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f/k/a archives . . . real opinions & real haiku

March 27, 2006

wordless italian with Nino Scalia (with uppa-dates)

Filed under: pre-06-2006 — David Giacalone @ 10:15 pm

Where were the Dignity Police when we really needed them? Justice Antonin Scalia, who apparently couldn’t bother to act to protect purportedly undignified pitbull lawyer ads, is certainly willing to act like a tasteless goombah in public — and right outside of a church, “Minutes after receiving the Eucharist at a special Mass” for Catholic lawyers. See Boston Herald, “Judicial intemperance – Scalia flips message to doubting Thomases” (summarized here); Editor & Publisher,” ‘Herald’ Says Justice Scalia Gives the Press the Finger, He Denies It,” March 27, 2006; via Igor and Wonkette)

MeNeFrego Me Ne Frego

Italian Hand Gestures –

“You know what I say to those people,” Scalia, 70, replied, making an obscene gesture under his chin when asked by a Herald reporter if he fends off a lot of flak for publicly celebrating his conservative Roman Catholic beliefs.”

ScaliaHandGesture See our update below: original Peter Smith/Boston Herald

Across the nation, news outlets have been publishing a silly Associated Press report tonight, asking “Scalia’s Gesture: Obscene or Sicilian?

— as if the two concepts are inconsistent. That’s based on a statement from Scalia’s spokeswoman, who said Nino used a “hand off the chin gesture,” which Italians commonly use to show displeasure.

ScaliaDissent Hmmm. She’s got a point: No one ever uses the middle finger to show displeasure.

Scalia might want you to believe that his little Sicilian chin action was harmless, but a lot depends on the attitude displayed along with the gesture. [Both of my sainted Southern Italian-born grandmothers could definitely make it look obscene.]

It’s too bad the Justice apparently bullied the photographer who captured the moment into keeping it unpublished. No, it wasn’t someone from the Herald — it was a photographer for the Archdiocese of Boston newspaper, The Pilot.

[update: March 28, 2006): As expected the Boston Archdiocese Newspaper, The Pilot, won’t print the Scalia “gesture-message” photo. Why not? “Because it won’t,” archdiocese spokesman Terrence Donilon responded. Boston Herald, via JudiPhilly at tj&p]

Italian without Words ItalianWWL

If you had taken our advice last October, when Sam Alito was nominated for the high court, you’d be fluent in Italian hand-gestures by now. We pointed you to Italian Without Words, by Don Cangelosi, from Meadowbrook Press (1989). There’s an entire section on Insults, with photographs that demonstrate the hand positions, facial expressions and body language. With’s Search Inside feature, you can be ready for just about anything Nino throws at you. The next time he’s asked about conflicts of interest, I bet “mind your own business!” or the hell with you!” might be useful.

update (March 28, 2006): Evan Schaeffer wasn’t sure what a “gumbah” is, so I changed the spelling above to the more popular form of “goombah.” It is also spelled “goomba,” as in Steven R. Schirripa’s Soprano-related book, A Goomba’s Guide to Life. The American Heritage Dictionary says that goombah is slang for “A companion or associate, especially an older friend who acts as a patron, protector, or adviser.” The term is usually applied by Italian-Americans to other Italian-Americans. I’ve put more information about goombahs in this Comment and in “goomba goombah gumba gumbah“.

tiny check My paisano, Robert Ambrogi, collects some good quotes and links on Scalia’s GestureGate at Inside Opinions (Mar. 28). I like the observation of Workbench blogger Rogers Cadenhead, who notes that Scalia was on his way out of a special Mass for lawyers and politicians and states:

“I didn’t know the Catholic Church was singling out these groups for extra attention, but it makes a lot of sense.”

I wonder if the Confessional got a lot of traffic prior to Mass.

update (March 29, 2006): Justice Scalia writes to The Herald, defending himself and his heritage. Although Scalia disdains to cite to foreign legal sources, he quotes from Luigi Barzini’s The Italians (at 63), in his own defense. Barzini says:

“The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.”

That begs the question: Did Nino move those fingers slowly, or with the rapid, single motion that is far more insulting (and one might deem obscene)? Can any witnesses resolve this factual issue? There is one thing with which I agree: we are both American [or Italian-America] not Italian.

original Peter Smith/Boston Herald

update (March 31, 2006): With the printing of the Scalia Gesture photo in the Boston Herald, and the explanation of Peter Smith, the photographer, I’m more certain than ever that Nino was being vulgar and obscene. To be honest, that does not offend me half as much as his half-assed, dishonest defense of himself. (Boston Herald, “Photographer: Herald Got It Right,” March 30, 2006; “Church Fires Photog Over Scalia Picture,” March 31, 2006) Smith, noted: “The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, “Vaffanculo,” punctuating the comment by flicking his right hand out from under his chin.” The Herald reporter added: The Italian phrase means “(expletive) you.”

While “Va fa’n culo” or “vaffanculo” can indeed be translated as “[expletive] you,” you should know that we are not talking the Missionary Position. [click for a variant on the gesture from Italian Without Words.] As we said here tonight, It seems pathetic to Your Editor that a purportedly courageous Jurist has to prevaricate like a ten-year-old after making an obscene gesture — and even utilize a U.S. Supreme Court spokeswoman to make his excuses.

update (April 13, 2006): See Scalia chin flicks the “appearance of impropriety” rule

backyard bocce –
tonight we’re
the noisy neighbors

…………………………… dagosan

me in one hand
a belt in the other
dads sings a lullaby

………………………. roberta beary from Taboo Haiku

after dark
the shape her hands make
of me

……………………… jim kacian from Taboo Haiku

lawyer ads: the tension between ethics and self-interest

Filed under: pre-06-2006 — David Giacalone @ 5:57 pm

With the Nevada Bar recently condemning ads by “The Heavy Hitter,

the Supreme Court refusing today to hear a challenge to Florida’s ban

on Pape & Chandler’s mild pitbull logo, and the New York bar asking

for heavy-handed restrictions on “inappropriate — or even sleazy —

advertising” by lawyers, I wanted to share with you an article from 2000,

I discovered last weekend. It’s “Lawyer Advertising and Professional Ethics,

by Prof. Jonathan K. Van Patten, University of South Dakota School of

Law, in Perspectives on the Professions, Vol. 19, No. 2, Spring 2000,

sponsored by The Center for the Study of Ethics in the Professions

(CSEP) at the Illinois Institute of Technology. 




The article begins with the text of a typical tv ad.  After noting that it doesn’t

in and of itself generate ethical concerns, Prof. Van Patten asks why it

nonetheless leaves many with “a sense of unease.”  He then continues:

“Much criticism of lawyer advertising is misplaced. While ostensibly

concerned with ethics, it may actually serve other agendas. Attacks

on a lawyer’s advertising for personal injury cases, for example, are

often attempts to create a predisposition against plaintiffs’ claims in

the minds of prospective jurors. There may also be an element of self-

righteousness involved. The attacks imply that lawyers who advertise

are not good enough to attract clients through the more traditional ways,

reputation and word-of-mouth. Criticism of lawyer advertising may also

reflect class or social differences (if that term can be used to describe

differences in attitude between members of the established bar and





“Perhaps the best way to express a principled reservation about lawyer

advertising is to say that commercialism might have a corrosive effect

on professionalism. This way of stating the problem, properly understood,

does not rest on the outdated image of a legal profession unsullied by the

forces of the market. . . .  Rather, this way of stating the problem grounds

it in the inherent tension between ethics and self-interest. The primary

ethical norm relating to clients is that the client’s interests are superior to

the lawyer’s. The lawyer’s interests are subordinated, but not lost. The

creative resolution of the tension honors the client’s interests without losing

the lawyer’s.”  [emphasis added]



Prof. Van Patten then discusses the problems inherent in advertising services —

in telling and asserting, rather than showing, your worthiness to be trusted.  He

stresses that self-restraint and internal values — rather than ethical rules — are what

will keep a lawyer focused on serving the client’s interests first.  He explains:

“Restrictions on advertising serve as one of the external restraints on a

lawyer’s self-interest. The restrictions are limited in scope, focusing mostly

on accuracy. The most important rules, those concerned with dignity, are

too hard to write. The restraints supporting dignity must be internal.”

More telling is his observation: “For some reason, bankers, doctors, and hospitals

find it easier to advertise professional services without loss of dignity. Why is loss

of dignity more of a problem for lawyers who advertise than for other professionals?

The lawyer’s ad cited earlier, with its emphasis on FREE this and FREE that, has

more in common with advertising for autos and carpets than with the advertising of

other professionals.”


tightrope flip


Prof. Van Patten then focuses on “the internal struggle” (emphasis added):

“The struggle for professionalism is not simply a matter of ethical lawyers

and unethical lawyers. It is a struggle between good and evil that is personal

to every lawyer. Some lawyers have clearly given in to the dark side; it will

take more than a little counseling to bring them back. For them, the bar needs

measures sterner than a sermon. For the rest who continue to struggle against

the dark side, there is no respite.” . . .




We come back to the tension curbing the pursuit of self-interest by placing

the clients’ interests ahead of the lawyer’s. It’s not your case, it’s their case.

Listen. Think. Meditate. How can I get to where they want to go without losing

them, or myself (or even the other side), in the process?


“In advertising, this would mean the “soft sell,” not the “hard sell.” Cut out the

“FREE” stuff and the other gimmicks. Tell prospective clients who you are,

what you do, how you practice, and what you believe in. Then, try living up to

those words.”

Although I strongly support the right of lawyers to advertise, so long as there is no

deception involved, I do have a “sense of unease” when viewing many of their ads. 

It is not a matter of the dignity of the profession.  It is more the feeling that most

(certainly not all) lawyers advertising on television have their personal financial inter-

ests in mind far more than service to their clients.  Their primary goal is to get very

rich (through sheer numbers of clients and through rolling the dice in the great law-

suit lottery game), rather than to use their professional expertise and their dedication

to help clients with legal problems.   




As soon as your primary motive is to make a killing with your legal license, rather

than making a good living serving your clients, it becomes far too easy to start

cutting ethical corners and ignoring ethical blindspots.  For those who are not

already lost to the darkside, it is indeed a constant struggle to stay vigilant and




tiny check Time out for a few haiku and senryu from former

lawyer, and chronic sports fan, Barry George:




my nephew’s fastball –

I hand back his glove

and keep the sting  







lost in thought — 
the track announcer’s voice
drifts over the river






passing the beggar —
my pockets start
to jingle





the kite’s pull —

in another life I wore

a braided pigtail 




passing the beggarSimply Haiku (Spring 2005)

the kite’s pullThe Heron’s Nest (July 2002)

“my nephew’s fastball” –  bottle rockets #11




Supreme Court rejects PIT-BULL appeal

Filed under: pre-06-2006 — David Giacalone @ 1:36 pm

As we feared would happen, the U.S. Supreme Court denied certiorari today ,

in the case of Pape, John R. et al v. Florida Bar, (#05-1046, 547 U.S. ___,

March 27, 2006), ending the fight of the St. Lauderdale law firm Pape & Chandler

to use the head of a Pit-Bull in its logo, along with the phone number 1-800-

PIT-BULL, in its marketing.  The firm specializes in motorcycle accident cases. 

(see Reuters, “Court rejects lawyers’ appeal over pit bull ads,” Mar 27, 2006)




We‘ve been covering this case since May 2004. You can find our discussion

here of the opinion of the Florida Supreme Court.  The Court held:

“These devices, which invoke the breed of dog known as the pit bull,

demean all lawyers and thereby harm both the legal profession and

the public’s trust and confidence in our system of justice.”

On March 19, we posted the new pit-bull-less masthead of Pape & Chandler —

the drawing had served as P&C’s ampersand.  We asked whether lawyers now 

feel more dignified and the public has more respect for the profession and the

justice system.  


The highly persuasive legal, practical and policy arguments of John Pape and Marc

Chandler, which had been accepted by the Bar referee and presented to the High

Court by Rodney A. Smolla (Univ. Richmond Law Dean), will not be heard. That’s

despite our very modest efforts, along with Prof. McGowan at Legal Ethics Forum,

and postings by Salon‘s Robert Crook, Carolyn Elefant at MyShingle, Mary Whisner

at Trial Ad Notes asks, and many others — plus the recent advocacy of James J.

Kilpatrick, and numerous editorials (including the St. Petersburg Times). 



“P&C”  Click here to see one of P&C’s offending pit bull ads.


The question we asked when we reported that Dean Smolla would be seeking

certiorari will not be answered for the time being:

Would the Court conclude that pious notions of “dignity” only make

the legal profession look silly and are inadequate reasons for limiting

commercial speech and First Amendment rights of lawyers and


I’m afraid the professional Dignity Police have too many allies on the Supreme

Court bench — or maybe, consumers and the First Amendment have too few.  

Treating the public like fools and acting pompously self-important (and above

mere commerce) is not the way to win respect for the legal profession.


“tinyredcheck” As we have been reporting the past two years (see

here and here, for example), in the name of dignity and

consumer protection, the organized bar is trying to make

it harder and harder to advertise legal services.  Letting the

Pape & Chandler decision stand will surely encourage more

of this shameful activity.  Those of us who care about the 1st

Amendment and consumer choice need to speak up and act,

before it is too late.  (E.g., Central New York Business Journal,

“State Bar Association tackles attorney advertising practices,”

March 18, 2006; NYSBA Press Release, State Bar Association

Calls for Stricter Lawyer Advertising Rules in New York, Feb. 1,



was just posted, discussing a thoughtful article by South Dakota law professor Jonathan

Van Patten, “Lawyer Advertising and Professional Ethics, from Perspectives on the

Professions, Vol. 19, No. 2, Spring 2000.               


update (11 PM, March 27): On a related matter, see “dignity/schmignity: wordless

italian with Nino Scalia.”                                               


lightning flash–
only the dog’s face
is innocent


       translated by David G. Lanoue





country graveyard

a dog burying

a bone





nobody on the street

stray dog stops to bite

its wagging tail





At the edge of the precipice      I become logical




Spring morning    gravedigger whistling




                                                Georgetown U.’s mascot Jack  “GUJACKMUGG” 



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