It’s not to say that I made the wrong choice, but that I made a choice without a clear appreciation of how life looks after the bright light fades.

Brian turned down the offer.  Whether he made the right choice for him won’t be known for another decade or two. I hope my thoughts helped him to decide. 

A verdict was returned in the trial of bartender Karolina Obrycka, beaten by off-duty drunken Chicago cop, Anthony Abbate, and the police culture that covers up criminal conduct by cops, the “Code of Silence.” The jury found against the Code of Silence, awarding Obrycka $850,000..

Her attorney, Terry Ekl, heralded the verdict as a landmark, precedent-setting decision.

“We proved the code of silence at every level of the Chicago Police Department,” from the first officers who responded to the beating to then-Chief Phil Cline, Ekl said after the verdict, adding that the jury’s award is more than twice the $400,000 he offered to settle the case for before trial. He noted the ultimate cost to the city will be far higher once he and his team collect their attorney’s fees.

After the verdict, [Mayor Rahm] Emanuel’s spokeswoman, Sarah Hamilton, said in a statement that the mayor is confident that the superintendent he selected, Garry McCarthy, and his leadership team “would not approve of, let alone participate in a code of silence.”

At the same time, the city’s law department issued a statement that the city strongly disagreed with the verdict and all but promised an appeal.

During the civil trial, Obrycka’s attorneys alleged that police sought to downplay and cover up the beating, in part out of an ingrained but shadowy culture among police of protecting their own. They said that culture created an environment that led to the beating.

Posted by Smeared1 on Wednesday, November 14, 2012 06:39 AM Pacific  Report Abuse

“The question now becomes, `What are they going to do about it?'” he said. “If there’s going to be change, it has to come from the mayor’s office.” No, Mr. Dumbass Attorney, the Mayors Office can’t make them do a damn thing! What would the order be? Don’t keep a secret….kind of tough to prove if it’s kept isnt it? Your client looks like a run of mill skank.

Posted by smmerbreeze on Wednesday, November 14, 2012 06:58 AM Pacific  Report Abuse

Regardless of what she may “look like” smeared, she didn’t deserve to get her ass kicked. He beats her and you insult her? Classy.