lawyer news or ethics « f/k/a archives . . . real opinions & real haiku

December 13, 2007

w.a.s. legal news #1

Filed under: Haiku or Senryu,lawyer news or ethics,Schenectady Synecdoche — David Giacalone @ 11:11 am

Whether we’re reporting on dui cherry cordials and the motorist with the “wrong kind of hot chocolate,” or memorializing the hijinks of the Musty Money Mob, the widow sued for calling an aging counselor a “so-called lawyer,” the sad “man in a tree,” or the deadly argument over treating a seizure victim, f/k/a is known for sharing the strange legal news out of Schenectady, New York, and the nearby Capital Region. [And see the picture-frame burglar tale.] Now, thanks to the unveiling on Tuesday of the revamped, again-free Daily Gazette website, we can confidently begin a regular W.A.S. — Weird Around Schenectady — News roundup, letting you know when the Daily Gazette or other media sources in our neighborhood have uncovered remarkable stories from our local justice system.

after the verdict
the tireless lawyer speaks
in falling snow

first murder trial–
the D.A. arrives
in new gloves

…………………………………………. by Barry George, J.D.

Due to a minor slip-n-fall accident yesterday, the f/k/a Gang is nursing a bum arm and will have to start slowly (and visit a friendly orthopod) this morning, with just two tales out of criminal court.

W.A.S. News #1:

Hiring a Stripper Could Get You a Sex Offender Label: If James “Jed” Conboy, the D.A. in next-door Montgomery County gets his way, 22-year-old Greg L. Soucia will be slapped with the label Sex Offender for “using a stolen credit card to hire strippers.” The Gazette explains, in “Case is Montgomery County’s first under new sex law: Defendant must register as offender” (Dec. 13, 2007), that Soucia “is the first defendant in Montgomery County to be prosecuted under a new law that stiffens penalties for sexually motivated crimes.” Gazette reporter Edward Munger continue:

Soucia [of the Schenectady County village of Delanson] told an investigating deputy that he took a Visa credit card from inside the [burgled] house and while at the residence, he used the credit card to hire two strippers from Sheer Pleasure in Schenectady.

The investigation report states that the two strippers “performed in front of him for about an hour,” and charged him $600 for the service.

Since there was a sexual motivation for the crime, Conboy said, Soucia was prosecuted under the “Sex Offender Management and Treatment Act,” which became state law in April. . . . “If you commit a burglary and your goal is because of your own sexual gratification, it’s a sexually motivated felony,” Conboy said.

The law in question is the SEX OFFENDER MANAGEMENT TREATMENT ACT (Laws of New York, 2007, Chapter 7, Article 10), which our Division of Criminal Justice says “establishes an Office of Sex Offender Management and creates a new crime of a ‘Sexually motivated felony,’ and provides for enhanced terms of post-release supervision for all persons who commit felony sex offenses.” SOMTA’s § 10.03 gives us the following definition:

(s) “Sexually motivated” means that the act or acts constituting a
designated felony were committed in whole or in substantial part for the
purpose of direct sexual gratification of the actor.

Of course, I’m not an expert in criminal law like Scott at Simple Justice and Jeralyn at Talk Left, or professors Yung at Sex Crimes and Berman at Sentencing Law & Policy, but I’m going to go out on a limb and use some fancy legal terminology and analysis: No matter how much of a hard-on politicians have for sex offenders, “stiffening” the penality for crimes — and saddling people with the Sex Offender Label and all the consequent registration and supervisory obligations — whenever a prosecutor “proves” that a felony was motivated in “substantial part” for the defendant’s “sexual gratification” is simply un-American. It will throw a lot of cold water on a lot of immature male hormones. Increasing penalties because a person commits a non-sexual crime while presently or imminently horny, is a rather broad-sweeping approach to stopping sex abuse and sexual predation. Prosecutors should consider reading a constitution or two, or taking a cold shower, prior to drawing up charges under SOMTA.

D. A. Conboy told that Gazette, that in the absence of the sexually motivated felony, Soucia could have faced a prison term of one to three years. Instead, he faces a three-year determinate sentence with five years of post-release supervision.” As with the sex offender residency laws covered so often around here, I’ve got to say that, if this kind of law makes you feel more righteous and — especially — like you’re making our children and women-folk a lot safer, you appear to need a major reality check, and a significant boost in your EQ.

Final Note: A recent article in the Arizona Daily Star, “Arrest made in sexually motivated crime cases” (Nov. 2, 2007), suggests that law enforcement agencies may be applying the same over-reaching approach across the nation. The Tucson Police Department told the Star that: “a sexually motivated crime could include obscene phone calls, pictures or indecent exposure.

mid-argument –
Her Honor
catches me staring

……………………………………………….. dagosan

update (Dec. 16, 2007): Columnist Carl Strock of the Daily Gazette reported today that “Law creates new way to become a sex offender” (at B1, Dec. 16, 2007). Here’s a little of Carl’s analysis: “This means that if I, as a horny American crook, break into a house and steal money so I can wine and dine a woman I have my eye on, with a view to getting her into bed, she being entirely willing, I too would be a sex criminal, per New York law, and if the residents of Scotia, for example, learned I was later living on their block they would put up yellow caution tape on their hedges and would not allow their grandchildren to visit for fear I might attack while their backs were turned. Elected officials would flourish tape measures at public meetings to show how close I was living to innocent children.”

medbag Respected House-Call Doctor on Trial: Another story in the local news deserves a lot more attention than I can give it today, but should interest aficionados of either criminal law or health care reform. Dr. David Hornick, 64, was well known and appreciated for making house calls to his severely disabled patients, and basically operating out of his “mobile pharmacy” car. He was arrested 18 months ago and charged with serious drug-dealing crimes (see “Doctor Charged With Stealing Pills From Patients” (North Country Gazette, June 7, 2006). He is now, however, facing “only” eight misdemeanor counts, alleging he illegally possessed painkillers and failed to document them properly. You can get a good taste for the story from the Daily Gazette, in “Defense calls prosecution of doctor a ‘witch hunt’: Hornick accused of mishandling meds” (Dec. 12, 2007), and in the Albany Times Union, “House call doctor may take stand in drugs case” (Dec. 12, 2007).

Here’s how the Gazette described the government’s approach to the case:

Prosecutor Michele Schettino portrayed Hornick in her opening statements as a doctor who didn’t follow strict rules for handling, dispensing and destruction of such medication. That medication included morphine, Oxycodone and Fentanyl.

“This case is about one man who thinks his license to practice medicine extends to him a blanket shield from criminal prosecution,” Schettino told the jury, “and a blanket shield to disobey the law.”

The Fentanyl patches found in his trunk, according to testimony, were sealed, but not in their normal boxes and did not include the required information about where they came from.

Hornick’s attorney had quite a different take, per the Gazette:

In his own opening statement, defense attorney Joseph Gardner called Schettino’s account of the evidence “quite optimistic” and the prosecution a “witch hunt.” The evidence, he said, does not support the charges. “This is persecution, rather than prosecution,” Gardner said.

Hornick, he told the jury, has practiced medicine for nearly 40 years and runs an unconventional practice. He sees severely disabled patients, many of whom suffer tremendous pain. The drugs, Gardner told the jury, were for his patients.

That, Gardner said, is something that he is allowed to do under the law. The investigators from the state Bureau of Narcotic Enforcement don’t understand that, he said.

If convicted, Hornick faces up to a year in jail. The effect on his ability to practice medicine is unknown (at least to me and the local reporters).

his side of it
her side of it
winter silence

………………. Lee Gurga – from Fresh Scent (1998)

update (Dec. 18, 2007): Dr. Hornick was convicted yesterday on on seven misdemeanor counts of illegally possessing and dispensing prescription painkillers. According to the Daily Gazette, in “Doctor found guilty on drug counts: Jury’s decision surprises Hornick” (Dec. 18, 2007), “The decision came as a surprise to Hornick, who could have pleaded guilty to one count of misdemeanor improper record-keeping before the trial began. Hornick refused the deal, saying he would bring the issue to trial “no matter what.” His lawyer, Joseph Gardner says Hornick will appeal. He will remain free on bail until his sentencing, set for Feb. 12. He faces up to two years in jail or $7,000 in fines.

update (Dec. 19, 2007): Should Dr. Hornick be allowed to continue his medical practice? Schenectady D.A. Robert Carney seems to have the right approach. See “Prosecutor: Niskayuna doctor should keep license” (Daily Gazette, Dec. 19, 2007). “What they ought to be looking to do,” Carney said of the state Department of Health’s Office of Professional Medical Conduct, “is allow him to continue practicing, but ensure that he follows the rules.” According to the Gazette, “A [Health Department] spokeswoman said a criminal conviction itself was considered misconduct. What consequences there would be could be determined after a hearing.”

update (July 3, 2008): See the Daily Gazette article, “Doctor fined over drugs in trunk of car: Judge says case is about following rules” (July 3, 2008) Although he did not fault Dr. Hornick’s motives, City Court Judge Vincent Versaci decided that there had to be a punishment because rules were broken. The District Attorney had asked for no jail time, but wanted the maximum fine to be imposed, $4000. The Judge imposed a total fine of $1,000. Defense council Deborah Feathers indicated that Dr. Hornick plans to appeal to County Court.

We’re pleased that no jail time was imposed, and that Judge Versaci, according to the Gazette, “also admonished Hornick for his practice of keeping medication in his car [where they could be readily stolen], especially the powerful painkillers.” The state Office of Professional Medical Conduct will consider sanctions against the 65-year-old Hornick because of the conviction, but both the District Attorney and the Judge hope the doctor will be able to continue the practice of medicine.

To Help Your Favorite Holiday Hostess: We usually only “do” haiku-like poetry around here, but I really want to share a poem I discovered yesterday. It’s from the book Selu: Seeking the Corn-Mother’s Wisdom, by Marilou Awiakta (Fulcrim Publishing, 1993). Flipping through Selu yesterday at the Whitney Used Book Store, I found the following brief verse that underscored my traditional pangs of guilt this time of year — when I notice that my female friends and kin seem to be doing almost all of the preparations for the holiday season.

Awiakta says “I think most of what I learned about being a woman and a poet can be summed up in one poem.”

On Being a Female Phoenix

Not only do I rise
from my own ashes,
I have to carry them out!

As Ann Althouse said yesterday in a different context, “I hear you,” working women and female poets of the world. dagosan shared a similar sentiment recently:

men washing dishes –
an early alarm
ends her Thanksgiving dream

………………………………………. dagosan

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December 11, 2007

unconscionable silence over Graubard’s $42 million contingency fee

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 3:26 pm

.. ……. Alice Lawrence v. Graubard Miller ……..

Note: For a comprehensive look at the “standard contingency fee”, see our 4-part essay on the ethics of contingencies fees, including the importance of risk and the lawyer’s ethical duties; and our post on related fiduciary duties.

Two weeks ago, a New York appeals court issued its 4-to-1 decision in Lawrence v. Miller (2007 NY Slip. Op. 09348; Nov. 27, 2007). In an opinion by presiding judge Richard T. Andrias, the First Department’s Appellate Division refused to declare a 40% contingent fee “unconscionable on its face.”

In a general dictionary, unconscionable means “Not restrained by conscience.” In legal terms, a contract or bargain is “unconscionable” when it is “so unfair to a party that no reasonable or informed person would agree to it.”

In Lawrence v. Miller, the appeals court held that a trial would be needed, in this probate case dating back to the death of real estate mogul Sylvan Lawrence in 1981, to determine whether the $42 million fee charged by the law firm Graubard Miller to 80-year-old widow Alice Lawrence in 2005 — for about four months’ work, and on top of $18 million in hourly fees and $5 million in “gifts” already paid, and a retainer for an added $1.2 million in hourly billing for that year — was unconscionable under the circumstances, or otherwise met criteria needed to be deemed fair and reasonable under ethical standards for lawyers.

In a lengthy, thoughtful dissenting opinion, Justice James Catterson dissented explained why he concluded that the fee was unconscionable as a matter of law, the agreement should be voided, and the defendants should be referred to the Department Disciplinary Committee.

update: See “N.Y. High Court Skeptical of $40 Million Payoff From Contingency Fee Deal” (New York Law Journal, Oct. 24, 2008), a lengthy news article, which describes oral argument in this case at the New York Court of Appeals on Oct. 23, 2008. It notes that “Members of the court appeared skeptical during an hour of oral arguments about the size of the fee and several questioned the propriety of Graubard Miller seeking to collect the entire amount.” And, that “Judge Robert S. Smith echoed several of his colleagues when he wondered whether a legitimate contingency agreement, ‘where it works out so favorably to the lawyer, where it is so much money for so little work,’ could be considered unconscionable.” (via Overlawyered.com)

With greedy lawyers as villains, an octogenarian widow as victim, and sharply disagreeing jurists, it’s the kind of story that you’d expect to get lots of press — especially after the New York Times featured it in the article, “Court Calls a 40% Fee to Lawyers Defensible” (NYT, Nov. 29, 2007). Online, the Daily Brief column at the Conde Nast Portfolio noted “It’s Been a Bleak House Kind of Week in Court” (Nov. 30, 2007). The ABAJournal News quickly posted a nice summary, in the piece “Court Doesn’t Void $42M Contingency Deal Reached Before Settlement” (Nov. 29, 2007). And Law.com republished Anthony Lin’s excellent discussion of the case from the New York Law Journal, in “Late 40 Percent Retainer Pact Survives Widow’s Dismissal Bid” (Nov. 29, 2007).

Even more than a good story for the mainstream and legal press, Lawrence v. Miller would seem to be a perfect topic for the blawgisphere — the world of weblogs by and for lawyers, where attorneys, law professors and students, plus various ideologues, “reformists” and pundits, love to show their expertise and biases, engage in both scholarly and unruly debate, and boast of the important role of blawgs in educating the public about law and lawyers. As Allison Shields at Legal Ease noted, in “High Legal Fees May Not Be Unconscionable” (Nov. 29, 2007), the case involves “an issue near and dear to lawyers’ hearts – their fees.”

questionDude Lawrence v. Miller does indeed raise some very interesting questions to discuss and debate, preach and pontificate over, or educate and entertain with. Mark Zauderer, who represented the Grauber Miller law firm, told the NYT: “What the courts recognize is that a fee agreement is not unconscionable simply because it can produce a big fee. You have to look at the value rendered to the client.” Others involved in the case were a bit more specific:

In his opinion for the Lawrence majority, Judge Andrias noted that:

“circumstances underlying the agreement must be fully developed, including any discussions leading to the agreement, as well as the prospects at that time of successfully concluding the litigation in favor of Mrs. Lawrence. . . . What is in dispute are the circumstances surrounding the revision of the parties’ retainer agreement and the value of the Graubard firm’s services in effecting a final settlement of the decades-old litigation involving distribution of the estate.”

“Prior to the revised retainer agreement, Mrs. Lawrence had personally negotiated with her nephew, the late exector’s son, and received a $60 million offer from the executor’s estate, but such offer did not result in a settlement.”

“The basic requirement in any retainer agreement is that it be fair and reasonable. In the case of an amended agreement, the attorney has the burden of showing that the client understood the terms of the agreement and that the attorney did not exploit the client’s confidence in negotiating the terms of the agreement.”

“The issue of unconscionability . .. cannot be resolved without determining Mrs. Lawrence’s capacity (the fact that she was nearly eighty, by itself, is insufficient to put her mental capacity into question); what she was advised; and whether she understood the ramifications of the revised agreement.”

[The Court of Appeals recent decision in King v. Fox, 7 NY3d 181, 2006] “merely holds that it is inherently difficult to determine the unconscionability of contingent fee agreements and it is not necessarily the agreed-upon percentage or the duration of the recovery that makes such a fee arrangement unconscionable, but the facts and circumstances surrounding the agreement, including the parties’ intent and the value, in hindsight, of the attorney’s services in proportion to the fees charged (id. at 192).”

In his dissenting opinion, Judge Catterson argued that “Regardless of the procedural aspects of the parties’ negotiations, no court can condone such an exhorbitant fee,”

“where the risks taken be Graubard were virtually nonexistent (having been paid $18 million in legal fees already and negotiated another $1.2 million for the ensuing year, plus its disbursements)” . . .

“and the Graubard firm only added, at most, another seven months of legal work to its 22 years of service. . . .” and,

“Without the costs and risks generally associated with contingency fee arrangements, such a fee agreement is nothing short of plain greed.” See King, 7 N.Y.S.2d at 841 (policy behind allowing contingency fee arrangements is based upon providing access to the courts and the fact that attorneys risk their time and resources in endeavors that could prove fruitless).

Press coverage also echoed these questions. In her “Bleak House” column, Conde Nast‘s Karen Donovan noted that “Big contingency fees are nothing new, of course. But they are usually associated with the risk-taking personal injury lawyers who go after Big Pharma and Big Tobacco.” And she quoted New York University School of Law professor Stephen Gillers, who pointed out that “No one won this; it was put off to another day,” and added:

“I found the conduct of the lawyers troubling, and it will be important for the conduct eventually to be thoroughly reviewed by the court, following the development of the information that the appellate division required.”

Similarly, in the NYLJ article, Anthony Lin explained:

“Though contingent fees of such magnitude are not uncommon in personal injury cases, they are rarer in estate cases. Moreover, such deals normally date from the beginning of the litigation and are in lieu of hourly fees, meaning a law firm bringing a case on a contingent-fee basis normally faces a risk of nonrecovery.”

“But Graubard Miller’s contingent-fee deal was signed in January 2005, only months before the settlement. The 1983 retainer agreement in effect prior to that only specified hourly billing. In his dissent, Justice Catterson said the contingent fee might have been reasonable if agreed upon at the beginning of the case or if the firm had agreed to refund its previous fees.

“Without the costs and risks generally associated with contingency fee arrangements, such a fee agreement is nothing short of plain greed,” he wrote.

With such meaty issues and tasty facts, we’d expect pundits, scholars and practitioners to be salivating at their keyboards, eager to chew over and savor the Lawrence case and its lessons, and anticipating the next stage in the litigation. Even if they avoided drawing definitive conclusions on the appropriateness of the fees in question, blawgers could anticipate an eager audience. Just telling us how to think about the issues raised by Lawrence, and how thousands of practitioners deal with them every day across the nation, as they enter into contingency fee arrangements, would have enaged lawyers and clients alike, and made a great record for future reference.

However, when we look to see how Lawrence v. Miller has been treated over the past fortnight in the blawgisphere, we find it mentioned in only a handful of posts; we discover what I consider to be an unconscionable silence:

If educating the bench, bar and public about the ethics and equities of contingency fees is our goal as members of the legal profession, or as blawgers, we should be asking a lot of questions about the dearth of discussion on the issues raised by Lawrence v. Miller. We should be wondering who is benefiting from this conspiracy of silence, who is hurt by it, and just who is enabling it (hint: all of those within our profession who seem to worry more about tacky tv ads by p/i lawyers than about their strange demand for at least a third of every client’s damages, no matter how easy the case or how little their risk). The answers should shock our consciences into action.

Sadly, the silence is no longer surprising, given the subject matter. You see, the appropriateness of the particular contingency fee charged an individual client, and the notion that any “standard” percentage charged — such as 33 and 1/3rd or 40% — might be excessive, clearly fall within an unspoken Code of Omerta among lawyers (a Pin-Striped Barbed Wire Barricade similar to the police Blue Wall of Silence). The One-Third-Or-More Standard Fee is truly a Third-Rail Issue for any member of the legal profession who needs to win a popularity contest (like a judgeship or bar presidency), or who merely hopes to walk into the Lawyers Lounge at court without encountering a chilly rebuff from their brethren in the personal injury bar, or to operate a blawg without without facing charges of being an anti-consumer, anti-justice, pro-insurer, evil-doin’ “tort-reformer.”

In fact, it’s difficult to think of any comparable issue of legal ethics and client rights that is so adamantly and blatantly ignored by the practitioners directly involved in the practice. For example, try to find a p/i lawyer who is knowledgeable about, and willing to discuss the ramifications, of ABA Formal Ethics Opinion 94-389, which is described at length here). Although frequently mentioned by courts, the risk-percentage issue is also avoided by the regulators we’ve deputized to police lawyer conduct (see, e.g., “blame bar counsel for the Capoccia Scandal”); and even by lawyer-funded consumer advocates who focus on legal services issues (see our “Challenge to Public Citizen“).

FYI [since the contingency-fee bar won’t tell you]: As we’ve stated previously, ABA Formal Ethics Op. 94-389 persuasively — and with no apparent philosophical or political axe to grind, nor financial conflicts of interest — takes into account the ethics history of contingency fee regulation (in Model Codes and Rules, as well as ABA ethics opinions, and legal scholarship), and the modern utilization and economic role of contingency fee arrangements. It sets forth two basic requirements for the ethical use of contingency fee arrangements. The lawyer must: (1) fully inform the client of all relevant factors, so that agreements can be entered into knowingly and intelligently; and (2) treat each case and client separately, when deciding on the appropriateness of the arrangement and the reasonableness of the agreed-upon fee.

Given their ethical and fiduciary duties, the expectation is that the lawyer will make a good faith, professionally-informed estimate of anticipated effort and risk (of non–recovery of costs or inadequate compensation), and explain the evaluation to the client, prior to their coming to an agreement on a contingency fee. [Go here to learn why this is not an unreasonable burden to ask of lawyers who clearly do assess risk before accepting a client and do an excellent job of rejecting the too-risky case.]

In addition, because these obligations are so often “honored in the breach” by the Bar, the authors of Op. 94-389 urged that the legal profession “redouble its efforts to assure that the ethical obligations associated with entering into a contingent fee arrangement are fully understood and observed.”

Since my toe is already on the Third Rail, I’ll summarize by saying that the reasonableness of a contingency fee in a particular case will depend on how much risk the lawyer assumed of working extensive hours and incurring expenses without adequate compensation, and how much skill and exertion it will take to perform the tasks involved. The validity of the fee arrangement will also depend on whether the client was adequately informed (given his or her level of sophistication and knowledge) of the relevant factors when negotiating the fee level with the lawyer. The necessary corollary is that applying a “standard” fee to each client without taking the degree of risk into aaccount is unethical, because it will inevitably overcharge many clients. [For more detail, see our 4-part essay on the ethics of contingencies fees, including the importance of risk and the lawyer’s duties; and our post on related fiduciary duties.]

But, “wait a minute,” you might now be saying, why do you think there is a Taboo against mentioning the relationship of risk to the level of a contingency fee? Hasn’t f/k/a often reminded us that even the American Trial Lawyers Association (now humbly known as the American Association for Justice), agrees about the importance of risk? Indeed, we’ve quoted ATLA’s 2003 Statement to the Utah Supreme Court (at 12) that:

“Attorneys should exercise sound judgment and use a percentage in the contingent fee contract that is commensurate with the risk, cost, and effort required” and has explained that “The percentage charged in contingent fees may vary from case to case depending on the circumstances, including but not limited to, the risk of recovery, the impact of the expense of the prosecution, and the complexity of the case.”

“. . . Attorneys should discuss alternative fee arrangements with their clients. The passage is not merely information given to clients, but is taken verbatim from a resolution on professional ethics regarding the use of contingent fees, adopted by ATLA’s Board of Governors in 1986. This resolution continues to be ATLA’s policy regarding the ethical obligations of its members.”

. . . . . . . . . . . ATLA: the at least bar assoc.

Unfortunately, that passage — which was used by ATLA in its successful attempt to avoid limitations on fees under certain Early Offer Fee Proposals — has also been ignored by its members in their daily practice of law. At best, they cling to the word “risk” and act as if any risk at all justifies charging the maximum permitted percentage to every client.

So, why does the contingency fee gang impose and nurture ARTO (its anti-risk-talk Omerta rule) and a One-Third-Third-Rail policy?

In case the answer is not obvious, I’ll spell it out: Any discussion about the possible invalidity, unreasonableness, or unethical nature, due to inadequate risk in a particular case, of a one-third or 40% fee charged to any particular client, presupposes that contingency fees are supposed to relate to the actual perceived risk in each separate case. It directly undermines the attitude of the p/i cartel that the existence of any risk justifies any percentage rate that is permitted in the jurisdiction, or any rate agreed-to by the client (absent, perhaps, actual fraud or felony on the lawyer’s part, or the extreme mental incompetence of the client). And, it particularly condemns the near-universal practice of presenting as a fait accompli a “standard” percentage rate to virtually every client — a rate that is usually the maximum permitted in the State absent special judicial consent to go higher.

Similarly, to even ask whether a lawyer added sufficient value to the client’s case to warrant a contingent fee based on the entire award or settlement damages, undermines the contingent fee cartel’s fiction that the client’s case had no value until the lawyer does his or her magic and labors to produce the value, and that the outcome achieved automatically represents a good value for the client, well-worth applying not a tidy incentive bonus for doing the job they already should have been doing (their best job), but a significant portion of the entire pie, set at the maximum percentage rate permitted in the jurisdiction. (For more on the value issue, see our prior post)

So, in the wake of the decision in Lawrence v. Miller, who’s been talking about what makes a contingency fee conscionable, or fair and reasonable? Who hasn’t? And, why not?

another hot day
an old man scratches
his lottery ticket

…………. by Pamela Miller Ness

(more…)

Comments (16)

December 6, 2007

CNN interviews Kindlon on sex offender laws

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 4:30 pm

Yesterday, CNN’s Erica Hill featured an interview with Terry Kindlon, the much-admired Albany, NY, criminal defense lawyer, who is simultaneously bringing pro bono lawsuits against sex offender residency restrictions in three Capital Region counties (see our prior post). The CNN Prime News interview, which runs over 5 minutes, is called “Registered Sex Offenders Sue: A group of sex offenders wants to change the laws that dictate where they live” (Dec. 5, 2007) If you’re interested in the issues surrounding sex offender residency restrictions [SORRs], you should click on the interview.

As an article in today’s Schenectady Daily Gazette explains, Kindlon represents five sex offenders with charges pending against them for failing to comply with local SORR laws. “One client resides in Albany County, three in Rensselaer County and one in Washington County.” (“Counties sued over sex offender residence laws,” Dec. 6, 2007; and see, “Sex offenders sue over residency laws” (WNYT.com, Dec. 3, 2007)

In the CNN interview, Hill seems amazed that Terry, as the father of seven and grandfather of five, appears willing to have sex offenders live near children and other human beings. Hill starts by saying, “Changing this law would mean that a sex offender could live next to your family. Are you okay with that?” Terry’s response is:

“Our purpose is not to invite sex offenders to move onto Sesame Street. . . Our point is to overcome the destructive effects of too much regulation.”

Kindlon makes some important points that need to be heard by a wide audience:

There are over 600,000 registered sex offenders in our society. This is “a group of people who admittedly have to be supervised.”
However, the regulatory scheme has to be rational. “If the laws become too harsh you have driven them out of society” and “begin to create whole cities where they are not allowed to live,” forcing them into places with no public transportation and no jobs.

More sex offenders would be registering if the housing requirements were not so strict.

Pressed on whether we can “guarantee the safety of residents” without these residency laws, Kindlon says we can’t give any guarantees, but driving people underground is the opposite of what we intended to do with these laws.

Purgatory, USA? When Erica Hill noted that some people would have no sympathy for the sex offenders and say “too bad, they shouldn’t have done this sort of thing in the first place,” Kindlon replied: “I live in a place called America. I don’t live in a place called purgatory.” That’s an interesting comparison, but Purgatory would be preferable to the Limbo where politicians and “concerned” parents seem to want to send sex offenders. With Purgatory, you do your time for your sins, and then you get out and have a crack at Paradise. With Limbo, you are stuck suffering for all eternity.

Although I respect Terry Kindlon’s legal skills and greatly appreciate his pro bono efforts on behalf of sex offender (and in other civil liberties cases), I want to point out a couple of disagreements that I have with his choice of issues to emphasize in recent media interviews.

Over and over, Terry has stressed that the residency laws will drive sex offenders underground, where they will be unregistered and unmonitorable. (He even claimed on CNN that about half of SOs in Georgia were no longer registering, a number that sounds rather high.) While pushing offenders to choose not to register is clearly one problem with SORRs, I am reluctant to focus so completely on this particular unintended result. First, “these guys won’t obey that law” is seldom an argument that creates sympathy for a group that is already disliked and distrusted (and usually creates the response, “then we’ll damn well make sure they do comply, with harsher penalties and more manpower”).
More important, there are many other significant undesirable effects that can and should be stressed — especially because they affect the majority of offenders who are willing to comply with the restrictions, and who are unlikely to re-offend. Thus, predictable, inevitable effects such as disrupted family relations, inability to find affordable housing, poorer access to transportation, jobs and counseling services, all reduce the stability that experts believe help to reduce the chances of recidivism. (see our post “Sunday papers question sex offender laws,” Sept. 9, 2007)

More to the point: We should be making sure that the public understands that there is no reason to believe residency restrictions reduce recidivism rates — and many reasons to believe they may matters worse. Where you live has not been shown to relate to whether you are likely to re-offender or who your target is likely to be. See, e.g., Residential Proximity & Sex Offense Recidivism in Minnesota (Minnesota Department of Corrections, April 2007), which we quoted back in August. And, across the nation, law enforcement officials have come out against the use of SORRs, because they are ineffective, costly to enforce and counterproductive. Thus, the five-page statement by Iowa County attorneys explains that their law “does not provide the protection that was originally intended and that the cost of enforcing the requirement and the unintended effects on families of offenders warrant replacing the restriction with more effective protective measure.”

Terry also continues to place major emphasis on the recent Georgia Supreme Court decision in Mann v. Dept. of Corrections (which we discuss here). Thus, his first point for Erica Hall in Atlanta was that Georgia “struck down a state law that is quite similar to laws we are seeking to have declared unconstitutional in New York State.” And, the Gazette article today notes “[Kindlon] said he’s even more confident in his argument now that the Georgia Supreme Court unanimously overturned the state’s restrictions on where sex offenders may live after they’re released from prison.” The problem, of course, is that the Mann case is totally based on the statute’s failure to contain a grandfather clause, and on the property right of a homeowner not to be unreasonably forced to move. Even the Court’s general statements about the unseemly effects of the law fit that narrow context. In Mann, the plaintiff and other sex offenders “face the possibility of being repeatedly uprooted and forced to abandon homes.” As far as I know, none of the laws challenged by Kindlon share this feature. Indeed, he told the Gazette that Schenectady County’s SORR is not being challenged, because

“that county acted wisely and exercised some restraint on its sex offender law when it rescinded the more restrictive parts of it.”

Of course, what Schenectady County did was to insert a grandfather clause by voiding the section that would have evicted a sex offender already living in an exclusion zone when the law went into effect, or when a school or day care center moved nearby. As I said on Nov. 29th, there are some other very good constitutional reasons for striking down the local SORRs (which are briefly summarized below the fold), but the differences between them and the Georgia statute and decision make pointing to Mann without any disclaimers unnecessarily misleading and unhelpful for any members of the public who would actually like to understand the legal principles being defended.

See Prof. Doug Berman’s post, “A turning point on sex offender residency restrictions?” (Nov. 29, 2007; via Corey Yung at Sex Crimes weblog) Some higher courts go out of their way to signal a willingness to reach a broader constitutional issue, if given the right facts. I have scoured the Georgia Mann decision for such signals, but found none — no good dictum that could be quoted by other courts in reaching other SORR laws.

Terry Kindlon told the Gazette: “We are confident if we get a ruling in a Supreme Court case it will demonstrate the law is not constitutional. Once that’s been demonstrated, everyone out there will fold their tents.” I think he’s correct, thank him for his efforts, and wish him and his client’s speedy justice. Then, perhaps, politicians who have been pandering to and whipping up sex offender fears will be able to come up with meaningful (and constitutional) solutions. SORR laws already on the books could then be rescinded, and those still inexplicably under consideration (as in Schuyler County, NY) tabled forever.

Christmas blizzard—
everything white
except his cheeks

Christmas pageant—
the one who had to get married
plays virgin Mary

another Christmas . . .
my parents visit
the son in prison

……………………….. by Lee Gurga from Fresh Scent (1998)

…………… Don’t forget our Holiday Season Haiku page, where we just added three new poems by Laryalee Fraser. Meanwhile, after reading SHLEP‘s tips for avoiding gifting headaches, you might save a marriage and maybe avoid a frown from a child, by checking out Madeleine Begun Kane’s “Mad Gift Giving Guide.”

(more…)

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November 28, 2007

the ABA Journal Blawg 100

Filed under: lawyer news or ethics — David Giacalone @ 2:22 pm

The December 2007 edition of the ABA Journal has arrived online, and is surely getting a lot of attention today across the blawgiverse, with the cover feature, titled “The ABA Journal Blawg 100.” The f/k/a Gang is even skipping its afternoon nap, to tell you how pleased we are to be among the inaugural Blawg 100, chosen as one of the “best web sites by lawyers, for lawyers.” You’ll find the entire list of the 100 honored blawgs here. And, you are invited to vote for your favorite law-related weblog, in a dozen categories:

Go here to vote in one of 12 categories: Generally Speaking, Ivory Tower, Your So-Called Life, Lawyers Behaving Badly, All Business, Black Letter Law, Crime Time, Gossip, Politics for Sport, Lawyer’s Toolkit, JDs in Training, and Benched. You can also “see how ABAJournal.com readers rank the blawgs in each category. Voting ends Jan. 2. You may vote for as many blawgs as you wish, but you can vote for any particular blawg only once.”

ABA Journal staffers Molly McDonough and Sarah Randag explain that “When we set out to name the ABA Journal’s inaugural Blawg 100, we knew we were up for a challenge. There are between 2,000 and 3,000 legal blogs—what we call blawgs. How many of those are worth a click? Turns out, quite a few.” And they are clearly correct that:

“The trick is fitting them neatly into a category. By their very nature, bloggers defy categorization. What in one week is a blog devoted to the black-letter practice of law is the next week a heartwarming chronicle of a baby’s first steps or a devastating battle with cancer.”

We held our breaths to see which category this ~~split-personality~~ ~~scatter-shot~~ ~~easily-distracted~~ multi-faceted website would be competing in, and were please to be among five weblawgs in the ethics category, which the ABA Journalistas have dubbed Lawyers Behaving Badly. [f/k/a was the very first ethics-related blawg and, as our URL suggests, was once known as known as ethicalEsq] Click this link to vote for your favorite legal ethics weblog.

As part of its weblog focus, the new ABA Journal includes the article “ForeBlawggers,” which has profiles of “Seven lawyers who started the blawg revolution.” They are Denise Howell (of Bag and Baggage which celebrates its 6th anniversary today, Nov. 28, and more), Thomas C. Goldstein (of SCOTUSblog), David Lat (formerly of Beneath Their Robes, and now gossiping at Above the Law), Prof. Eugene Volokh (of The Volokh Conspiracy), Judge Richard A. Posner (of The Becker-Posner Blog), Howard Bashman (of How Appealing), and Glenn Greewald (of Salon’s Unclaimed Territory)

Thanks to ABA Journal for this honor and attention. Thanks to all those lawyers who give me something to complain about (although a little less aggravation, and more edification, would be nice). And, thanks to all our readers for making the making of f/k/a worth the effort.

proud host
his orchard bursting
with fireflies

……………………. by John Stevenson, from Some of the Silence

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November 27, 2007

Susskind’s “End of Lawyers?” series ends with a warning

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 11:19 pm

As we told you at the end of October, Times Online has been presenting six weekly excerpts from “The End of Lawyers? Rethinking the nature of legal services,” by Richard Susskind, OBE (Oxford University Press, due May 2008). Susskind believes that “Commoditisation and IT will shape and characterise 21st century legal service.” Last month, while asking at length whether the Bar’s reaction to those forces would be the “cartel’s last stand,” we summed up:

Richard Susskind challenges the legal profession — not to try to prevent change and protect its traditional ways, but — “to find and embrace better, quicker, less costly, more convenient and publicly valued ways of working.”

“The End of Lawyers?” by Richard Susskind

Last week, in an installment titled “No one has a vision for the next generation of lawyers” (Nov. 19, 2007), Susskind lamented the short time-horizons of law firm managers, who never seem to look beyond the next five years. He states:

“In short, no one who might be thought to be in the driving seat of the legal system is thinking systematically, rigorously and in a sustained way about the long term future of legal service. No-one seems to be worrying about the fate of the next generation of lawyers.

“All that can be discerned in relation to the long term is a common assumption — whether on the part of scholars, professional bodies, government agencies or leading law firms — that legal service of tomorrow will be quite similar to that of today; perhaps more efficient and more business-like but not fundamentally different in nature.”

Yesterday, in the sixth and final excerpt, Susskind warns that “Only a foolhardy lawyer will fail to embrace change” (November 26, 2007). Even if you’ve missed the earlier installments (which are linked at the foot of this post), I urge lawyers, their regulators and educators, as well as their clients, to read this last installment.

In this last excerpt, Susskind tells how the title The End of Lawyers? came to him, while he was musing on the fate of mercers and other guilds over the centuries — ancient trades and craftsmen now scarcely remembered.

“It occurred to me that the fundamental demand for the products of these trades —cloths, candles, wheels — had not diminished; indeed it had often increased. But new technologies, methods of production and innovations had served to displace most of the associated craftsmen.

“I reflected upon the legal world and the possible impact of information technology. And I wondered then — and this first thought inspired the title of the book — whether lawyers might fade from society as other craftsmen have done over the centuries.”

He continues: “Perhaps 100 years from now, maybe more or maybe much less, people might sit in fine comfort in some vestige of today’s legal world (perhaps an ancient courtroom refurbished as a restaurant . . .) and . . . speculate in a leisurely manner about solicitors and barristers and advocates and attorneys.”

Who exactly were these people, these lawyers? What was their craft? They were involved with the law, of course, but what did they actually do? Why did we need them? How did they contribute? And why do we not have them any more? What brought about the end of lawyers?

Susskind goes on to answer his critics, who smugly assert that “computers cannot replace legal work.” He explains that, in pointing to Information Technology, he is concerned with “the extent to which some, much or all of what lawyers do can be undertaken more quickly, more conveniently and less expensively, and in a less forbidding way, by systems than by conventional work.”

Therefore, the question Richard Susskind prefers to ask is: “from the clients’ point of view, what tasks of lawyers will be better undertaken in the future by systems?”

Susskind then gives this frank warning: “It is a foolhardy lawyer indeed who unreflectively and dogmatically replies to this question by asserting ‘none whatsoever’. Open-minded lawyers, and those who genuinely care about the interests of their clients should, in the internet age, continually be looking at ways in which IT can play a more prominent role in their services.” (emphasis added) He explains that “disruptive legal technologies” threaten the work of today’s lawyers and law firms, in whole or in part.

Finally, Susskind notes: “Politely, it puzzles me profoundly that lawyers who know little about current and future technologies can be so confident about their inapplicability.” He wrote The End of Lawyers? to provide our profession with the insight needed to competently and diligently answer those important questions.

Two Cents from the f/k/a Gang: Because the Bar’s response is so important for the clients it exists to serve, and for society’s goal of full access to legal services and civil justice, I hope lawyers who feel that igorance is bliss will smarten up, and listen to Richard Susskind’s message. Moreover, I hope those who arrogantly believe they can use guild/cartel tactics to protect their own status and financial interests, by preventing the improvements that can come from IT and commoditization in client service and value — or by somehow keeping the monetary gains for themselves — will remember our oath to put client’s interests first.

If those principles won’t suffice, the public (and our political leaders and consumer advocates) must help the legal profession to recall the fate of the ancient guilds that tried to stop the forces of technology and the desires of the well-informed consumer, and help push the Bar to the right side of history.

Here are links to the six-part series from Times Online on Richard Susskind’s upcoming book, The End of Lawyers?:

first excerpt: “Legal profession is on the brink of fundamental change.” (Oct. 19, 2007)
second: “A decade on: much changed, much still to unfold (Oct. 29, 2007)
third: “A decade on: much changed, much still to unfold (Nov. 5, 2007)
fourth: “Outside investors will demand a very different type of law firm” (Nov. 12, 2007)
fifth: “No one has a vision for the next generation of lawyers” (Nov. 19, 2007)
sixth: “Only a foolhardy lawyer will fail to embrace change” (November 26, 2007)

The f/k/a Gang won’t bet on whether the End of Lawyers is near, but we confidently predict that there will always by a demand for haiku from lawyer poets such as Barry George and Roberta Beary. Here are poems from Barry and Roberta from the new anthology echoes 1 (Compiled by Jim Kacian and Alice Frampton, Red Moon Press, 2007):

first trick of treat . . .
the toddler reaches for
her mother’s face

frigid night–
a drip in the sink
fills the whole house

snow buntings–
his new bride
waits in the car

…………………….. by Barry George, from echoes 1 (Red Moon Press, 2007)
“first trick of treat” – Hon. Men, Betty Drevniok Award 2005
“fridgid night” – HM, Kaji Aso International Haiku Contest 2005
“snow buntings” – HM, Gerald Brady Contest 2001

autumn rain
mother turns her face
to the wall

halloween twilight
again this year my son waits
alone by the door

………. by Roberta Beary – from echoes 1 (Red Moon Press, 2007)
“autumn rain” – Haiku Ireland Kukai 2007, 1st Place
“halloween twilight” – 1st Prize, Tokutomi Memorial Haiku Contest 2006

Bonus: Here’s Roberta’s honored poem from the Basho Poetry Offerings 2007 — the Haiku Competition held by Basho Memorial Museum, during the Basho Festival in October 12, 2007 in Iga city, Mie prefecture, Japan.

Selected Haiku

winter darkness
one by one
streetlights awaken

一つづつ街灯醒ます冬の闇

Roberta Beary、 USA

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November 21, 2007

Georgia’s sex offender residency ban struck down: no grandfather clause

Filed under: lawyer news or ethics — David Giacalone @ 4:25 pm

update (Dec. 13, 2007): The Georgia Supreme Court today changed a few words in its Mann opinion, which struck down the state’s residency restrictions as applied to a homeowner who would have been forced to move.

Georgia Supreme Court Press Release

SUPREME COURT ISSUES SUBSTITUTE OPINION IN SEX OFFENDER RULING

Atlanta, December 13, 2007 — The Georgia Supreme Court today made a slight change to its recent ruling in Mann v. Georgia Department of Corrections et al. (S07A1043). In its order of November 21, the Court wrote, “We therefore find that OCGA § 42-1-15 (a) is unconstitutional because it permits the regulatory taking of appellant’s property without just and adequate compensation.” In today’s order, the Court substituted the word, “because” with the phrase, “to the extent that.” The rest of the 16-page order remains unchanged.

According to an article in the Atlanta Journal Constitution, “AG: Sex offender law only applies to homeowners” (Dec. 13, 2007), the State Attorney General had asked for the clarification and claims that the change means the opinion protects homeowners from having to move, but not renters or other nonowners. “Sarah Geraghty, a lawyer for the Southern Center for Human Rights, disagreed with the attorney general’s office’s interpretation of the decision. ‘Courts in Georgia have repeatedly held that people who rent their homes have a property interest protected by the Fifth Amendment,’ Geraghty said in a statement”

noYabutsSN From the very first of our two dozen postings since last June on sex offender residency restrictions, we’ve been arguing here at f/k/a that — at the very least — it is unconstitutional to ban sex offenders from living near schools, day care centers, playgrounds, etc., without including a grandfather clause that would prevent their eviction from current homes that are too close to current or future locations of child-centered activities. This morning, the Georgia Supreme Court agreed, in Mann v. Dept. of Corrections (SO7A1043, decided Nov. 21, 2007, 17-pp pdf; via How Appealing and The Parson)

According to the The Atlanta Journal-Constitution, the highest Court in Georgia “tossed out the state’s restrictions on where sex offenders can live if they own the property, saying it is unconstitutional to force them to move if a child care facility, school, church or other place that attracts children locates within 1,000 feet of their homes after they have moved there.” “Ga. court overturns restrictions on where sex offenders live” (Nov. 21, 2007)

Similarly, the Associated Press reports, in “Ga. Court Overturns Sex Offender Law” (AP, Nov. 21, 2007):

“It is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected,” read the unanimous opinion, written by presiding Justice Carol Hunstein.

. The Georgia Supreme Court ruling said even sex offenders who comply with the law “face the possibility of being repeatedly uprooted and forced to abandon homes.” It noted that the offender would be in violation of the law whenever someone opts to open a school, church or other facility serving children near the offender’s home.

At his Sex Crimes weblog, Prof. Corey Yung excerpted this important section of the decision, and provides important commentary on the limited scope of the case:

“Unlike the situation in the typical regulatory takings case, the effect of OCGA § 42-1-15 is to mandate appellant’s immediate physical removal from his Hibiscus Court residence. It is “functionally equivalent to the classic taking in which government directly . . . ousts the owner from his domain.” Lingle, supra, 544 U.S. at 539. As long as the day care center remains in its current location, appellant cannot reside in his home until he is released from the registration requirement by a superior court, OCGA § 42-1-12 (g), which cannot occur until a minimum period of ten years has passed after his release from probation.”

“It’s important to note [says Prof. Yung] that this decision was entirely premised on a takings challenge because the Georgia statute as applied didn’t “grandfather” existing residences. As the opinion itself makes clear, most other states have not followed the Georgia approach. So, in itself, this decision doesn’t call into question most residency restrictions across the nation. Still, it’s a big victory for the Southern Center for Human Rights and for those who question the efficacy of residency restrictions in general.”

It was the fact that Schenectady’s original SORR had no such grandfather clause that got me interested in this topic last June. See, e.g., our post NYCLU Letter threatens lawsuit over Schenectady County sex offender law (Aug. 7, 2007). A long-time lawyer for neglected and abused children, I had never before advocated on behalf of sex offenders, but the blatant unfairness of these laws piqued my conscience, and their likely ineffective and counter-productive results stirred my logical mind.

The Georgia Mann decision is one more thing to be thankful for this holiday season. The “property right” to remain in one’s chosen home should be an important bar to retroactive application of residency bans that would evict people from their homes based on their sex offender status. Courts and legislators in New York State have recognized an “individual’s interest in not being displaced involuntarily” from a residence, when the exercise of police power makes his or her use of the property unlawful. See Village of Valatie v. Smith, 36 NY2d 102 (1975). I believe that these right should apply to tenants to the same extent as to homeowners.

p.s. A Googling visitor came to this website two days ago inadvertently, but I hope he or she had an open mind and learned something about sex offender restrictions. The query was /articles that proove that sex offenders should be named and shamed/. And, thank you Mr. Google, the #1 result was our “Schenectady’s PanderPols vote to evict sex offenders.”

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November 16, 2007

McNally will be the Lunch Pail D.A.

Filed under: lawyer news or ethics — David Giacalone @ 12:41 am

. . . . In true blue collar “lunch pail” fashion, defying the predictions of political pundits, Rich McNally has won the Rensselaer County [NY] District Attorney’s race — with a margin of 227 votes (out of about 39,000) over Republican Greg Cholakis. See “McNally unofficial winner of DA race” (The Troy Record, Nov. 16, 2007); “McNally wins Rensselaer Co. DA’s race” (CapitalNews9, Nov. 15, 2007). Beyond his own reputation for integrity and hard work, McNally can surely thank voter dismay over the often-backfiring extralegal antics of out-going D.A. Patricia A. DeAngelis (see our prior post) for his becoming the first Democrat to hold the position since 1989.

After hearing McNally’s slogan in ad after ad, we had fun last week asking “what’s a lunch pail lawyer,” and now we’ll see if Rich can demonstrate his lunch pail work ethic in the tough job of district attorney. While avoiding histrionics, McNally says he’ll be an active litigating prosecutor as well as chief administrator in an office that needs major revamping and refocusing on fundamentals (like the rule of law).

lunch at the zoo
even among gorillas
some who sit apart

…………. by Peggy Lyles from To Hear the Rain (Brooks Books, 2002)

“red hots!”
for an instant i’m ten
and
father’s still alive

dreary morning
a loaf of wonder bread
tops the shopping list

…………………… ed markowski

Troy’s most famous historical figure, Sam Wilson, was known for the (luncheon) meats that fed an army. I’m still hoping that an enterprising supporter or staffer will find an Uncle Sam lunch pail for D.A. McNally — to symbolize his no-baloney, no-hot-dogging focus on fundamentals, preparation and vigilance. Congratulations and best of luck to Rich McNally!

a stuffed briefcase
and an Uncle Sam lunchbox —
the new D.A.

……………………………….. by dagosan

– click to hear the band Lunch Box doing their song “Uncle Sam.”

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November 14, 2007

not impressed yet by U.S. lawyers re Pakistan

Filed under: lawyer news or ethics — David Giacalone @ 10:42 am

nycb.org

You may recall that the f/k/a Gang called last week for the American legal profession to demonstrate its support for the brave Pakistani lawyers, who have been standing up in the streets against President Pervez Musharraf’s suspension of the legal system and constitution. Happily, according to American Bar Association President William H. Neukom, “The crisis in Pakistan . . . has sparked an unprecedented firestorm of concern among American lawyers.” (emphasis added) Indeed, the ABA has called for lawyers to stage rallies across the USA to show solidarity with their Pakistani brethren and the rule of law. “ABA Leads Lawyers in Nationwide Display of Solidarity with Pakistanis” (Nov. 13, 2007). There will be a silent protest rally by lawyers today in Washington, D.C. at noon. [update (3 PM est): At the foot of the post you’ll find my reactions to the lawyers rally at noon in Albany, NY, which I attended, and to the one in Washington, D.C.]

………………………….. prof. yabut rallies

Yesterday (Nov. 13, 2007), here in New York State, we got to see what such concern and calls to arms can do. The New York City Bar had urged its 22,000 members to a rally that was also sponsored by the New York State Bar Association and the New York County Lawyers’ Association, and other organizations, “in rallying support for the lawyers and judges affected by the emergency rule in Pakistan.” Indeed:

On the steps of the New York Supreme Court in Manhattan, “Catherine Christian, president of the New York County Lawyers’ Association, said Pakistani lawyers ‘are showing the world what it means to be a lawyer — fighting for liberty and an independent legal system.'” And, “Kathryn Madigan, president of the New York State Bar Association, also called for lawyers to speak ‘with one voice in defense of the rule of law” in Pakistan.” “Lawyers Rally at N.Y. Courthouse to Support Pakistan’s Attorneys” (New York Law Journal, by Daniel Wise, Nov. 14, 2007)

But, before you applaud too loudly, and try to guess how many New York lawyers showed up for that Courthouse rally, and for another one staged by the National Lawyers Guild at the Pakistani Consulate, let me remind you:

there are 147,000 active and resident lawyers in New York State, the vast majority of whom work in and around NYC
many, many thousands of lawyers have offices within a block or two of the Manhattan Supreme Court building and many hundreds work or had business in that building yesterday
the weather was gorgeous for the ides of November in NYC — maybe the best November 13th since weather records were kept, with the greatest risk to attendees being a little autumnal sunburn

noYabutsSN Well, it appears that fewer than 800 hundred lawyers took part yesterday in the two Pakistan solidarity rallies. Sadly, I do not believe it was because no one knew (did Musharaff jam everyone’s Blackberries and cellphones?) or because the protests were “splintered.” Everyone just had higher priorities at lunchtime on a lovely autumn day in Manhattan. Seems to me, curiosity alone should have ensured more than a triple-digit body count.

Will D.C-area lawyers, and those converging from around the country on the Nation’s Capital for the protest, make a better show of solidarity today around the U.S. Supreme Court at Noon today? There are 45,000 active and resident lawyers in the District of Columbia, which you may recall is a tiny piece of real estate. The weather isn’t as nice as New York’s was yesterday: there’s a 30% chance of showers, but the rain should hold off until after 4 PM, and there’s a rather moderate high of 55 degrees forcasted. On the other hand, I could find no mention of the rally on the D.C. Bar’s News page (but was very impressed to hear that author David Baldacci would be speaking at a bar dinner on Nov. 16th). You can find out details about the D.C. lawyer rally here.

I’ve got to be honest: so far, I am not impressed by our stand-up American Bar; but sadly also not surprised (see last week’s “first let’s compare all the lawyers: Pakistani and American“).

[AP photo/Susan Walsh] “Mohammad Akram Sheikh, a senior advocate and past president of the Supreme Court of Pakistan bar, right, participates, with members of the American Bar Association, in a rally protesting Pakistan near the Supreme Court in Washington, Wednesday, Nov. 14, 2007.” “Lawyers March for Pakistani Colleagues” (AP/Examiner, Nov. 14, 2007) And, see “Lawyers March on Washington Today in Solidarity with Jailed Pakistani Colleagues” (ABAJournalNews, Nov. 14, 2007)

update (3 PM est): First, I want to thank every member of the legal profession and academia who showed up at the rallies at noon today across the country — whether it was in Albany, NY; Seattle, WA; Washington, D.C.; Oklahoma City, OK; Raleigh, NC; or many other mini-“protests.” Second, I want to send up another BARonx Cheer in protest of all of the lawyers who could not take the time to walk a block or two to the nearest courthouse rally in their town.

The Albany, NY, rally took place on the front steps of the highest court in the State. I drove about 18 miles from Schenectady to be there. When it started, about 30 people were there, and a few more straggled in later. The weather was “fair & breezy,” with the temperature in the low 50’s. Unlike in Raleigh today, not one representative of the judicial system was in attendance, as far as I could tell. Basically, members of all the likely-suspect groups were there (and I was pleased to see them) — New York Civil Liberties Union (although its spokesperson said he was only speaking in his personal capacity), the The Albany Chapter of the National Lawyers Guild, and the Center for Law and Justice. The graybeards from Albany Law School also had a contingent, along with a handful of ALS students.

I was happy that the speakers took the US Administration to task for its lukewarm reactions to the Pakistani crisis. However, to be honest, I was a bit turned off by the self-congratulatory air of some who attended, and by the refusal to say anything negative about the vast numbers of private and government sector lawyers who work in Albany but could not be bothered to show up. The NYCLU rep said he was thrilled with the turnout. I was not.

Here are a few quick thoughts and feelings:

the New York State Bar Association headquarters is a block from the site of today’s Court of Appeals [that’s our highest court] rally in Albany. NYSBA has 118 staff members. Where were they?

Albany Law School is the alma mater of the majority of lawyers in the Capital Region. I wish its alumnus could have been infected by the spirit of the professors who showed up, and the handful of students (whose young professor was on hand and had “strongly enouraged” them to join the rally).

It was dispiriting that one Baby Boomer lawyer who was in attendance with a sign (did not catch his name for sure and don’t want to mis-identify him), seemed to have bought-in to the Bar Association Propaganda on the meaning of Shakespeare’s “kill all the lawyers” line. He even asked me, when I raised the issue, whether I understood its context. I told him I had actually even read the next line. It would be great if he would read our post “Shakespeare and Lawyers”, as well as last week’s post, but he said weblogs were not a place he hangs out, when I handed him the URL to this site. He assumed that I was not a lawyer, but I confessed that I am.

It’s great that there are a small core of leftish lawyers and law professors out there actively supporting the Pakistani lawyers and the rule of law — and doing something about it every day. But, no matter how much they might want to believe the mainstream American bar cares enough to do anything, I still say “show me the evidence,” while the Bar as a Whole continue sto be more into “show me the money.”

David Lat at Above the Law tried to boost crowd numbers at yesterday’s Manhattan rally. Given his vast audience of young lawyers, I’m even more disappointed in the turnout than earlier today. David posted earlier this afternoon, noting that Eric Turkewitz was far more pleased than I about the turnout in NYC. I guess Eric had lower expectations than I. There I go again being a damn optimist and crusty pessimist at the same time.

The Washington DC Rally was pretty anemic, when you think about how many lawyers were in that compact city around noon today. Terry Carter, writing for the ABA Journal, reports “More than 300 lawyers marched today on Washington in solidarity with lawyers arrested in Pakistan.” Writing for the organization that sponsored the march, Carter says “They were among thousands of U.S. lawyers galvanized by photo and video images of Pakistani lawyers battling in the streets in protest of the state of emergency—de facto martial law—imposed by Gen. Pervez Musharraf.” See “Lawyers March on Washington Today in Solidarity with Jailed Pakistani Colleagues” (ABAJournalNews, Nov. 14, 2007); and “Lawyers March for Pakistani Colleagues” (AP/Examiner, Nov. 14, 2007) . If this represents the “unprecedented firestorm of concern among American lawyers” touted by ABA President, I’d hate to see what an indifferent bar would[n’t] do. I’d like to believe this part of Carter’s ABAJournal piece, but I am skeptical about the make-up of the Washington marchers:

“The diversity of the type of lawyers that attended was far greater than I expected,” says Nancy Prager, an intellectual property lawyer in D.C. “I only met one full-time human rights attorney, and she was from the ABA.” The rest, Prager says, were corporate attorneys, litigators, white-collar crime practitioners and defense lawyers.

Prager says she was moved to join the march when she heard of the crackdown in Pakistan. She wondered: “Would most lawyers stand up if they knew they could be at the receiving end of a bullet—not a brief?

“The solidarity that we showed was heartening.”

Some apologists for the no-shows will surely say that “if things were really bad here in the USA, and the rule of law in serious jeopardy, lawyers would place themselves and their careers at risk in America’s streets.” But, right now, I can only repeat what I said last week:

I’d love to think the Bar as a whole — as opposed to a relatively few activists who toil mostly at the fringes of the profession — would be leading the fight against tyranny here in the United States of America, but you’d have to be naive to expect it.

I’m still betting that most American lawyers will talk a good game against tyranny, but — when push comes to shove — act to protect their wallets and future job prospects first. They’ll look a lot more like the targets of Shakespeare’s Cade Rebellion than like the revisionist heroes the bar associations like to talk about as the last great defenders of justice and the rule of law. Please, please, prove me wrong, Bar America, by sticking your neck out right now — no matter who you might offend — for the American Constitution.

update (Nov. 15, 2007): See “Ruly lawyers take to the streets,” by Robert Ambrogi for LegalBlogWatch. Bob wasn’t as disappointed as I:

“I am one who criticized these rallies for being splintered, but, unlike Giacalone, I am impressed nevertheless. Would I have liked to see more lawyers show up? Of course. But as the ABA Journal‘s Carter writes, it is almost unheard of for large groups of lawyers to march in protest of anything. To see hundreds of lawyers turn out in cities across the U.S. is a credit to all lawyers, even those who did not attend. The president of the New York State Bar Association, Kathryn Grant Madigan, put it well when she told the Wall Street Journal,”This is unusual for lawyers, but it’s the essence of what we’re about.”

You can find a lengthy Comment by me at Legal Blog Watch (two, if Bob doesn’t delete the one with typos). In sum: If it is “the essence of what it means to be a lawyer,” we shouldn’t make excuses for those who can’t be bothered to do such an easy thing as show up at a rally at lunchtime on a nice fall day. If I had paid more attention to Bob’s sentence saying that having hundreds of lawyers attend rallies “is a credit to all lawyers, even those who did not attend,” I would have strongly demurred. We in the legal profession have for far too long said the bad deeds of a tiny number of us should not affect the image of the entire profession. For the life of me, I do not see how the not very arduous good deeds of an even tinier percentage should somehow affect how we ourselves or the public regards lawyers.

hawk flight Apologies to those who count on f/k/a for a regular serving of haiku. Events have kept me from finding new poems to post today. I just realized, looking at my posting on Nov. 14, 2005, that two years ago today I was ending a short trip to D.C. (which was my home for two decades, starting with college, and still where my heart and many great friends reside), and driving from the Potomac back to the Mohawk River. Here are a few haiku and senryu I posted late that evening:

heading home –
one hawk
floats over the Beltway

entering New York:
another autumn hill
distracts me

………………………………….. by dagosan

old stomping grounds
the river still follows
its path

his headstone
rises with the moon
above the silence

……………….. by Andrew Riutta – from Full Moon Magazine (2005)

Comments (8)

November 8, 2007

let’s gossip about The Future of Reputation

Filed under: Book Reviews,Haiku or Senryu,lawyer news or ethics — David Giacalone @ 9:09 pm

Daniel J. Solove , the Godfather of Cyber-Privacy, recently made a few fortunate webloggers an offer many of us couldn’t refuse: a free copy of his new book in exchange for a review at our weblog. The George Washington U. Law professor, who is a prime contributor to the popular and critically-acclaimed Concurring Opinions weblog, didn’t let my frank review of the novel Anonymous Lawyer, nor my coining of the word e-shaming, deter him from sending me a copy of The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale Univ. Press, October 2007; download Chapter 1 here for free; now the full text is available for free here).

When the snappily-covered book arrived over the weekend, Solove’s part of the deal was fully performed and I was stuck (also thrilled to see it was a thin volume). So, thus, and to wit, here is my review of The Future of Reputation, which “offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations,” and whose author “contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.”

The Future of Reputation (Yale Univ. Press, Oct. 2007)

When I’m “reviewing” a book — whether orally for a friend or online for mass consumption — I implicitly start with two questions: 1) Was my time spent reading the book a good investment? and 2) Who (if anyone) is likely to benefit from (or enjoy) reading it?

The answer to #1 is easy: I’m glad I read this book cover-to-cover (well, okay, I skipped most of the footnotes). Although I’ve thought about many of the topics before, and discussed a few here at f/k/a, Dan Solove’s The Future of Reputation brings together the themes in useful and interesting ways, showing important connections and ramifications, and making me want to talk about them with friends (and foes) and to find solutions to the problems he raises. For example, now that it is all-too-easy to do: “Should people’s social transgressions follow them on a digital rap sheet that can never be expunged?” And, if your answer is “no”, what can and should the law do about it?

sleuthSm More important, having read his book, I want to sound the alarm Dan has raised, and I can now cite a respected and knowledgeable law professor if credentials are helpful. As Seton Hall Law Professor Frank Pasquale says in his post “Solove’s Future of Reputation” (October 17th, 2007):

“The lasting contribution of FutureRep is that Solove dons his other scholarly hat–as an interpreter of the humanities–to give us reasons why we should want to protect our privacy–and respect that of others.”

Confession: I even enjoyed reading many of the reviews of FoR, and I’m going to quote from and point to a few of them in this post. Inspiring thoughtful reviews is often the sign of a valuable book. The Future of Reputation is doing that, and many members of the public who wouldn’t be likely to pick up and peruse the volume will benefit from their summaries of the issues and themes, as well as their constructive criticism and suggestions for further study and inquiry. I hope Dan will continue to compile links to the better reviews and discussion at Concurring Opinions. [Update (Nov.10, 2007): Today, Dan started summarizing and responding to weblog reviews of FofR, including ours, here at Concurring Opinions.]

digital age
aging digits
on the keyboard

…………………………………. by dagosan

Question #2 takes a bit more thought. Here’s my answer to “Who (if anyone) is likely to benefit from (or enjoy) reading it?”

Everyone Who Cares About Kids (including future-oblivious young adults): If your child(ren), students, or young relatives post information about themselves online, or have friends who do, you need to read this book — and then perhaps read the kids The Future of Reputation Riot Act. Prof. Solove, using examples that are bizarre enough to keep youngsters interested, has a message that needs to be grasped by folk who often have little comprehension or care about the longterm consequences of today’s actions (think, e.g., tattoo sleeves):

“From the dawn of time, people have gossiped, circulated rumors, and shamed others. These social practices are now moving over to the Internet, where they are taking on new dimensions. They transform from forgettable whispers within small local groups to a widespread and permanent chronicle of people’s lives. An entire generation is growing up in a very different world, one where people will accumulate detailed records beginning with childhood that will stay with them for life wherever they go. .”

As criminal defense lawyer Scott H. Greenfield ably states at Simple Justice (“Book Review: The Future of Reputation,” Oct. 30, 2007):

“The first half of the book is quite a cautionary tale, to be read and digested by anyone who posts online, or knows anyone who posts online, or doesn’t know anyone and rarely leaves the house. The point is, no one is safe, and Dan backs up the claim with example after example. The only reason the stories are funny is because they aren’t about you. Yet.”

And, Kathleen Fitzpatrick got Solove’s message and issues this warning in her Barnes & Noble review of The Future of Reputation:

Bizarrely, the threat that we faced in childhood, that some stupid thing we’d done in third grade would be placed on our “permanent record,” suddenly has the potential to be real — and available to anyone with a few minutes, a web browser, and access to Google.

Of course, it’s the stupid things we did when old enough to know better, but not wise enough to restrain ourselves, that should really worry us.

Libertarians and Free-Speech Absolutists who believe that, when it comes to speech, having No Laws and No Norms always increases our freedom and liberty: Prof. Solove argues that “protecting privacy — and restricting free speech in some cases — can actually advance the reasons why we protect free speech in the first place.” He notes that “this seems paradoxical, [and] some explanation is in order,” and thus spends a good many pages persuasively showing that “privacy often furthers the same goals as free speech” — including the enhancement of personal autonomy, democratic discussion and debate, and achieving truth in the marketplace of ideas.

. Therefore, The Future of Reputation insists that a balancing of free speech and privacy issues is necessary, and “speech of private concern should be given less protection than speech of public concern.” Among the many pertinent points made by Solove in FofR, you’ll find:

Invidual Autonomy Requires Privacy: “The disclosure of personal information [even when true] can severely inhibit a person’s autonomy and self-development. . . . Privacy allows people to be free from worrying about what everybody else will think, and this is liberating and important to free choice.”

Preserve the Privacy Torts: “Several scholars think that the Supreme Court should abolish the privacy torts when they conflict with free speech. . . . There are compelling reasons, however, why the Supreme Court is right not to eliminate the privacy torts, especially the public-disclosure torts.”

Permanent Shaming Stifles Freedom: Beyond a tendency to impose excessive punishment for the “crime,” the indelible Digital Scarlet Letter — which can now be attached through internet gossiping and exposure of misdeeds — can greatly limit the freedom of shamed individuals. “Shame’s tendency to lead to withdrawal and alienation makes it troubling. Without allowing a wrongdoer to reenter community life, shame becomes quite destructive. Wrongdoers are not educated or simply taught a lesson. Their reputation is wounded, and they are left without a chance to become part of the community again.” This alienation hurts the subject of shame, as well as the society that loses the fruits of his or her full participation and contributions.

Our society and our Constitution protect speech for policy reasons — to promote certain goals and values — not because free speech is a deified (or reified) goal in itself. Therefore, I hope free-speech absolutists and those tending in that direction will attend to this book. If they bring an open mind to the discussion, they’ll benefit, and so will the rest of us.

Techno-Fatalists & Digi-Philes who accept every new form of privacy invasion as merely “the price of progress” (or of free enterprise), who are hypnotized into paralysis by repetition of the word “transparency,” or who believe there is nothing we can do about it: These folks need to read and heed Dan Solove’s warnings and his suggested solutions (and, like a good professor, he repeats them often to help them sink in). As a society, we can nurture appropriate norms and evolve news ones. As citizens of a Republic, and committed legal experts, judges and law makers, we can find workable legal solutions to at least some of the problems.

the gossip
her yard fills
with leaves

…………………………. byTom Painting – from his chapbook piano practice

In her review for the New York Sun, “The Web As Knitting Circle” (November 1, 2007) Christine Rosen says “As Mr. Solove’s thoughtful book reminds us, our technologies give us a heretofore-unknown level of control over information. But when it comes to our ability to manage information about ourselves — including the basic human need to defend our reputations — this control can prove illusory.” Solove doesn’t solve all the legal and social problems and threats to privacy, but Prof. Pasquale puts it well:

“His recommendations subtly weave together proposed changes in law, norms, and technology to help tame the reputational ramifications of persistently searchable, replicable, and unaccountable data stores.”

CyberLaw Nerds and Groupies: As sentences like the one immediately above, suggest, this bunch gets pretty excited thinking about the intersection of technologies and law. Pasquale even called FofR “a fun read,” and Solove admits to being “giddy with excitement” over the issues raised by the evolving internet. It’s easy to spot this crowd, and this book is obviously for them — but, forget about waiting for Christmas to send it as a gift. They’ll have it read, and thoroughly highlighted, long before then.

Anyone who cares about her or his own Reputation (and has ever made a mistake, revealed too much, or been lied about or misunderstood by family, friends or foe): If you don’t understand that gossip online is much more dangerous than old-fashioned rumor-spreading and idle chitchat over coffee or on the phone, you need to read this book. Ditto, if you think that staying offline yourself insulates you from the problems raised by Dan Solove. As the book’s Synopsis suggests, if you care about your reputation, you need to consider:

What information about you is available on the Internet?

What if it’s wrong, humiliating, or true but regrettable?

Will it ever go away?

Once you’ve thought about it, you will surely agree with Dan Solove that (1) there must be a broadened scope of protection for privacy. It cannot merely be a binary question, where anything said or done in public automatically forfeits all privacy rights. In the age of the internet, our concept of protected privacy must take into account “a cluster of nuanced expectations of accessibility, confidentiality, and control.”

And (2) the law must “address the problems productively yet with moderation.” Neither “The Libertarian Approach” (with its great reluctance to hinder the flow of information) nor The Authoritarian Approach (“designed to employ strict controls over the spread of information”) is appropriate. The law would take a moderate path and “help shape the norms that govern the circulation of information.” However, Solove stresses that the law “works best when it can hover as a threat in the background but allow most problems to be worked out informally.”

Legal Policy Wonks: This book is the perfect playground and mosh pit for guys and gals who enjoy designing or critiquing statutory (or common law) legal solutions to important societal problems. Dan Solove has suggested an ample variety of potential legal changes (with lots of details both offered and lacking) to keep the wonks up late at night debating the proposals — talking them out, fleshing them out, or throwing them out. Of course, law students and professors, lawyers and legislative staffers, come readily to mind. But, you don’t need a law degree to be intrigued by the proposals in The Future of Reputation, and to have a contribution to make in the discussion this book should inspire and provoke. While admitting that “the law is far from a magic elixir,” Solove’s Suggestions for better protecting privacy and reputation include:

denying webloggers immunity under Section 230 of the Communications Decency Act, for defamatory statements posted by commentors, once the target puts the weblog proprietor on notice of the defamation and asks for a take-down

greatly expanding the right/duty of confidentiality for information that is private and not newsworthy

requiring, in order to avoid inappropriate and excessively expensive lawsuits, that “a plaintiff first exhaust informal mechanisms for dealing with the problem,” and

limiting monetary damages

borrowing lessons from copyright law in how to control the spread of information

first glass of wine
Google keeps asking
“Did you mean . . . . ”

…………………………………. by dagosan

It’s rare that I want a non-fiction book to be longer, but The Future of Reputation would have been more satisfying if it went into more depth on many of the issues it raises (and especially on the solutions offered) — if only in appendices for readers needing further explanation. For example:

Dan speaks of wanting the law to “cast a wider net, yet have a less painful bite,” and of using the law to shape norms rather than imposing direct prohibitions. But, laws that create wider nets of responsibility and impose new restrictions are unlikely to be effective if their “bite” doesn’t draw some blood or leave a scar. Likewise, new norms usually only make an impression and change behavior when there is a genuine downside to ignoring their prescriptions and proscriptions.

I assume Dan doesn’t want to give specifics that would scare away the freedom-loving, often self-absorbed denizens of the internet he is trying to convert into responsible citizens. But, without more detail and discussion of how laws and legal principles would be shaped — so as to impose discipline on the likes of bloggers, angry consumers, jilted lovers, and social network entrepeneurs — practical-minded lawyers, judges and law-makers are left unconvinced that the Moderate Approach will really have significant moderating effects.

The Future of Reputation says “The law should increase its recognition of duties of confidentiality.” Dan writes:

“When we share information with friends, family, and even strangers, an implicit expectation often exists that they will keep it to themselves. The law should protect and reinforce these expectations. More broadly, the law should afford people greater control over their personal information.”

Frankly, being told that lawyers and doctors have to keep confidences, so the rest of us should, too, is not sufficient explanation. The law has created limited rules of professional confidentiality because we as a society have something to gain from clients, patients, and penitents being fully truthful with lawyers and doctors and priests. Despite this, those confidentiality protections are often circumscribed, limited in application, and under attack. [We don’t even require blanket confidentiality now within a marriage, but merely allow a spouse to invoke it when being asked to divulge information about the other spouse.] The lawyer-client analogy simply doesn’t get us very far. There does not seem to be an analogous reason to motivate individuals to tell the whole truth about their personal situations to families, lovers, and friends. Before imposing penalties for the disclosure of “confidential” information, we need more justification and more details on how it might work in practice.

I’d also wish Dan helped us understand better whether it is possible to ever remove information completely from the Internet. Can search engines resurrect old gossip from

Although he notes that gossip can have benefits and isn’t always hurtful, Dan Solove pretty much wants to remove gossip from the internet (or at least give affected individuals the power to have it removed), and says “People should avoid Internet shaming,” and bloggers should “ask permission before speaking about others’ private lives” or “posting pictures.” I’d like working definitions of terms such as “gossip,” “shaming” and “private lives,” and more explanation of just how the law would/could differentiate between “newsworthy” facts about the lives of individuals and “personal information” that we can insist be kept private and off the internet. Both gossip and shaming can play useful or neutral roles [see our prior posts “good gossip bad gossip” (Nov. 7, 2007) and “e-shaming and lawyer conduct” (March 2005)]. Until we understand better what Dan wants to ban from cyberspace, I can only embrace his proposals very tentatively.

searching my name —
she finds an advocate and
a sex offender

……………………………………………. by dagosan

Like Kathleen Fitzpatrick, I believe it’s “a bit jarring when, late in the book, Solove points to current copyright law as a model for how private information might be controlled. In her Barnes & Noble review, she notes that:

“[Solove] acknowledges that the ‘balance of freedom and control’ in copyright law ‘has been the subject of considerable debate and controversy,’ but he doesn’t consider the difference between the control of information for profit-making purposes and for purposes of maintaining personal privacy. Copyright law and privacy issues make odd bedfellows; is the suggestion that we ‘own’ the details of our private lives?”

I’m not a copyright expert (nor even a neophyte), but I believe that body of law offers no protection to facts qua facts — it doesn’t protect information, it protects the artist’s creative “work”. We need more input on how copyright law might inform privacy law. Perhaps some experts in that field will review the book and help us sort it out.

Likewise, Scott H. Greenfield ‘s doubts about requiring an attempt at alternative dispute resolution prior to bringing a lawsuit to protect internet privacy rights seem justified (and I was a mediation pioneer and strong advocate of avoiding litigation). In his book review at Simple Justice, Scott says:

“Boiled down, Dan would require putative plaintiffs and defendants to engage in informal efforts to resolve problems (mediation and/or arbitration) before litigation. How would one compel this? Who would mediate? What would happen with the ongoing ruination of a person’s life while they were awaiting an appointment with a mediator? There are no answers.”

To those questions, I would add: Are we going to require telephonic or internet-based ADR, for parties who do not (miraculously) happen to live in the same area? I also wonder if Prof. Solove has considered how the typical injured person will afford the expense of mediation, not to mention the much more formalized option of arbitration. We need more flesh on these bones before concluding that Dan’s middle ground approach will offer any real deterrent to those who injure the reputation or invade the privacy of others in cyberspace.

Wishing The Future of Reputation had more explication and specification in no way keeps me from recommending it strongly to both those who understand the dangers it describes and, especially, to those who don’t. Scott Greenberg captured my own feelings last week:

“While The Future of Reputation may not produce any iable cure, it is more than worthwhile to read to understand and appreciate the illness. Reputation makes it evident that we who live in the age of the internet have much more at risk than we realize, and to the extent it’s possible, it is up to us, our friends and acquaintances, and even our enemies, to create a new set of norms that will allow us to survive with some vestige of privacy, and maybe even some dignity, intact. For this alone, Reputation is important and should be read by parents, children, and especially anyone who thinks this could never touch them.”

Thanks to Dan Solove for sending me The Future of Reputation. I hope he’ll use the book’s website as a place to answer some of the questions raised by his reviewers, and perhaps to present proposals made and developed by others. The stakes are high, and I’m going to be driving my kith and kin crazy over the holiday season telling them about the issues raised in The Future of Reputation. Someday, they’ll thank me and Dan for sounding the alert.

ashamed–
eating then going to bed
I hear the winter prayers

……………………………………… by ISSA, translated by David G. Lanoue

empty bottle
a few words
I would like to take back

……………………………..……… by John Stevenson – Quiet Enough (2004)

phone old p.s. For other f/k/a posts treating issues raised in The Future of Reputation, see “e-shaming and lawyer conduct” (March 2005); “Ethics for the Web? Lean Don’t Lie” (January 19, 2004); “did shakespeare want to kill all the journalists? bloggers?” (Nov. 8, 2004); and “the heedless snowman” (Dec. 27, 2004)

Afterthoughts & Updates:

(Nov. 9, 2007): Add corporate General Counsel to the list of folks who should buy this book and make its contents widely know. See “GCs to Employees: Think Before You Send” (Fulton County Daily Report/Law.com, Nov. 9, 2007). Due to electronic discovery, the message for employees from their GCs is: “E-mails, text messages, BlackBerry communications all are potential time bombs if not worded thoughtfully and with discipline. . . . [A]bove all . . . never say anything in an e-mail that you wouldn’t want to see displayed on a giant screen in a court room in front of a judge and jury even years from now.”

Comments (1)

November 6, 2007

first, let’s compare all the lawyers: Pakistani and American

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 1:17 pm

…. Pakistani Lawyers v. Police [WashPost photo}

If I wore one, I’d be taking my hat off this morning to the Pakistani lawyers who’ve been literally standing up by the thousands — despite the very real immediate risk of physical injury and arrest — “demanding an end to emergency rule and vowing to keep up their dissent until President Pervez Musharraf resigns.” “Lawyers Take On Musharraf” Thousands Demonstrate In Cities Across Pakistan” (Washington Post, Nov. 6, 2007) Also see, “Power of Attorneys” (Slate, Nov. 6, 2007); “Pakistan Fires Top Court, Lawyers Protest There and Elsewhere” (ABAJournalNews, Nov. 5, 2007); and, for direct perspective and news see the Pak Lawyer weblog (via UAlberta Law Faculty Blog).

In “Pakistan Attempts to Crush Protests by Lawyers” (Nov. 6, 2007), the New York Times reports today that:

“At one point, lawyers and police officers clashed in a pitched battle, with lawyers standing on the roof of the High Court throwing stones at the police below, and the police hurling them back. Some of the lawyers were bleeding from the head, and some passed out in clouds of tear gas.”

And WaPo exclaims:

“While some political opponents and rights activists also participated in the protests — the most significant since Musharraf declared emergency rule Saturday — it was the lawyers who dominated.”

NYT photo, via Daily Kos

How are American lawyers responding to the sight of their Pakistani brethren putting their backs into the effort, and their backsides at risk, for the cause of constitutional government? Mostly, it seems they are patting themselves on the back for being part of such a noble profession — often by whining about, or again misinterpreting, William Shakespeare’s famous quotation: “First thing we do, let’s kill all the lawyers.” [from King Henry VI, Part II, IV, ii]. See, e.g., Mark Cohen at the Minnesota Lawyer Blog; with “What Shakespeare really thought of lawyers;” Steve Day’s “First let’s kill the lawyers in Pakistan,” at his The Last Chance Democracy Cafe (Nov. 6, 2007); criminal defense lawyer Scott Greenfield at Simple Justce, “The First Thing We Do, Let’s Kill All The Lawyers” (Nov. 6, 2007); and Legal Times Senior Editor Douglas McCollam, “When Liberty is on the line” (Nov. 14, 2007).

For the un-lawyered version of the meaning and context of Shakespeare’s JD-icide quote, see our post “Shakespeare and Lawyers: the Bar’s propaganda” (March 1, 2004), which rebuts the bar association party line that Shakespeare was celebrating the important role lawyers play in maintaining the rule of law and the fruits of civilization. The conversation between Jack Cade and Dick the Butcher is not a discussion on how to plot to win a rebellion against lawful government. Cade is proclaiming what he will do “when I am king.” In the context of the Cade and Tyler uprisings, lawyers were seen as protecting the privileged and corrupt establishment, as part of the resistance to needed social change and justice. For example, working for their masters, lawyers helped to return peasants to servitude or serfdom, by finding faults in deeds of manumission.

Whatever William Shakespeare actually felt about the legal profession, a good part of his audience would have enjoyed hearing Dick the Butcher’s idea for improving society once their rebellion was successful.

Pakistani lawyers are indeed acting to support the regime of constitutional law (a bit tardily, some might point out, since Musharraf has always been a military dictator). But, who in the USA would want to bet the ranch (or the Constitution) on the American legal profession putting itself on the line en masse? Which lawyers would be out there confronting the military police, risking a bloody head, a night in jail, and a blot on their resumes?

Would it be the younger generation that seems to support civil disobedience in defense of justice, so long as you don’t actually get punished for it? The self-proclaimed idealists of Generation S, who mistake sedentary symbolic gestures (“slacktivism“) for activism? [see, e.g., this prior post]
The graduates of our most elite schools, who almost always seem to choose the golden manacles, allied with big business, and take money over happiness and a balanced life?
The psycho-babbling warriors who are leading the revolution against billable hours, but expect larger fees and higher profits for their efforts?
The “consumer” and “justice” trial lawyers who will battle nasty businesses and tort-feasors as your champion, so long as you hand over one-third or more of your damages (no matter how little lawyering it takes to win)?

I’d love to think the Bar as a whole — as opposed to a relatively few activists who toil mostly at the fringes of the profession — would be leading the fight against tyranny here in the United States of America, but you’d have to be naive to expect it.

ABA President William Neukom did come out with a Statement yesterday urging “President Musharraf to rescind these actions immediately,” and noting that “shutting down a nation’s lawful institutions of justice will hurt, not help, the fight against terrorism.” But, even from a safe distance in America, Neukom and the ABA won’t even ask for civil disobedience, but instead call “on all governments, bar associations and other civil society organizations to support the rule of law, by using every peaceful, legal means to persuade President Musharraf to restore justice to the people of Pakistan.” “ABA President Neukom Urges Restoration of Justice to Pakistani People” (Nov. 5, 2007; emphasis added)

Although shanikka at Daily Kos also played on the Shakespeare-Kill-Lawyers theme yesterday (Nov. 5, 2007), I think she got it right: for the past seven years in the USA, it has “in large measure” been lawyers standing in the way of the current Administration trading in our Constitution in the name of fighting terrorism. Shanikka notes:

“Sure, here in America lawyers not yet literally sitting in the streets before a phalanx of military thugs, or pushing back against barricades being propped up by jack-booted military thugs, as they were in Pakistan in March, 2007 and are again today. But for the past seven years, lawyers have been in the courts, been in the blogs, and been in the forefront of fighting back, through the insistence on our Constitution and rule of law, against Bush’s own campaign to weaken our country’s Constitutional principles and our rights as citizens and non-citizens all in the name of his War on Terror.”

But, the profession cannot as a whole take credit for the work of a relatively few lawyers. Nor should it feel a lot of pride because so many lefty lawyer-webloggers have devoted so many pixels to skewering the Bush Administration. Recall, instead, (1) all those with law degrees who’ve offered knee-jerk defenses based more on political and ideological necessity than legal principle, and (2) all those who have said nothing and done even less.

Shanikka urges (emphasis mine):

“So the next time you get the opportunity hug a lawyer. Especially a public interest lawyer. She or he might just be the one who threatens to throw eggs someday if anyone tries here what they are (sadly) succeeding with in Pakistan right now.

So, don’t just hug a lawyer, or feel special pride as a lawyer, because the Pakistani legal profession is willing to put its bodies on the line to uphold its principles. I’m still betting that most American lawyers will talk a good game against tyranny, but — when push comes to shove — act to protect their wallets and future job prospects first. They’ll look a lot more like the targets of Shakespeare’s Cade Rebellion than like the revisionist heroes the bar associations like to talk about as the last great defenders of justice and the rule of law. Please, please, prove me wrong, Bar America, by sticking your neck out right now — no matter who you might offend — for the American Constitution.

Afterthoughts:

(2 PM, Nov. 6) Michael Melcher at The Creative Lawyer, “Pakistan’s lawyers show us how it’s done” (Nov. 6, 2007), has a post worth reading. Among other things, he notes that the Pakistani lawyers don’t know how this will turn out, but are “doing what feels right for now;” points out that “in a chaotic situation, attention to basic principles — like a belief in the rule of law — can guide action;” and asks “Would I do the same? I don’t know. But I hope so.”

even on the little islands
Buddha’s law…
swallows

………………………… by Kobayashi Issa, translated by David G. Lanoue

(7:30 PM EST): My often-missed weblogging friend George Wallace, posted a longer-than-usual piece this afternoon at his award-winning Fool in the Forest. Although he starts with a little Islamic-Lawyer/Buddhist-Monk joke, George gets serious about “a looming danger to our own Constitution,” that comes “armed not with teargas and truncheons or other obvious tools of tyranny, but with far more dangerous weapons: Good Intentions and Broad Bipartisan Support.” It’s H.R. 1955: The Violent Radicalization and Homegrown Terrorism Prevention Act of 2007. Echoing our cry above, George says:

[I]t is our role as lawyers to watch over our laws and to protect the Constitution that underlies those laws and the nation. If not on this issue, then on another: “stick your neck out right now — no matter who you might offend — for the American Constitution.”

update (Nov. 14, 2007): See our post “not impressed yet by US lawyers re Pakistan“

Japan’s Haiku Master, Kobayashi Issa, didn’t know about Constitutions, but he defended, lived, and wrote about his version of Buddha’s Law:

world of Buddha’s law–
even a dog on winter
pilgrimage

world of Buddha’s law–
the snake strips
his clothes

flitting butterfly—
thus is Buddha’s law
in this world

float, sea slug–
Buddha’s law permeates
this world!

spreading as far
as Hokkaido…
Buddha’s law and blossoms

………………………… by Kobayashi Issa, translated by David G. Lanoue

Comments (2)

November 5, 2007

what’s a “lunch-pail lawyer”?

Filed under: Haiku or Senryu,lawyer news or ethics,Schenectady Synecdoche — David Giacalone @ 1:15 am

“I like to call myself a lunch pail lawyer.” Rich McNally

Rich McNally is a lawyer who’s running, as a Democrat, to become the District Attorney of Rensselaer County, New York (which includes the City of Troy, here in the NY Capital Region). His opponent is Republican Greg Cholakis. The current District Attorney, Republican Patricia A. DeAngelis, is leaving the office in disgrace (see our post from Jan. 2006, “admonish D.A. DeAngelis“). The most remarkable thing about the McNally-Cholakis race is that both candidates are amply experienced and well-respected — due mostly to the fact that the Rensselaer County Republican Party machine, dominated by Senate Majority Leader Joe Bruno, has finally (“out of desperation“) chosen someone other than a politically-connected hack or spoiled scion to run for the office.

McNally vs. Cholakis [The Troy Record]

As TU columnist Fred LeBrun put it last May, “[E]ither way, Rensselaer County won’t be embarrassed by its district attorney. Isn’t that remarkable?”

For the record, the Albany Times Union endorsed Cholakis last week, saying “While we recognize the value of Mr. McNally’s experience, in our view the more important issue is which candidate offers the best hope of restoring order, trust and integrity to the district attorney’s office. On that basis, we endorse Greg Cholakis.” And, The Troy Record endorsed Cholakis this morning, preferring his plan to serve solely in an administrative role and no longer try cases, as well as his “passion for justice” and “progressive ideas,” but stating that “When Rensselaer County voters go to the polls on Tuesday, they will find two decent, capable men vying for the position of county district attorney.”] update (Nov. 6, 2007, 11:50 PM): With all precincts reporting, Cholakis leads by only 213 out of 36,683 votes (Albany Times Union); The Troy Record reports there are 2000 uncounted absentee ballots that will decide the election. update (Nov. 7, 10 PM): The race is still too close to call, but tallying mistakes were discovered that put McNally 202 votes ahead of Cholakis. see FoxNews23. update (Nov. 9, 2007) see Troy Record, “McNally has edge in DA’s race – for now.”

final election update (Nov. 16, 2007): McNally wins! See our post “McNally to be the Lunch Pail D.A.“

Indeed, I wouldn’t be writing about the race now, except that my interest has been aroused by a phrase I kept hearing in McNally’s tv ads and seeing in newspaper stories. Rich McNally keeps saying:

“I like to call myself a lunch pail lawyer.”

A fan of interesting turns-of-phrase, and all-around curious guy, I decided that I just had to discover what the unfamiliar term meant. However, when I Googled “lunch pail lawyer,” there were only four results, all relating to McNally’s campaign. It didn’t help that a reporter at the Troy Record got tripped up on a homonym and had McNally referring to himself, at the candidate debate, as a “lunch pale lawyer.” (“District attorney candidates square off,” by Danielle Sanzone, October 4, 2007). That rendition, with its suggestion of a Casper Milquetoasty kind of D.A., could not be what McNally had in mind — especially since both candidates have been far too professionally-dignified for McNally to be pulling the ethnic card against Cholakis with his self-sobriquet.

Of course, I do not even want to speculate on what a “lunch pal lawyer” might be.

coming to lunch
on the sleeping man…
mosquito

the farmer’s lunch
dangles…
on the scarecrow

……………………………………. by Kobyashi Issa, translated by David G. Lanoue

With little else to go on from within the legal profession, I decided to go directly to the source. At his campaign website, Rich McNally explains his use of the term:

“I like to call myself a lunch pail lawyer.

“The work of the prosecutor starts with the fundamentals.

“Hot dog lawyering and courtroom histrionics are the mark of an unprepared prosecutor. Blather and bluster do not win convictions; good sound case building, diligent preparation and vigilant watch for the unexpected wins convictions.” (And see, Times Union, “McNally launches bid for Rensselaer County DA,” June 12, 2007)

He has also said: “[Being district attorney is] a lawyer’s job. It’s not grandstanding. I call myself a lunch-pail lawyer, and what I mean by that is that I don’t want to be seeking headlines. I don’t want to be a media star. I want to be like the guy that plows the road in the winter. You’re not going to know my name unless I’m not getting the job done.” “Rensselaer Co. DA race is one to watch” (WNYT.com, Oct. 30, 2007)

Frankly, Rich’s explanations left me with an unclear picture and more questions — especially after visiting The LunchBox Pad (and its timeline); the Smithsonian’s Taking America to Lunch exhibit; Aladdin Company; Wholepop.com’s “Pailentology: a history of the lunchbox“; and The Lunch Pail fast food diner (with its photo album); and after finding this little item at McNally Books and eBay. For example:

Would Rich be a Kung Fu Lunch Pail (1974) kind of D.A.?

lunch alone
without a book
i read my mind

…………………………..…………………… by tom clausen

…………………………… Gunsmoke?

Or Return of the Jedi, instead?

easter snow
a piece of egg shell
in the sandwich

…………………………………… by DeVar Dahl from A Piece of Egg Shell (Magpie Haiku Press, 2004)

Will he work late a lot and need an old-fashioned Miner’s Dinner Bucket?

last sandwich
from the loaf
the two ends

……………………………… by Tom Clausen – Upstate Dim Sum (2005/II)

Or, although McNally contrasts himself with D.A. DeAngelis, and insists he will follow the rule of law, with justice more important than any convictions rate, is he secretly a Kiss lunch pail (1977) lawyer, or heavy-metal, Marilyn Manson “I’ve got my lunchbox and I’m armed real well!” kinda guy?

lunch at the zoo
even among gorillas
some who sit apart

…………. by Peggy Lyles from To Hear the Rain (Brooks Books, 2002)

– Or, maybe a Knight Rider prosecutor (1981)?

. . . . . but surely not a Rambo

business lunch
starts with a compliment –
he raises his knife

………………………………….. by dagosan

Of course, when a candidate uses a phrase repeatedly in his ads, he is counting on the public drawing on its own understanding of the phrase. Undaunted in my quest, and wondering what connotations the term might have for voters, I soon discovered while Googling that “lunch pail player” is a sports cliche. Web surfing allowed me to compensate a bit for my sport-less lifestyle, and to learn that “lunch pail player” is used in many contexts, including:

hockey – Islanders Glenn Healy: “He was not blessed with Patrick Roy, or Dominick Hasek stats, but you can see that he was a blue-collar lunch pail player, who always gave his 110% every time he stepped out on the ice.“
Baseball: 1) Arthur Rhodes is a “lunch pail player…meaning he gives all he can, and more…” 2) Per the PawtucketTimes.com (April 4, 2007), Jim Rice — “arguably baseball’s most dominant offensive force during his heyday” — “never looked for the spotlight. He was a superstar who acted like a lunch pail player.”

Football: 1) Jonathan Goodwin, 6-2, 290, Michigan is a “Lunch-pail player who plays well in space and can take on linebackers. Typical Michigan lineman . . . Isn’t real explosive or athletic. [from Sporting News] 2) NY Giants Jim Burt (per the New York Times) —

‘“Jim Burt,” said Coach Bill Parcells, ”runs two quarts low.” To which Burt replies, ”Bill Parcells runs a little low, too.” Actually, Burt is one of the coach’s favorites. Despite a new contract that will pay him $325,000 this year, Burt is a blue-collar, lunch-pail player whose success has come from hard work. That has been his hallmark since his first days with the Giants as an undersized rookie free agent.

3) Buffalo Bills ninth-year man Jason Whittle, whom Buffalo signed to a one-year, $1 million deal in free agency. . . is definitely not great, but he’s a so-called lunch-pail guy who does whatever the coaches ask, and he normally fares at least decently. 4) Per NorthJerseySports.com, “Looking at him, high schooler Cervini is not the eye-candy quarterback. He’s not 6-foot-3, 215 pounds (more like 5-11, 190), he’s doesn’t have the rifle arm, and he’s not a 4.5 40-yard dash guy. He is what coaches like to call a lunch-pail player, the type who will outwork you and maximize his potential.

basketball – 1) San Antonio spurs: Their nominal center Fabrico Oberto has become an indispensable lunch-pail player who sets perfect screens and seals off his man under the basket. 2) Lunch Pail Player of the Year (Blue Collar Athlete)–Mike Allocco-South Plainfield; 3) And, NBADraft.net says that

“Adrien is the definition of a lunch pail player. He fights for every rebound, every loose ball, and puts his heart into everything he does on the court .”

4) And girl’s hoop MVP from Pinole Valley Marnique Arnold . . . is a classic lunch pail player, doing all the dirty work for the Spartans. She can score, rebound, handle the ball and play defense, but it’s her all-out hustle that really stood out.

boy shooting baskets–
deep snow piled
all around him

………………………. by lee gurga from Fresh Scent

tennis – Jim Courier [Tennis.com, “40 Greatest Players,” May 2006, photo by Michael Cole/Getty Images]

“The small-town roots, the baseball cap, the nose-to-the-grindstone work ethic— Jim Courier was red-blooded Americanism personified. He used his inside-out forehand to muscle the ball around the court like no player before him. Courier made you tired just watching the effort he put into his strokes. Not surprisingly, his blue-collar game gave rise to the knock that he wasn’t talented but simply worked hard. “That’s the biggest compliment anyone could give me,” the Florida native once said. . . . Yet the image of Courier as the lunch-pail player endures, especially when he went up against flashier rivals like Andre Agassi. It was easy to imagine Courier muttering beneath those sarcastic smirks, “You can have the girls and jets. I’m here to win. Now get out of my way.” –JAMES MARTIN

Finally, outside of the sports context, we see this analysis of Misha Siegfried, guitarist for the Milawaukee rock band Fire on Your Sleeve:

“[U]nderstated guitar lines are not a display of pyrotechnics, because they do not have to be. Siegfried is a ‘lunch pail’ player: nothing too fancy, but plays all the right notes. ‘I’m all about the nuance,. Siegfried says.” (OnMilwaukee.com]

touchdown
momentum shifts
to the bookie

Indiana farm
one tractor
three hoops

……………………………. ed markowski

Tracking the public’s use of the term has given me a better understanding of the “lunch pail” moniker. It symbolizes hard work, out of the spotlight, without flash. And, always with deep blue-collar roots.

Of course, before the first true kids’ lunch box came out, “a lunch pail wasn’t chic — on the contrary, it was a sign you were far enough down the pay scale that you didn’t have time or money for a decent hot noontime meal.” See Paileontology.

As the Smithsonian’s Lunch Box exhibit explained, in Taking America to Lunch, “American industrial workers have often carried their lunch in plain metal buckets. Since the mid-19th century, miners, factory workers, dock hands, and other laborers have used sturdy dinner pails to hold hard-boiled eggs, vegetables, meat, coffee, pie, and other hardy fare. In 1904, “thermos” vacuum bottles began keeping workers’ drinks hot or cold until the noon whistle blew.”

This interpretation underscores the original sneaking suspicion that I had about Rich McNally’s embrace of his lunch pail credentials and aspirations: he’s contrasting his humble roots with the privileged background of his opponent. Greg Cholakis has served 14 years as a staffer in the county Office of the Public Defender. But, he goes to work in a courthouse named after his father, and his sister is currently a Family Court judge. As the Albany Times Union pointed out:

“Yes, his father, Gus, was a highly successful district attorney, and later a well-respected federal judge.

“That gives him name recognition, but Greg Cholakis, in our view, isn’t running on his family name.”

Rich McNally lives in the pleasant Village of Valley Falls with his lawyer-wife and two young children. He graduated twenty years ago from St. John’s University School of Law, has a comfortable private practice with Holbrook, Johnston, Tate & McNally, in Hoosick Falls, and was recently President of Rensselaer County Bar Association (2005 – 2006). He also stays fit with the very middle-class/professional pasttimes of “cycling, swimming, skiing, and hiking and winter mountaineering.” (see his resume) Nonetheless, McNally — a native of far-away Syracuse, NY — can’t match the aura of Rensselear royalty that goes with the Cholakis name — especially since it is a name synonymous with integrity and lawyering excellence.

So, the “lunch-pail lawyer” designation is surely a bid to win over the blue collar voter in Rensselear County — those who feel left out of the economic optimism that goes with the TechValley designation and the County slogan, “A Climate for Growth.” Here’s how McNally describes his background, on the About page of his website (prior to introducing the “lunch pail” theme):

I come from a family of eight children; I have five sisters and two brothers; Our parents worked hard to provide for us. Raising eight children was not easy. We weren’t by any stretch of the term “wealthy”.

And what I learned most from my parents is that hard work and self reliance are their own reward. Don’t rely on the laurels of those who came before you. That is vanity.

There’s nothing cynical about this approach (and it surely fits in with the base of the Democratic Party). Furthermore, our profession and our clients would surely be much better off if we had more lawyers with the work ethic of the “lunch pail lawyer.” And, there is no doubt that a District Attorney’s office needs a lot of assistants with those attitudes and habits.

I’m not sure, however, that a District Attorney should limit himself or herself to that nose-to-the-grindstone lead prosecutor role, or to a steady diet of “out-of-the-spotlight” self-effacement. Rich McNally says he wants to be actively involved with the community and that “We all have a tremendous responsibility to give our young citizens the sense that they belong.” A little razzle-dazzle and star power — especially when accompanied by the reality of honest sweat and integrity — could go a long way toward making the community proud of its prosecutorial team and secure in the hands and heart of its chief law enforcement official. Maybe baseball great Cal Ripken is a helpful role model:

“Ripken came to work every day. He’s the iron man who shattered a record no one thought could be broken — 2,632 consecutive games. He was never a lunch pail player — he was an all star, has a World Series ring and so on — but work was what it is all about. Not flash, not a super homerun season, not a special chair in the clubhouse, not grand juries and mistresses, just work — excellent work, sometimes great work, often clutch work, but work.” (from the BioHealth Investor weblog, July 10, 2007)

What’s a “lunch pail lawyer”? Your definitions, along with examples of lawyers who personify the notion, would be appreciated. If the pundits are right, Greg Cholakis will be the next Rensselear County District Attorney, so we may not get a chance to see how Rich McNally would personify that designation as D.A. He will, I hope, nonetheless continue to show us how lunch pail lawyering gets the job done right for his private and public clients.

I’ve enjoyed exploring the notion, and hope you have, too.

Afterthought (Nov. 9, 2007): Troy, NY, where the new D.A. of Rensselear County will have his office, is the home of Sam Wilson, the meat-packer who became known as Uncle Sam to the soldiers who ate his rations during the War (and later famous as the recruiter who so badly Wants You). Given Troy’s historic connection to luncheon meats, I was hoping to locate an Uncle Sam lunch pail for Rich McNally. So far, no luck — despite discovering that Uncle Sam helped out with a Safe Kid’s Lunch Box Campaign back in April 2006, and finding lots of Uncle Sam collectibles, (from costumes, to cash registers, to life-sized Stand-ups, to salt-n-pepper shakers). My hopes were falsely raised by this YouTube clip of the band Lunch Box doing their song “Uncle Sam.” Unless our readers can point Rich to a ready-made version, he’s going to have to use a little Blue Collar hustle and Make His Own lunch box, using drawings, photos or decals of Uncle Sam (perhaps with some help from the Sesame St. gang).

a three-engine freight train
delays lunch –
two stomachs rumble

…………………………………………………. by dagosan

[“Buccaneer” the first domed lunch box]

p.s. There are a lot of great memories for Baby Boomers at several lunch-box-oriented websites, such as The LunchBox Pad; the Smithsonian’s Taking America to Lunch exhibit; and Wholepop.com’s “Pailentology: a history of the lunchbox“. Check out, for example, the Lunch Box Pad IQ Test and Glossary.

You don’t have to be Walter or Ted at Overlawyered.com to be intrigued with the myth/riddle of the Florida Metal Lunch Box Law. See Bryan Los’ article at LunchBoxPad.com, “Florida Lunch Box Legislation: Law or Lore?“, which begins, “Anyone who collects lunch boxes has frequently come head-on with the fact, or so-called fact, that in 1972 Florida banned the sale of steel lunch boxes. This fact has been widely accepted, and to my knowledge, never proved or disproved.” It continues:

“The story goes… In 1971-72, a concerned group of parents, mostly mothers, decided that metal lunch boxes could actually be used as weapons in school-yard brawls. Losing sleep over the fact that their son/daughter may be on the receiving end of a Bobby Sherman lunch box assault, these parents got petitions signed, and marched all the way up to the Florida State Legislature, and demanded ‘safety legislation’ be passed.”

With a little lunch-pail-law-student research effort, I bet there’s a fine law review article waiting to be uncovered inside those rusty old lunch buckets.

Disney School Bus (1957) – the biggest seller of all time.

Update (Nov. 29, 2007): I’m pleased to report that Rich McNally sent me a friendly and informative email on Nov. 22, 2007, that answers some of the questions asked above:

Fun Stuff David. The term “lunch pail lawyer” was coined about 15 years ago. A bunch of us get together around the holidays and enjoy a little holiday cheer. We call ourselves the Downtown Troy Lunch Pail Bar Association, we meet once annually, or as requested by the various members. Membership is by invitation only.

We are all hard working stiffs who get the job done without a lot of razzle dazzle, no 1-800-Law etc guys in this bunch. We stole the phrase from John Madden, the footbal coach/commentator.

s/ Rich McNally

FYI I have a Coleman mini cooler type lunch box.

For more on Rich’s lunch pail of choice, click here.

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October 28, 2007

The End of Lawyers? or The Cartel’s Last Stand?

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 4:09 am

. . . . Richard Susskind, OBE — author of the critically acclaimed “The Future of Law: Facing the Challenges of Information Technology” (1996) and “Transforming the Law: Essays on Technology, Justice, and the Legal Marketplace” (2001) — says a lot of things lawyers really don’t want to hear about the impact of information technology and the increased “commoditisation” of legal services on the future of the profession. You’ve read similar things from the f/k/a Gang over the past four years (usually using smaller words), but neither ethicalEsq nor Prof. Yabut has the OBE, nor have we been called “jurisprudent, legal business guru, government strategist and visionary.” Like, us, however, Susskind has been pretty much ignored by the American legal profession and weblawg community.

“The End of Lawyers? Rethinking the nature of legal services,” by Richard Susskind, OBE (Oxford University Press, due May 2008)

Nonetheless, now that the [London] Times Online is presenting six draft excerpts from Susskind’s forthcoming book, “The End of Lawyers? Rethinking the nature of legal services,” I want to urge lawyers, current and prospective law students, and consumers of legal services to closely read and consider what he has to say. [via LegalBlogWatch, “Are Lawyers Going to Become Obsolete?” (Oct. 23, 2007); and Human Law; and see SLAW.ca (Oct. 23, 2007); “Strategic planning case study: the future of the legal profession,” at David Jacobson’s External Insights; and Rob Millard’s thoughtful post at Adventure in Strategy (Oct. 28, 2007)]

The first excerpt in the End of Lawyers series, dated October 19, 2007, is titled “Legal profession is on the brink of fundamental change.” In it, the IT Adviser to the Lord Chief Justice of England and Wales says “I write not to bury lawyers but to investigate their future. My aim is to explore the extent to which the role of the traditional lawyer can be sustained in coming years in the face of challenging trends in the legal marketplace and new techniques for the delivery of legal services.” Susskind’s main points are (emphases added):

“[T]hese articles will point to a future in which conventional legal advisers will be much less prominent in society than today and, in some walks of life, will have no visibility at all. This, I believe, is where we will be taken by two forces: by a market pull towards commoditisation and by pervasive development and uptake of information technology. Commoditisation and IT will shape and characterise 21st century legal service. “

“I do not believe lawyers are self-evidently entitled to profit from the law. As I have said before, the law is not there to provide a livelihood for lawyers any more than ill-health exists to offer a living for doctors. . . . And, just as numerous other industries and sectors are having to adapt to broader change, so too should lawyers. “

This series calls for the growth and the development of a legal profession not by ring-fencing certain categories of work as the exclusive preserve of lawyers; nor by encouraging cartel-like activity which discourages all but lawyers from engaging. Rather, it calls for lawyers, their professional bodies, their policy-makers, and their clients, to think more creatively, imaginatively, and entrepreneurially about the way in which lawyers can and should contribute to our rapidly changing economy and society.

Susskind challenges all lawyers “to ask themselves, with their hands on their hearts, what elements of their current workload could be undertaken differently — more quickly, cheaply, efficiently, or to a higher quality — using alternative methods of working.” And, he predicts that the market:

“is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem-solving and more) that can equally or better be discharged, directly or indirectly, by smart systems and processes.” And,
“will determine that the legal world is over-resourced, it will increasingly drive out inefficiencies and unnecessary friction and, in so doing, we will indeed witness the end of outdated legal practice and the end of outdated lawyers.

In sum, Richard Susskind challenges the legal profession — not to try to prevent change and protect its traditional ways, but — “to find and embrace better, quicker, less costly, more convenient and publicly valued ways of working.”

Rather than publish his new book and then incorporate comments and related changes in a new edition, Susskind has decided to “release the ideas and arguments earlier and incorporate responses into the book.” Therefore, Times Online asks “Will lawyers exist in 100 years?” (Oct. 23, 2007) and asks readers to ” Join the debate” by leaving Comments.

An urgent (if somewhat selfish) request to Richard Susskind: Please start a weblog and bring your insights and commentary about the Future of Lawyers to us every day. For the f/k/a Gang, it gets tiring being just about the only voice speaking realistically and consistently about the evolving market-and-digital revolution. Your presence is much needed, Richard.

Frankly, within the American Bar and its weblawg community, the members who most pride themselves on being future-oriented and “proactive” (and their consultants and coaches) all paint a happy-face future, where they’ll use tactics such as law firm branding, value billing, and price sensitivity (along with a large dollop of psycho babble) to achieve premium pricing and increased income, in the face of marketplace realities, and at the expense of their clients (while, miraculously, satisfying them more, and somehow working fewer hours, freed from the hourly-billing bogeyman). [See, e.g., the f/k/a posts “Brand Lex,” “Internet Websites Encounter the Bar’s Guild Mentality,” “Valuable Debate on the Ethics of Value Billing,” “LexThink (about higher prices)“, and “Pro bono is not the answer to the access problem.” Also, see the SHLEP About page, “Intro to document assembly online,” and “a guide or a guild“.] We need to bring Susskind-style reality, IT expertise and professorial eloquence to the issues that are so important for legal consumers and the cause of civil justice for all.

update (Oct. 28, 2008): We featured “The End of Lawyers” in a post one year after this one, again repeating our request that Richard Susskind start a weblog. To our surprise, Richard left a comment, saying,

“Thank you for the support and the suggestion.

“In the interim year, I have been finishing the book and have had not much time for anything else. It is to be published on 20th November. I am now turning my thinking to how best to keep my ideas in play, so I will give the weblog proposal some serious thought. All the best, Richard”

noloShark Whither the American Bar? After three decades watching the legal profession in the USA from the perspective of a competition and consumer advocate, it is difficult to be optimistic that Susskind’s hoped-for introspection will yield progress rather than cartel-style roadblocks to change. Here are a few signs to look for that will help determine whether the American bar is choosing to (or able to) act like a guild protecting its own interests first, or like a learned profession seeking to best serve the public interest in creating a truly accessible and affordable legal system:

are state court systems allowed to continue to expand their pro se/self-help facilities and services? (see the shlep posts “what have they done for us lately?“, “universal unbundling unfolds in California” — compare: “all bundled up in New York” — and “getting self-help help.”;” and “probate and pro se: whose court is it?,” f/k/a, March 13, 2006)
is the hopeful “lawyers appreciate pro-se-courts” just a delusion on my part?

will bar associations choose to act like “a guide or a guild” when it comes to spreading the benefits of digital/IT breakthroughs to consumers of legal services? or do they go the way of America’s Realtors, seeking special laws to protect themselves from unbundling of service and price competition? [See “finding self-help info on bar association websites;” and the post “bar & guild,” which notes that “Most bar groups spend much of their time acting like guilds — promoting the interests of their members, and ‘protecting’ the public from competition, information, innovation and choice.” ] And see, “Internet Websites Encounter the Bar’s Guild Mentality,” where ethicalEsq said in May 2004:

[I]t seems that most lawyers expected a very good lifestyle to come automatically with their J.D., along with high social status. They are angry and worried that the marketplace doesn’t value their services as highly as they had expected, and they are bewildered that society doesn’t give them the anticipated respect. Good intentions of any one individual lawyer can be readily overwhelmed by the demands of partners (at work and home) to keep the income stream flowing. The result, as individuals and as a group, is resistance to any change that threatens to further undermine their financial and social position. As stated with refreshing candor in a recent bar association publication, “the top concerns of the practicing bar are the economics of the practice and the image of the profession.” (Illinois State Bar Association Bar News, June 16, 2003)

will the federal competition agencies (Department of Justice and Federal Trade Commission) continue to advocate for carving a narrow definition of the practice of law, and narrowing the scope of Unlawful Practice of Law statutes and regulations? and, more important, will state legislators and judiciary and bar associations stop ignoring their recommendations? (also see “the Florida Bar and You the People“, “filling in a Quicken Will for a nonagenarian is UPL in S.C“, at shlep)

are UK-style legal reforms (improved disciplinary systems, entry of nonlawyer firms, etc.) proposed and adopted in the 50+ American legal jurisdictions?

will the public start demanding to take back the justice system? (see SHLEP‘s About Page, which states that “Our courts have become costly, complicated, lawyer-centered bureaucracies, rather than the accessible, client-centered dispute resolution centers they should be. As a result, studies show that 80% or more of the legal needs of the poor and working poor currently are unmet in the United States, while even solid members of the middle class often cannot afford to hire a lawyer when a legal need arises.” But, notes that:

By combining the existence of a literate public with the power of computer technology, with a judiciary that understands that our court system exists for the public (rather than for judges or the bar), and with lawyers willing and able to “unbundle” their services and perform discrete tasks for clients who want to handle their own legal matters, we can now make it possible for self-help to be a viable option for solving most of the legal problems of most Americans.

[Click for information on “divorce self-help,” “bankruptcy law self-help“; “will-making self-help“, and “real estate sale unbundling“.

And, from shlep, see “Cisco turns to legal self-help and unbundling“;”LegalZoom and the future of lawyering“, and “resources at Illinois legal aid online.”]

Will our political leaders begin to fight for better access to the courts for the majority of Americans who cannot afford legal representation? See “getting politicians to back self-help centers” (shlep, Nov. 16, 2006):

When local politicians are smart enough to see the need for courthouse centers to help the unrepresented litigant, and when they are savvy enough to know that such support can have political advantages, we should see much more being done around the country to give the public the kind of accessible court system that they deserve. Consumers and their advocates need to take this message to their legislators. It is a win-win issue for the public and political leaders who join the cause.

Are weblawg pundits continuing to dream up ways for lawyers to extract more money from clients without giving them a better product? (for example, scroll to the second item in this prior post) Are they turning the problem of sky-high hourly-billing quotas into an excuse for using alternative billing methods that promise higher fees to lawyers? See “broadening the billable hour debate,” includes an extensive discussion and review of f/k/a posting on the issues, and makes a plea “those who sincerely want to fix what is wrong with hourly billing spend some serious time figuring out how the alternatives will result in fees (and a work environment) that are fair to lawyer, law firm and client — and how they will function within an economy that, if working competitively, can be expected (due to technological breakthroughs and an excess of service providers) to drive prices down to their marginal costs.” Also, see “Valuable Debate on the Ethics of Value Billing,” which responds to Comments about using value billing and percentage-of-the-transaction billing, by noting: “And, see, “The ‘reality’ ” is that technological advances and efficiencies are expected — in our economy and in basic economic theory — to bring prices down. So is an oversupply of service providers. Your approach seems to be stripping the client of both normal market benefits and fiduciary protection.”

We’ll bring you updates, as Richard Susskind continues to share excerpts from The End of Lawyers at Times Online. We hope, in addition, to announce his new weblawg someday soon.

update: (Oct. 29, 2007): Susskind’s second excerpt is now online. See “A decade on: much changed, much still to unfold,” in which “The author revisits some of the radical predictions he made about technology and legal services in his first book.”

update (Nov. 5, 2007): The third Susskind Excerpt was posted today. In “How the traditional role of lawyers will change” (Nov. 5, 2007), Richard Susskind argues that ‘black letter’ lawyers will give way to multi-disciplinary, ‘hybrid’ advisers. He notes that “If lawyers want to re-invent themselves and carve out new multi-disciplinary roles that allow them to deliver new value, then their commitment to these neighbouring areas of expertise must be deep and our law schools should be gearing up accordingly.” There will be less need for traditional legal advisers, because “new ways of satisfying legal demand will evolve and old inefficiencies will be eliminated.”

In addition, Susskind “envisage[s] the emergence of a third grouping: the legal knowledge engineers. These are the highly skilled individuals who will be engaged in the jobs of standardising, systematising and packaging the law. They will be the analysts who reorganise and restructure legal knowledge in a form that can be embodied in smart systems, whether for use by lawyers, para-legals or lay people.”

update (Nov. 13, 2007): See the fourth installment: “Outside investors will demand a very different type of law firm” (Nov. 12, 2007). More detail at the bottom of this post.

Yes, even skeptics can hope — and enjoy another export from the UK, the haiku of Matt Morden, in Wales:

halloween —
part of the moon
follows a bicycle home

harvest festival
small fingers trace
a saint’s name in slate

post inspection
a bean-counter shakes
my cool hand

halloween
thousands of starlings
flux together

………………… by matt morden – Morden Haiku

p.s. Grant Griffiths is hosting Blawg Review #132 on Monday, October 29, and is especially looking for suggestions from lawyers who work out of an at-Home Office. I’m hoping Grant will help a lot of lawyers transition to jobs and careers that not only bring them a better work/life balance, but that better align with the needs of clients in the 21st Century.

update (Oct. 29, 2007): Grant has indeed posted Blawg Review #132 this morning, at his Home Office Lawyer weblog. He’s found quite a few recent blawg posts for your consideration. Grant begins the presentation by saying that “Solo’s, independent practitioners, those that practice law from a home office tend to be innovative. We tend to be out in front. If for no other reason we have no one to answer to. We are the partnership committee. We are the marketing committee and we are the technology committee. For that reason, we tend to adopt new advances in those areas, dare I say, quicker.”

Although the generalization (as always) is surely often on the mark, it is by no means a universal truth — at least not for older solos or for some of the more financially and geographically challenged members of our profession. Being solo amplifies the individual’s personal traits and straits. In many ways, they are a great laboratory for Richard Susskind’s challenge on facing the future as individual lawyers and as a profession.

update: See Susskind’s “End of Lawyers?” series ends with a warning (Nov. 27, 2007)

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October 22, 2007

our first look at the Schenectady County Council to Prevent Sex Offenses

Filed under: lawyer news or ethics — David Giacalone @ 12:55 pm

Prof. Yabut is biting his tongue and standing on his head this morning, trying to keep this first glimpse at the workings of the Schenectady County Council to Prevent Sex Offenses objective and non-hysterical. Please excuse us if we occasionally lapse into polemics or preaching.

On August 23rd, 2007 (see our prior post), the Schenectady County [NY] Legislature took a step back from the draconian sex offender residency laws it had passed in June (as we reported here). However, rather than totally rescinding those laws and fully studying the issues, it chose to continue to impose a 1500-foot residence exclusion zone (around schools, parks, playgrounds, and child care facilities) on all Level 2 and 3 sex offenders, with current residences grandfathered-in. See “Law to protect kids is altered Sex offenders already in county allowed to stay put” (Schenectady Daily Gazette, Aug. 24, 2007; reprinted).

In addition, the Legislature voted to create the Schenectady County Council to Prevent Sex Offenses, a large committee composed of various office holders and community representatives, which was given the job of studying the overall issue of preventing sex offenses against children, and ordered to report back in 90 days. The Legislature would then have 30 days to act upon the Report.

To be frank, a lot of observers were a bit surprised by the cart-before-the horse(‘s ass) nature of the resolution creating the Sex Offense Council (see our prior post). It’s large size (purportedly over 30 members) and short duration seemed to condemn the project to the realm of futility or pathos. But, the public and public-minded civil servants and leaders had little choice but to wait and see. Well, last week — almost two full months into the 90 day mandate period — we got our first chance to watch the SOC process in action.

On October 16, 2007, Duanesburg Town Supervisor Rene Merrihew received a letter telling her that the first meeting of SOC would be at 4 PM Friday, October 19, 2007, and she informed the Rotterdam [NY] Internet Forum.

On October 17, JoAnn Schrom, Administrator of the Rotterdam Internet Forum emailed Susan Savage asking for a list of SOC members and inquiring whether the public could attend. Leg. Chair Savage replied that she had forwarded the request to the County Manager, Kathleen Rooney. On the afternoon of October, 18, Ms. Rooney wrote to Ms. Schrom, saying that “the first meeting will be held Friday at 4pm in the McChesney Room of the Central Library” and that “the public is certainly welcome to attend.” She added thather assistant would forward the list of SOC members.

A list of SOC members was sent to the Moderator of the Rotterdam Info Internet Forum on Thursday, October 18, by Jason Cuthbert, Assistant to the County Manager. Below the fold, at the bottom of this post, I’ve pasted in the 26 names supplied by the County. That may be the full Council.

It should be noted that there are no outside experts on sex offender management or treatment on the list. In addition, no Legislator who spoke out against having residency restrictions has been named to the Council, which does include Susan Savage, the Legislative Chair, and main proponent of the restrictions. Nor was any member of the public who spoke against the laws included. Instead, at least two of the three “Community Representatives” — Jeffrey Parry and Olivia Adams, local NAACP President, were strong supporters of the law at public hearings.

There was no mention of the meeting in any local media, and I had not recently visited the Rotterdam Forum. However, thanks to a phone call from a friend in rural Schenectady County, who was told about the meeting by a member of SOC, I learned around noon on Friday, October 19, that the first SOC meeting would be held at 4 PM that day. When I arrived for the Meeting shortly before 4 PM, there were no other members of the public/community there. Carl Strock, columnist for the (Schenectady) Daily Gazette appeared just before Mr. Gardner called the meeting to order. Here is what Carl wrote about the SOC’s first meeting:

Carl Strock: The View from Here (Schenectady Sunday Gazette, October 21, 2007, B1)

SEX OFFENDERS

In case you’re wondering how the 29-member task force is doing that was created by the Schenectady County Legislature to make recommendations on sex-offender laws, after the Legislature itself stepped in a big cow pie over the issue, I can tell you it’s doing about as well as its parent body. It started off on Friday with a meeting at the county library that was not announced to the public and was therefore illegal, and the members droned and rambled aimlessly for an hour, the dominant voice being that of a soft-spoken Scotia resident who is the most fanatical on the subject of sex offenders, while assorted probation officers, politicians and bureaucrats basically listened.

Listened to what? To the proposition that we don’t want sex offenders in our community. Mixed in with some reports on how things are done now.

The legislature gave this task force 90 days from Aug. 23 to come up with recommendations on as many as 14 possible local laws to deal with the danger, largely imaginary, posed by those who were once convicted of sex offenses.

At the rate they’re going, I don’t see how they can accomplish their objective in less than 90 years.

When I returned home from the meeting, I put this Comment up at the Rotterdam Internet Forum, describing the event:

Carl Strock and I were the only two members of the public attending the Meeting (there was only room for many a dozen people to observe). Not even half of the committee attended. No judges were there, nor was [Schenectady] Mayor Stratton (who sent an aide).

There was no apparent organization. County Attorney Christopher Gardner chaired the meeting. Carl Strock asked whether the requirements of the Public Meetings laws had been met regarding Notice of the event; he was not given a direct answer. With no introduction or suggestion of future structure for the meetings or the group, Gardner immediately asked the group to discuss Notification — giving no summary of what the issue might be, nor of what problems or benefits or costs increased notification might entail.

Most discouraging is the fact that Community member Jeffrey Parry basically monopolized the discussion and questioning. He made it clear that “we don’t want them in the community.” GPS monitoring is not enough. Parry wanted to know if some form of secured housing could be built for sex offenders, at least for a couple of transitional years. He said “we’re just wasting our time,” if we’re going to allow sex offenders to come and live in our neighborhoods.

A member of DA Carney’s staff. who runs the special victims section, tried to inject a bit of common sense (on the need for a place to live, job, treatment, etc.) and Rene Merrihew also tried a few practical questions, but the meeting was quickly steered back into the ozone.

At this pace, I’d estimate that another 600 or 700 meetings will be needed to cover the many points mandated in the Resolution. Drafting and voting on the issues might take another couple of years. Based solely on the first meeting, there is no reason to expect a useful or enlightened report.

For more detail and perspective, see this account by Rene Merrihew, the Supervisor of the Town of Duanesburg, a member of SOC (who, for instance, insisted that official minutes be kept of the Meeting). I later added a second Comment at the Forum, which concluded:

When Rene asked [County Attorney] Gardner what will happen when people getting out of prison come back and can’t live in the City, he replied that “they presumably had residences when they were arrested,” and therefore — due to grandfathering — they could go back to those residences, if they lived there prior to June 2007. That is an interesting interpretation of the law that I would expect to hear from sex offender advocates and lawyers in the future, but I doubt that Ms. Savage would agree to that interpretation of Legislative Intent.

Clearly, this is a sad start for those who had hoped the Committee would make a good faith attempt to examine residency restrictions. If, however, we had hoped to be able to deride its process and findings, it is a grand beginning.

At the foot of this posting, I have included an excerpt from a Daily Gazette article of Aug. 24, 2007, listing many of the issues and potential laws that the Council has been told to study and report back on. I’ve also included some of the statistics about Sex Offenders in Schenectady County that I were mentioned at the SOC Meeting.

All observers and participants would surely agree that Community Representative Jeffrey Parry, of Scotia, was the most active participant in the first SOC meeting. He first came to our attention at the Public Hearings on the sex offender laws, where he supported strong measures. The Daily Gazette article “Citizens speak on sex offender laws” (Aug. 23, 2007) noted, for example:

“Scotia resident Jeff Parry, who said the law should remain. To address [Niskayuna Supervisor Luke] Smith’s concerns [about the restrictions causing sex offenders to go underground], he said convicts should be punished with 25-year prison sentences if they stop reporting their address.
“We need effective counseling, we need to monitor them and we need to keep them away from society,”

This morning, Mr. Parry was kind enough to leave a thoughtful Comment here at f/k/a, at our earlier posting about the amended laws and establishment of the Council. To assure a broader audience for his Comments, I’m reposting them here:

Comment of Jeff Parry: The Schenectady laws were indeed a flawed attempt to deal with a serious problem. My personal feeling is that the perspective that is advocated in this website is probably mostly correct. Unfortunately the approaches advocated here do nothing to relieve the anxiety of parents or property owners. Rightly or wrongly, the only thing that will remove the stress from the neighborhood is the removal of the offender.

Those who frequent this website may feel that this point of view is hysterical overreaction and ignorant of the facts but it is also the reality on the ground in the affected neighborhoods. A sex offender in a neighborhood leads inevitably to the decline of the neighborhood. Among my peers the checking of the sex offender registry has become a regular part of life and whether it makes sense from an intellectual perspective or not, no one with children who has the means to do otherwise is going to buy property or move into a neighborhood where there are sex offenders.

I don’t know if this ‘irrational fear’ can coexist with a rational approach toward helping/containing sex offenders but I am hopeful that the newly formed “Schenectady County Council to Prevent Sex Offenses” will explore the issue.

Here are my first thoughts in response to Jeff Parry’s Comment:

Reply by David Giacalone: I very much appreciate your taking the time to help us understand your position, Jeff. We both want to prevent the sexual abuse of children. We appear to disagree on how to do so effectively and lawfully. I believe that our overall approach needs to take into account the benefits that our society receives from enacting laws based on practicality, experience and expertise, rather than simply fear, and from living within the State and federal Constitutions — restrictions on majority rule that are needed to assure that every member of society receives basic civil rights.

Unlike other advocates of strong sex offender residency restrictions, you speak in a calm voice, and I appreciate your demeanor. I have also tried to avoid using the word “hysteria” when talking about proponents of such laws, because the word connotes uncontrollable laughter or crying or raised voices. But, calmness doesn’t necessarily mean that the fear behind the residency restrictions isn’t excessive and perhaps irrational. I don’t deny that “the reality on the ground in the affected neighborhoods” is one of great fear and concern with sex offenders. But, public policy can’t be based on overblown fears of some members of the public, and the desire to “do something” can’t possibly become an excuse for doing something that is likely to be ineffective and counterproductive.

I believe that a fair reading of the literature on this topic makes it clear that your preoccupation is far greater than is warranted by the facts, by experience, and by common sense. The materials cited and discussed in our series of f/k/a sex offender posts convinces me that there is virtually no connection between the block or neighborhood where a sex offender lives and whether he/she reoffends or who the victim is likely to be. (The only connection seems to be that the sex offender is not likely to choose a stranger for a victim who lives nearby.) Furthermore, banishing sex offenders from society and treating them like a group of sub-humans with no rights seems far more likely to increase tendencies toward recidivism than to reduce it.

When a child has an irrational fear — bogeymen under the bed or in the closet, for instance — the parent’s job is to reassure the child that he or she is safe and to provide an emotional comfort zone. It surely isn’t to underscore the fear and to take drastic, unnecessary actions to banish the bogeymen. When adults have excessive fears, they actually make things worse for their children, who perceive that fear and their parents’ powerlessness, and feel especially vulnerable.

You seem to be asking your political leaders, and the rest of the public, to take the fears of your “peers” as an unchangeable given and to overact-in-kind in order to placate those fears. My hope is that — for the sake of your children and your own peace of mind — you and your highly-concerned neighbors take another look at the facts and realize that your fear of the stranger-predator living on your block is miss-directed and excessive (see for example, this, this and that posting). The fact that the Constitution won’t let you permanently banish them should be another factor helping you to “learn to live with it” — to realign those fears and instead focus (as Patty Wetterling suggests) on things that a family can do avoid sexual abuse. In addition, the reality that sex offenders live in every neighborhood (and always have) should help reduce the fear that your property values are going to plummet should one of them move or continue to reside near you.

Sexually abusing a child is a dreadful crime. But, we know that the crime is perpetrated far more by relatives and acquaintances with access to children than by the stranger — especially the stranger next door. Our children are far more likely to be harmed by the driver on a cellphone or the addict seeking funds to buy drugs than by a registered sex offender who lives in the neighborhood. Talking about keeping “them” away from society will get the Sex Offender Council nowhere. You are not doing “the Community” a favor by suggesting unconstitutional, impractical, highly expensive “solutions”. For a voice to be listened to, it needs to be much more than calm and unhysterical. It needs to be reasonable and well-reasoned.

For more info, click for a list of f/k/a sex offender posts.

update (October 25, 2007): The Daily Gazette‘s Carl Strock returns to the topic of the Sex Offender Council in his column today, entitled “Sex-offender task force: stacked deck ” (you can find it reprinted here). Carl makes a lot of good points, including this paragraph:

“No Richard Hamill or other professional who actually knows anything, nor anyone else who has any qualms or misgivings about the measures that the Legislature itself had to back away from. Keeping in mind that Susan Savage didn’t back away from them. She was one of two legislators who voted to keep them in place. Meaning she simply picked people who agree with her own hard-line position.”

He also tells us that the third “Community Representative,” Karen House “told me by telephone that she is a Niskayuna mother who is ‘concerned about the dangers that predators pose to children,’ who fully supports the laws the Legislature passed, and who simply spoke to Susan Savage about serving on the task force. ”

Accused of not consulting “stakeholders” and experts, Legislative Chair Susan Savage has set up an advisory Committee of cheerleaders (including teammates cheering themselves on) and of rival elected officials who she surely hopes to either co-opt or put on the spot politically. As Carl puts it, she’s created, “a stacked deck. A bunch of fellow enthusiasts in promoting the myth of predators lurking behind trees waiting to snatch children from playgrounds. Trying to scare people out of their wits. ” Ms. Savage (and her purported co-strategist County Attorney Chris Gardner — who is forced to play the role of ignorant frontman and Stooge to keep his job) must have some sort of Game Plan in mind. Watching it unfold will surely not be edifying. Once again, I can only hope that a group of reasonable people will offer the Sex Offender Council an alternative plan, and that a good Minority Report will be issued — even if unofficially — for the public to consider.

[On a related note, see this article from the Sun Journal of Lewiston, Maine: “Shadowed by the past: Should we care that laws against sex offenders in Maine may have gone too far? Even some law-and-order types are now saying yes,” Oct. 21, 2007; via Prof Yung at Sex Crimes]

update (Dec. 6, 2007): Carl Strock’s Dec. 4, 2007, column in the Daily Gazette included two important blurbs::

RED-FACE DEPT. Recently I took to task the Schenectady County task force on sexoffenders for holding their first meeting without any announcement to the public, which I confi – dently declared to be illegal.

I stand corrected by no less an authority than Bob Freeman, executive director of the state’s Committee on Open Government, who assures me that as an advisory body, the county task force is not subject to the Open Meetings Law. I apologize.

DEAD DEADLINE: Speaking of Schenectady’s task force on sex offenders, you can forget about its 90-day deadline for reporting back to the county Legislature, a deadline that has already passed.
County Attorney Chris Gardner, who chairs the task force, says it hasn’t even met since the first unproductive one-hour session, but no matter —it will meet again soon, he promises.
I guess the deadline just doesn’t mean anything, despite being part of the law that created the body.
As for whether Gardner will let us, the public, know about future meetings so we can listen in, despite not being legally obliged to do so, I could not elicit a commitment.

Happily, over at the Rotterdam, NY, Internet Forum, Duanesburg’s Town Supervisor, Rene Merrihew, who is an ex officio member of the advisory Council, reassured Carl that she would let him know about the next meeting.

update (Oct. 26, 2007): A truly scary Halloween scenario from today’s Schenectady Daily Gazette — an All-Susan-Savage Sex Offender Council.

(more…)

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October 11, 2007

recklessly unconstitutional: new local sex offender laws passed yesterday

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 3:39 pm

update (Oct. 12, 2007): Prof. Douglas Berman asked today, at his Sentencing Law & Policy weblog, “When and how will SCOTUS address residency restrictions?“. Doug says: “All these developments confirm my instinct that it is only a matter of time before the US Supreme Court is going to have to take up legal challenges to sex offender residency restrictions. It is interesting to speculate exactly when and how these issues will come before the High Court.”

Like Doug Berman, I am hoping the U.S. Supreme Court will help end the battles and debates and politico equivocating over the constitutionality of sex offender exclusion laws, by distinguishing its decision in Smith v. Doe, which upheld Alaska’s version of Megan’s Law — requiring sex offenders to register their addresses — as not amounting to unlawful ex post facto punishment. Ohio’s 1st District Court of Appeals, in Hyle v. Porter, offered the weak excuses that are typical of lower courts that have taken the easy, superficial (or, as David Hess says, “see no evil”) approach of upholding sex offender bans by blindly pointing to Smith v. Doe (see our discussion on Oct. 7). Far more honest and better-reasoned are cases such as Mikaloff v. Walsh, (Northern District of Ohio, Sept. 4, 2007), which refused to apply Ohio’s sex offender residency law retroactively. The Mikaloff opinion stressed:

“In upholding notification and registration requirements as nonpunitive restrictions, the Doe Court explicitly emphasized that these requirements “[did] not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.” Doe, 538 U.S. at 100.“

In addition, see Kentucky v. Baker, (Case Number, 07-M-00604, etc., Martin J. Sheehan, District Judge), which notes that “residency restrictions carry major consequences above and beyond the location of one’s home.” And, see the John Does I – IV v. Indianapolis, (Fed. Dist. Ct. So.Dist. Indiana), which distinguishes Smith v. Doe in concluding that banishing sex offenders from the City limits is ex post facto punishment..

They’re Useless in Utica and Nuts in Newton. As our Schenectady PanderPols did in June, and despite reams of information that they’re acting foolishly and unconstitutionally, local politicians on the Oneida County Legislature, in Utica, NY, and the Town Council of Newton, NJ, passed sweeping sex offender exclusion laws yesterday. See “Stricter rules for sex offenders approved,” The Utica Observer-Dispatch (Oct ,10, 2007); and “Newton Residency Ban Approved,” New Jersey Herald, Oct. 11, 2007); also: “Newton Considering Sex-Offender Ban” (New York Times, Oct. 7, 2007).

And, no, the local leaders didn’t vote in a moment of hot blood or temporary insanity. Instead, after months of “deliberations,” the 29 legislators in Oneida County and the five-member Council in Newton voted deliberately, brazenly and unanimously. Not content with your run-of-the-mill unconstitutional residency exclusion zones:

the Oneida County law doesn’t stop with banning the two highest levels of registered sex offenders from “maintaining a residence” (defined as the structure “where a person sleeps”) near parks, playgrounds, schools and child-care centers. The law also makes it a Class A Misdemeanor for the sex offenders to “enter” within 1500 feet of such places (via theparson.net). Merely driving through the exclusion zone on an expressway, or visiting a hospital or courthouse within the zone, violates the law, according to Assistant County Attorney Ray Bara. Not to be outdone,
the Town of Newton, after considering mere 500, 1,000, 1,500 and 2,000 feet exclusion zones, decided to ban high-risk sex offenders from living anywhere in the 3 1/2-square mile town. Indeed, as NJHerald.com reported: “They ultimately settled on a town-wide ban, because those distances would create neighborhood pockets where sex offenders could live. Parents said they were concerned over their children’s safety as well as property values.”

Ohio State law professor Douglas A. Berman (of the award-winning Sentencing Law & Policy weblog) told the New York Times that “Creating residency exclusion zones can create a false sense of security.” Clearly, Doug hadn’t considered the ingenuity of the folks in Oneida County, when “He added that barring sex offenders from living in a town does not stop them from traveling through it.”

If you’ve been following the Schenectady sex offender escapades here at f/k/a (over a dozen posts, starting here, with links to each), you know I agree with Prof. Yung of SexCrimes weblog, who says the Newton exile law is “just a horrible idea.” Concur: Doug Berman at Sentencing Law & Policy; (Oct. 8, 2007). Similarly, at his Corrections Sentencing weblog, Ben Barlyn wrote: “And the definition of insanity is . . .”

” . . . a Jersey municipality, the township of Newton in Sussex County, intends to enact a total residency ban for convicted sex offenders. This despite two recent trial court rulings which have struck down partial residency restrictions enacted elsewhere on the ground that these restrictions are in direct conflict with, and preempted by, the State’s registration scheme, known, of course, as Megan’s Law. Go figure. “

You may recall that your f/k/a Editor welcomed the recent series Sex Offenders: A Flawed Law: from Gatehouse News Service. Despite my congenital skepticism toward politicians, I foolishly had hoped that press coverage as thoughtful and comprehensive as the Gatehouse Series, along with other well-written newspaper editorials, would help persuade local politicians that passing sex offender exclusion laws is an unwise and unworthy reaction to the sincere concerns of the public — and offer excellent cover, along with lawsuits challenging such laws, against voter backlash. Sadly, facts and reasoning appear to have no useful effects on the fearless pander-pols.

Thus, the Oneida County legislators ignored the lessons of the Gatehouse series, which ran in their local newspaper just last month (clearly in the hope of affecting the outcome of their so-called deliberations). See “Sex offenders make easy targets,” and accompanying articles, The Utica Observer-Dispatch (Sept. 3, 2007). The good pols in Utica apparently also refused to consider the arguments presented concerning nearby locales, such as Cicero, NY. They clearly were deaf to the issues raised in the excellent editorial, “Drawing Lines,” from the Syracuse Post Standard (Aug. 26, 2007). As we reported last month, that editorial discussed research and facts, and concludes:

“Communities considering sex offender residency restrictions must ask the
question: Do such laws truly make their communities safer? Or are there
more effective ways – electronic monitoring systems or safety zones, for
example – of keeping a watchful eye on the offenders most likely to
strike again?”

An all-too-typical local pol is Oneida County legislator Daniel N. LaBella, who spent 20 years as a Utica cop, unsuccessfully ran for county sheriff last year, and runs a security firm (that apparently is having some management problems). If you had hoped that law enforcement experience would have made LaBella especially respectful of constitutional protections or wary of feel-good legislation that would divert police resources from more urgent and effective work, you would have been very disappointed. Thus, according to WKTV:

“You can’t waiver because it might not hold up in court,” said Dan LaBella, an Oneida County Legislator for the 26th District. “That’s what our courts do laws are tested every day in court so we still have to do what we have to do as a legislative body to protect the citizens and I feel as though this was a good law to do so.”

Similarly, the Utica O-D tells us:

“Legislator Daniel LaBella, D-Utica, said the law was very well thought out and will help protect the safety of the children in Oneida County.

“I firmly believe we can limit the exposure to these types of people, and I truly believe it will help our community,” he said

Cognate claptrap was mouthed last night by pols in Newton. As the NJ Herald noted:

“Newton officials have said they are willing to accept the possibility of a court challenge in order to help deter future crimes from occurring.

” ‘I think we’ve waited long enough for the state to act. We have to take steps to protect our citizens,’ Newton Deputy Mayor Joseph Ricciardo said. ‘You have to do something’.”

The New York Times received similarly edifying responses from the folk in Newton:

[Detective Lt. Michael] Richards acknowledged that opponents of restrictions on sex offenders call them “feel-good legislation.” But, he said, the ordinances can be valuable in educating parents about potential threats in their town.

And if there is a legal challenge?

“So be it,” Mayor [Thea] Unhoch said. “My main concern is the safety of the children.”

Yep, “you have to do something,” no matter how futile, counterproductive, expensive or unconstitutional, it might be. Are the elected leaders who vote for such sex offender bans fools or knaves, or both?

I understand why the courts have granted legislative immunity to politicians for the votes they take on laws and for their participation in the law-making process. But, I really wonder — since we wisely discourage lawyers from filing frivolous and harassing lawsuits by imposing fines and professional discipline; and we hold police officers liable for their blatant violations of suspects’ rights — why we can’t figure out a way to punish legislators who recklessly pass remarkably unconstitutional laws [Of course, I’m certain we can’t get them for merely promulgating really foolish ones, except at the ballot box]. Shouldn’t there be a bad faith exception to legislative immunity? Shouldn’t such constitutional recklessness sound in tort? It imposes great expenses on the taxpayer (in enforcement and lawsuit defense), needlessly burdens our courts, and (especially) subjects disfavored target groups to significant infringement on their rights, as well as the worry and expense of challenging the laws.

When politicians are pandering to public fears and prejudice, as they do with sex offender legislation, the ballot box will often offer inadequate deterrence or remedy for recklessly unconstitutional conduct. We need a penalty box that will help assure that the temptation to “do something” does not result in our political leaders passing mean-spirit, unlawful legislation. Any suggestions from my astute readers?

All this talk of pandering politicians (and thinking we can hope to change them) got me thinking of Master Issa and his treatment of fools. Here are a few, courtesy of his translator and our Honored Guest Poet, David G. Lanoue:

Heaven’s river–
maybe the fools of Kyoto
are crying

all sorts of fools
moon-gaze too…
winter prayers

accusing the pine
of foolishness…
evening mist

foolish crow
do you think this first snow
is my fault?

fool cat–
putting his whole body
into his yowl

fool cat
though tethered still crying
for love

fool cat–
eyes returning to where
the chestnut was

short summer night–
foolish flowers, clever flowers
bloom

the blind priest
with his red bowl…
shooing flies

crossing a bridge
behind a blind man…
frog

……………………………………… by Kobayashi Issa, translated by David G. Lanoue

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