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

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In an amazing display of a professional guild protecting its turf, the Connecticut Bar Association voted to reject proposed changes to Rule 5.5 that would have allowed out-of-state lawyers the limited ability to practice in Connecticut without a state law license

According to the Connecticut Law Tribune and Law.com, the controversial Multijurisdictional Practice (MJP) proposal failed before the Connecticut Bar Association’s House of Delegates last week by a vote of 28-18.  “Opponents said loosening the rules would help a minority of lawyers at the expense of the rest of the Bar, which would be left vulnerable to firms looking to make further inroads into the local market.”  (“Conn. Bar Association Delegates Reject MJP Rule Change: Forces rally in support of status quo,” by Scott Brede The Connecticut Law Tribune, 01-21-2004)

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John Mudd posted a Code of Conduct/Ethics for Webloggers last week at Blogcritics.org, which stimulated considerable (if not always edifying) discussion.  I confess that I have no interest in post-adolescent angsting over the etiquette of flaming.   As The Sassy Lawyer, Justin at BlogBook.org, and Alison Hawke at Quantum Tea, suggest, name-calling is silly and boring, and not a serious enterprise for adults, or serious topic for rulemaking.

 

Similarly, I have little patience for webloggers who (1) are scandalized and insulted every time someone suggests that we have anything to learn from professional “mainstream” journalists about ethical reporting standards; or (2) can only repeat the mantra that “what the Web is all about” is having no rules.  Of course, webjournalists can choose not to follow ethical guidelines suggested by others.   But, they shouldn’t be upset or in insult mode because others want to have a Code in order to foster credibility for their own weblog or circle of weblogs.   As we’ve said here before, there is no reason to expect weblogs to have higher quality in general than any other form of mass communication.  It takes effort to produce quality and to find it on the web.

 

The web ethics issue that interests me the most in Mudd’s Code is No. One: 

1) Misinformation and/or false information shall not be published or permitted in the blogosphere.

The topic has been on my mind, because of the recent intense focus on politics on the web and in all media.  Of course, I do not support the use of false information in any form of journalism or punditry that is not clearly meant to be satire.  But, it seems to me that publishing deliberately or recklessly misleading information is also unethical.

   Here’s my personal belief on misinformation:  Whether done by my allies or opponents, by those who agree with me or who disagree, I strongly dislike and do not approve of the use of misleading information to support or oppose any candidate, party or issue.   To intentionally mislead, deceive or give the wrong impression — by giving false information or by deliberately omitting important information — is lying.   Similarly, it is irresponsible and unethical to make a conclusion and argument when you know, but do not disclose, that you do not have all the material facts (e.g., calling a man a bigamist because he’s been married two times, without checking to see if he had been widowed or divorced prior to the second marriage). 

FactCheck.org provides a very helpful service regarding statements and ads by national parties and figures.  [See its reports, e.g., on Gephardt ads quoting Dean out of context on Medicare; Dean consistently understating the value of tax reductions received under the Bush tax cuts; GOP claims that the income of most Americans increased in 2002.]   Nobody’s checking webloggers, however.   Even if such a truth patrol existed for the Web, or a site has a Comment function that allows readers to make corrections, I’m not interested in reading a weblog that intentionally uses false or misleading statements — even if we were ideological and political soulmates.

 

This is not a call for perfection and omniscience before posting (which worries The Sassy Lawyer in her thougtful commentary).  I’m talking about deliberate or reckless disregard of the truth in the service of a cause or candidate, or while purporting to be a source of useful news or expertise. 

 

  It is, however, a direct rejection of the position take by Justin at Blogbook (on its ethics page!), where he asserts that

“[M]isinformation is the sophist’s ball peen hammer. If facts won’t win your client’s case, perhaps smoke and mirrors will do. If the White House can use misinformation, so can anyone who writes a weblog.”

I’m glad Justin has been so honest about being willing to be dishonest — now I’ll know to avoid his commentary or give it little credence. [See his response by clicking here].  But, the position that “we can mislead because they do” is neither admirable nor tenable, if credibility and broader readership is a goal.  More appropriate is Jadester‘s suggestion at the original Blogcritics posting, that  

“In all articles, a distinction must be made between actual rock-solid information, and rumour/opinions.. . .  It is not as difficult as it may at first seem to ensure you make the distinction; most newspaper articles are in fact written this way, albeit tailored to suggest in the reader’s mind the writer’s opinion.”

(I also like Jadester’s suggestion that “Bloggers should make clear their usual political leaning somewhere on their own blogpage, preferably the front page,” on with a link to “statement of political leaning,” which is why I prominently display my “leaning” toward client/consumer rights.) 

 

The standard that I’m suggesting should not be the least bit difficult for a lawyer to follow in writing a weblog (although it might require some will power).    Legal education is primarily about learning to discern which facts and factors are important, material, relevant, etc.  Furthermore, both the Model Rules and the Code of Ethics prohibit misleading and deceptive advocacy (and conduct) in many situations.    

There’s Model Rule 8.4 Misconduct (“It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation”), with its Code cognate at DR 1-102(A.4).  Also, Model Rule 4.1 requires Truthfulness in Statements to Others in representing a client, what are certainly analogous to advocating a cause, ideology or candidate.  Comment One to Rule 4.1 explains (emphasis added):

A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. 

Comment Two to Model Rule 3.3 on Candor Toward the Tribunal also presents analogous guidance on the ethical limits to advocacy:

This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

[Also, see DR7-106 from the professional Code, concerning a lawyer’s duties to the tribunal (including disclosure of  “Legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.”)]

Webloggers (especially lawyers) who feel they owe less of a duty of honesty to readers than a lawyer does to a court, should please do us the courtesy of stating that policy clearly and prominently on their homepages.

By coincidence, there was a lead editorial two days ago in the Albany (NY) Times Union (“Best papers are fair and honest,” 01-17-04 , availabe free for 7 days), that is highly relevant to this discussion.   After explaining that American newspaper were once highly and openly slanted, like British newspapers are now and always have been, editor Rex Smith states (emphasis added):  

“One factor behind the mid-[20th]-century trend toward straight news was the death of competing papers, leaving most communities with only one local newspaper. Publishers soon discovered that credibility appealed to a wider audience than predictable bias. And as the ranks of newsrooms filled with better-trained journalists, an ethic of independence took hold.

“Yet there is a recent movement in American journalism — still small, but undoubtedly present — toward the British model of unblushing bias.  . . .

“And at least in political news, Americans are increasingly concerned about biased coverage. Only 38 percent of the people who responded to a recent poll by the Pew Research Center said the campaign coverage they had followed wasn’t biased. That number has fallen steadily since 1988, when 62 percent said coverage was not biased.

“Those who want their news straight ought to be wary. Americans deserve fair and honest reporting, and the appearance of Brit-style journalism can only divide us into competing camps of people who know the news only from their own biased point of view.”

I hope that Smith is correct and that credibility appeals to a wider audience than predictable (or hidden) bias.  We can’t be an intelligent populace or electorate if the facts we get are filtered first to suit the preferences of the reporter or editor.  There is no problem at all with the author of a weblog having a particular partisan or ideological leaning.  Like print-media columnists, or lawyers advocating for clients, webjournalists have the right to present their case with persuasive force.  But, leaning and misleading or two very different practices, and the latter is unethical.  Each weblogger may have the right to be unethical, but I’m sticking to the corner of our cyberspace where facts are more important than factions.

  California District Court Judge Gregory Ward will soon have to decide whether the City of San Jose must pay a $841,000 bill for legal services performed by 79-year-old attorney Robert Mezzetti Sr., in a condemnation case the City lost.  If Judge Ward needs any help, I’d be pleased to assist in tossing the bill into the trash and carrying it to the curb.

You see, when Mezzetti’s firm did an hour of work on the case, it billed multiple tenants $300 each per hour — fourteen separate clients.   When the Mazzetti firm did four hours of work, therefore, it billed each of the fourteen clients $1200 ($16,800 for a half day of work).  Mazzetti says: “The way things are done depends completely on the fee arrangement and the agreement with the parties.”   Well, each of his clients might be dying to pay him for his success in stopping the mall condemndation, but the City (and its taxpayers) certainly should not have to be so generous.   After closely looking at the hours submitted, and the reasonableness of the $300 per hour fee, I’d suggest that Judge Ward multiply the approved number of actual hours by the approved hourly rate.

The reporter states in the article that:

“Legal ethics experts say the practice of multiple billing is not unheard of — but is generally frowned upon. A 1993 American Bar Association ethics opinion said that absent a contrary understanding, a lawyer should not bill more time than he or she spends on a matter. “A lawyer who spends four hours of time on behalf of three clients has not earned 12 billable hours,” the opinion says.”

• The amount of the fee in proportion to the value of the services performed;
  
• The relative sophistication of the member and the client;
  
• The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
  
• The experience, reputation, and ability of the member or members performing the services.
  
• The time and labor required.
  
• The informed consent of the client to the fee.

May lawyer Mazzetti receive everything he deserves.  [This has not been a good year, so far, for the reputation of the legal profession — nor for my resolution to stay as positive as possible. 01-16-04 e.g., this car accident insurance fraud indictment in Queens, NY, (New York Lawyer, “Two NY Lawyers Indicted for Fraud,” 01-15-04)]

  California District Court Judge Gregory Ward will soon have to decide whether the City of San Jose must pay a $841,000 bill for legal services performed by 79-year-old attorney Robert Mezzetti Sr., in a condemnation case the City lost.  If Judge Ward needs any help, I’d be pleased to assist in tossing the bill into the trash and carrying it to the curb.

You see, when Mezzetti’s firm did an hour of work on the case, it billed multiple tenants $300 each per hour — fourteen separate clients.   When the Mazzetti firm did four hours of work, therefore, it billed each of the fourteen clients $1200 ($16,800 for a half day of work).  Mazzetti says: “The way things are done depends completely on the fee arrangement and the agreement with the parties.”   Well, each of his clients might be dying to pay him for his success in stopping the mall condemndation, but the City (and its taxpayers) certainly should not have to be so generous.   After closely looking at the hours submitted, and the reasonableness of the $300 per hour fee, I’d suggest that Judge Ward multiply the approved number of actual hours by the approved hourly rate.

The reporter states in the article that:

“Legal ethics experts say the practice of multiple billing is not unheard of — but is generally frowned upon. A 1993 American Bar Association ethics opinion said that absent a contrary understanding, a lawyer should not bill more time than he or she spends on a matter. “A lawyer who spends four hours of time on behalf of three clients has not earned 12 billable hours,” the opinion says.”

• The amount of the fee in proportion to the value of the services performed;
  
• The relative sophistication of the member and the client;
  
• The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
  
• The experience, reputation, and ability of the member or members performing the services.
  
• The time and labor required.
  
• The informed consent of the client to the fee.

May lawyer Mazzetti receive everything he deserves.  [This has not been a good year, so far, for the reputation of the legal profession — nor for my resolution to stay as positive as possible. 01-16-04 e.g., this car accident insurance fraud indictment in Queens, NY, (New York Lawyer, “Two NY Lawyers Indicted for Fraud,” 01-15-04)]

The Federal Trade Commission today announced the creation of a hotline for consumers who believe they were victims of an alleged Web “cramming” scam operated by National Online Services, Inc., Liberty Online Services, Inc., B2B Advantage formerly known as SBA Online, Inc., and Ameripages, Inc. a/k/a Amerilinc, Inc.

“The FTC’s hotline, which will open shortly at 202-326-2998, will advise consumers on what steps to take if they receive a notice from the defendants, and what they should do to obtain a refund.”

Note that the FTC also has an e-brochure to help small businesses avoid web service scams:  Website Woes: Avoiding Web Service Scams

• Continued vigilance by the FTC in the area of web and telecom scams should help alleviate the concerns raised by Jerry Lawson in his comments to this posting. 

  Legal reform group HALT has issued a revised (2004) version of “Complaining About a Judge,” from its Everyday Law Series.  As they say, it’s an “easy-to-read primer [that] explains the basics of how the judicial conduct system works, how a complaint is handled and what you can expect from the system. “

“We can no longer afford to put off legislative remedies in areas that have for too long been neglected. Nor should we imperil Constitutional guarantees in the name of expediency.  Access to our criminal and civil justice system is fundamental for every American. As custodians of those rights, the legal profession must continue to be vigilant, to ensure that they are not eroded.”

“Access to the Tort System. Protect access to the court system for injured persons to exercise their right to seek compensation for their injuries. Encourage continued study of, and reasoned debate about, the tort laws of New York based upon the understanding that such activities will lead to practical, responsible, and beneficial change that is fair to all New Yorkers.”

Editor’s Note:  We’ll need a lot more open-mindedness on both sides of the tort-reform debate to achieve this.  Keeping the interests of the injured person as the primary focus is crucial — even when it means making contingency fees fair to each client in each case.

“Access to the Civil Justice System/Funding for Civil Legal Services for the Poor. Advocate for access to the civil justice system by low-income people. While the pro bono efforts of New York lawyers help provide needed representation, adequate state and federal funding is necessary.”