Stetson University College of Law, best known for its five for one beer specials on Thursdays, has  announced a new prize for first year law students.

Stetson University College of Law alumnus Brian L. Tannebaum ’94 has created an award for students who excel in their first-year criminal law course. The Brian L. Tannebaum High Grade Award in Criminal Law rewards Stetson students earning the top grade in each section of their criminal law class with a financial award of $500.

Yes, that would be the same mean, nasty Brian Tannebaum who writes about  criminal law issues,  professional ethics issues and, at Above the Law, small firm issues.

Holy crap! You mean he’s not just an angry old lawyer spewing hate and venom around the interwebz?

Welcome to the world of real people, where reality too often flies in the face of efforts to ignore unpleasant advice.  Brian Tannebaum doesn’t hate law students. He doesn’t hate young lawyers. In fact, he actually cares a great deal about them and their future.  You’re shocked? You shouldn’t be. 

Contrary to the cries of those impaled on sharp words, the purpose of his critiques aren’t to wound but to help.  He responds to the happy faces singing the praises of magic bullet solutions to age-old practical and ethical problems.  He doesn’t do this for his sake, as he’s already achieved substantial success.  No, you do not threaten him. No, you aren’t even close to threatening him.

And it goes beyond some walking-around money:

Student Kacie Hohnadell, who has won the award multiple times, described receiving the Brian L. Tannebaum High Grade Award as one of the most gratifying experiences of her law school career.

“It was very rewarding for my hard work and dedication to be recognized,” said Hohnadell. “In addition to receiving the award, I had the opportunity to have dinner and a wonderful conversation with Mr. Tannebaum. His generosity and encouragement were inspiring, and I truly enjoyed meeting him.”

Yes, inspiring. He’s not obliged to sit down with students, or take them to lunch. He doesn’t have to talk to them. But he does.

Despite what the apologists in the Happysphere say, there is an obligation that many experienced lawyers take very seriously, to try to help, encourage and inspire law students and young lawyers to be the best they can be.  We want them to succeed.  We want them to be zealous, ethical and enjoy a fabulous life. 

And Brian Tannebaum puts his money, and his time, where his mouth is.  And he endures the ignorant backlash of those who feel the sting of his words because he won’t let them get away with unethical or improper behavior.  And he does it all to help others.

It’s one thing to be arrested. It’s another to be officially informed you’re under investigation. But what if a letter arrives from the FBI informing you that you can either take a deal or suffer the consequences, and it turns out to be a mass mailing?

According to Newsday, 21 former Long Island Rail Road employees have been arrested for participating in an alleged disability pension scam which the government claims cost $1 billion over a decade.  The allegations are fairly pedestrian, with the defendant claiming injury and the inability to work, then later (maybe even years later) seen engaging in physical activity that, the feds claim, they shouldn’t be able to do. But the 21 merely scratches the surface, according to the government, and there are at least another 1500 people out there doing the same. 

That’s a lot of arrests and prosecutions, not so easily accommodated. What to do?  Send ’em a letter.

In a letter mailed Tuesday to LIRR retirees claiming disabilities, prosecutors said those who come forward and admit by July 6 that they falsified their claims will get to keep all their past benefits, while those who wait for the deadline of Aug. 10 will have to give up half of their past benefits.

“If you are culpable in this fraud, the voluntary disclosure program announced today is certainly a better choice than crossing your fingers and hoping we don’t find you,” said Janice Fedarcyk, head of the FBI’s New York office.

“It’s saying to someone, ‘You’re admitting you committed a crime, you can keep all you made up to this day,’ ” said Richard Klein, a Touro Law school professor. “That’s what’s occurring here. The excuse is too many individuals, but we’re talking about a billion dollars here. . . . It’s really rather startling.”

On the other hand, this may reflect a heavy handed attempt to scare disabled retirees with the threat of prosecution when the government has absolutely no reason to suspect wrongdoing. It raises a host of questions, as the government has already indicted 21 people, which suggests they’ve gone after those against whom evidence exists, and the rest is a mop-up operation without any basis for the threats. 

While the government alleges that there may be another 1500 scammers out there, the threatening letter was sent to every former LIRR employee on disability.  How many of the recipients will be scared to death and decide to give up needed, and deserved, disability benefits rather than risk prison?  How many will have made some inconsequential exaggeration at some point in the disability process and fear that the FBI will be banging down their door over it?  How many will just cop to a crime that never happened rather than live in fear?

Receiving a letter like this is going to scare the crap out of a great many people. If they deserve it, that’s one thing, though as Klein says, it seems like an awful lot of crime left on the table if the government’s assertions are even close to accurate.  What gives the United States Attorney’s office the authority to give away a billion dollars because it’s too much of a burden to do their job?

And if the recipients don’t deserve to receive this letter, then it’s outrageous that the government use scare tactics to try to coerce admissions and relinquishment of disability payments from people who have done nothing wrong.

It’s not that it’s difficult for the government to rationalize this tactic. To many, especially given the loathing most LIRR riders have for the high price of train tickets, any smackdown of former LIRR employees will be met with applause.  People have a very tough time distinguishing their hatred of the entity with the conduct of any individual person involved.  So what if there are legitimately disabled former employees out there? They were overpaid anyway, and the LIRR keeps raising ticket prices, and somebody has to bear the brunt of public ire.

But the disabled employee is a person too, just like all the LIRR haters (and I hasten to add I have no love for the LIRR). With a family, a life and the need to survive.  If there is evidence that he engaged in a scam, then prosecute. But if there is no evidence, and this attack is nothing more than blindly pointing the government’s big gun at every disabled former employee, in the hope of scaring the powerless into submission, then this is just wrong.

The justification for the tactic is found in the argument that no one will come forward if they’ve done nothing wrong.  If only this was true. Just as people give false confessions, the recipients of disability (and these letters) are vulnerable. Some will speak with a lawyer, who hopefully will guide his advice without a thought to his pecuniary interest. Some will ponder what to do across the kitchen table, or with the next door neighbor whose daughter was a cop and therefore knows all about this sort of thing. And they will blindly make decisions that could have a deleterious impact on their lives.

There will be a lot of scared people out there, and some, maybe many, will take what they perceive as the safest course. Better to give up their disability then spent their final days behind bars.  So what if that isn’t what would happen, or that there is absolutely no evidence that they committed a crime. Play it safe. Protect the family. Fear the government.

This is very wrong.  If there is evidence of a crime, then prosecute. But if there is no evidence, then it’s outrageous to try to scare the innocent into submission.  And the shame is that it will enjoy some success, and many who hate the LIRR will applaud.

It started with a whiny post about a law student who blew off her summer job as a research assistant when she got a gig as a summer associated.  She sent NYU lawprof  Roderick Hills an email apologizing, but this wasn’t nearly enough for Rick.  She should have genuflected.

Rick Hills complained about the student leaving him high and dry, failing to make an act of sufficient contrition, and asked the crowd at PrawfsBlawg whether the student’s failing reflect a lack of “professional ethics,” or whether he was being an oversensitive curmudgeon.  For this, he got a universal smack down, and subsequently removed the post for his lack of discretion in posting the content of the student’s email.

At first, he apologized, though not for his inappropriate smear of the good name of curmudgeons.  But that was only the first step.  Rick Hills took matters a step further, and a step sideways, by taking an introspective look at how and why he could have been so utterly clueless.

“Privileged cluelessness” is the state of being oblivious about how one’s words or acts might affect others because of some privilege that one enjoys even as one forgets that one enjoys it. At its core, it is one’s loss of social empathy as a result of some advantage enjoyed over one’s audience.

It is no big surprise that professors are often guilty of privileged cluelessness. We hold the proverbial conch shell for so long in the classroom that we can easily forget that our position of perceived authority and actual power deprives us of useful feedback about the effects of our words and actions. Our “provocative” comments come off as pompous or arrogant; our lectures, riveting in our own minds, are, in reality, an opportunity for our students’ e-mailing checking or web browsing. Students are understandably cowed at providing feedback to such an authority figure, and professors can easily overlook how students’ sense of self-worth can be disrupted by the professors’ questions intended as provocative but coming across as humiliating.

Closer to law school home, Brian Tamanaha’s new book, Failing Law Schools, is a tough and coldly clinical examination of how law schools have become insulated from their students’ economic and professional reality.

…then we would all be incarcerated.  Superior Court Judge Glenn Berman sentenced former Rutgers student Dharun Ravi and target of anti-gay, anti-bullying activists following Tyler Clementi’s suicide.  From the Star-Ledger :

Superior Court Judge Glenn Berman shocked the New Brunswick courtroom Monday when he ordered Ravi to spend 30 days in jail, departing from established sentencing guidelines that called for up to 10 years in state prison. Visibly upset with the sentence, First Assistant Prosecutor Julia McClure immediately told the judge she would appeal.

In addition to 30 days jail, the judge sentenced Ravi to three years probation and told him to contribute $10,000 to a state licensed community based organization dedicated to assisting victims of bias crimes. Berman also said he would recommend Ravi, who has lived in this country most of his life but is not a citizen, not be deported to his native India.

Wails were heard across Middlesex County.  Curiously, the judge did not impose the presumptive ten year sentence of imprisonment because he did not believe Ravi was biased against gays :

Superior Court Judge Glenn Berman got it exactly right yesterday when he said Dharun Ravi acted not out of hate, but of “colossal insensitivity.”

There was never any clear evidence of [hatred]. And Ravi shouldn’t be held responsible for Clementi’s death. We’ll likely never know why he leapt off that bridge, yet it’s the political fury at the suicide that put Ravi in this position.

For all the heart-rending by those whose goal is to put an end to hurt feelings, this sentence presents a conundrum.  There must be consequences so that their agenda is taken seriously, enforced by a penalty of sufficient severity that they can impose their perfect world of happy feelings on others.  At the extreme:

One Columbia law professor even suggested he showed “the same disregard for human life” as someone guilty of vehicular manslaughter, as if texting while driving were in any way comparable. In that case, we know who caused the death. Here, we have no idea. Clementi left a suicide note, but authorities have refused to release it.

Yet most anti-bullying adherents are not so mindless as to seek a sentence so harsh as to destroy Ravi’s life.  Even the confusion as to the connection between Tyler Clementi’s death and Ravi’s act distracts from the problem. If there was proof that Ravi’s conduct precipitated Clementi’s suicide, the outcome doesn’t change the intent of the act that precedes it.  Of course, people (including lawprofs) have great difficulty grasping this concept.

The problem now is that they are forced to come to grips with the reality that there is a huge difference between those who engage in violence toward others and those who show “colossal insensitivity.”  The problem is that many people show “colossal insensitivity,” whether toward gays, or women, or Catholics or someone else. If pushed, one might call this a truism of humanity, that we are all insensitive toward someone else in the course of a lifetime. 

Most of us are insensitive fairly on a regular basis.  How insensitive, whether colossal or just regular, is a matter of opinion. If you happen to be on the south end of insensitivity, chances are you will feel it’s far closer to colossal than not.

What are the chances Ravi meant to do harm to Clementi when he streamed the video of his roommate making out?  What are the chances Ravi considered the impact of his conduct?  Pretty slim.  Of course, the lack of thought or insight into the commission of a criminal act is hardly an excuse. If “I didn’t mean to cause harm,” was an acceptable excuse, there would be far fewer people convicted and far more people harmed.

But this case goes into relatively new territory based on the anti-bullying fad, where the new happy order is that the crime is to hurt another person’s feelings and the myth is that it’s no different than a punch to the gut. 

The sentence imposed is hardly insignificant. Time in jail, even a day, is significant. The $10,000 means something. The 300 hours of community service is nearly two months of work.  Plus, there’s a college education lost, as well as a future of dubious expectations.  All because of colossal insensitivity.

While Judge Berman’s sentence shows substantial thought and restraint, compared with what it could have been given the cries for blood, it would have sufficiently served the purposes of sentence had it been limited to either the 30 days in jail or the 300 hours of community service.  Requiring a college student to pay $10,000 to a private organization whose purpose is to further a political agenda makes no sense at all, either from a financial or legal perspective.  Imposing all these components of a sentence is overly harsh and disproportionate to the conduct.

But if Judge Berman meant what he said, that this was not a matter of hatred but merely “colossal insensitivity,” then he should have tossed the verdict altogether.  Despite the advocates of government compelled “sensitivity,” it makes a criminal of all of us. 

We need to stop kidding ourselves that we can criminalize insensitivity and eliminate it from the human condition.  We need to toughen up and shrug off an unkind word and insensitive act rather than demand the perpetrator of our hurt feelings go to prison.  We cannot build a world of perfect self-esteem on the back of the criminal justice system.  Or we will need to build a lot more prisons to house all of us.

Those too unfortunate not to live in New York may not be familiar with the New York Post’s stance on police. They absolutely adore them. There is no tabloid more inclined to apologize and excuse a cop delivering a damn good beating than the Post.  But even the New York Post has limits, and apparently NYPD Sgt. Lesly Charles crossed that line.

The conflict arose from a parking dispute on Ditmas Ave. in Brooklyn.  Again for the uninitiated, crime is one thing, but illegal parking is serious in Brooklyn.  There are some things you just can’t get away with, at least not if you don’t want to evoke the ire of the cop who owns the road.

“This is my street. All right? If you got to play tough, that’s your problem . . . I do whatever the f–k I want.”

Well, of course. A police officer takes personal responsiblity for the excellent performance of his official duties, and the worst that can be said of him is that he uses the vernacular of the neighborhood so that his message of law and order is clearly understood?

Yet the parking perps weren’t satisfied with this warning, and sought additional instruction of the Sargeant, who, in keeping with the tradition of New York’s Finest, explained the ramifications in greater detail.



While the video may present some difficulties for those who don’t speak Brooklyn, the Post provides a transcription:

“I have the long d–k. You don’t,” the cop bragged.

“Your pretty face — I like it very much. My d–k will go in your mouth and come out your ear. Don’t f–k with me. All right?”

After the target of his tirade insisted, “I didn’t do anything,” Charles retorted, “Listen to me. When you see me, you look the other way. Tell your boys, I don’t f–k around. All right?”

“I’ll take my gun and put it up your a– and then I’ll call your mother afterwards. You understand that?”

For good measure, the sergeant added: “And I’ll put your s–t in your own mouth.”

Charles added, “I’m here every f–king day. I don’t go home. I have no life. No kids. I do what I do.’’

Dedication to the cause like this deserves a medal, though the local language may be deemed by some neo-Puritans to be a bit colorful.  What can’t be ignored on Ditmas Ave. is the quality of life this officer promotes.

Because the War on Terrorism and the other War on Drugs, plus the War on Crime, not to mention the wars on foreign soil for no discernible reason, aren’t enough to keep us busy. President Obama has announced the next one: The War on Prison Rape.

Sexual violence, against any victim, is an assault on human dignity and an affront to American values.  The Prison Rape Elimination Act of 2003 (PREA) was enacted with bipartisan support and established a “zero tolerance standard” for rape in prisons in the United States.  42 U.S.C. 15602(1).

My Administration, with leadership from the Department of Justice, has worked diligently to implement the principles set out in PREA.  Today, the Attorney General finalized a rule adopting national standards to prevent, detect, and respond to prison rape.  This rule expresses my Administration’s conclusion that PREA applies to all Federal confinement facilities, including those operated by executive departments and agencies (agencies) other than the Department of Justice, whether administered by the Federal Government or by a private organization on behalf of the Federal Government.

How exactly the government plans to achieve this goal isn’t clear.  While it’s another “zero tolerance” thing (which apparently means you don’t get your first prison rape free?), the presidential memo cites to the AG’s having finalized “a rule,” which apparently means they have cut the rule of combat sufficiently to the quick so that prison guards can follow it.

But nothing in the memo suggests what this rule is.  My first guess is that it’s “No rapes allowed,” and the implementation of the zero tolerance standard will involve big yellow signs with an erect penis and a circle with a line going through it.  If there was a second rule, it would be “Just say no” to rape, due to its effectiveness during the War on Drugs.


I’m only speculating here, but I do not believe the model for this symbol was Jewish.

When Ed at  Blawg Review sent me a link to President Obama’s implementing memorandum, the question was posed where this war might be going.  Ed responded with the  Connecticut scheme to label prison masturbators as sex offenders,

“This would be something that would be with them for the rest of their lives,” she said. “This isn’t something where you lose commissary privileges within the walls of the facility. Typically, a male prisoner does not want to be labeled as a sex offender.”

Simultaneously, they plan to ban all the nasty stuff that contributes to prisoners self-stimulation.

The move to pass legislation comes at the same time that the department is removing all pornography, material that contains “pictorial depictions of sexual activity or nudity,” from the prisons. Inmates were given a year to get rid of all their porn and the total ban takes effect in July.

The ban is intended to improve the work environment for prison staffers who might be inadvertently exposed to the material.

While Ed may be right, it seems that if this is part of the plan to eliminate prison rapes, no one explained to the screws in Connecticut how this whole sex thing works.  Initially, if you want to prevent rape, it seems prudent to encourage the release of pent up sexual energy rather than prohibit it.  Further, if your prison staffers dislike being inadvertently exposed to porn (as opposed to their intentional exposure at home), they’re going to really hate having to watch an explosion of prison rape.

Where this is heading defies imagination.  Were prison officials ignoring rape before?  Was this embraced as part of prison culture up to now?  And if they couldn’t stop it without a law, how exactly is a law, with or without the AG’s new rule, going to change this?

Despite the absence of any idea of the magical way the government has in mind to prevent this perpetual nightmare within the prison system, one thing is clear.  There is a new War to be fought, and that means unintended casualties and collateral damage.  And since it’s zero tolerance, what could possibly go wrong?

I’ve lurked on a conversation between two of my favorite young lawyers,  Fishtown’s Jordan Rushie and Tempe’s Matt Brown. Watching them develop and evolve has been fascinating, both because of the selfish memories of my earlier days and because they provide me with insight into the changes wrought by the economy and technology. They tell me they learn from me, but they don’t realize I learn from them as well.

Jordan started the ball rolling with a post that business is good, and from there about the various technological means which are in vogue to build a practice, and why he either won’t use them or they don’t work. 

So yeah, you’ve read that right. We have a free website, no SEO optimization, no Twitter presence, no billboards, I don’t know how to use LinkedIn, and we’ve paid about $100 this year for advertising. I refuse to spam the internet with crap like “Do you need a lawyer?” And business is decent.

Within his post, Jordan mentions free ads on CraigsList:

Do you really think we would put up a free Craigslist ad? That’s for losers, and it will never ever happen. Period. Why? Because it’s undignified, that’s why. And yes, you are a total loser if you’re putting up free classified ads for legal services on Craigslist. I don’t care if it resulted in a client or two. It’s where people go to find hookers and meet people with weird fetishes. Do you really want to advertise professional services there? [Update] When I first started practicing law, I was told by an older attorney to troll Craigslist. I will admit, I got two great clients from it. In both cases, I decided to respond to an “I need help desperately ad.” That disclosure out of the way, we’re not a firm that finds clients on Craigslist.

Matt remembers his early adventures with CraigsList:

The year was 2007. I had no money, so I was working one weekend and thought I would put up a post on craigslist. Within minutes of publishing my little ad, I got a call. The guy needed help with a case set for Monday and wanted a free consultation right away. I agreed and met with him after hours. He was an hour late. I let him do a payment plan with very little money down. I put myself in the worst situation imaginable for a criminal defense attorney, but bizarrely, the guy turned out to be a great client. He was so happy with the representation that he showed up one afternoon a few weeks later and gave me a hug along with a check for the balance due months before he actually had to pay it.

Yet Matt, after relating how he blew his last $5 in a casino, and won a jackpot, concludes:

Strangely, every other year or so, the mood strikes and I saddle on up to a video poker machine. I’ve never put another ad on craigslist. It’s mostly because I’d rather not be the kind of lawyer who posts between an old guy seeking a topless female roommate and a stewardess hoping to fornicate with a golden shepherd in front of her husband, but it’s also because I know the odds of a good outcome are terrible and I stand to lose a lot more than five dollars.

Both Jordan and Matt, hungry for the opportunity to be lawyers and, coincidentally, make some money, tried CraigsList and, well, came away with positive experiences. They both got gigs, got paid, and were appreciated.  This is good, so why do both firmly reject the idea going forward? 

In a comment to Matt’s post, Jordan explains how efforts to bottom feed come back to haunt a lawyer, prompting Matt to reply:

We thought we were really cutting edge when we used free internet listings starting out, and we probably told a lot of other people to do it. Few things change perspective as effectively as time.

This is where lawyers who weren’t born to the internet have something to learn.  As much as we may have years of experience behind us in the trenches, we’re the babes in the digital woods. Good cases are hard to find these days. Good cases with clients capable of paying for counsel are harder still. They must be around somewhere, but your phone is silent. What to do?

The never-ending deluge of emails offering internet services strikes home. If all these people are making a business out of getting you business, there must be something to it.  The onslaught of people far more knowledgeable about the web telling you that this is where the action is, where the clients are, where the lawyers who are making money are getting their clients, grabs you by the neck and shakes you to your core. You, old lawyer, are missing the gravy train. You, who can barely use email, are sitting there in the solitude of your office while great cases from paying clients are making the lawyers who use the internet fabulously rich. 

Let these young lawyers be your guide.  They may not have your hours in the trenches, but they have a lifetime in that foreign land called the internet speaking a language in which you will never be fluent.  Anything you are considering has already been tried.  Anything you are first hearing about has already been done.  They tried it. They did it. And they are telling you that it doesn’t work.

But you’re hungry, and business is lousy, and what would it hurt if you gave it a go?  After all, didn’t both these young lawyers get cases off Craigslist that made them some money?

As Matt said, “few things change perspective as effectively as time.”

The cases that excited them as brand new lawyers aren’t quite what interests them a couple of years later. Even so, hitting a small win on the slot machine doesn’t mean that life as a casino gambler guarantees rewards.  Indeed, the odds are much better that you get burned, whether by the clients or by your reputation as a bottom feeder that precludes your ever getting a good case again. 

The part of the story that my protagonists don’t mention is that the culture of free advice, cheap lawyers, the stench of desperation and the availability of the internet as new tool for clients, sadly referred to as “legal consumers” these days, is one of the foremost reasons you sit there wondering why your phone doesn’t ring. Clients are warned to interview a dozen lawyers before acting. Clients are told that they can hire you for a song, if that much, because lawyers give their services free on the internet in the hope of scoring the occasional paying client.  Clients are told to demand guarantees.  If a client makes your phone ring, he believes he’s doing you a favor, even though he has no interest in hiring you or paying you. That he’s broken the silence is good enough.

This isn’t an accident, but the result of what the internet has wrought. These young lawyers know it. You old lawyers have yet to learn it, but would rather listen to hucksters than lawyers whose experience on the internet dwarfs yours. Just as they don’t have your experience in the trenches, you don’t have their experience on the web. Pay attention to them before you screw things up so badly that you never get another case again.

The defendant was white. The jury was white. The victim was black. The video was black and white.  And it never happened.

When the  video was released of Chad Holley being beaten, it sent shock waves though Houston.  It was so inflammatory, so “shocking and sickening,” that they wanted it hidden from view.



When this video was first released, the outrage was that the Houston Police Officers giving Chad Holley a good beating were only charged with the lesser offense of official oppression rather than assault.  No matter, as it turns out. 

Via the AP, former officer Andrew Blomberg was acquitted of official oppression because there was no beating. It didn’t happen.

During his trial, Blomberg, who is white, testified that he didn’t mistreat Holley and denied kicking or stomping on the teen’s head or neck. He said he only used his foot to move Holley’s arm after he refused to comply with an order to put his hands behind his back.

Jurors declined to comment after the verdict.

I suppose “I didn’t see nuttin'” probably wasn’t one of those moments jurors wanted captured for posterity.

Prosecutors told jurors Blomberg kicked Holley several times and Houston Police Chief Charles McClelland Jr. testified that he believed Blomberg kicked and stomped on the teen.

Defense attorneys countered he was only trying to secure a potentially armed suspect. Several officers testified supporting Blomberg’s claim that Holley was resisting arrest.

They told about how bad and dangerous Holley was, as if that has any relevance.  But it’s always a great play for cops.  Not because it explains or justifies their actions, but because it makes the jurors feel that the victim deserved it and, well, he got what was coming to him.  It’s a variation on the old Texas defense, he needed killin’.

Was the beating of a black teen by white cops a racial thing?  Was the acquittal of that white cop by a white jury a racial thing? Blomberg’s lawyer says no.

His attorney, Dick DeGuerin, also said “it is not and was not a racial thing.”

“It’s been made into that by others for their own reasons,” he said.

Asked why there weren’t any blacks or minorities on the jury, DeGuerin said most of the African-Americans in the jury pool had already made up their minds that Blomberg was guilty.

If this is true, then explaining the verdict becomes exceptionally difficult.  Unless you accept the premise that what you see on that videotape just didn’t happen.  Maybe it looks different in Houston.

In the midst of an otherwise interesting post about the pedagogy issues surrounding the timing aspect of law school testing, Sam Bagenstos at  PrawfsBlawg slips in this factor that stopped me dead. 

We talk about accommodations for people with physical disabilities, vision disabilities, and, of course, learning disabilities and ADHD.  It won’t surprise anyone that the accommodation that generates the most discussion is the provision of extra time to take an exam.  In fact, my casual empirical conclusion is that testing accommodation is the area of disability law that draws the most interest from both students and faculty at law schools across the country.

First, many students and faculty believe that everyone would benefit from extra time on their exams, so that even for people who legitimately are diagnosed with learning disabilities the accommodation gives them an unfair advantage.  

I don’t agree that a disabled student who has demonstrated she is capable of successfully completing law school should be prohibited from attending solely because she will be too disabled to practice law once she graduates.

***

But if you are correct that our primary concern should be for our students’ future clients, then we shouldn’t be keeping any group of talented people out of the profession.

And if an associate’s use of adaptive software to generate documents doesn’t impair his ability to represent clients in any way, then how does the fact that he required bar exam accommodations (to enable him to take the examination using the software), along with the fact that his disability isn’t one you consider “flagrant,” establish an ethical obligation that he make some disclosure to his clients? Which ethical rule, exactly, is he violating if he fails to make the disclosure? How are his clients being deceived?

In a post that will surprise many,  Kevin O’Keefe rips legal marketing for its disgraceful lack of dignity.  This follows an “incident” yesterday where an interview conduct by his son, Colin, of someone from ConsultWeb at Avvocating 2012 was spammed across twitter.  Kevin was pissed, so he let loose in a colorful post :

Lately I think of Kodachrome most “When I think back on all the crap lawyers learn from legal marketers, it’s a wonder lawyers can think at all.”

Some legal marketers don’t know how lawyers grow their practices. Some legal marketers intentionally keep lawyers in the dark.

Either way it’s a shame. A shame that marketers act with no dignity in serving a profession that deserves, or at least should demand, dignity. A shame that otherwise intelligent people believe the crap taught to them.

While there are quibbles to be had over claims that the internet offers any meaningful opportunity to get filthy rich and famous, Kevin is still one of the good guys in that his thrust has always been to develop first as a competent lawyer and then spread one’s earned reputation around.  Whether it works that way isn’t the point of this post.  Kevin has always put competence and client service first, even if what follows is subject to debate.

But in the process of flying too close to the sun, Kevin, and his baby, the Lexblog Network, got burned.  Colin, who happens to do a terrific interview, “covered” a marketing conference.  At the time, Kevin saw the attendees as his peeps, worthy of a listen and even an interview.  And then, these very people, the ones to whom he showered his love and good words, burned him. They took his well-intended promotional video and spammed it across the internet, pulling on their pink hotpants and black patent leather hip-boots, and strutting their stuff down the boulevard.  And Kevin’s stuff too. 

Kevin now sees what happened in painful living color.  He was used. ConsultWeb took his interview and turned it into cheap and tawdry marketing.  Instead of developing relationships, the thrust of Kevin’s message, they put bright red lipstick on it and pushed it in everyone’s face.  It made Kevin the pimp, having created the streetwalker, and Kevin was outraged at being put in that position. I can’t blame him.

But it can’t surprise him.  Kevin O’Keefe may have given his talk about accelerating relationships a thousand times, but it’s still part of the marketing scheme the drowning lawyers grasp before they go under.  It’s may be more dignified than others, but it’s still marketing.

I twitted back at Kevin, during his fit of pique, bemoaning the death of dignity.

You can’t force dignity. Once you slide down the marketing slope, it’s baby steps to hot pants and the boulevard.

While my message was aimed directly at the spamming, it was meant for Kevin as well. Once you hoist yourself up on the fence between “dignified” marketing and the sleazy stuff, there is no way to avoid getting splinters. Big, nasty splinters in your butt.

People don’t go to these marketing conferences because they want to learn how to be dignified. They go because they want to get clients, and they want to get clients because they want money. And if they want clients and money enough to go to conferences, they want it pretty badly. And they will do whatever they have to do to get it. When the sweet rhetoric of dignity doesn’t make them rich, they push a little farther, until one day they find themselves walking the boulevard in hot pants.

Kevin  later twitted :

Why do lawyers have such a shitty reputation? Because of advertising like this.