As a kid, I remember the advertisements at the back of comic books, right next to the sea monkeys, for x-ray glasses.  If you believed the picture, they would allow you to oogle a young woman’s underwear right through her dress!!!  Back then, seeing women’s undergarments was enough to thrill a young boy.  We were so naive.

And half a century later, the New York Police Department is nearly there, making the dream come true.

Speaking at a State of the NYPD breakfast this morning, [NYPD Police Commissioner Ray] Kelly announced that the NYPD is developing a kind of infrared technology that will enable police officers to detect whether individuals are carrying guns under their clothing. Sure, it’s not as badass as shooting down a plane, but at least cops will finally be able to see what’s under our clothes without having to get out of their cars.

The mechanism, which the NYPD is developing with help from the U.S. Department of Defense, currently only works at a short range of three or four feet. But Kelly thinks they can improve it to scan citizens from a distance of up to 25 meters away. He announced this morning that the gadget will be mounted on NYPD vans with “the infrared rays shooting up the street at the person,” as the Post puts it.

No reasonable expectation of privacy here. While much of the focus on the 4th Amendment implications of technology remains on computers and shiny objects, this bit of science fantasy implicates a wide range of issue, ranging from the physiological impact of shooting “a kind of infrared technology” down city streets to cops ooglng women’s undergarments.

Interestingly, the  Gothamist obtained the reaction of NYCLU Executive Director Donna Lieberman:

Like all New Yorkers, we are eager for solutions to the intractable problem of gun violence. We find this proposal both intriguing and worrisome. On the one hand, if technology like this worked as it was billed, New York City should see it’s stop-and-frisk rate drop by a half-million people a year. On the other hand, the ability to walk down the street free from a virtual police pat-down is a matter of privacy. We have no idea how this technology works, if it is effective, and what it’s error rate is. If the NYPD is moving forward with this, the public needs more information about this technology, how it works and the dangers it presents.

Not exactly a clear picture of where she stands on the future of x-ray glasses.  On the bright side, we can anticipate a huge increase in applications to become New York City police officers, from all those men who still believe that sea monkeys are real and haven’t yet figured out that they can get the Victoria’s Secret catalogue in the mail.

The implications of this technology under the 4th Amendment (or Article 1, Section 12 for you New York sticklers) is a more difficult question.  While it would appear that the tech  runs afoul of the Supreme Court precedent, the argument that there is a right to privacy attached to walking the streets with an illegal handgun is a tough one to sell, particularly if 4th Amendment jurisprudence is really  no more doctrinal than keeping the playing field tilted toward law enforcement.

As Justice Scalia noted in Kyllo,

“it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”

And this was, and remains, an astute observation.

To be sure, the three police officers represented by Ted Buck are scum.  Their conduct can be swiftly summed up :

–tasing a pregnant woman three times in about 42 seconds after she refused to sign a speeding ticket and get out of her car–

But in a 2-1 ruling [March 26, 2010], a panel of the 9th U.S. Circuit Court of Appeals disagreed. Judges Cynthia Holcomb Hall and Diarmuid F. O’Scannlain held that the officers were justified in making an arrest because Brooks was obstructing them and resisting arrest.

The use of force was also justified because of the threat Brooks posed, Hall wrote: “It seems clear that Brooks was not going to be able to harm anyone with her car at a moment’s notice. Nonetheless, some threat she might retrieve the keys and drive off erratically remained, particularly given her refusal to leave the car and her state of agitation.”

They also noted that the force used wasn’t that serious because the Taser was in “touch” mode rather than “dart” mode, which hurts more. They reversed the lower court’s opinion and held that the officers were entitled to immunity from the lawsuit.

Ignoring Seattle Police Chief John Diaz, a private attorney hired by the city to defend three officers who were sued after they repeatedly tased a pregnant woman during a 2004 traffic stop has asked the U.S. Supreme Court to hear the case.

In an extraordinary response, the city has informed the attorney, Ted Buck, that he was not authorized to ask the high court to take the case on appeal, and that the city won’t pay the costs of pursuing it.

“You undermined the City’s position with the officers and then chose to push forward with the petition ostensibly on their behalf,” City Attorney Pete Holmes wrote in a pointed letter to Buck on Wednesday.

“In addition, we believe you have compromised your ethical obligations,” Holmes wrote.

As much as these three hero cops deserve everything the system can dump on them, Ted Buck is doing what he is required, both ethically and legally, to do.  And the City of Seattle is absolutely, totally, completely, wrong.

That Seattle is paying the freight for the representation of the three heroes confers no control whatsoever over the representation.  Buck represents the mutts, and his loyalty and duty is to them alone.  The guy signing the checks doesn’t get to call the shots, and Buck owes the City nothing.  Seems wrong?  Seems like whoever pays gets to make the decisions?  Not when it comes to legal representation, where the duty to zealously defend is owed to the defendant, regardless of whether the City indemnifies their legal fees or not.

This is a relatively constant issue arising in law, where the representation is funded by a third party, and the third party wants at least a voice, if not control, over the decision making.  The normal practice is to thank the party handing over the fee, but stating with crystal clarity that while their help is appreciated, all decisions remain those of the individual(s) being represented and being the funding source provides them with neither access to confidential information nor a vote in any choices to be made.  If they don’t want to pay under the circumstances, that’s fine.  But they still get no say.

As for Buck, his decision to pursue cert may be just about the best thing going for our deep concern about the welfare of the three heroes.

The City Attorney’s Office determined a Supreme Court appeal was unwise. In a Dec. 19 meeting between the office and Buck’s law partner, Diaz agreed, joined by Mayor Mike McGinn’s legal counsel.

As outlined in the letter to Buck, the city determined the facts — tasing a pregnant woman three times in about 42 seconds after she refused to sign a speeding ticket and get out of her car — “unduly risk creating unhelpful Supreme Court precedent on taser use.”

Indeed, this atrocious case (to everyone other than the original 9th Circuit panel and those for whom the police can do no wrong) seems destined to produce some interesting precedent, given the egregious and inexcusable conduct of our three heroes.  A perfect case for review by the Supremes, to finally put a lid on the use of tasers whenever it’s convenient and without regard to need or justification for the use of force.

And if the City of Seattle doesn’t like pissing away it’s money on out of control cops, and the lawyer who loves them, then it might want to consider doing whatever it can to protect its residents from the physical and civil rights abuses perpetrated by members of its police force before they tase a pregnant woman three times in 42 seconds because she refused to sign a speeding ticket.

An underlying ethical theme for all lawyers is that our conduct shouldn’t bring the legal profession into disrepute.  For reasons unknown (well, not really unknown, but rarely spoken), this concern disappears when someone decides it’s necessary to get someone at all costs. Corey Hipscher found that out the hard way.

Via the Fort Lauderdale Sun-Sentinel, Hipscher was accused of fondling young girls.

Hipscher was accused in July 2009 of fondling a 10-year-old Boca Raton girl while helping her onto a boat at Quiet Waters Park. After those accusations became public, two more girls accused Hipscher of doing the same thing to them. The girls, visiting South Florida from the Dominican Republic, were ages 7 and 8.

Hipscher had taken the girls on boat rides, pulling them behind him on a flotation device, the girls and other witnesses testified during trials in August and November 2011. Hipscher’s lawyers argued that the girls misinterpreted innocent contact.

Two trials.  Two acquittals.  For those who may not appreciate it, obtaining an acquittal against accusations of this nature are notoriously difficult, as the natural inclination to believe and protect children tends to overcome all other evidence.  To prevail twice in such cases is, well, quite extraordinary. 

Case closed? Not by a long shot.

[Broward Circuit Judge Martin] Bidwill was unimpressed, finding that Hipscher committed a new crime while on probation for an old one. And while he legally could not impose the life sentence Hipscher would have received had he been convicted of child molestion, Bidwill gave the defendant the stiffest sentence he could.

For violating his probation, Hipscher was sentenced to 15 years imprisonment, based solely on the same evidence for which had been acquitted.  Neat trick, right?  Hipscher was on probation for a 2002 conviction, having nothing to do with children.

In the 2002 case, Hipscher was accused of sexual battery on his then-girlfriend. In court Thursday, he told Bidwill the whole case was a lover’s quarrel, and he accused his girlfriend of filing charges against him so she could qualify as a victim for a program that would pay for her relocation to Illinois.

Nonetheless, this conviction put him on the sex offender registry, which included a condition that he stay away from children.  Worse still, he had two prior “technical” violations, neither involving the commission of a new crime, for which he had served under a year each.  But this time was different. 

This time, prosecutors turned to the probation violation after losing both criminal cases.

“We pursued all avenues to get prison time for this defendant,” said Broward prosecutor Maryanne Braun. “We absolutely believe those girls who said he molested them, and the court believed them as well.”

The only people who didn’t buy guilt were the people sitting on the jury.  And who cares what they think where the prosecution and court face a defendant who they’ve decided needs to go down.  If not in the first trial, or even the second trial, there’s always the backdoor of probation, where proof beyond a reasonable doubt isn’t required, leaving the judge to do as he pleases without any “technicalities” to stay his heavy hand.

Cases like Hipscher’s make complete sense to the lawyer mind, to the extent that we understand and appreciate the differences in burden of proof and the inability of the prosecution to obtain a conviction, not once but twice, has no technical bearing on the judge’s determination that he violated probation based upon the reduced burden.  But cases like Hipscher’s offend us, because we similarly realize that guilty or innocent, he never had a chance.  The only question was how he would be burned, not whether. His fate was sealed.

To the public, however, the technical aspects of burden of proof mean nothing. It’s of no importance whether Hipscher’s sentence is tied to a probation violation or having brown hair.  He was acquitted of the crime. Then he was acquitted again.  That, to any reasonable person, is where the legal system has to let go.  The prosecution tried, and no one faults them for trying assuming they had sufficient evidence to go to trial, and lost.  Thanks for playing. Better luck next time.

When the acquitted defendant gets 15 years for the crime, we lose faith.  We lose hope. We see a system that cannot be trusted, a judge and prosecutor who have spit at the jury, telling them they couldn’t care less that he was acquitted.  Bidwill maxed out the defendant because he could, because he, despite the jury verdict, decided he was a bad dude who deserved to be sentenced to 15 years.

There was no way Corey Hipscher was going to walk, even though he had no history of sexually abusing children and, in this case, overcame the unspoken presumption of guilt.  It couldn’t stink worse.

No doubt the prosecution was sure of Hipscher’s guilt, but then, so what?  There is almost always a cavalier certainty by prosecutors that they somehow know deeper truths than ordinary people.  But there is a judge to temper their zeal, and to stand between the failed prosecution and the retribution they demand for a crime unproven.  More importantly, there is a judge whose job it is to prevent the system from falling into clutches of the prosecution and being reduced to no more than a tool to convict.

When trials and acquittals mean nothing, the legal system is turned into a farce.  Respect for the system disintegrates.  Whether Corey Hipscher was such a bad dude as to give rise to the need for such extreme punishment is hardly clear, but what is absolutely clear is that no one is so bad that putting him in prison is worth bringing the legal system into abject disrepute. 

But then, why worry about it when you have a man who needs prison, no matter what the harm to the integrity of the legal system.  The prosecution and judge demanded that Corey Hipscher go to prison, and that’s what happened.  They can worry about the system some other day.

Much as I seek police officers willing to take a stand and engage with the ignorant masses about why they refuse to challenge their brethren when misconduct or abuse happens before them, I applaud those officers and agents who acknowledge that the War on Drugs is one of the most destructive and counterproductive initiatives our government has devised.  And that’s why I  find this post at LEAP, Law Enforcement Against Prohibition, troubling.

As an active duty veteran police officer, I would love to publicly join Law Enforcement Against Prohibition and freely speak out against the drug war.  However, I am scared, yes scared, to join LEAP publicly. Although many active duty law enforcers are already speaking out publicly with LEAP and maintaining their careers (more on them later), I believe I would be punished by my department for my advocacy or perhaps even fired.

We are scared that in “rocking the boat” and speaking out:

1)    We will be terminated and lose everything.

2)    We will get passed over for promotion, lose the position that we currently hold, or fail to be transferred to more desirable assignments within our agency.

3)    Fellow officers and supervisors will blacklist us for appearing “weak” or “soft on crime”.

These are the everyday real-life reasons why I have not gone public, and why I believe active duty members of law enforcement usually remain silent about the 800 lb. “drug war” gorilla in the room.

There are also underlying psychological and personality reasons that make cops reluctant to speak out: 

1.        Ego

2.        Ignorance

3.        Denial

4.        Fear

5.        Lack of shame of #1-#4

I will be the first to assert the primary reason for my silence, and the silence of most cops, is an economic one (the fear of losing my job).  But after 40 years of an insane drug war, is economics the only reason cops have generally remained silent?  Honestly? Give me a break. This is not just about fear of losing one’s job—this is also about the character and spirit of the person wearing the uniform.  Ignorance, for many cops, listed above, is a self-imposed ignorance of “not wanting” to know.

When Mark Herrmann posts at Above the Law, I read. No, not because it’s necessarily something entirely novel and deep, though his posts usually contain at least one piece that strikes at a level that few of us think about.  No, it’s because Mark’s posts simply and elegantly state fundamentals about the practice of law about which we need constant reminders.  He’s done it again.

It’s very hard to take personal responsibility for everything that you touch. But it’s the only way to build credibility and a reputation. If it comes across your desk, then it’s yours. You have to make it right: “that is all Ye know on earth, and all ye need to know.”

While Mark talks about it in the context of in-house counsel, it’s true of everything a lawyer does.  Whether you create something, a motion, memorandum or brief, or whether something comes across your desk (or even your table at Starbucks), once it’s touched your hands or passed before your eyes, it has your seal of approval.

If you send it to me, then it meets with your approval. You vouch for it. Period.

It’s a burden.  No one suggested that it was easy being a lawyer, responsible for the fortunes of others.  No one said you could shrug and disclaim responsibility.  Mind you, it doesn’t necessarily require you to do everything yourself.  One answer, and sometimes the appropriate answer, is to send a turd back its source and tell its creator that the work is unacceptable.  What you cannot do, however, is close your eyes, hold your nose and pass it along.  Then it’s your turd.

And what’s this got to do with you? We’re criminal defense lawyers. We don’t pass memos around to corporate clients, or their in-house counsel, for review. Our clients don’t tend to be the best educated, and they’re easily impressed by seeing their name on the front page of a bunch of papers filled with lawyer mumbo-jumbo that means nothing to them. They won’t know whether our work is great or awful, original or spit out of the computer with only a name change. Why bother?  Glad you asked.

In criminal defense, one of the worst violations of this concept can be found in pro forma motion practice, both by the defense and prosecution.  Change the names and send it off, under the assumption that no one will read it anyway and that, while it’s obligatory to submit motions, they are an official waste of time and energy.  Why spend an hour, many hours, researching and writing, only to have a prosecutor submit wholly non-responsive, non-informative papers, and a judge who spends all of seven seconds skimming the first paragraph before ruling? 

The reason is one of understanding cause and effect.  I’m not merely offended, but outraged, by the cavalier attitude of judges who can’t be bothered to read moving papers, or ignore non-responsive papers from the prosecutor and rule as if criminal prosecutions are a huge joke with a foregone conclusion.  If they really believe it’s that easy, that unworthy of their effort, they have no business on the bench. None.

At the same time, it’s become a self-fulfilling prophesy, with defense motions typically unworthy of the time it would take to read them, thus justifying the judge’s quick skim and knee-jerk ruling.  Garbage in, garbage out.  When defense lawyers submit crap motions, they have no cause to complain about crap responses and crap rulings.  While many will argue that it’s not worth the time to write substantive motions that no one will read or seriously consider, the failure to submit motions worth reading are sufficient to justify the court’s refusal to bother.

If it’s ever going to change, it has to start somewhere.  Let it start with us, the lawyers, since we have no control over the judges or prosecutors.  Write well.  Put in the effort in every paper that comes from your hand so that you could show it to anyone with pride.  Let it reflect the best, most thoughtful work you’ve ever done, every single time.  And having done so, make a stink about it.

When the prosecutor’s response is a change-the-name-form, argue the point to the court.  Argue that the defendant is due better than this, a meaningful response with the level of accuracy and detail to which he is statutorily and constitutionally entitled.  You may lose the argument, but no one will fall asleep while you’re talking.  And if enough lawyers do this, and do it every time, the judges will grow annoyed with their naps being disrupted and start demanding the prosecutors actually demonstrate minimal competence.

And one day, one judge may just take you seriously and read your papers.  And may find that your motions are well-conceived, fully researched and (oh my!) meritorious.  One day, a judge may utter a word other than denied.  One day, you may win the point.  This can’t happen if no one bothers to read your papers.  And that won’t happen until your papers are worth reading.

Too busy?  High volume and no time to spend writing sui generis motions?  It’s just another “garden variety” buy and bust?  This isn’t an excuse. No one made you take on more work than you can competently handle.  You didn’t tell the defendant that you charge low fees, but can’t be bothered to give him the time of day. And don’t think no one notices; your client may not be aware of the fact that you’ve whispered sweet words in his ears to get his pittance of a fee, but will do as little work as possible, produce ten pages of motions that have nothing to do with his case and plead him out at the first opportunity.  When you made the choice of taking on more work than you can competently do, and assuming your sales pitch isn’t “low price, low quality,” then you are the at the heart of why judges and prosecutors don’t take the defense seriously.

Own it. Own every thing you do, from your emails to your motions.  They reflect who you are. You think you’re a great lawyer, but just don’t have the time, interest or energy to produce excellent work?  Then you are deluding yourself.  We are no more than the work we produce.  Anything that leaves your desk, leaves your hand, is yours.  If it’s not excellent, then you’re not. Period.

My plan was to repost this as soon as I saw that former disco diva (and the guy who brought Roller Derby to Pittsburgh) Dan Hull posted it at What About Paris?  I swear.  And then the sun got in my eyes, there was a hole in my racket, I’m just big boned.

Then Judge Carton posted it at Legal Blog Watch, which is about as humiliating as it gets.  The only positive was that it came after some pointlessly negative nonsense from a few curmudgeons who never seem to have anything nice to say, sufficiently putting off most readers who are seeking a joyful experience rather than a stroll down memory lane to the days of having to walk to the telly to change the channel or adjust vertical hold.

Aside: Does anyone under 45 have a clue what this refers to? Show of hands.  That’s what I thought.

Even my close, personal pal Dan Markel at  PrawfBlawg had the good sense to notice it, though the risk of actually embedding it might have subjected him to painful shunning at the Feminist Law Prof mud wrestling and monster truck rally.

And here I was, absolutely planning to post it as soon as possible, only to find myself in the unenviable position of caboose.  But I’m tough.  I can take your harsh, unrelenting criticism of my delay, my worthless procrastination, my being the last in a long line of thought leaders.  Go ahead. Ridicule me. Abuse me. I deserve it. 

Yes, I stand here humiliated before you.  But posting this makes me happy.  And really, isn’t that what it’s all about?

There was no question, none, where the good went bad.  Sullivan & Cromwell took on Cory Maples’ appeal as a gesture of noblesse oblige, and handed it to their younguns for practice.  Lives are for only good for practice, before letting baby biglawyers work on important cases for corporations.  It didn’t go well.

When an Alabama court sent two copies of a ruling in Mr. Maples’s case to the New York offices of the law firm, Sullivan & Cromwell, its mailroom sent them back unopened and marked “Return to Sender.” A court clerk in Alabama filed the returned envelopes and did nothing more.

Mr. Maples’s deadline to appeal the ruling came and went, and so far every court to hear his case has said, in effect, tough luck.

Many websites and blawgs will be blacked out today in protest of laws pending before the House and Senate, the Stop Online Piracy Act and the Protect IP Act, SOPA/PIPA.  I’ve decided not to go dark in protest, while websites such as  Wikipedia and Reddit, focal points on the web, bring home the point that these laws threaten the existence of the internet.  Being a mere speck of dust on the periphery of the web, I hope to add more through commentary than blackness.

Unlike others, I am not a believer that information demands to be free, in the sense of copyright being an archaic concept and infringement an entitlement.  I believe that people who create content are entitled both to own it, monetize it and prevent others from stealing it.  Yes, stealing it.  If someone else created it, then it’s not yours to do with as you please, no matter how much you want to or think you ought to be allowed to.  If you want content, create your own.

But believing in the virtue of protecting the creation of content does not, by any stretch of the imagination, mean that these shockingly overbearing laws are the means by which enforcement of content ownership should be protected.  The internet has created innumerable problems with enforcement of copyright, with servers far away delivering content to any computer for the asking.  It’s inadequate to ask nicely that people not steal. 

Yet the answer to this problem isn’t to wield a hammer so large and powerful that it will undermine the internet, shut down upon demand and without recourse any website, no matter how large and significant or small and inconsequential.  Worse still, the hammer is placed in hands so untrustworthy, so self-serving and manipulative, that the potential for damage to digital society is beyond anything imaginable.

There was a world before the internet.  Many of you can’t imagine it, and dread the notion of returning to it, but it was there, and it wasn’t nearly as awful as you might think.  Yet, it’s over.  We live in a digital world now, and there is no turning back, any more than we could return to a world without electricity.  The vitality of that world is undeniable; it’s the engine the drives almost everything we do.  That a handful of companies, and an august group of elected officials, believe they can harness it, control it, limit it, is likely the most dangerously foolish bit of arrogance possible.

There are graver injustices in the world than SOPA/PIPA, but there are few attempts to make law that will be more fundamentally destructive to society.  The internet is bigger than any company, and country, even the Exceptional United States of America.  The internet is more fundamental to our existence than anything else in our culture.  Aside from food, water and air, it is basic to our lives and continued existence.  It didn’t have to be this way. We could have lived quite well without it. But now that it’s here, not that we’ve tasted and lived through it, there is no turning back.

The world wide web is not something to be controlled.  It is bigger, and more fundamental, to society than anything we’ve ever known.  Perhaps our government is emboldened by our willingness to be herded like sheep at the airport, or to be made to stand against a wall upon command of armed men.  But these affronts pale in comparison, unfortunate as that may be. 

We may suffer silently the indignity of transitory attacks on our freedom because we believe that it will be over quickly and we can move on.  There is no moving on when the internet goes dark.  Close down a website by unilateral fiat and you will unleash a backlash the likes of which society has never before seen.  You cannot take away the air, the food, the water, and expect no one to care. 

This is greater than any nation, no matter how powerful it believes itself to be.  The interests of companies in protecting their content, to protect their revenue, is so utterly puny in comparison to the storm these laws will cause.  The myopia of such insignificant interests believing they can control the internet will wreak havoc around the world. The people in power, and behind the power, are full of their self-importance, their ability to rule us to protect their petty interests. Once they realize they have awoken a sleeping giant by pushing the people beyond their breaking point, they will be forced to come to grips with the realization that they have finally pushed too far.

The title of this post is a Latin maxim meaning, “that which I approve, I cannot disapprove.”  Should the elected officials of this nation fail to grasp the damage they are proposing to unleash upon society, they will never be able to undo the harm that will follow.  They will never be forgiven. Their arrogance will not be forgotten.  It will be too late.

The “it” epithet, Bully, isn’t used in the nouvelle sense here of anyone who hurts one’s feelings, but in the old school sense of taking your lunch money by force, and that’s exactly how Milwaukee lawyer Jeff Zarsynski means it.  His choice, not mine.  Yet it smears all of us.



No doubt this was created as cutting edge, attention grabbing and humorous.  Well, it is attention grabbing.  Like a horrific car crash, or a deadly beating.  My guess is that Zarzynski would argue that it’s meant to be funny.  My guess is that it will appeal to a simplistic and cynical portion of the population, who thinks that this reflects the type of lawyer they want, one who will get them money without regard to anything else, because this is the concept of the system that lawyer advertising tends to foster.

Few lawyers who see this disgraceful foray into the gutter will see themselves in it.  After all, this doesn’t reflect your sensibilities, your vision of who you are and how you want to portray yourself.  Yet, this is only another short slide down the slope of doing anything you have to do to get business. Whether your “tasteful” efforts to do so are better is only a matter of your personal sensibility. As the next hungry lawyer tries to trump you, to steal away the eyeballs you’re trying to hold on to, he has to take another small slide down the slope.

But certainly you would never go there, not so low, not so ugly, not so crude.  Except many do, and do without thinking at all about the ramifications of your marketing efforts on the slippery slope.  Eric Mayer at the  Unwashed Advocate provides a tour through “tasteful” marketing by former prosecutors. 

Of course, these aren’t nearly as bad, according to the people who have made the choice to trade their former office for a quick buck, because it’s become the new normal  The first time a former prosecutor tried to imply he had the ability to “fix” cases with his old buddies, it was shocking and outrageous.  Now, it’s just slimey and banal.

For today, perhaps, Jeff Zarynski’s commercial will offend you and make you wonder how we’ve come to this.  But have no doubt that tomorrow will bring a lawyer who will stoop lower, and who will justify his conduct by his need to make a living.  In all likelihood, the same rhetoric that’s used to rationalize what today is perceived to be less offensive marketing and self-promotion will be used to excuse the next slide down the slope.  And the slide after that.  After all, isn’t it in the public interest to let people know you exist, you care, you can deliver the legal goods their looking for?  Isn’t it your right, no, duty, to spread the word of your availability to represent them.  If you don’t tell them, how will they ever know?

And so what if the next lawyer, the one who undercuts your “tasteful” marketing and steals away the clients you hoped to gain by going one step farther, violates your sense of propriety?  Once dignity is lost, given up for the chance to score a case, the slide becomes less painful and embarrassing.  Once lawyers make the decision to forfeit their integrity, the other lawyers whose tasteful marketing no longer suffices feel compelled to follow suit.  After all, there’s no point to marketing if it doesn’t bring in eyeballs. And clients. 

The need to survive in practice is a powerful one.  It takes time to establish a reputation of competence and skill, and when you have hungry children and a school loan payment due, you don’t feel as if you have the time to wait.  And so you use whatever is at hand.  It’s easy to justify at the moment.  Until you realize that you are one of those lawyers, walking down the boulevard in hot pants hoping someone will stop and pick you up.

That we are in a race to the bottom is no longer in question.  Yet it doesn’t have to be the future of the legal profession, or your future. You have the choice.  Watch Jeff Zarynski’s commercial and ask whether this is the person you are. Or want to be. 

  H/T  Eric Turkewitz and Bob Ambrogi

While not a legal blog, TechnoBuffalo.com may well appreciate some of the issues raised in defense of the First Amendment now that it finds itself on the back end of an Illinois decision compelling it to give up the identity of its source. Via the Chicago Sun-Times :

It’s become the legal and philosophical debate in the digital age of journalism: Does a blogger have the same legal rights as any journalist to protect an anonymous source?

Not in the case of a technology website where “confidential trade secret” information — furnished by an anonymous source — was posted weeks before the smartphone hit store shelves, Cook County Circuit Court Judge Michael R. Panter declared in a written order Friday.

That’s because the website, TechnoBuffalo.com — a mix of tech news, gadget reviews and blog posts — doesn’t qualify as a “news medium” defined by Illinois law, Panter wrote.

The problem is that under Illinois law, a blog, even one with 1 million readers per month which dwarfs many small town (even small city) newspapers, doesn’t qualify as news medium for the purpose of conferring the journalist privilege to protect sources.

State law defines a reporter as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium.” And a “news medium” is defined by the state as “any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation.” Television and radio news outlets are also defined under the law.

It seems that TechnoBuffalo received an anonymous tip about some Droid phone before it’s release, which apparently pissed off someone who cares about such things.  They wanted to know who the nasty tipster was, and asked Judge Panter to make it happen. 

While the decision here is somewhat Illinois-centric, based upon state law defining who is entitled to assert the privilege, the underlying problem presents a philosophical conundrum that continues to vex the blawgosphere.  Few of us think of ourselves as journalists per se, and rarely do we strut around town with pad in hand hounding out the news.  Heck, most bloggers don’t even have fedoras.

Yet, there are a plethora of rights and privileges that go hand in hand with the existence of a free press, not the least of which is the protection of  New York Times v. Sullivan, limiting defamation to malicious falsehoods, that we would most assuredly claim for ourselves if the need arose. For those who see neither reason nor justification to claim journalist standing, they either haven’t given it enough thought, or haven’t reached the point in their blogging where they realize the potential risks.  Much like the person who sees no reason not to let the cops search the trunk, since he has nothing to hide, it’s a big non-issue until it becomes an issue. Only then does the realization dawn on him that giving up any claim to protection probably wasn’t a smart idea.

Fortunately, and somewhat surprisingly, the Illinois Press Association has taken up arms in favor of TechnoBuffalo.com:

Don Craven, general counsel for the Illinois Press Association said: “If this same information had been published by the Sun-Times, clearly it would be subject to reporter’s privilege. And this [TechnoBuffalo] doesn’t sound like a fly-by night operation. So if it’s protected in the Sun-Times — in responsible mainstream media — why shouldn’t it be protected in a responsible blog?”

While it’s a good question, it’s unlikely to persuade the court.  After all, the same could be said for anyone who comes into possession of an anonymous bit of juicy information which they decide, even post hoc, to put on the internet.  Imagine if someone had put pics of the new Droid on twitter, no blog involved, via an anonymous tip, and claimed that the twit was entitled to privilege?  Maybe it should be, but it’s hardly a newspaper or periodical.  And if it received protection, then there would, by extension, be nothing on the internet that wouldn’t constitute press and be entitled to the journalist’s privilege.

The problem, of course, is that legal definitions take time to develop, and come about only in response to suits questioning them.  By the time they reach the appellate stage, where some court will consider whether an advance in technology satisfies criteria created at a time when it wasn’t so much as a twinkle in a legislator’s eye, it’s far too late for the party at hand, and far too late to address the status of technology at the moment.  Technology is moving far faster than any court or legislature, and the potential for definitions to meet not only what exists today, but what will exist tomorrow, is extremely limited.

The solution would seem to be laws and caselaw with a lot less modesty than has been the case in the past, giving substantial thought to what is happening not only in the case at hand, but in the present and future.  The decision of whether a blog is entitled to the protection given the press in general is one that needs to be made, both for the benefit of the courts as well as the benefit of bloggers, so we know where we stand and can conduct ourselves accordingly. 

For most of us (and for almost all the futurists who have long ago concluded that the “rules” that apply to the rest of society can be ignored when it comes to anything made by Apple or has an on-off button), we assume those protections despite the fact that the law hasn’t quite matched our expectations.  The fact is that bloggers don’t quite know what we are, and we pray we’re never put in the position of having to be the test case.

While the outcome of this Illinois suit may not apply to bloggers elsewhere, and courts continue to struggle with writing on the internets in its various permutations, it seems past due that a comprehensive understanding of what protection, if any, should be afforded bloggers be crafted.  Then again, given the concerns of those who cry about bullying, defamation, inaccuracy and the wealth of other evils that show up online every 37 seconds, the answer may well not be very protective at all. 

Even though some bloggers may feel that their writing is worthy of protection, it’s a big internet, and there are certainly plenty of blogs (and blawgs) whose “journalistic” standards are arguably below that worthy of protection.  And as we’ve seen with bar associations confusing flawging with blawging, it’s not at all clear that the decision-makers are sufficiently familiar with distinctions that matter a great deal to the blogosphere such that they’re equipped to make decisions that will have a huge impact on First Amendment rights now and going forward. 

There are excellent arguments to be made for conferring journalistic protections to the blogosphere, and some excellent argument against it as well. And as long as our online act remains something of a morass, it’s hard to say where it should come out, and where the line of protection should be drawn.  While favoring free speech, and risking the potential of an occasional impropriety, is the only viable choice, it’s likely that any decision made at this stage in the maturity of internet “journalism” won’t be quite so favorable.  And yet, working without a net on the ‘net makes blogging a risky business.