The lemonade wars have been going on for a while now, with  Radley Balko being a critical aggregator when there were no puppycides to confront.  The “wars” involve the shuttering of the iconic children’s lemonade stands by police and government agents for failure to comply with local ordinances. 

My contrast with puppycides isn’t accidental or gratuitous; it’s offered for context.  The needless killing of dogs by police in the course of performing other duties, sometimes nothing more than a simple inquiry or mistaken address, is jarringly, shockingly horrible.  Yet not so horrible as the killing of a person. The closing of lemonade stands falls further down the horrible scale that the murder of happy, playful puppies.

Yesterday was Lemonade Freedom Day.  Sure hope you didn’t miss it, since many don’t follow David Fernandes’ blog, Selling Lemonade is Not a Crime.  Note that the title is very similar to  Carlos Miller’s Photography is Not a Crime,  While photogs have been frequently arrested, beaten or prosecuted, no lemonade sellers have suffered the same fate, except for  three adults who set up a stand on the Mall in Washington in order to get themselves arrested. They succeeded in their quest only to complain about it.

An editorial in the  Press Democrat tries to lay out the political agendas.

On Saturday, lovers of freedom — in stark contrast to those liberal baddies who want to put a full nanny-state into place — are being encouraged by Robert Fernandes to set up or patronize a lemonade stand in solidarity with the countless youngsters across the country who have had their little businesses crushed by the bureaucrats of their local governments.

Bloggers and tweeters who romanticize the lemonade stand as a symbol of American entrepreneurism have taken up Fernandes’ cause and see Lemonade Freedom Day as an opportunity to raise a defiant glass to American Dream-killing, big-government regulators who demand that community residents and businesses — gasp! — comply with local laws.

The evil bureaucrats couldn’t possibly have good reasons for shutting down a lemonade stand, could they?

Is it fair to uphold legal contracts with vendors or merely heartless to bust innocent young entrepreneurs?

Scroll through lists of kid food-stand closures and you’ll find that many of them cite health codes that don’t allow food to be prepared in areas where there is no on-site hand-washing or that require proof that safety precautions were taken during food preparation.

While you might be perfectly willing to take your chances as a consumer of home-prepared snacks — even most public schools no longer allow homemade, non-pre-packaged food to be distributed to students on special occasions such as birthdays — all it takes is one outbreak of food poisoning to result in a lawsuit against a village or town for not properly ensuring that health codes were enforced.

If this sounds stupid to you, don’t blame long-standing community ordinances. Blame our litigation-crazed society. We live in a country whose courts are brimming with lawsuits over setbacks that years ago would have just been chalked up to the mishaps of a life well lived.

De minimis non curat lex 

Jason Baldwin, Damien Echols and Jessie Misskelley Jr. better known as the West Memphis Three, breath free air today.  Hopefully, they will breath free air for the rest of their lives.  After 18 years in prison for the 1993 murders of  Steven Branch, Christopher Byers and Michael Moore, a deal was cut that allowed them to walk out of prison (and for Echols, off death row).

The defendants took an Alford Plea to the murders with an agreed upon sentence of, in essence, time served plus a ten year suspended imposition of sentence.  If they violate the terms of the SIS, they face 21 years in prison. 

Personal injury lawyers are fond of saying that a resolution with which no one is happy is a good settlement.  The reason for the defendants copping out is easily understood; they’ve been in prison for 18 years and by doing so, they go home.  It’s the criminal justice system at its most coercive.  But the prosecutor, Scott Ellington, faces stiffer opposition.  At the Arkansas Blog, he explains:

Some are happy, some are angry, and others are perplexed. Such is the case at the conclusion of every trial. This one is no different.

*  *  *

In light of these circumstances I decided to entertain plea offers that were being proposed by the defense. I NEVER considered ANY arrangement that would negate the verdicts of those two juries. Guilt or Innocence was NEVER ON THE TABLE.

Today’s proceeding allows the defendants the freedom of speech to SAY they are innocent, but the FACT is, they just plead GUILTY. I strongly believe that the interests of justice have been served today.

Of particular note is Ellington’s use of words in all capital letters in his statement.  Usually a sign of mental instability, it’s also used when needed to create emphasis for those who otherwise find it difficult to comprehend the meaning of words.  Ellington, in other words, is constrained to sell his deal to his constituents, who hear only about the West Memphis Three walking away while there are dead bodies of children demanding retribution.

This is an ugly, horrible deal all around.  The problem is that it highlights the most unacceptable failing of the legal system by splitting the baby.  While the responsibility for a herniated disc may reasonably be shared, the question of whether the West Memphis Three are responsible for the murders of three children cannot be so easily divvied up.  Either the three defendants, whether together or separately, committed the crime of they didn’t.

Sure, they entered an Alford plea, conceding that there was sufficient evidence to produce a conviction while denying that they did, in fact, commit the crime.  They are, as Ellington says, guilty.  They did not, however, admit guilt.

Ellington rationalizes his agreement to the release based upon the 18 years already served:

As part of the plea and sentence negotiation the defendants were sentenced to a period of 18 years with credit for time served. Those sentences will be followed by 10 years SIS or Suspended Imposition of Sentence.

These defendants have spent roughly half of their lives in prison. I pray that during this time they have been rehabilitated.

Whether 18 years is sufficient if they committed the murders is something that can be debated.  Whether it sufficient for the murderers of children to be rehabilitated is also something worthy of discussion.  But these aren’t the subjects of debate. Rather, they’re the subject of religion as unwittingly implied by Ellington’s statement, as one either believes them guilty or innocent, and neither believes that this outcome is adequate to vindicate the truth.

But the real message of this deal is that it doesn’t bear upon the forces of truth and justice, as so many feel the criminal justice system should.  Whether killers have just been unleashed or innocent men have finally been freed, our characterizations are little more than cocktail party discussion to amuse ourselves.  What’s real is that three human beings who have been in prison for 18 years have been forced to make a decision about their lives, perhaps to compromise some greater truth or to get away with murder, but to decide nonetheless.  And they did. And they pleaded guilty to murder. And they went home.

The deal sucks.  No one is better for what happened here, no matter which side you believe to be correct.  The deal sucks because any one of the three could be picked up for something or nothing, and still face 21 years in prison, perhaps for a crime they didn’t commit.  The deal sucks because it leaves three murdered children without a real answer.  The deal sucks because the defendants were coerced into taking it, there being no option of spending more years in prison in the hope that they will beat the case at the next trial.

But the deal has been struck, performed and the parties have honored their obligations.  The ambiguity it leaves the rest of us means nothing.  We don’t get a vote, and we will never know the “truth” no matter how strongly we believe we do.

I only hope the deal was the right one, for everyone involved. Still, there is no doubt that the deal sucks.

There’s far more really bad legal information floating about social media than anyone can address.
It comes in torrents, and the wide-eyed but clueless aren’t in a position to parse the good from the bad.  But some twits from my little buddy Adrian Dayton crossed the line.

And from there it gets worse.

Good promotion for the Twitter King?  Perhaps, but for a kid who went to law school, this is dangerously bad stuff, no matter how hard he tries to create a niche for himself as the go-to lawyer twit.  Much as I like Adrian for his refusal to sit on the couch all day eating Cheetos and instead striking out on his own to make something of his life, even if it is complete nonsense and he’s had to stretch the truth a bit at every turn, there is a line that cannot be crossed.  Adrian crossed it.

Like it or not, Adrian is a member of the New York bar, admitted to practice law regardless of his choice to become a twitter expert rather than a lawyer.  That’s fine, and perhaps even better than the majority of people with no cognizable skillset who have chosen to call themselves legal marketers. Indeed, this could explain why Adrian, with a few months of doc review under his belt, is so admired in the legal marketing world.

But being a lawyer carries certain responsibilities, even if you’re a god to the intellectually infirm.  It means that you can’t do something that makes people stupider about the law than they were before, no matter how well it promotes an agenda.  Adrian’s twits, sadly, do exactly that.

At the moment, Adrian has a little more than 41,000 twitter followers.  While Bradley Shear attributes this to social media credential fraud, that’s another issue.  But no lawyer is entitled to push an agenda that puts whatever portion of those followers are actual people at risk.  Not even Adrian, and not even the sort of people who would follow him.

Shouting out to your tweeps is not a viable means of finding a lawyer.  Sure, you will no doubt find lawyers. Plenty of them. Tons perhaps, because there are plenty of lawyers shilling themselves on twitter.  Like this guy. 

On the other hand, asking 41,000 of your dearest friends for a recommendation, because you know them so well and deeply trust their judgment when it comes to life or death decisions, is entirely different, right? 

This is complete and total idiocy.  You do not find a lawyer by closing your eyes as tight as you can the pointing at a name in the phone book.  You do not find a lawyer by throwing a dart at a list of lawyers. You do not find a lawyer by asking the internet if anybody (and it could be anybody, since nobody knows that you’re a dog on the internet) knows a lawyer in San Diego.

And you especially don’t do this if you happen to have a license to practice law.

It’s one thing for non-lawyers to indulge in the myths and misconceptions that abound when it comes to the law. They aren’t expected to know better.  But that excuse doesn’t fly when it’s a lawyer promoting ignorance.  There’s no comfort to be found in the ordinary excuses, that other people do it, logical fallacies or pecuniary motive.  Even when one hitches his wagon to something as vacuous as being a twitter expert, a lawyer is still obliged to honor his oath and comport himself in accordance with the code of professional responsibility. 

There is no specific ethical consideration that demands the lawyers not do something stupid.  If there was, we would certainly have no excess of lawyers running around. But there’s a limit to acceptable stupidity, and that limit is exceeded by the affirmative promotion of something that any lawyer should know to be fundamentally dangerous to the public.

Adrian, you went over the line.

And before any of Adrian’s fan club or the marketing cheerleaders rush to Adrian’s defense, know that I have taken a benign position toward Adrian’s career choice.  If some firm of lawyers thinks it’s in their best interest to pay Adrian to teach them how to twit, that’s their choice.  I’m a capitalist, and have no problem with Adrian trying to make a living off the backs of the lazy and foolish.  Indeed, there’s a certain zen to the whole idea.

But there’s a line that lawyers cannot exceed, even if they’re barely lawyers and make a living off twitter.  When that line is crossed, there’s a problem that cannot be ignored. No lawyer is entitled to cross the line of acceptable stupid. Not even on twitter.

Update: Soon after posting, I received this twit from Adrian :

The  L.A. Times reports that the government sometimes loses things.  This time, it lost $6.6 billion dollars in shrink-wrapped $100 bills.  Then it lost more.

After the U.S.-led invasion of Iraq in March 2003, the George W. Bush administration flooded the conquered country with so much cash to pay for reconstruction and other projects in the first year that a new unit of measurement was born.

Pentagon officials determined that one giant C-130 Hercules cargo plane could carry $2.4 billion in shrink-wrapped bricks of $100 bills. They sent an initial full planeload of cash, followed by 20 other flights to Iraq by May 2004 in a $12-billion haul that U.S. officials believe to be the biggest international cash airlift of all time.

Auditors, right on top of things, has finally reached the conclusion that something might be wrong.

For the first time, federal auditors are suggesting that some or all of the cash may have been stolen, not just mislaid in an accounting error. Stuart Bowen, special inspector general for Iraq reconstruction, an office created by Congress, said the missing $6.6 billion may be “the largest theft of funds in national history.”

You may remember that there has been some talk lately about the deficit and national debt.  While factions fought over what to cut, nobody suggested that maybe the price of the vanity war in Iraq was a problem, or that the military was having some difficulty in keeping its eye on shrink-wrapped cargo.  Does it seem like somebody should have mentioned this?

Of course, we regularly hear employees of another branch of government  rail at the horrors of such insidious and outrageous crimes as insider trading, though lost in the hyperbole is the ability to identify a single victim or an actual dollar anyone lost in the process.  Still, there are terrible crimes that corrupt the American way of life.  I know because the government tells me so.

Yet I’m beginning to have this nagging sense that for all the righteousness expressed by very serious prosecutors doing everything they can to protect us from the evil men and women who might steal our money, the government itself isn’t doing a very good job of handling the public fisc.  When so many things we could use from government are on the chopping block, it’s disconcerting to learn that they are sending C-130 Hercules cargo planes filled with bundles of cash to Baghdad Airport, and even more disconcerting to learn that once at the airport, the cargo just disappears.

Not even my old school chum David Copperfield can pull off that magic trick.

If the government is going to send planes filled with cash to airports, and not get too bent out of shape if the shrink-wrapped bundles disappear, maybe they could send a few to Kennedy Airport?

H/T Turley

When Florida District Court Judge Mary Scriven held that the  state law eliminating mens rea from its narcotics delivery crime was unconstitutional, one looming question was what happens to all the other guys hanging around the jail under the same statute.  Via David Markus at Southern District of Florida Blog, we now have an answer:

Milt Hirsch wrote a compelling (and very entertaining) order finding Florida’s drug statute unconstitutional, following the decision in Shelton. The whole order is worth a read. Here is the intro and conclusion, and a link to the whole order at the bottom:

“[F]or there is nothing either good or bad, but thinking makes it so.”

–William Shakespeare, The Tragedy of Hamlet, Prince of Denmark, Act II sc. 2

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: “If I’d had more time, I could have written you a shorter letter.”

***

V. Conclusion

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, “It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.” Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

…these movants are unworthy, utterly unworthy, of this windfall exoneration.

The ripple of people buying do-it-yourself Wills appears to be picking up steam, not that it has anything to do with criminal defense.  But smart money is behind it :

Google Ventures is part of the group that invested $18.5 million in Rocket Lawyer, one of a growing number of web-based services that can spew out documents like wills, leases and incorporation papers for a fraction of what many lawyers charge. In a separate deal, its competitor, LegalZoom, raised $66 million of venture capital last month from Kleiner Perkins and Institutional Venture Partners, among others.

Don’t sneer. When is the last time anyone offered you $18.5 million?  One of the fundamental tenets of criminal defense was that our job can’t be outsourced to India, or reduced to a fill-in-the-blanks form, making us immune from these threats.  Yet, there are other, more insidious, cute slogans attacking our flanks.  From Keith Lee at An Associate’s Mind :

“[In the future] The lawyers who succeed will combine Wal-Mart Efficiency With Neiman Marcus Feel.”

So says Thomas Morgan, a law professor from George Washington University, to the Florida Board of Governors and the Young Lawyers Division board at their recent joint Palm Beach meeting.  This in the wake of the current upheaval in the general economy and the law market specifically. Globalization barreling around the globe, law schools churning out too many graduates, and the rise of internet-based legal services such as LegalZoom, TotalAttorneys, and RocketLawyer. All of them are combine to put more pressure on lawyers to deliver high-quality, low-cost legal services than has ever existed.

Adding insult to injury, a couple of lawprofs have proposed a solution to law schools’ inability to turn a student into a lawyer for their $200,000 tuition, suggesting that  schools open their own “law firms” where students can “practice” until they get it right.  Mitch Rubensteiin at Adjunct Law Profs notes the irony of having lawprofs who never practiced (and many of whom aren’t even admitted to practice) teach students how to be “real” lawyers.

On the other flank, Stephanie Kimbro, who is writing a book on unbundling legal services, asked me how it applies to criminal defense.  I responded that it doesn’t, it can’t, and that there is no ethical way for a lawyer to handled “pieces” of a defense and absolve himself of responsibility otherwise.

Yet, I can see the tidal wave coming.  Just as young lawyers ignore the reasons for disciplinary rules that conflict with their chosen lifestyle, the lure of cheap is  powerful, and there aren’t nearly as many lawyers going to Neiman Marcus these days as Wal-Mart.

The public believes in the myth that law is easy, and lawyers just make it appear difficult to justify the outrageous fees they charge.  Lawyers have to charge these outrageous fees to pay off their law school loans, or otherwise justify the cost of tuition and lost opportunity, to do routine work that any monkey could do.  And if the guild was broken, we would all be freed from the slavish yoke of regulators who are charged with protecting the monopoly.

The argument in favor of this fantasy is that 80% of the public will do just fine with fill-in-the-blank forms and a brief consultation.  The percentage is pulled out of thin air, but it’s not important since no one can accurately predict a failure rate that has yet to happen.  Simultaneously, we’re seeing a sharp increase in pro se litigants, bolstered by the occasional story of the litigant who prevailed against all odds, when lawyers failed them. 

What of the 20% who buy a form or an unbundled service, only to later learn that they’ve blown it and wreaked havoc with their lives?  The proponents say people are willing to take that chance in order to save money.  It’s in their financial best interest to believe this is true, just as it’s in the public’s financial best interest to agree.  But it’s like wrongful convictions, where people aren’t too concerned provided they aren’t the ones to be wrongfully convicted.  Everybody assumes they will be on the favorable side of the odds, and they’re willing to take risks because they don’t believe they’ll be among the 20% whose lives are ruined.

And what does this have to do with criminal defense lawyers?  After all, we’re above this fray, our work being immune to market forces, outsourcing and unbundling.  Think again.

Once the public tastes cheap, our mystique will fade just like everyone else.  Surely it takes no genius to respond “not guilty” at arraignment.  And if they can haggle to buy a car, surely they can negotiate a plea.  The motion to suppress is just as susceptible to blank-filling as the last will and testament intended to secure a child’s future.  Is there anyone among us who hasn’t been told by a client how the police did something wrong (no Miranda, no telephone call, no video) that means the case must be dismissed?  Or the failings of the court (no “In God We Trust,” no American flag, the judge didn’t wear a robe) that denied him due process?

Crazy?  Can’t be done?  Ridiculous, doomed to fail?  Of course it is, but since when does reason stop a tidal wave?

The future of blank forms replacing lawyers is almost upon us, and the money behind these companies, the ones that see the potential to take a slice out of the middle of the legal fees paid to lawyers, knows something that lawyers refuse to see.  By giving away our dignity as a learned profession, we have fed into this mythical belief that what we do is easy and insignificant, that the practice of law is unworthy of respect.

This applies to criminal defense as well.  Misdemeanors for $500; Felonies starting at $1000?  Lawyers are fungible in the public’s eye, and if one lawyer can do it at Wal-Mart prices, so too can the rest.  Or maybe, just maybe, they really aren’t doing much of anything useful, particularly since so many innocent people are going to prison anyway, their high-priced lawyers having done “nothing” to help.  If a defendant has no chance of winning, then why throw good money after bad?

It’s not that any of this is necessarily true, though many lawyers appear hellbent on making it so. But to the extent that law is just another business, legal services just another commodity, criminal defense lawyers are just as exposed to these forces as anyone else.  And we have no greater power to stop this tidal wave.

It won’t be long before clients, if you still have any, tell you they only want to purchase an unbundled portion of your service because the fill-in-the-blank form sellers are running a special on motions to suppress.  But can you validate their parking just like they do at Neiman Marcus?

Instead of sour grapes, it’s rotten tomatoes, stemming from

a national antitrust case in Sacramento federal court that has been percolating for 2½ years. Salyer, scion of a legendary California agribusiness family, is the target of a 65-page indictment that could send him to prison for 20 years. It accuses him of operating his Monterey-based SK Foods LP as a racketeering enterprise.

The government investigated for nearly five years before charging the food magnate with a bribery and price-fixing scheme that officials say inflated the cost of canned tomatoes, salsa and ketchup nationwide.

Prosecutors have amassed more than 1 million documents and 100 hours of surreptitious recordings, and they fought to keep Salyer in jail rather than allow him out on bail.

Thrilling?  Not quite?  This is the sort of stuff that makes corporate criminal practice perpetually fascinating, where canned tomatores and salsa are worth a five year investigation, wiretaps and a million documents.  What? You thought our government was expending all its resources on protecting us from terrorists?

But after all this, the last thing the government wants is for the defendant, tomato king Frederick Scott Salyer, to beat them.  Enter John Keker.

John Keker, a 67-year-old San Francisco attorney whose 41 years of practice have included some of the most notable cases of the past few decades, secured a judge’s order last week to join Salyer’s legal team.

His involvement is a significant – and pricey – step for Salyer, 55, who has been under house arrest in his walled Pebble Beach estate since September, when his sister and friends put up $6 million in bail money and property to win his release from the Sacramento County jail.

Keker, who reportedly bills his clients at a $900-an-hour clip, told The Bee it would not be appropriate for him to talk publicly about the Salyer case.

While Salyer’s legal team, led by Malcolm Segal, was impressive before, it takes big guns to handle the absoutely huge volume of crap the government is piling on this prosecution.  Keker can handle it, and the government knows it, which is why the government fought its little governmental heart out to keep Keker off the case.

They fought just as ardently to keep Keker out of the case, charging that his law firm’s representation of an executive in Salyer’s now-defunct company creates a conflict of interest.

The executive, Mark S. Grewal, the former president of Salyer’s SK Foods, has not been charged, but prosecutors insist he is a potential government witness when the case goes to trial.

Anna Pletcher, an attorney in the San Francisco office of the U.S. Department of Justice’s antitrust division, argued the motion to disqualify Keker.

“The government would be honored to face the Keker firm in a trial in the Salyer case,” but Grewal’s situation presents an insurmountable conflict, she told U.S. District Judge Lawrence K. Karlton.

There is no right of a defendants which the government holds in higher esteem than the right of unconflicted counsel.  In fact, there’s no other right they care much about at all.  For this reason, the government’s heartfelt concerns over Keker’s potential conflict, because a former firm client is a potential witness is a deeply moving, highly significant, demonstration of the government’s concern for the defendant’s welfare.  So Keker responded:

“Are you kidding me?” Keker asked the judge rhetorically.

That just about covers it.  Judge Karlton ruled in kind:

Karlton rejected Pletcher’s argument last week, saying, “I believe that the government has got nothing but altruism motivating its motion, and its deep concern with fairness for Mr. Salyer. I believe that, but I also believe in the tooth fairy.

“It seems to me the government is looking to avoid granting Mr. Salyer the best possible defense that he can have. That he can afford Mr. Keker is impressive all by itself … ” the judge said, adding that Salyer is ending up with “either the best or close to the best white collar defense team in the world.”

As defense lawyers, we aspire to do right by our clients and well by posterity.  Validation of our efforts isn’t always easy to come by, as outcomes don’t necessarily correlate with our efforts or skills.  For this reason, there are few things that will make a lawyer feel better than to know that the government will bend over backwards, do or say almost anything, to get you off the case. 

There’s nothing better than knowing you scare them more than they scare you.

H/T Billy

The University of Michigan has completed its top ten survey of health problems for children.  While the top concern is childhood obesity, easily fixed by elimination of toys from Happy Meals (or maybe getting kids to go outside without their Gameboy), the others aren’t so easily fixed.

Seven out of ten of these are traditionally addressed through the criminal justice system.  The primary concern, obesity, has been a target of government attention via regulatory manipulation, which is backed up through the criminal justice system.  Teen pregnancy is a hot button issues because of its religious overtones.  The only concern that seems not to demand a law is stress, though that doesn’t mean some legislator won’t come up with a law and try to justify it as the cure.. 

This list is important in its reflection of the problems on the minds of parents.  Parents, by definition, have children, and there’s no more certain way to curry favor than to craft a law and sell it as the cure to protect their children.

The  list is further broken down by race, with the top 10 for blacks and Hispanics.  For blacks, gun violence and school safety moved way up the list, while teen pregnancy was a mover for Hispanics.  More notably, bullying didn’t even make the list for blacks, but sexually transmitted diseases did.

On the surface, this list is a roadmap for political success.  Whether the problems are real or perceived, whether a manufactured concern from the latest hot topic in the media causing parents to focus on a problem despite the reality of actual harm being farfetched, no politician worth your vote won’t recognize that any law that is cast as the magic solution to the problems of children is the surest route to election.

But consider the experience with drug abuse, the war that began more than two generations ago and has served to put more people in prison in America than in any other country on the planet, and yet there it is, clocking in at number 2.  There’s a message here, that the fixes of which the electorate is so enamored have proven disastrously ineffective in curing the ill, and similarly disastrous in their unintended consequences.

And yet, the rallying cry continues to be “do it for the children.”

Over the past year, the concern that’s garnered enormous attention is bullying, number 5 on the list.  As previously noted, no one has yet been able to come up with an acceptable definition.  While most can agree that it covers one kid using brute force to take another kid’s lunch, this has fallen woefully short of the scope intended by those who seek to protect children.  Instead, the focus has become the feelings of the “victim” of bullying, meaning that if a child’s feelings are hurt, then whoever hurt them is a bully.  Laws are being crafted to make this so, using such language as tormented, threatened, harassed, humiliated and embarrassed.

Such definitions, of course, cover not only conduct that most of us would agree constitute bullying, but also normal, ordinary conduct within its breathtakingly broad sweep.  By criminalizing such conduct, a new generation of potential inmates is born, based largely on the presumptive sense that no one should have to go through life having his feelings hurt.

As society is faced with monumentally difficult, if not intractable, problems, such as unemployment and public debt, it makes it increasingly likely that lawmakers will grab at the low-lying fruit, the ills that are perceived as the greatest to children, and “fix” them to prove how effective they are at lawmaking.  And it’s lists like these that provide them with their easiest and best hits, regardless of ineffectiveness or unintended consequences. 

The rationale is always the same: do it for the children.

It wasn’t on my docket to write about this, but an unanticipated flurry of emails yesterday pushed to the top of the list.  There seems to be a new company every day spamming lawyers with emails offering them “leads.”  By “leads,” I refer to prospective clients, as the word is used by marketing folks who see no human beings but only walking wallets from which to pluck a few bucks.

There used to be a handful of businesses engaged in this awful, disgusting scam.  The trick was to first suck potential clients in by offering free legal advice, which of course is worthless (if not completely wrong), and then push them along to lawyers who either paid for their referral turf or gave the business a kickback for the case.  They never used those words, because they would be wrong, but everyone knows the deal, and the rest of it is just circumventing the ethical violations.

Suddenly, it seems like we’re deluged with businesses that are so flush with clients that they desperately need lawyers “in your area” to take on these cases.  I’ve become inured to these pitches, getting a bunch every day and deleting them without flinching.  But an email came in yesterday in reaction to a bulk solicitation (we know it was bulk because it said so. No seriously, it said “bulk mail”) from a company called LeadRival.

I am glad to know that as a public defender I will not run short on “leads.”

The person listed below was recently arrested for a DUI and needs to retain a lawyer. If this referral is in your area and you’re available to assist, please reply to this email and I will forward the contact information. This referral is free and will be sent to the first lawyer to respond via email.