In an editorial, the  New York Times came out in full force behind a New York City Council proposal to create the position of Inspector General for the NYPD.  The cops and Mayor Bloomberg don’t like the idea at all.

The Police Department called the idea of an inspector general unnecessary. Paul J. Browne, the department’s chief spokesman, said the department was “probably under more scrutiny than any other police agency, probably in the world” and was subject to oversight by two United States attorneys, five district attorneys, the Civilian Complaint Review Board and the Commission to Combat Police Corruption.

Mr. Browne also said that the department had made a “major commitment” to departmental oversight, with 1,000 people assigned to its Internal Affairs Bureau and other “integrity control” units, roughly the same number as are assigned to its counterterrorism operation.

The department has a long history of episodic misconduct that erupts every time the leadership falls down on the job.

The last time that happened, as documented by the Mollen Commission Report in 1994, the department’s leadership and Internal Affairs Bureau were found to be looking the other way while the police trafficked weapons and sold protection to drug dealers. The commission’s central recommendation — that the city create a strong independent body to monitor the police — remains as relevant today as it was during that scandal nearly 20 years ago.

Creating an inspector general’s office could help address these shortcomings. Under a bill that 30 of the City Council’s 51 members have signed, the Council would forward a list of candidates to the mayor, who would then have the authority to name an inspector general.

The inspector would serve a seven-year term. He or she would review and report to the public on policies and practices and make periodic recommendations on how to improve them. Because the inspector would have subpoena power, the police department could no longer just say no when asked to produce information.

An inspector general is not a foolproof answer. But the mechanism has worked well elsewhere and could only strengthen oversight in a police department that clearly needs it.

The internet may not be the source of fabulous wealth and prestige for lawyers that some claim, but it is an incredibly useful tool to learn about people. Whether for law enforcement to learn about suspects or people seeking legal help to learn about lawyers, the web provides an amazing resource to gather information that would otherwise be unavailable or bound in large, brown books that exist only in corner offices. 

When someone expresses an interesting subjective view in the blawgosphere, I regularly check out who they are.  It matters to me whether the opinion comes from someone who has been a lawyer for a month or twenty years. It matters whether they are a prosecutor or defense lawyer. Or cop. Or defendant. Or civil lawyer. They may think their opinion matters regardless, but the fact is that the opinion of a knowledgeable person weighs more heavily than someone lacking any basis. That’s how opinions work.

In the course of checking people out, one particularly disturbing issue keeps cropping up. The claim of “experience.”  It has become de rigueur for young lawyers to include bios on their websites that announce their law schools and bar admissions, but omit the dates. Elsewhere, they invariably claim to be “experienced,” sometimes fleshed out with wild claims like having won thousands of cases even before admission to the bar.  It’s all part of creating their personal brand.

The reason for these omission is plain. Young lawyers want to promote themselves without disclosing that they are new to the practice of law.  Marketing advice is clear: hide the negatives and bang the positives.  Create the appearance of qualification and competence without disclosing harmful material facts.  The way to do this is to conceal anything that might reflect poorly on you and undermine the free-wheeling use of subjective puffery.

Experienced, Competent, Aggressive

Any lawyer can put this on his website, and because each reflects a wholly subjective claim, who could dispute it?  In a post at Avvo’s Lawyernomics, a legal marketing blog, Josh King writes about the Pennsylvania interpretation that precludes use of subjective claims such as “experienced.”

There’s a curious little nugget in the Pennsylvania rules governing attorney advertising; under the state’s interpretation of Professional Conduct Rule 7.1(c), attorneys are barred from using “inherently subjective” terms such as “experienced” and “competent” in advertising their services. The fear, such as it goes, is that such terms are difficult for consumers to confirm or measure. (Never mind that we consumers have some passing familiarity with the uses of hype in advertising.)

This peculiar rule is an anachronism today, and observed in the breach, if a cursory review of Pennsylvania law firm websites, blogs, and internet ads is anything to go on. It’s also inane, paternalistic, and a holdover from the pre- Bates v. Arizona days when attorney advertising was completely banned in most places.

One gets the feeling that Josh doesn’t favor this rule. No doubt he’s correct to say that it’s widely ignored, particularly given that most lawyers consider the internet a truth-free zone where it’s fair to make any claim that could potentially get you business.  If anything goes, then it is indeed inane and paternalistic for state bars to prohibit subjective claims of greatness. After all, no lawyer is going to persuade clients to knock down his door by writing “I’ve never handled a family court case, but I would like to and would be very happy if you would be my first, and pay me for the pleasure.”  Not good marketing.

But here is where it goes completely off the tracks:

Some might say this is okay–that the world hardly needs another attorney advertising their “experienced, competent, aggressive” representation. But the overall effect is a chilling of all information from lawyers to consumers, and a lessening of transparency in what is already the most opaque of professions.

Does a prohibition of deceptive or subjective claims by lawyers produce a chilling effect, “lessening transparency”?  Josh’s concern is that when lawyers aren’t clear where the line is, beyond which they will be subject to discipline, they shy away from the line and provide less information to consumers.  Superficially, it makes some sense.

The problem, upon closer scrutiny, is that the line only comes into play when lawyers are being deceptive or using puffery, subjective claims that range from the meaningless to the intentionally false.  This isn’t transparency. This is dishonest.  And if one wants to fix the problem of opaqueness in the legal profession, the solution isn’t deceit, puffery and omission of material facts, but accuracy and honesty.

The one thing that stands out above all others are lawyers who omit dates from their websites and blogs. This is wrong, and whenever I see “Harvard Law School” without a date, it tells me that this lawyer is concealing a simple, basic fact.  Concealment is hardly transparency. 

It’s no crime to be a new lawyer, and indeed, many clients will prefer a new lawyer who will likely charge significantly lower fees and perhaps show greater interest and exuberance in their representation.  The adage, an old fool is worse than a young fool comes to mind, offering the new lawyer the opportunity to use his lack of experience to his advantage. There is nothing wrong with capitalizing on your strengths, even if those strengths don’t involve many years of experience.

What cannot be done is to omit the material information that would allow clients to reach their own conclusion as to whether a lawyer is sufficiently experienced.  This is deceptive and unethical. Note that it may not result in discipline, the bogeyman Josh fears, but disciplinary rules provide the absolute minimum level of conduct demanded of a lawyer. That conduct skirts the edge of discipline doesn’t make it ethical, but merely not subject to discipline. Is the best that can be truthfully said of you that you haven’t been disbarred?

It’s time to end the deception. We are not laundry detergent and we can hold ourselves to a higher standard than toilet tissue puffery.  If you include your law school and bar admission on your website, include the date. Telling the truth matters. Not omitting the facts you don’t want clients to know matters as well.

It’s highly unlikely that puffery, deception and material omission on the web will get you disbarred.  There is no lack of people who will denigrate honesty and integrity in the name of self-promotion, calling it inane and paternalistic. 

So it’s entirely up to each lawyer to decide whether they prefer to tell the truth about themselves or puff, deceive and omit.  Your call, but understand that some of us do care, and we are watching. If you don’t include dates, I then know you intentionally deceive. That’s your brand.

Update: At Lawyerist, a wealth of comments by baby lawyers “explaining” why there’s nothing wrong with concealing their date of admission. The comments are fascinating if deeply disturbing, and pretty much take a shot at every conceivable way of wiggling out of responsibility. 

At at the Unwashed Advocate, a visual illustration of the issue. 

In preparation for his sentencing before SDNY Judge Jed Rakoff on October 24th for insider trading, or more particularly, feeding his pal, Galleon head Raj Rajaratnam some inside poop, Goldman Sachs’ Board Member Rajat Gupta has asked a few of his dearest friends to write letter on his behalf.  His friends, however, are not like my friends. Or probably yours, either.

From the WSJ Law Blog :

Many have come from well-known figures, as the Wall Street Journal reported Friday, including Bill Gates, Kofi Annan  and Deepak Chopra. 

His wife Anita, for instance, wrote:

He invested with anybody who came to him or was sent to him by friends without asking too many questions much to our financial advisors dismay. He could never imagine his friends or business associates could be involved in unlawful activities or would try to cheat him…. During the present crisis, a lot of his “good friends” have disappeared or cooperated against him in the hope of getting leniency and some who could be helpful did not step forward.

It may be a matter of personal bias, but it never struck me that people who hold mainstream Christian beliefs were the equivalent of a psychotic mass murderer. Then again, I’m not Judge David Glant in Florida, where insanity has apparently been redefined so that a 64-year-old convicted murderer, John Ferguson, with a history of mental illness /files/66432-58232/doc10122012103557.pdf”>his decision, calls the evidence of his insanity “credible and compelling.”  In Florida, this apparently not only means he’s sane enough to execute, but pretty much a “normal Christian.”

Regardless of his long history of mental illness, there is no evidence that he does not understand what is taking place and why it is taking place. Ferguson’s “Prince of God” delusion, as well as his religious beliefs in general, shows a man who has a remarkably clear and relatively normal Christian belief, albeit a grandiose one… In some sense, Ferguson appears to have fit his grandiose delusion into a traditional religious worldview.

This raises a rather disturbing question, whether a “traditional religious worldview” causes a man to do the horrible things Ferguson did, as Fred Grimm describes in the Miami Herald.

On July 27, 1977, Ferguson was one of three masked gunmen who burst into a Carol City home looking for drugs. Ferguson and an accomplice forced six of the occupants to lay face-down on the floor and then shot them, one by one, in the back of the head. Six months later in Hialeah, Ferguson surprised a teenaged couple sitting in their car. He killed them both, after brutally raping the girl.

This is outrageous conduct, but it’s compounded by the fact that Ferguson, who was committed to a mental hospital, was released.

And finally a diagnosis in 1975 came with a warning that reads, in retrospect, like prophecy. “He has a long-standing, severe illness which will most likely require long-term inpatient hospitalization. This man is dangerous and cannot be released under any circumstances.”

Yet, in an act of bureaucratic insanity, less than a year later Ferguson was released from state custody, this diagnosed paranoid schizophrenic who was delusional and impulsive and explosive and aggressive and dangerous.

Apparently, in Florida, “cannot be released under any circumstances” means cut him loose within a year. They really need their own dictionary down there, as those words would suggest to most people that this is a terribly sick man who could murder a lot of people if let go. And he did.

Aside: In a rational world, who bears greater culpability for the murderous acts of utterly insane and dangerous man: the crazy guy or the government official who, knowing he was nuts, released him to prey on the public?

But as mentally ill as John Ferguson may have been for those five decades, believing that he was the “Prince of God” whose mission it was to stop a communist plot to take over the country when he is resurrected “at the right hand of God” to drive the commies away, he doesn’t pass the crazy test in Florida because, as Judge Glant held, this is what relatively normal Christians believe.  It has to be true, because a judge says so. 

If I was a relatively normal Christian, I might find this more than a bit insulting.  As a lawyer, it’s just mind-boggling, unless he was just looking for an excuse to execute Ferguson anyway.

Of course, this being a civilized nation, we don’t execute anyone who doesn’t know he’s about to be zapped from existence. But the courts have decided that somewhere in that muddled and messianic mind of John Errol Ferguson, he’s aware, enough anyway, of what awaits him.

Notions of “normal Christian belief” must be slightly different up there in Bradford County. Either that or when the convict before the court has eight murders on his rap sheet, a judge will accept even the most meager excuse to dispatch him to oblivion. Yet, Judge Glant didn’t really need to stray outside the parameters of the law, which holds such a narrow definition of insanity that a history of outrageous craziness hardly matters.

According to the state’s doctors, Ferguson understood that he was going to be executed, even if his grasp with limited to the twisted paradigm that exists somewhere within the dark recesses of a psychotic mind. As his pro bono lawyer, Chris Handman explained,

there’s a difference between a “factual awareness” by Ferguson that he’s about to be put to death and “a rational appreciation of the death penalty.” But he has yet to find a court willing to acknowledge that difference. He’ll try the Florida Supreme Court this week. But time is running out.

Close enough for killing in Florida. Just your traditional Christian values at work here. Nothing out of the ordinary.

John Errol Ferguson is scheduled to be executed this Thursday.  He knows it, even if he think it’s so he can be resurrected to fight the commies with his old man, God.  And this is not only considered sane in Florida, but normal Christian beliefs.  As Fred Grimm wrote, “[e]ven for fervent advocates of capital punishment, that’s got to take a bit of the fun out of execution day.

Update: An appeal has been filed , and two professors of religion, John Kelsay and David Levenson, of Florida State University have filed an amici brief  that Ferguson’s psychotic view does not reflect normal Christian beliefs, but “differ radically from traditional Christian teaching.”

Update 2: The Florida Supreme Court  New York Times has an editorial against the execution of Crazy John Ferguson. The Supreme Court, however, did not read it. The Court  denied the petition for cert and a stay of execution.  Ferguson will be executed on October 23rd.

Update 4:  And a habeas petition hearing has been granted (h/t Ed. at Blawgreview):

U.S. District Judge Daniel T. K. Hurley granted the motion for a stay in the case of John Errol Ferguson, who was to be executed Tuesday after 34 years on Florida’s death row.

“The issues raised merit full, reflective consideration,” the court said.

If nothing else, Ferguson will not be executed on Tuesday.

Update 5: While others were watching the third presidential debate, the 11th Circuit, in a 2-1 decision, vacated Judge Hurley’s stay of execution, by-passing the usual practice of allowing the district court to hold its hearing and reach a decision, and thus forcing the case toward death without a habeas determination.

Update 6: Ferguson was scheduled to be executed today, October 23rd, but the 11th Circuit granted a stay of execution and ordered the matter briefed, despite it’s having vacated a stay the day before.

Mark Bennett at  Defending People picked up a bit at  Courthouse News Service about debt collection law firm Gurstel Chargo.  Their motto is “accountability matters,” backed up by this insightful and ironic prose.

It is not only what we do, but also what we do not do, for which we are accountable.

— Moliere

Gurstel Chargo’s response to a disabled veteran trying to recover $6,000 of ungarnishable money that Gurstel Chargo had garnished, after the firm had told a judge that the firm would release the money “right away.”

Fuck you! Pay us your money! You can’t afford an attorney. You owe us. I hope your wife divorces your ass. If you would have served our country better you would not be a disabled veteran living off social security while the rest of us honest Americans work our ass off. Too bad; you should have died.

Accountability. Isn’t it a wonderful thing? From a legal assistant at the firm came the words “fuck you” to Michael Collier.  But this isn’t merely a story of one bad apple, but of a law firm (note, this is not merely a debt collection agency, but a law firm, subject to the full panoply of ethical considerations and disciplinary rules that apply to us all) built upon a marketing approach that claims to have “developed sophisticated systems and instituted soft-touch collection practices that produce favorable results.”

On the bright side, it appears that not all lawyers are as scummy at O’Brien.

The veteran, Michael Collier, can now, as it turns out, afford a lawyer. Floyd Bybee of Chandler, Arizona, has filed suit against Gurstel Chargo for, among other things, violating the Fair Debt Collections Act. (Complaint.) Gurstel Chargo is being sued in eight other federal cases in Arizona, Minnesota, and Ohio.

Accountability matters. I certainly hope so. What happened here may not be the norm, even within the ranks of one of the scummiest niches of legal practice.  Of course, there was a reason why Congress felt compelled to enact the Fair Debt Collection Practices Act, to clean up a cesspool of abuse.  Unfortunately, it leaves it to the least capable and powerless to enforce, making it another promise usually unfulfilled.  And lawyers inclined to abuse people are only too aware of this, taking advantage of people whenever possible.

Which makes it important that when something like this occurs, people know about, particularly about the lawyers and firms that would engage in such conduct.  This is why I add my voice to Bennett’s so you know. Lawyers do a lot of good.  Lawyers also do bad.  The bad must be stopped.

* These are, of course, merely accusations in a complaint by Collier against Gurstel Chargo, though it’s representation to the court that they improperly garnished exempt funds and failure to release them should be easily confirmable.  On the other hand, after Bennett’s post appeared, the firm took down linked pages, forcing Mark to post the cached versions.  Because, you know, law firms regularly take down embarrassing pages from their websites when someone calls them out. All the time. #Marketing101

Update:  It appears that  Gurstel Chargo isn’t thrilled with the attention they’ve received, and has issued a statement on their website:

We learned late last week of the lawsuit filed by Michael Andrew Collier and Kim Collier-Dingman. Gurstel Chargo takes the allegations made in the lawsuit very seriously and we have immediately launched an internal investigation to determine the facts. We are extremely disturbed by the allegations stated in the Complaint, as they are contrary to the policies, practices and values of our firm. We expect that all Gurstel Chargo employees fully comply with all state and federal laws, and we thoroughly train our employees to perform their job in a lawful and respectful manner. Under no circumstances does our firm tolerate the type of conduct alleged in the Complaint.

The Complaint states that the wrongful remarks were made during a telephone call. We have requested from the attorney that filed the Complaint the phone number of the phone that Mr. Collier was allegedly on, an approximate date on which the call occurred, whether the person who made the alleged wrongful comments was male or female, all in order to help us to get to the truth about what occurred. We have been informed by Mr. Collier’s attorney that he is unaware of any of this information. To date, we have discovered no information to substantiate the allegations, but our investigation continues. Should these allegations prove to be true, we will take immediate corrective and disciplinary action. (Emphasis added.)

Shifty, disingenuous and, to the extent it reflects the culture of Gurstel Chargo, damning. Or, to put it another way, what one might expect.

While it’s a broom handle shy of Abner Louima, it bears that personal touch that only a sick man with power, and the knowledge that his buddies wouldn’t rat him out, can appreciate.  Milwaukee cop MIchael Vagnini decided that he would insert his finger in the anus of “suspects” when and where he wanted to.

From the Journal-Sentinel :

Four Milwaukee police officers were charged Tuesday with felonies related to illegal rectal searches of suspects on the street and in police district stations over the past two years.

In one case, an officer held a gun to a man’s head as two others held his arms and a third put him in a choke hold while jamming a hand into his anus, purportedly searching for evidence, according to the criminal complaint. Another man bled from his rectum for several days after his encounter with police, the complaint says.

The complaint lays out in graphic detail how the primary suspect, Officer Michael Vagnini, conducted searches of men’s anal and scrotal areas, often inserting his fingers into their rectums. Vagnini acknowledged performing one of the searches. At least one suspect said Vagnini planted drugs on him.

Milwaukee Police Chief Edward Flynn, whose department was “already under fire over the in-custody death of Derek Williams, detaining the mother of a slain boy and reporting inaccurate crime statistics to the FBI and the public,” who shirked off responsibility by saying that “misconduct occurs in every big-city police department,” offered some startling statements. For example:

All of the officers have been on the job long enough to know that the types of searches alleged were illegal and against policy, Flynn said.

Does he mean to suggest that cops, say for the year on the job, aren’t aware of the fact that they can’t anally rape suspects because they want to?  While Flynn now calls the conduct disgraceful, it wasn’t of sufficient concern to stop when the first complaints came in.

The charges issued Tuesday mark the end of an investigation that began in March, when the Police Department notified the district attorney’s office of the allegations.

At the time, Flynn said the department had been aware of complaints about potentially illegal searches for “a couple of years,” but waited to investigate until authorities recognized a pattern.

More than six months elapsed since the department decided to take the complaints seriously, but they were aware of the complaints “about potentially illegal searches” for years and did nothing.  Incidentally, there is nothing “potential” about the illegal searches. The insertion of a cop’s finger into the anus of a suspect is, without question, illegal. 

Flynn makes a point to note that this was intentional misconduct, which he emphatically distinguishes from mere “error.”  Error, he states, is treated differently.  Whether there is any scenario in which this could be error remains a mystery, unless he’s suggesting that Milwaukee hands a gun and shield to cops and puts them on the street unaware that they cannot insert their fingers into people’s anuses.  In which case, it was just a mistake, no matter how much damages they do.

To blame Vagnini is easy; it takes little cause to assert that this was a combination of a sick individual with the power to indulge his desire to torture, humiliate, inflict disgusting pain and suffering on others.  To blame the other cops who watched and did nothing is critical. That someone like Vagnini gains access to a shield can happen. That others watch the show, facilitate Vagnini’s crime, is inexcusable.  Obviously, the blue wall precludes their ratting out their brethren, no matter how sick he may be, but that provides no excuse.

What cannot be sanctioned is the department’s, Flynn’s, willingness to let this go on for years while doing nothing.  Attorneys for the victims of Vagnini say that there are others as well.

Jonathan Safran, a lawyer who represents two of the men who said they were assaulted, called the charges “another sad chapter” for the city and the department.

“This is, I am afraid, the tip of the iceberg,” he said. “There is a culture in the Milwaukee Police Department that, unfortunately, has led to a number of civil rights violations.”

Like Safran, [Robin] Shellow said she has spoken with other victims – including the mothers of underage boys – who were afraid to report the abuse because of their own criminal records.

This comes as no surprise, as one would anticipate only a fraction of those abused would complain, both out of fear as well as the belief that it’s a futile gesture.  And this should have been apparent when the first complaints rolled in, at which point an investigation should have begun had the Chief Flynn cared enough for the citizens of Milwaukee to stop it.  He obviously didn’t, as years elapsed while Vagnini continued to meet anuses he desired to enter.

As Jonathan Safran noted, the problem is one of culture, which is invariably at the heart of cops feelings empowered to do whatever the please on the streets.  But even with a culture that cares nothing for constitutional rights and empowers cops to do as they please without fear, conduct like this crosses the line of any somewhat civilized society.  That it’s not quite as evil as what was done to Abner Louima when NYPD cop Justin Volpe rammed a broom handle up his anus in a precinct bathroom doesn’t mean that it doesn’t fall far beyond the bounds of a disgusting and brutal assault. 

And yet, the Milwaukee Police Department was aware of complaints that citizens were being sodomized on the street by cops and ignored it, unworthy of even an investigation no less action, for years.  This didn’t happen because of one sick cop. This didn’t happen because a few others were cowards at best and enablers at worst.  This happened because Chief Flynn’s police department didn’t think it was worth the time or effort to stop it.  No amount of adjectives at a press conference now will absolve Flynn of his failure to act for years.

H/T  Radley Balko
 

A few years ago, I gave a talk to a nice bunch of in-house lawyers at SuperConference in Chicago about how to prepare for being the target of an investigation or indictment.  Afterward, some of the lawyers came up to me and told me that it was a good talk, but they were the wrong crowd.

Things like this don’t happen to lawyers like us, I was told.

And even if they thought it might, it’s not like they or their companies would be willing to commit and any time, effort or, most importantly, money to preparation. They were in the business of making money, not spending it. It was bad enough that the GC wasn’t a profit center; as if they could budget more money in anticipation of problems that nice lawyers never face. Ain’t happening.

At Above the Law, David Mowry wrote a post abut Lauren Stevens, an in-house counsel at GlaxoSmithKline.

Ms. Stevens was not the VP of legal affairs, she was one of many. Just like all those financial “VPs” on the prowl in Wall Street bars. She received a subpoena-like request from a department within the FDA that has no subpoena power. The request asked 15 broad questions, and GSK agreed to comply.

Now, in-house is a bit different than Biglaw in that we don’t immediately start to figure out how to fight or quash such requests. I receive subpoenas all the time, and it’s usually no big deal. We’ll do a risk analysis for the company, and most times the subpoena only tangentially involves us, and we’ll agree to comply. I will call up the AUSA, or other relevant contact, and ask how we can assist. Often, they want some documentation regarding a fraud investigation or illegal exportation practices by a third party. We have an interest in stopping such practices due to the implications for the company, so we readily agree to assist.

So let’s review. She responded positively and diligently to the inquiry. She put together a crack team of attorneys and outside counsel to assist in responding. She maintained open lines of communication with the agency. And when mistakes were discovered, they were disclosed, rectified, and steps were taken to avoid the same mistakes occurring. What happened next is not only frightening, but wrong and unjust.

Before getting to the heart of the matter, let me say that I forgive  Greg Lambert for not understanding. There’s no reason why he would, as the law librarian for King & Spalding, where he’s cloistered from the problems, aggravation and harm.

It’s like trying to describe the taste of a food you’ve only seen from a distance.  It may look delicious, and you assume it tastes as good as it looks.  But there is no way to understand what it actually tastes like.  But then, he’s not entirely wrong either. 

The hashtag hecklers on the other hand, aren’t exactly coming to this with clean hands either. They are not doing anything illegal in their heckling, and in fact, they feel as though they are actually giving the LMATech conference a dissenting view from what is being tweeted from the conference.

However, it is heckling, and not just dissent that is being voiced by those calling BS on the LMA. It’s pretty clear that the dissent is out to discredit the message and the messengers, and when it becomes personal like that, it takes on a mudslinging effect that suddenly gets very nasty. It gives those of us outside the argument something that amounts to entertainment, but not really anything of real value comes out of these types of arguments.

As Greg half-realizes, he’s on the outside.  He thinks it’s about his amusement. He thinks he can tell its purpose from a distance based on what it means to him. 

This is about some childishness that I and others engaged in during the Legal Marketing Technology Conference in San Francisco.  As is usually the case with such things, attending marketers used a twitter hashtag, #LMATech, to twit about the conference.  Its glory. Its genius. Its wonder.

This is among the fabulous marketing tools that legal marketers use.  And because it’s all on twitter under this hashtag, it’s available to all the world to read. Iif you’re so inclined, to twit about as well. I was so inclined, at least for a couple of hours.

But I didn’t do so for Greg’s amusement, though he learned about it because others were amused and retwitted about it.  Ironically, some of the attending marketers retwitted the “heckling” twits as well (maybe not realizing the absurdity of what I was saying, as it’s hard to distinguish the ridiculous from the real in legal marketing),  and followed the hecklers on twitter. From a safe distance, it was just some immature amusement to disrupt the pleasant flow of mutual-admiration twits amongst the marketers, sharing their deep marketing knowledge with cool ideas like

That, however, isn’t why I did it. Nor is it why Brian Tannebaum did it, though I don’t speak for Brian. Or a bunch of other lawyers who engaged in what Greg calls heckling.

He’s right that we don’t care much for legal marketing.  It’s not as simple as it might appear to the outside, though.  There are knowledgeable, competent people who help lawyers and firms market, who are concerned about ethics and competence rather than the newest way to perpetrate a fraud on the public while taking money from foolish and desperate lawyers.  But these marketers have no reason to go to #LMATech.

There are also a large group of people who want to take money from lawyers for marketing. They neither know nor care about ethics, and are the first to tell lawyers how to market by lying. They want to learn tricks to give the appearance of having something to sell to lawyers. These are the marketers who openly twit that it’s more important for a lawyer to market than be competent. After all, marketing makes money, and money is all that matters to them.

Among those marketers who were involved, the hashtag allowed them to spread their message publicly.. The worth of their message is in their mutual appreciation and adoration; they twit about it publicly so the world can see the work they do, individually and collectively, and appreciate their excellence. When it’s disrupted by someone who tells them their baby is ugly, the it ruins not only the joy of the moment, but disrupts their message.  To the marketer disrupted, the person is a heckler, ruining the show.

Hecklers have no higher purpose.  This is what Greg fails to understand.  But I don’t blame him, as there would be no reason for him to share the concerns of the hecklers since he’s the law librarian at a large law firm, where he will never meet the client scammed by deceitful marketing, or the desperate lawyer whose last dime was sucked away by a sham marketer.

Larry Bodine, on the other hand, has no excuse. When he took over as Editor in Chief of Lawyers.com, which certainly must have paid far better than his own marketing consulting business, he knew about the sliminess of his vocation.  Though Lawyers.com is connected with the once venerable Martindale-Hubbell brand, it’s just another low rent lawyer referral service, cashing lawyers checks and selling pretense to “leads.”  Then there are the weekly “specials” on faux self-promotional videos and wall plaques for “honors” offered at at 50% off. This is Larry Bodine’s world, the gutter of legal marketing.

Angered at his impotence to stop voices that were disrupting the campfire of marketers, Larry went on the offensive, twitting to his cloud of grasshoppers to report me and Brian to twitter as spammers for using the adored #LMATech hashtag and making him look, well, weak. 

As Ken at  Popehat notes, Larry had no claim on the hashtag.  Adam Steinbaugh, remembering his days doing security abuse at Myspace, immediately pegged Larry as a whiner, which isn’t what a savvy social media guy ought to be.

Tannebaum and Greenfield may be many things to Mr. Bodine, but they’re certainly not ‘spammers.’ They’re not advertising anything. They’re mocking Mr. Bodine’s conference — which is likely to do little to endear them to other attendees or earn them any clients (who, most assuredly, do not care what lawyers talk about at lawyer conferences). They’re not selling anything except LOLs. While it’s hard to fault Mr. Bodine for not understanding the finer points of the “report for spam” tool, it is bewildering that a legal marketing professional has no working understanding of the definition of “spam.” That might be all you need to know about internet legal marketing professionals.

While they are both right about Larry, and it has got to be embarrassing — no, humiliating — to be outed as so social media clueless that he wouldn’t realize that the only possible outcome was for twitter to see Larry as a whiner. But I see it in a slightly different light, one that eluded Greg Lambert.

Is Lawyers.com so afraid that what it does is so awful that it can’t bear up to the scrutiny of a few lawyers? Is that why its editor in chief feels compelled to engage in venal, if infantile, conspiracy to silence us?

Marketers are engaged in a race to the bottom. Not all, but most. Some of us try to slow
down the race, and sometimes we use twits, some humorous, some pointing out the absurdity of their claims and brilliant methods. Maybe we will turn a head of a few more marketers. Maybe we will change the mind of a gullible lawyer.  Maybe we will slow down the race just a bit. 

But in the race to the bottom, Larry Bodine, editor in chief of Lawyers.com, appears absolutely determined to win at any cost.

While it hasn’t gotten nearly the play of threats of terrorist attacks, the threat of cyber attacks is being promoted by defense secretary Leon Panetta as one of the greatest threats facing the country, demanding resources, attention and, of course, laws.  From the New York Times :

Defense Secretary Leon E. Panetta warned Thursday that the United States was facing the possibility of a “cyber-Pearl Harbor” and was increasingly vulnerable to foreign computer hackers who could dismantle the nation’s power grid, transportation system, financial networks and government.

“An aggressor nation or extremist group could use these kinds of cyber tools to gain control of critical switches,” Mr. Panetta said. “They could derail passenger trains, or even more dangerous, derail passenger trains loaded with lethal chemicals. They could contaminate the water supply in major cities, or shut down the power grid across large parts of the country.”

Given our reliance on computers to do, well, everything, manage and control the world as we know it, a cyber attack could certainly wreak havoc.  Whether a comparison to Pearl Harbor holds water is another story.

The upshot is the government desires to enact legislation, and if not legislation, then an executive order looms. This is where is gets muddy, yet disturbing.

Mr. Panetta also argued against the idea that new legislation would be costly for business. “The fact is that to fully provide the necessary protection in our democracy, cybersecurity must be passed by the Congress,” he told his audience, Business Executives for National Security. “Without it, we are and we will be vulnerable.”

With the legislation stalled, Mr. Panetta said President Obama was weighing the option of issuing an executive order that would promote information sharing on cybersecurity between government and private industry. (Emphasis added.)

Is this what will save us from attack?  Perhaps, but its implications run far deeper, an issue that few address.  After all, when the national security flag is raised, what kind of idiot would concern himself with such trivialities as the impact on civil and constitutional rights?  This kind of idiot, I guess.

If we’ve learned nothing over the past decade, it’s that the government is singularly adept at multi-tasking, using laws promoted as our protection from terrorism to undermine the rights and privacy of its own citizens.  Whether it’s coincidental or deliberate isn’t the point; the point is that consequences follow from such initiatives, but nobody wants to talk about them before the damage is done when the defense secretary is screaming about a cyber-Pearl Harbor.

At Volokh Conspiracy, Stewart Baker (who has done a lot of thinking about cybersecurity) argues that the government’s approach flawed and ineffective.

We will never defend our way out of the current cybersecurity crisis.  That’s because putting all the burden of preventing crime on the victim rarely succeeds.

The obvious alternative is to identify the attackers and punish them.  Many information security experts have given up on this approach.  As they point out, retribution depends on attribution, and attribution is difficult; attackers can hop from country to country and from server to server to protect their identities.

I think this skepticism is outmoded, however. Our intelligence on cyberattacks has gotten a lot better. Investigators no longer need to trace each hop the hackers take.  Instead, they can find other ways to compromise and then identify the attackers, either by penetrating hacker networks directly or by observing their behavior on compromised systems and finding behavioral patterns that uniquely identify the attackers. 

There is a huge irony gap in the government’s promotion of the notion that hackers, be they state sponsored or a collective of individuals who screw with the system for fun, are so much smarter, better, more nefarious, that our collection of cybersecurity-minded individuals are totally outgunned. Are we really impotent against the evil computer geniuses of Iran?

But Stewart notes a deeper problem lurking in the background, happening at the same time as the administration wants to get inside our computers to prevent this cyber-Pearl Habor:

Now there’s no doubt that US intelligence and law enforcement agencies have the authority to respond to hacks of US companies by breaking into the networks of suspected hackers and gathering information there. But by and large they don’t. 

Why not? Because complaining to the FBI and CCIPS about even a state-sponsored intrusion is like complaining to the DC police that someone stole your bicycle.  You might get a visit from the local office; you might get their sympathy; you might even get advice on how to protect your next bicycle.  What you won’t get is a serious investigation.  There are just too many crimes that have a higher priority. 

This is where it becomes hard to reconcile. On the one side, the Department of Defense says the sky is falling and we need intrusive laws to allow the government access to our computer infrastructure for our own protection.  On the other side, law enforcement can’t be bothered with it because it’s got bigger fish to fry.  Which is it?

No doubt the concerns about cybersecurity will eventually hit main street, with teenagers aghast at the possibility that Facebook will go down and they’ll never be able to add new friends they’ve never met.  Whether law or executive order, it will be sold to us as the absolutely necessary means of protecting us from this dreaded but unseen enemy, waiting at the fringes of the internet to take over our nation.  We certainly can’t have that.

In the process of staving off this cyber-Peal Harbor, however, the implication for further erosion of privacy and liberty is at monumental risk.  For most of us, we’re far behind the learning curve of what this means at the moment, but the government is moving full steam ahead.  By the time we figure out what liberty has been lost in the name of security, it will be too late, just as it was after 9/11.  The time to confront the implications of cybersecurity is before we lose any more freedom, because if 9/11 has taught us anything at all, it’s that getting it back afterward doesn’t work.

In a surprisingly thoughtful post for Law.com, Vanessa Blum surveys the problems with the government dealing with excessive data seizures in prosecutions for computer crime.  As one might expect, the government wants the seize and retain everything it can get its hands on, arguing that it’s too much of a burden to sift through data and limit its retention to that which is relevant to their case. 

And as one might similarly expect, the defense position is tough nuggies.

More than a year after federal agents arrested 14 people accused in a cyberattack on PayPal, the high-profile prosecution has ground to a standstill over the handling of computers seized in the investigation.

Searches carried out in a dozen states targeted computers, hard drives, and other digital devices, resulting in an avalanche of electronic material for investigators to sift through.

But intermingled with potential evidence of a crime were millions of irrelevant files, like emails, photographs, medical records, downloaded articles, Internet search histories, and old tax returns.

“It’s permeating criminal investigations,” said Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation. “What the government is arguing is that people increasingly use computers to further their crime and we have to search through everything, because criminals don’t label their contraband.”

Technology should allow government to more narrowly target searches of electronic data, said Fakhoury, a former federal public defender in Southern California.

“What the government is saying is the exact opposite, that the technology is so complicated, it’s impossible to ferret out what is relevant or irrelevant,” he said.

Defense lawyers say the holdings of Tamura and Comprehensive Drug Testing reign. The intermingled computer files may be taken off-site, but they must be carefully sorted and irrelevant materials must be deleted, destroyed or returned.

Fakhoury of the Electronic Frontier Foundation said there is no national standard for protocols in electronic searches. Prosecutors should be wary of pushing the limits, he said.

“The law doesn’t give prosecutors leeway to take whatever they want and keep it as long as they want,” he said. “The government is trying to expand its search and seizure powers, and I hope that judges are going to be resistant.”