In an age where every vehicular death seems to demand severe criminal punishment, and if there is no punishment to be had, a new law to enable it, it’s rare that a defendant walks out of court.  But 53-year-old Kent Lowrie, after expressing his sorrow at the death of 6-year-old Zhaneya Butcher. walked away.

There is no death of a child that doesn’t break hearts, no matter how cold you are.  And it’s understandable that her parents are furious with the sentence of 5 years probation imposed of Lowrie after his plea to vehicular manslaughter.  No parent would feel differently.  But this is why dispassion, rather than anger and hatred, is a better guide.

From the Daily News :

In the December issue of the Champion, National Association of Criminal Defense Lawyers president Lisa Wayne pounds the pulpit about “pious punditry.”  It’s time to stop criticizing our “brothers and sisters.”

Who needs prosecutors and a cadre of law enforcement critics when all you have to do is flip on any mainstream media outlet and watch our colleagues chastise each other with armchair criticism? We are correctly indignant when others bash defense lawyers for defending unpopular clients, but we should not assume that we have some special license to criticize our brothers and sisters of the defense bar.

This pious punditry usually takes the form of a disapproving observation concerning legal strategy that is likely to result in a disaster for the client. Comments sometimes focus on pretrial pitfalls, with defense lawyers pointing out inadequacies in defense tactics or fronting potential strategies that might be employed by the defense without thought to whether the government has considered the theory. I have even heard scathing remarks regarding the lack of trial skills exhibited by the defense lawyers handling the case.

Wayne is talking about lawyers taking to the airwaves at the drop of a hat to offer some pithy yet controversial attack on a fellow criminal defense lawyer.  Her first point, that CDLs are all too happy to race to the studio at the slightest hint of airtime despite having no clue what they’re talking about.

My close friend and respected NACDL colleague Jeralyn Merritt taught me early on that if you decide to comment on a high-profile case, you should immerse yourself in the case as if it is your own. Read as much as you can about the case, including pleadings, affidavits, and warrants. This kind of commitment requires not only a great deal of time, but pushes you to become vested in the case in a fashion that parallels your devotion to your own cases. This plan of action makes you more cautious in your approach and remarks. Another good rule of thumb is to reach out to the defense team. If you have garnered the respect and credibility of a colleague, you may be a more effective public educator than the lawyers immersed in the case. Lawyers in the grips of a media-frenzied case, particularly with a client that everyone loves to hate, will always appreciate a friend.

It’s long been a problem that lawyers show up to talk about cases where they’re no more knowledgeable than the guy who drove them to the station, but ego, the chance to get on television no matter how little they know, compels them forward to spout words on air.  Sure they may have no greater information to share than anyone else, but if they refused the gig, how could they twit about what an important media pundit they are?

But then again, the demand for information is immediate, not two weeks from next Tuesday.  Wayne writes about Jeralyn Merritt, whose blog, TalkLeft, is on top of legal/political issues in real time.  No doubt Jeralyn, as would we all, love to be able to immerse herself in every detail of every subject of every post.  But it’s not possible, nor would anyone want it to be required as no timely commentary would ever be available.

Still, the point that anyone who agrees to speak have a clue is a good one, and if a CDL has no greater knowledge about a case or issue than what can be read in the newspaper, he’s got nothing to offer that will enlighten anyone.  As a rule, make no one stupider for having listened to you.

But Lisa Wayne doesn’t stop there, and starts down a path that leads to problems.

Internal defense bar criticism is not limited to media outlets. It crops up at NACDL lectures, social events, and on listserves. Why do we feel the need to bash our own? Are we jealous, arrogant, or just looking for 10 minutes of fame? We have all done it, yours truly included. I have rolled my eyes and remarked out loud, “Can you believe she would say or do that in this case?” We are ego-driven beings. It is why many of us are attracted to litigation. Yes, I said it. But, more importantly, despite craving attention, we are a group of compassionate, thoughtful, and loving human beings. I have no doubt that my colleagues do not wish to say anything that would move any client closer to a guilty verdict.

My description would be more like feral cats. And as everyone knows, feral cats aren’t easily herded.  Not even “compassionate, thoughtful, and loving” feral cats.  And indeed, few CDLs want to say anything that would encourage a verdict of guilt, though the implicit connection between “bashing our own” and helping to convict a defendant is hardly clear.  What an NACDL president isn’t allowed to say is that, while some criminal defense lawyers are “among the best,” others aren’t. Sometimes, CDLs screw up. Sometimes, they do and say just awful things.  And sometimes, this becomes the subject of criticism.

Rather than call for the “brothers and sisters” to lend a hand, lift up those who are blowing it and help them to better serve their clients, Wayne finally arrives at the last stop on the road to perdition.

Let’s take an oath to stand together, side by side, united in our goal of advancing a criminal justice system that provides effective representation for every client. I can imagine my mother, Juanita Wayne, quoting dialogue from Bambi on this one: “If you don’t have anything nice to say, don’t say anything.”

If only there was a model we could follow to achieve this internal cabal to conceal our faults and protect each from their consequences.  Like, say, the Blue Wall of Silence?

Wayne is absolutely right to criticize criminal defense lawyers who bash others for sport, or those who curry media favor so they can impress their twitter followers when they have nothing to contribute.  But she steps over the line, way over, by suggesting we employ a McCarthy-like loyalty oath to compel us to circle the wagons and either speak the party line or remain silent.

What distinguishes criminal defense lawyers is our willingness to think critically, about ourselves as well as others, and gives us the legitimacy to offer insight, whether pleasant or not.  Not ignorant talk.  Not self-promotional speech.  But honest, well-conceived and thoughtful. And if that sometimes takes the shape of criticizing our own, that’s the price of honesty.

H/T Noah Clements

That the  Madison Academy in Burton, Michigan, the Home of the Eagles, has a hair policy for boys isn’t particularly surprising.  As was learned from the mistakes of the 1960s, long hair breeds ideas, and ideas are dangerous.  Then again, so is cancer.

From the  Detroit News via Radley Balko :

Not long ago, J.T. Gaskins was honored on his high school’s “Wall of Fame” for perfect behavior.

Now he’s doing school work from home after being suspended by the governing board of his charter school over the length of his hair.

The 17-year-old leukemia survivor said he decided over the holidays to grow out his hair and donate it to Locks of Love after learning that the sister of a family friend had cancer.

In the process, officials at Madison Academy in Burton ruled Monday that Gaskins’ hairstyle is violating school policy.

It’s not that the school wants to suspend J.T.  They couldn’t be more sympathetic.  Well, actually they could be.

“I need his hair out of his eyes and off the collar,” Kneer told the Associated Press. “I really want this boy to be back in school. I feel like combing his hair wouldn’t be a big concession … He doesn’t have hair down the middle of his back. It’s an inch over his collar.”

So close, but rules are rules.

Just as “zero tolerance” was the favored mantra of those who wanted to demonstrate their steadfast dedication to the flavor of the month, it has now fallen somewhat out of favor as a reflection of inflexibility and knee-jerk reaction.  But when it comes to school policies and the demands placed on children, it remains the beloved basis for administrators.  The fear is that once a policy is breached, regardless of reason, schools will devolve to chaos.  That’s what comes from teaching Lord of the Flies.

How and why hair length of young gentlemen has gone from a matter of transitory personal expression to the death of western civilization isn’t exactly clear.  Granted, the mullet is just bad taste, but a great many schools seem to believe that the homogenization of hair length is critical to their mission.  Having had long hair myself years ago, the worst that can be said about it is that it takes a lot more work to care for than short hair.

However, assuming that those in charge of schools are entitled to dictate policy, and that parents have a choice of whether to send their children to schools with certain policies or not, the efficacy of Madison Academy’s hair code isn’t at issue. 

That the school can simultaneously laud J.T. Gaskins on its Wall of Fame, empathize with his being a cancer survivor, laud his charitable goal and yet suspend him for violating a school policy of such trivial and dubious significance, makes this story significant.

Not long ago,  Senior Judge John Kane of Colorado wrote that we live in the Age of Administration. Rather than address how the inflexibility of the hair rule works against so many of the other pedagogical interests, so many important lessons schools seek to teach their students, the administration of the rule, simply because it is a rule, must prevail.

There is no shame to the importance of the grocery clerks if they come to a situation where they realize that their beloved rules don’t fit as well as they thought.  There are times when a thoughtful change is warranted, or when an exception for extraordinary circumstances should be made.  But the fear that any variation, any sign of weakness, will be the death of the rule.  And as goes one rule, so goes all rules. Once an exception is made, no rule is safe.

For many, they not only understand the grocery clerk’s mindset, but agree with it.  It’s like “negotiating with terrorists,” in its absolutist need.  Except it’s not like that at all.  The problem is the inclination to make rules about everything, as if we can control, in advance, every aspect of life to achieve rule-born perfection.  As lawyers, dealing with the product of legislatures designed to address a particular problem but constantly fending off the rule of unintended consequences, we know only too well that there will inevitably be a situation where a law, or a rule, works out poorly, proscribing something it was never meant to proscribe.  We argue that this wasn’t the intent, and that it should get a pass.

Schools present the problem as badly, if not worse, than does society at large, both because it affects children (who don’t deserve to be dealt with so summarily) and because of societal interests that do everything in their power to protect children from everything under the sun.  They have policies galore. They have rules covering every conceivable bit of conduct. They love rules.

Perhaps some school will consider a primary rule to do no harm, to which all other rules are subject.  Or perhaps somebody in the administration of the school will decide that it’s time to end the age of administration and stop the grocery clerks from going down their checklists.  Until then, both zero tolerance, and the mere adoration of immutable rules, are teaching a great lesson to children, that there is no reason to think when deciding on conduct.  Just look at the rules. Great lesson.

While the Occupy Movement has failed to provide any clear message of purpose, it’s provided abundant video footage of police at work, allowing many to see, and hence judge, whether the cops’ use of force meets expectations and societal approval. 

Another opportunity arose at Occupy DC yesterday.

While unlikely to cause the  visceral outrage of other images that have come out of the protests, it provides an exceptionally good opportunity to consider the acceptability of force by police.  At Volokh Conspiracy, Orin Kerr posted a poll as to whether the officer tasing the protester acted “appropriately.”  As of this writing, the poll reflects that “no” votes are slightly ahead of yes, with neither mustering a majority.  The comments to the post are even more illuminating.

On one end of the spectrum, Musing Jester thought the answer was clear :

Where is the option – Occupiers are not considered to be people and therefore have no right…?

On the other end of the spectrum,  self-proclaimed ethical vigilante  Jack Marshall similarly thought the answer was clear :

Gee, would you rather they clubbed him? He was interfering with legitimate police work, he was resisting a lawful arrest, he was agitated. It was a good use for a taser if I ever saw one. Why should police officers be put at any risk at all by these defiant jerks?

It was obvious early on that this pointless Occupy nonsense would end in violence, and I only hope the media and the Obama administration pays a high price for encouraging, enabling and trying to legitimize the most juvenile, incoherent and narcissistic protest I’ve ever seen….and I’ve seen a lot. Even been in one or two…

A former prosecutor, Anteus, gave the official response :

As a former prosecutor of police brutality cases, I can say without a shadow of a doubt that this force was justified. Short version: do not resist arrest. Longer version: do not ever resist arrest. You can contest the arrest later. An arrest is not the opening of a discussion. The police are trained to use overwhelming force as a means of minimizing injury. Sort of like shock and awe. Absent overwhelming force, the fight goes on and people get hurt really, really badly.

Still others pondered the police “use of force” policy, suggesting that as long as the cops complied with their own rules, the question was answered.

Curiously, a great many who thought that the police rushed to force, whether for failure to warn, to make any effort to talk the protester off the ledge before seizing him, saw this as a very gray situation.  Some saw the protester as drunk or unbalanced, while others had issues largely because of the over-wrought assumption that Tasers are non-lethal.

There seems to be two basic mindsets at work here, the first of which falls along the spectrum of police compliance and the second along the spectrum of whether you are decisively for or against the cause, a point made by  commenting lawprof Dan Kahan.

two other options

_______yes, unless he was actually protesting abortion outside an abortion clinic, in which case no

______ no, unless he was actually protesting abortion outside an abortion clinic, in which case yes

As to the latter, there isn’t much to discuss; it’s essentially a matter of rooting for your team, regardless of anything else.  As to the former, however, very few of the people inclined to comment gave much thought to the question of why police are allowed to use force at all.

As one person commented, Tasers have become a crutch for police, a quick and easy means of bringing any confrontation to a close consistent with the First Rule of Policing.  Rarely causing death, or permanent scarring, and likely to put an end to any resistance before it devolves to the point of a police officer being forced to break a sweat or get a headache from having to think too hard, the Taser has become the go-to tool for compliance enforcement.

But it’s force.  It hurts the person tased. 

If we removed the Taser from the equation, and instead the officers threw the protester to the ground and punched and/or kicked him, would it be an acceptable use of force?

The protester, after proclaiming that he’s done nothing wrong and without being told otherwise, “resists” by pulling his arms away from the seizing officers.  While this is rarely a good idea, given that the cops are never going to back down as a result and, invariably, will escalate the seizure, this is compliance from the cops’ perspective rather than from any sort of rational basis for the use of force.  The police won’t allow their quarry to win, regardless of right or wrong, and from a pragmatic point of view, the escalation to violence is inevitable. 

Missing from this discussion is any rational concept of whether this is how it should be.  The protester was not violent.  Granted, he called the police a nasty name, and, according to reports, ripped down their notices.  But he affirmatively touched no one, cop or civilian, and there was no indication whatsoever that he would engage in violence but for the police having forcibly seized him.  Even then, he pulled away, but did nothing that would suggest an attack against the police or give rise to any fear of harm by an officer.

It seems that we’ve lost all sight of the use of force along the spectrum of options for police confrontations.  Few would dispute that the police are entitled to use force to defend themselves or others, but few are concerned that force is used when there’s no threat of violence at all.  Once we’ve divorced violence on the part of the protester from the use of force by the police to compel compliance, thereby excusing them from making any effort to de-escalate the situation or, worse still, address the situation without anyone getting hurt, we’ve accepted force by police at will and without any rational basis as justification as a legitimate method of obtaining compliance.

And it seems remarkably untroubling, even to those who voted “no” in Orin’s poll but still see gray when it comes down to it.  It may be that the best advice is to comply if you want to avoid getting hurt, but that is practical rather than doctrinal.  It used to be that the police couldn’t use force at will.  It appears that we’ve not only given up the expectation that cops try to avoid the use of force against non-violent people, but that we’ve come to accept it as a legitimate means of compelling people to submit to their authority.

The fact that someone was hurt doesn’t seem to bother people very much any more when it’s at the hands of police. That’s a serious problem.

President Obama, who famously refused to give up his smartphone upon election until he found out that everybody had his number, decided to hold a(nother) contest for Americans to ask their president a question.  In case you’re wondering, the old days when a citizen could walk into the White House, stick his head in the oval office and ask the big guy something (plus munch on some free cheese) is gone.

The  contest provided the the most well-received questions would be answered by the president at 5:30 p.m. eastern time today.  The number 1 video question (and number 2 overall) came from retired LAPD Deputy Chief of Police Stephen Downing, who also sits on the board of LEAP,



While public perception, according to the Gallup Poll referenced, is that we’ve had enough of prisons warehousing marijuana offenders, and really, really had enough of the government going after medical marijuana users and providers, the government’s position remains Reefer Madness!!!  Marijuana remains a schedule 1 drug, meaning that (according to the government) it has no legitimate medicinal use whatsoever. Some disagree.

Last year’s contest placed the question of legalization of marijuana at number one, when another LEAP member asked the President whether it was a worthy question for debate, to which he responded with enormous charisma and a disarming smile, “an entirely legitimate topic for debate.”  Of course, that’s where the discussion ended.

My advice is to crack open a well-aged French cabernet, pop some Redenbacher, and tune in to the President’s reply to Stephen Downing this evening.  Just to add a bit of prurient interest, if the President actually responds to the question, down the full cup of wine and tell your spouse they’re going to get lucky tonight.  You never know.

Update:  This release from LEAP says it all.

YouTube Ignores Cop’s First Place Marijuana Legalization Video Question for Obama

Site Finds Time for Questions About Dancing, Late-Night Snacks and Playing Tennis

WASHINGTON, DC — Today YouTube ignored a question advocating marijuana legalization from a retired LAPD deputy chief of police that won twice as many votes as any other video question in the White House’s “Your Interview with the President” competition on the Google-owned site. They did, however, find the time to get the president on record about late night snacking, singing and dancing, celebrating wedding anniversaries and playing tennis.  

It’s all about priorities. And having fun. Speaking of having fun, any wine left?

The Department of Defense lawyers who are charged with defending the enemies of our nation sit in an office in Virginia, where the talk on telephones provided by the DoD and type their papers and emails on computers provided by the DoD.  Just to be sure, the DoD thought it best to have each of them sign off on a consent form that since the government owns all that stuff, the DoD has the authority to monitor it. Every last bit.

It sounded a little screwy to the defense lawyers, since it flies against every ethical precept of client confidentiality they had ever learned.  Not that anyone was necessarily surprised about it, the government preferring to know more rather than less, but these are lawyers, even if they get a DoD paycheck and work on DoD computers.

The directive from the Convening Authority for the Office of Military Commissions to the Office of Chief Defense Counsel came in August, 2010.  Figuring this might be a bit of a problem, and completely unwilling to sell their clients out, one of the lawyers who was admitted to practice in New York sought an ethics opinion from the New York State Bar Association on the demand.  There was no doubt that they had a firm grasp of their ethical obligation to keep their clients’ privileged communications confidential from the DoD, but it would prove enormously useful to have an official ethics opinion that said so, something to roll up and smack the guy from the Convening Authority in the face.

So on September 1, 2010, the request was sent to the New York State Bar Association for an ethics opinion.  Bearing in mind that the DoD lawyers defending the Gitmo detainees have no independent ethical overseer, and look to their bar of admission for their ethical determinations.  They are admitted in one state, situated in another and, as here, representing detainees at tribunals on a military base in Cuba.  Cuba, unfortunately, offers little on the ethical proscription front, but then, it’s law doesn’t apply at Guantánamo anyway.

Notably, unlike some other states, New York ethical discipline is handled by a disciplinary committee under the auspices of each of the four Appellate Divisions of the state.  The NYSBA is a voluntary association, rather than the controlling association for all lawyers, and one of the services it provides is ethics opinions upon request.  The opinions aren’t binding, but provide guidance and some persuasive authority.  More importantly, by seeking and adhering to an NYSBA ethics opinion, one can demonstrate good faith reliance that will serve to vitiate any subsequent claim on deliberate unethical conduct. 

So while it’s not the final word, it matters and helps.  And the DoD lawyers really needed some help staring down the government on behalf of their enemy combatant clients, who may be the only group in America without a Facebook fan page.

A few weeks later,  /files/66432-58232/NY_Bar_letter[1].pdf”>very official NYSBA opinion arrived.

We conclude that we lack jurisdiction to resolve your question because the New York Rules of Professional Conduct (the ”New York Rules”) do not apply to the situation you describe. The jurisdiction of this committee is limited to questions arising under the New York Rules. The committee is charged with interpreting the New York Rules by answering questions of professional conduct that are governed by these rules. In your case, the threshold choice of law question is whether your conduct is governed by the confidentiality provision of the New York Rules (i.e., Rule 1.6), or by the confidentiality provision of some other jurisdiction — e.g., those of the state in which your office is physically located or the rules, if any, adopted by the military commissions before which you practice. Unless the confidentiality provision of the New York Rules applies to your work, this committee lacks jurisdiction to provide you an answer.

Member (1995-present) and Immediate Past Chair (2008-2011) of the New York State Bar Association Committee on Professional Responsibility. This Committee responds to ethics inquiries from attorneys regarding the New York Rules of Professional Conduct, and the Committee comments on proposals affecting regulation of lawyers.

Or fails to respond to ethics inquiries when they’re too busy cowering in the corner. Maybe he forget that part.

The unanswered question is whether between the time of the draft opinion and the ultimate display of worthlessness embodied by the “informal response,” someone, oh say from the DoD or some other jumble of initials using government computers, “reached” the committee to convince them to keep their nose out of government business? 

Or whether the committee, perhaps its chair, decided that it wasn’t good for them to become embroiled in the thorny question of how a New York lawyer should ethically address a government demand for wholesale access to his client’s confidences.  After all, it’s one thing for the lawyers whose butts are on the line in the defense of enemy combatants to bear the risk of ethics, but why would anyone who joined a bar association committee in New York want to take a risk pissing off the government? 

Despite the manifest failure of the NYSBA ethics committee to show the slightest interest in ethics or fortitude, defense lawyers have persisted in their refusal to consent to the government’s monitoring of their work, and the  This entry was posted in Uncategorized on January 30, 2012 by SHG.

When a person follows me on twitter, I get an email informing me because twitter believes it’s important that I know. Rather than insult twitter, I recently decided to open the email and look at their bio. More than half of the time, it informs me that the person is either an “expert” or a “consultant” who is “passionate” about whatever makes them money.  I have no clue who the person is, but they want to let others know they’re special.

We used to call this sort of conduct “shameless.”

A legal marketer whose name eludes me recently wrote that we have a duty to be shameless; “if you don’t tell them, how will they know?”  Another  marketer posted what appears to be a missive under the title, “my meeting with the secretary of state.”  After some routine puffery, it turns out that the “headline” was a lie, that he tried to meet the secretary of state, but was turned away. His point was about boldness.  He shows “chutzpah.”

The  New York Times ran a story about retailers paying kickbacks to consumers if they wrote positive reviews of their wares.

Some exalt themselves by anonymously posting their own laudatory reviews. Now there is an even simpler approach: offering a refund to customers in exchange for a write-up.

By the time VIP Deals ended its rebate on Amazon.com late last month, its leather case for the Kindle Fire was receiving the sort of acclaim once reserved for the likes of Kim Jong-il. Hundreds of reviewers proclaimed the case a marvel, a delight, exactly what they needed to achieve bliss. And definitely worth five stars.

In Ottawa, Rogers Communications seeks to strike a law, requiring companies to perform “adequate and proper” tests in advance of advertising claims about the performance of a product, as a violation of free expression.  It argues that the marketing claims may be absolutely true, but the requirement that they be tested in advance so that they are proven accurate before being disseminated, rather than tested only after being challenged, inhibits freedom.  

Walter Olson at Cato writes about New York City Mayor Michael Bloomberg’s war against the things he believes to be unhealthy.

But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality. At an agency developing an ad campaign for a private company, someone might have advised adding a little fine print taking note that the picture was of a model and had been altered, lest the manipulation turn into the story itself, or even attract the interest of federal truth-in-advertising regulators. But the Bloomberg crew probably isn’t worried about the latter, given that their constant stream of hectic propaganda is fueled by generous grants from the federal government itself. Such grants also helped enable a contemplated booze crackdown exposed by the New York Post this month—quickly backed off from after a public outcry—that would have sought to reduce the number of establishments selling alcohol in New York City.

People seem to believe the advertisements without much thought, assuming that the correlation/causation problem must be proven somewhere or they wouldn’t say it.

Inexplicably, people still believe that if it’s in writing, if it’s put out publicly, it must be true.  Surely, if it was false, there is some back office somewhere filled with busy elves who would squash it immediately.  People aren’t allowed to lie, right?  It would be scandalous if anyone could say anything to deceive others without recourse.

But there is no back office somewhere filled with busy elves overseeing the accuracy of claims.  The mechanism that prevented an economy built on rampant falsehoods and puffery was the fear of being outed as a shameless liar.  The mechanism existed within us, as the chance of anyone else calling us out was slim, and only the slightest possibility of being held up for ridicule as a liar was more than sufficient to push the reluctant liar over the edge of truthfulness.

No longer.  Shameless is the new Bold.  Freed of the constraints of honesty, we rationalize our conduct to justify doing anything it takes to achieve our goals. 

One of the premier justifications for the ubiquitous consumer reviews on the internet, whether of lawyers on Avvo or a tchotchke on Amazon, is that it enlightens others. This is only true if they are accurate and honest, but this naive claim was swiftly undermined by those who game the system.  We are simultaneously gullible in believing that the information we receive about others is at least reasonably accurate, while pumping out as much puffery as possible about ourselves.  All without the slightest bit of shame.

We buy from the best liar, whether it’s a gadget case, a refrigerator or a lawyer.  It’s not really that hard to distinguish the self-aggrandizing liar, yet we can’t seem to help ourselves from being attracted to shiny objects and important people.

As despicable as it may be to learn that we’ve been lied to after buying as thing based on sham reviews, that this same shamelessness has permeated the legal profession is different. Integrity is all we’ve got, the only justification for our monopoly on the trust given us by clients. 

But, you say, everyone else is puffing, lying, scheming and scamming, while you sit there waiting for the phone to ring, with bills to pay and hungry children at home.  You say that it takes too long to establish a reputation as a skilled and respected advocate, so you have to create it yourself.  You say that creating a few “facts” and omitting a few others can turn you into a rock star.  You say the other lawyers are liars, so why should you suffer. 

Everyone is a liar today.  That’s the nature of our economy. That’s the nature of our profession.

Not everyone. Granted, it seems that way.  Granted, it seems as if the liars are winning the battle, and leaving the honest in the dust. It seems as if no one is terribly bothered by an economy built on lying to each other, as long as we get a piece of the pie for ourselves.  There are some of us who won’t play this game, and you quietly watch as others studiously ignore us, circumvent us, lies about us and put on their play as if we didn’t exist.

But we see you.  We see what you are saying and doing.  We see that you proclaim yourself an “expert” when you’re not. We see that you puff your greatness and have your cousin write a false review to bolster your lie.  So what if everyone else is lying through their teeth to make a buck?  We’re lawyers, and our duty is different than the purveyor of shiny toys or government intent on death to sugary drinks and second hand smoke.  What you are selling is your integrity, and you are selling it cheap.

Have you no shame?

Jay Wexler is a very funny guy. Always was, which is particularly surprising given his tenure at the Department of Justice, Office of Legal Counsel, before going rogue and joining the faculty at Boston University School of Law.  Even when he blogged at PrawfsBlawg, he was funny. I bet Dan Markel will never let that happen again.

Aside: I once had a day dream of the Bush Administration’s request for an opinion on the legality of torture landing on Jay’s desk instead of John Yoo’s, and the years since being made safer by a drunken Bacchanalia with marines and Al Qaeda, ultimately ending with an agreement that both prefer blond virgins to underpants bombs.

Dear Scott,

I think you will soon agree that this is the best book ever published.  Congratulations on getting to read it!

[Completely unreadable scrawled signature that appears to be “jarmulkar”]

Naturally, the day after my post about  removing an old post so that a person isn’t forever tainted by his worst experience,  Walter Olson twits about the European Commission being set to adopt “formal rules” to create a “right to be forgotten” on the internet.

From Adam Thierer at the Technology Liberation Front :

According to the BBC, the European Commission is apparently set to adopt formal rules guaranteeing a so-called “right to be forgotten” online.  As part of the Commission’s overhaul of the 1995 Data Protection Directive, this new regulation will mandate that, “people will be able to ask for data about them to be deleted and firms will have to comply unless there are ‘legitimate’ grounds to retain it,” the BBC reports.

While the concern underlying this initiative may be real, and indeed, may well be something to which any reasonable person is sympathetic, formalizing it into a Rule, creating a procedure which, by definition, must bear a consequence if it isn’t to be ignored, and putting the judgment into the hands of some well-meaning bureaucrat with a checklist in a basement office, will not improve the internet. 

Censorship, even when well intended, is censorship.  Theirer points out what is well-known to anyone paying reasonably close attention to the internet, that efforts to cleanse it of information don’t tend to work well.

Thus, for a “right to be forgotten” to work, a more formal and robust information control regime will need to be devised to censor the Net and make it “forget”about the digital footprints we left online. Will the DMCA’s “notice and takedown” model be applied? Beyond the chilling effect associated with dragnet takedowns of online information, it’s unlikely that approach will really work. Keep in mind, this isn’t as simple as just telling large social media operators to delete information on demand. The reality is, as computer scientist Ben Adida notes in his essay “(Your) Information Wants to be Free,” the same forces and factors that complicate other forms of information control, such a copyright and speech restrictions, also complicate the protection of facts about you. “[I]nformation replication doesn’t discriminate: your personal data, credit cards and medical problems alike, also want to be free. Keeping it secret is really, really hard,” Adida correctly notes.

What is not clear is whether Thierer appreciates the struggle this will cause over how “robust” the control regime should be.  When asking nicely doesn’t work, the next cries will be for monetary sanctions. When they don’t work, whether because the information replicates faster than echecks can be sent, incarceration will be required.  And so on.  When the European Commission can’t clean up the outlier colonies like the United States and the island of criminals, a Super Internet Police Force will be required to roam the planet in search of Somalian internet Pirates.

Of course, the offshore pirates will be a step ahead of any official effort to shut them up (or cost them money), while ordinary folks with a computer and a home address are easy game for regulators.  Once legislators in Kentucky realize there is airtime to be had by promoting the new, popular censorship, complete with a cool biblical quote like “turn the other cheek,” a wave of “right to be forgotten” laws will sweep fly-over land and crash against both coasts, east and left.

Perhaps our beloved and admired legal scholars will jump into the fray to lead the challenge against censorship?  Not likely, given that under the leadership of Danielle Citron, they’ve already staked their claim at the head of the censorship line, demanding the death of mean speech online under the guise of Cyber Civil Rights.  They adore free speech, as long as they can shut down anyone who says something they don’t like.

But, you ask with squinted eye, are you not an overbearing advocate of censorship yourself, arguing that the internet is not a truth-free zone? Ah, no.  Just as I’ve advocated for the exercise of restraint on our own part when it comes to perpetuating negative posting after the harm outweighs the need, I advocate that lawyers adhere to our own ethical constraints of honesty and integrity. 

The rule isn’t an internet rule, though the battles are now being fought on the web because that’s where the bad stuff is happening, but a rule for lawyers.  And I don’t advocate for the imposition of fines and imprisonment, or even disbarment, as employing speech to counter speech.  Bad actors are shamed in the same manner as the wrong they commit.

And what of Twitter, having just announced its intention to  censor twits in countries where the contents are illegal?

The effort underscores thorny issues for Internet companies as their websites become more global and interconnected among different countries, and as they must cooperate with diverse views on Internet content control. For websites like Twitter as well as social-networking site Facebook, this has meant being blocked in countries like China where controls are more aggressive.

While we may think of Twitter as merely a medium for our communications, it’s still a business enterprise concerned with survival and profit.  It’s easy to forget that it’s not our toy, but someone else’s enterprise.  We just supply the grist that keeps it running.  While using Twitter is our choice, censoring it is twitter’s, just as deleting comments here is mine rather than the commenter’s. 

It’s not internet censorship, but self-censorship, and the misguided sense of universal ownership interest in the medium distracts us from the reality that Twitter needs to do what Twitter needs to do.  We may not like it at all, and we have the absolute right not to ever twit again in protest to Twitter’s decision, but it remains Twitter’s decision.

In the early days of the internet, there was a fierce pride in keeping grocery clerk’s hands off.  There was no tolerance for outside regulation, and the denizens of the virtual world policed themselves, often with harsh attacks on those who failed to adhere to the etiquette or norms of the web.  Dishonesty was dealt with harshly. Idiocy was immediately called out.  It was the wild west, but there was no shortage of sheriffs to keep things in line. 

Of course, those Halcyon Days are over.  As n00bs came online, they didn’t understand the norms and felt  entitled to recreate the etiquette to suit their sensibilities.  Every day, thousands of new people hook their computer up, and immediately decide things need to change.  And they have and continue to change, but not sufficiently to meet the needs of the lowest common denominator.  That’s why the clamoring for rules began, and why the grocery clerks demand the void be filled. 

Soon, there will be a “right to be forgotten,” except by the government.  Then there will be a right to not have one’s feelings hurt.  Shortly thereafter, the rule will prohibit words of greater than three syllables, or posts that require thought.  And this will “fix” the internet, and the internet will be all better.

He was outrageous.  He was as offensive as anyone on the internet.  He was geeklawyer, a pseudonymous British barrister whose vulgar satirical view of the world reflected the incorrigible days of the blawgosphere, and later twitter. 

Via my dear pal  CharonQC comes the sad news of Geeklawyer’s passing. No, he didn’t die.  You see, he wasn’t real.  Geeklawyer was a fun persona that existed only to screw around with the prisses in the profession and online, the ones who would “harrumph” and “tsk” at the “undignified” behavior of the internet barbarians.  No one was more barbaric than GL, and no one enjoyed it more.

And now, the Grand Poobah of the British High Court of Royal Dignity has imposed the death penalty. 

Court News reports: “A barrister who called opposing lawyers ‘slimebags’ in a series of insulting tweets from court was today (Thurs) thrown out of the profession.  David Harris was wrongly acting for an internet piracy company he owned.

He bragged that ‘whoring and drinking’ would begin after he finished the trial and described an opposing lawyer as a ‘p***k.’….”

While someone may have outed him, and his real name is now readily available, I prefer to remain with Geeklawyer, the name by which I’ve known him for years, and the name that reflects the days before the blawgosphere was brought under control of the grocery clerks, who couldn’t bear the thought of people being outrageous and dismissing their laundry list of rules.

Charon’s post amply covers the stupidity of this, as does  GL’s explanation of why the collateral issue of the internet “piracy” claim is nonsense.  Please read them.

As for me, I mourn the internet that Geeklawyer represents, one where a lawyer could have some fun, write outrageous truths and lampoon the foibles of a profession, and not have to fear the prigs’ attack. 

We’re now deluged by the flawgers, the prissy, the insipid blowing kisses at one another in the hope that some crumb will fall on their plate, making lawyers appear as puny and pathetic as people believe them to be.  But there was a time when the internet, the blawgosphere, twitter, was bold enough to have someone like Geeklawyer ripping the balls off sacred cows at every chance.

Now they’ve killed him because they couldn’t bear the thought that he was right. 

The man behind Geeklawyer is very much alive, though very much disbarred.  My guess is that David Harris will find a way to make them regret this travesty, as he’s never lacked for guts or spirit.  At the same time, the vitality of the blawgosphere will never be the same.

So go out there today and write a post about how you’re a really special lawyer and clients should retain you right away.  There’s no Geeklawyer to scream that your baby is ugly.  Happy now?