Lawyer Blogging Tip: When the Judge Is A "Total Asshole"

It's always fun to chat with folks who firmly believe the First Amendment applies to blogs. It mostly comes from commenters who insist their angry hate filled comments against the blogger be published, but it also comes from lawyers who don't believe they give up certain Constitutional Rights when they enter the Bar.

Let's review:

Model Rules of Professional Conduct

Maintaining The Integrity Of The Profession

Rule 8.2 Judicial And Legal Officials

(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Over at Legal Profession Blog, we learn of a now-fired Illinois public defender suspended for 60 days for allegedly blogging about her cases while exposing client confidences, revealing her complicity in a client's fraud on a court, and referring to one judge as "clueless" and another judge as "a total asshole,"

This wasn't the first time this lawyer tangled with the Illinois Bar. Back in 2001, she:

....filed a motion to substitute a judge (recusal), that included false statements about the judge's financial obligations and credit limits. The motion also contained false allegations that the judge had conducted an ex parte interview with Barringer's client's son.

In Florida, we're all too aware of this issue. Lawyer Sean Conway called a judge a "evil unfair witch," and bought himself a Reprimand and a $1250 fine.

The lesson - if you're going to blog about judges, do it anonymously.

Seems ridiculous, but it's the way things are. Had Conway made that comment without the courage to include his real name, there would be no Reprimand, no link to any story about his comment. (P.S. the judge, widely criticized by the Bar, has decided not to seek re-election.)

Back to the suspended former PD.

The First Amendment doesn't apply to blogs. The First Amendment doesn't apply to lawyers who blog. It's a troubling issue. We go to school to become advocates, and agents of change, yet we are restricted from making certain comments about others. To some, this is troubling, to others, it is the only way we maintain integrity in the profession. Name calling is unprofessional, it demeans the profession, and should be regulated, says the Bar. To others, we show disrespect to the First Amendment by preventing ourselves from speaking our mind.

The rules of our profession cause these types of comments to be made quietly, at restaurants, in the halls, by both judges and lawyers. As judges always say, "you talk about us, we talk about you."

This is now the second lawyer I've seen sanctioned for disparaging comments about judges (although our PD here was sanctioned for other reasons as well.)

If you are a coward, and make these comments anonymously, you can make them all day, every day, with no repercussions. But put your name to your thoughts, and suffer discipline.

There is something very wrong with that.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.

Blogging The Board Of Bar Examiners Hearings: Define Character

Whomever coined the phrase "now I've seen everything," never applied to the Florida Bar.

This past weekend I watched my clients attempt to convince the Florida Board of Bar Examiners that despite speeding tickets, a few brushes with the law at 18 and 19, and some other issues that may or may not have anything to do with the ability to practice law ethically, they have the character and fitness to be lawyers.

A word about character. If you think you know what it is, you do not. Character is apparently comprised of the total sum of all things that have happened in your life.

I know, you think lying, cheating, and stealing are things that can affect someone's character.

How about being fired from a job for being late? How about being fired from another job for not meeting sales expectations?

Yeah.

All of you Florida law students that fill out those applications to be Certified Legal Interns? The question: "Is there anything in your background that reflects poorly on your character?"

I want you all to think back to anything that you did wrong. Anything.

Did you ever use profanity in front of a child? Ladies - Did you ever borrow a friend's dress without telling them? Did you find a $5 bill on the street and stuff it in your pocket? Did you tell your girlfriend you loved her just to sleep with her?

You're scared about Facebook (which I still haven't seen come up at a hearing)? Forget about that - it's time to realize that your character is defined by any missteps. Who wants someone to be a member of the Bar who once sat in a different seat at a football game than the one on their ticket?

I am dead serious that when you see that question, you need to consider putting every single "bad" thing you've ever done. That is, until the Board defines character.

Some other tidbits:

[1] Hearings seem to be running on better time. I chalk that up to more pointed questions asked for the purpose of actually obtaining information, rather than (further) scaring the crap out of the applicant.

[2] I am still batting 1000 on predicting the question to out-of-state applicants - "Why Florida?" I'm waiting for one applicant to say "because I've heard if I can get through the Florida Bar Examiners hearing I will be a better lawyer than my friends from New York."

[3] No one cares about your life story. You are there, because of your life story. Answer the questions. This is not an appointment with a psychologist, it's a hearing.

[4] I know you hate the Board of Bar Examiners. They know you hate them. They don't care. Let's move on.

[5] If you hire a lawyer to help you prepare for your hearing, remember something, any lawyer who routinely does this work (and not your "buddy" who will "go to the hearing with you"), has been in that room before. When your lawyer tells you what matters and what doesn't, listen.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.

Some Of Us Get Tired Of Hearing....

Although there is a whole new generation of bloggers that are told success is having enough keywords in a post to generate SEO, putting the blog high up on the Google chain and causing the flood gates to open with client calls, one of the true signs of a successful blog is that it generates discussion and debate.

And that happens here. I love it.

Much of this blog is my opinion. This comes from some experience, and I hope that someone, or even a few people take something from it that helps them.

But I'm not here for you, and I'm not here to be "nice," and I'm not here to tell you things that will make you feel better. I didn't start this blog to coddle the unemployed lawyers who went to law school only for the end goal of graduating and receiving their six-figure BigLaw check.

I prefer the truth. Always have.

So when I post about whether looking for "any job I can get is hurting you," I'm happy to read this comment:

It was not much fun reading some of the "There will be no jobs/Do you REALLY want to be a lawyer?" posts, especially as graduation/get a job/pass the bar pressure started to build.

Your emphasis on knowing what you want to do, getting to know the local legal community, and improvising on the job search (on a post last summer) was extremely valuable to me. Although it wasn't possible for me to work for free for a local attorney, in the hopes of getting a future job, I was able to negotiate with the three-attorney firm where I'd clerked since my first summer for continued employment. I don't make ideal money. I don't do ideal work. But I JUST started practicing, so I don't have the relationships with other lawyers and the courts that justify the big dollars. There are no perfect clients--just the ones who pay, and pay less for my time than my bosses'.

I can credit you with making crystal clear the importance of a realistic and flexible view of what I would be able to do with my degree and license. I don't see you as preaching from your very comfy chair with your feet up at all. You're further down the road trying to share your experience navigating this career. So I'll say a big fat "THANKS" for all the free, honest advice.

And I"m happy to read this comment:

No offense, but I'm so sick of the high and mighty job advice from people who got out of it and market not legal services but advice to all the other disgruntled lawyers. We may be BS artists, but the problem is we recognize it in you, BT. You have to get what you can get, and some of us get tired of hearing about how you should only do what you are passionate about, yada, yada, yada. You are dreaming! Moreover, you're just selling bullshit. So, give us all a break.

This is the type of dissenting view that is the enemy of those who spend their days convincing lawyers like me that I need to develop a personal brand. Sit on twitter for 5 minutes and you'll see lawyers "tweeting out" platitudes about themselves and other niceties, avoiding any dissenting opinion, criticism, or debate. Most of them barely practice law, or haven't practiced in years, so debating anything regarding the legal profession is done on the surface, or ignored because it's "negative."

I am a lawyer. I advocate. People disagree with me - normally the lawyers standing across the courtroom. I can take it. I actually like it. Without it, things would be pretty boring here.

So come, tell me you hate me, tell me you don't want to hear it anymore. Tell me I don't know what I'm talking about.

It's OK, this is why I'm passionate about what I do - it gives me the opportunity to listen to those who aren't.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.

The Starbucks Advocate

Last week I participated in the first ever twitter debate sponsored by the ABA Journal. The topic was Virtual Law Offices. I don't have a virtual office. Mine has a door, a desk, some photos of my family, and a small refrigerator. I keep some sodas in there and an occasional unfinished sandwich brought back from lunch. My colleague in the debate, does. She's also in the business of consulting with lawyers who want to start a virtual office.

A virtual office is a laptop computer. Clients purchase documents and services online, and speak with the lawyer over the phone and email. Virtual lawyers believe that virtual lawyers are in high demand and that virtual lawyering is the future. That's what manufacturers of cassettes said, too. Virtual lawyers actually tried to convince me during the debate, with a straight face, that because I have an office and use technology, that I am somewhat of a virtual lawyer, too.

My colleague in the debate, Stephanie Kimbro, is deeply involved in the virtual lawyer world. Based on my unscientific survey of the internet, she's the only credible virtual lawyer I know. She not only practices virtually, she also participates in her State Bar's Technology Committee, advocating for a type of practice that the grey hairs know nothing about.

I'm not a big fan of virtual lawyering. Stephanie could care less. My negativity on the topic is to her, an opportunity to shove articles, facts, and grounded opinions in my face. It's never personal, it's about the topic at hand. Stephanie knows that I will never be a virtual lawyer, never encourage young law school graduates to enter this type of practice, and will probably never use the services of a virtual lawyer. "So what" says Stephanie. It's not for me, and she knows that. She also knows that my opinion is just that. It's just like when someone says "I could never do what you do." "Great," I say, "more work for me." There's an appellate lawyer I know. One time I told her "I would kill myself if I had to do what you do." That was 11 years ago and she still doesn't speak to me.

I think virtual lawyering is a cheap way to practice law, and I think that lawyers are demanding virtual practices more than clients. I also think that virtual lawyers are doing a poor job trying to convince the legal community that this is the future of lawyering. I think it's a self fulfilling prophecy. I think that lawyers practice from Starbucks demeans our profession. I wish every manager at Starbucks would walk around and ask: "excuse me, I noticed you are typing a lot, (nice t-shirt by the way), are you a college student studying for finals or working on a term paper?" "Aw, shucks no, I'm representing a client as a lawyer." "OK, well this is not a law office, so can you kindly finish that cup you've been nursing for the last 2 hours and.....leave?"

I've discussed my views with Stephanie before, and enjoyed debating her last week. She has facts, stats, and opinions minus the hysteria that online lawyers show when anyone criticizes them. The hysteria is already simmering halfway into this post, with those online lawyers reading this saying "there he goes again," and taking everything personally.

What's funny is that as a criminal lawyer, I am constantly criticized: "How can you do what you do?" Sometimes I respond, sometimes I ignore it, but my criminal defense colleagues rarely see it as an opportunity to join in and help me defend myself. I don't take it personally, which is a rarity for the online lawyers today.

For online lawyers, it's different. It's all personal. Any criticism of them is an attack on them personally. The reason? Many of them are uncomfortable with where they are in their career and any naysayers cause them to think about what they really wanted to be at one time - maybe that was a practicing lawyer, in an office, in a courtroom, in a conference room negotiating a deal.

Online lawyers are either the virtual lawyers I speak of, or those former lawyers who are here to let you know that even though they no longer practice, they can help you make a lot of money. I don't have to mention them here, giving them the dearly beloved SEO they rely upon in their "profession." One claims that for $7,500 they can change your life. Another has worked with so many firms and made them so much money, that he can't even name one of them. Another practiced law for about 6 months before getting laid off and now claims that he can make you a rainmaker by teaching you how to.....use twitter.

I know it sounds ridiculous, but you are listening, you are paying, you are typing "how to make money as a lawyer" on Google and reaching them.

At last week's debate, some of these "lawyers" ran to the rescue in the debate. They were figuratively saying "don't say that!" to me. They had no facts, stats, or credible opinions. They just tried to squelch any criticism, any comments that would expose what this really is - a cheap way to practice law. These are not lawyers who can debate, argue, defend a point, they are lawyers trying to make a buck at Starbucks and believe that my opinion, written online, will have some effect. They run to support their friend and business position out of fear that a dissenting view will tank their pipe dream of wealth-by-laptop, or worse, hurt their efforts to be retained by other lawyers who are searching for the shorts and flip flop life of a law practice amongst the low-fat muffins and funky teas.

I have no consulting business on the side. Wait, actually last week I did have lunch with two young law school grads and, oh, never mind, I picked up the tab for lunch and didn't charge them for my advice.

Last week's debate didn't surprise me. As Stephanie and I began to debate, the Starbucks lawyers came out in droves. The trial lawyers? Lawyers with offices? One told me that they didn't participate much because they were busy practicing law.



I think Virtual Law offices have their place. I think it's great that a client can do a contract or will over the phone. Hopefully it is done properly and when someone says it wasn't, the virtual lawyer can virtually appear somewhere to fix it, even if that requires a real room, with a judge and opposing counsel.

I don't think any type of law practice is perfect, or perfectly safe, as the virtual lawyers try to make others believe. Don't tell me that any thing on a machine is perfectly safe. That tanks your credibility, immediately.

What I learned from this debate I only learned from Stephanie's comments, which were on point and based in fact. The others were just there to whine, scream and yell that I didn't know what I was talking about (without saying why), pimp their business model and protect their bottom line from those like me that have something different to say.

Unfortunately for the virtual lawyers, there are other lawyers who have opinions, opinions that don't help them in their quest to be left alone amongst the smell of Colombian coffee beans.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.

Debating The Virtual Lawyer

This Friday I am participating in a debate on twitter regarding virtual law practices with Stephanie Kimbro, who operates a web-based virtual law office (VLO) powered by VLOTech (Virtual Law Office Technology, LLC), a company that she co-founded in 2007. Stephanie practices online from her home office or as she says "wherever I feel like working remotely that day."

In advance of this debate, Stephanie has written a blog post about the future of the legal profession.

In an effort to begin the debate here, Stephanie is completely wrong.

It's OK, Stephanie is not one of the hysterical people on social media who whines and cries tears anytime someone says something that doesn't comport with her opinion. Stephanie understands that the ability to bolster her opinion, which is completely wrong, is served by those who disagree.

That's why I agreed to this debate.

In her blog post, Stephanie makes her case, or tries at least.

She begins by saying the future of law practice is client-centric. No, it's always been client-centric to lawyers that believe their role is to serve the client. But Stephanie is specific about her title. By client-centric she means increased customer service, response time, alternative billing, online access and use of technology by the firm to cut costs and make legal services more easily obtainable and affordable.

No one can argue that in this economy, increased customer service and response time is essential in any business. Lawyers are not immune from economic downturns, and when times are tough, clients look to those lawyers who are doing everything they can to satisfy the client.

Alternative billing? This always makes me chuckle. Criminal defense lawyers have used alternative billing forever. It's called the flat fee. With the death of BigLaw and their overbilling of hours, they now call that a "value fee." This is nothing new, it's just what BigLaw never did, so we call it "alternative," as if anything BigLaw doesn't do is "alternative."

Technology? All for it. Any lawyer who doesn't have a blackberry, iPhone, or other PDA, is a moron. I'm all about scanning documents, and emailing things to clients. Client files accessible online? Sorry, not for me. Not for my criminal or Bar clients. Can't do it. A client wants a document, I'll email it to them, that's as far as I will go. My job is to protect the client and the client's right to confidentiality. Don't tell me allowing them access to their file on-line has no danger at this point in time.

But then Stephanie goes off the deep end. She envisions the end of virtual law offices:

Imagine telling the client who has enjoyed online access to the status and files of his case that he must now make in-person appointments in your office and will receive the invoice in the mail in 7-10 business days. Or imagine telling your clients who you provided flat fees for legal services that you will now be charging them by the billable hour rate and instead of a number they can budget, giving them a guestimated range they will owe you upon services rendered.

In person appointments? Invoices in the mail in 7-10 days? No more flat fees?

Huh?

The virtual law office issue is about lawyers not having a physical office, it is not about clients not being able to be emailed files or invoices, or talk to their lawyer on the phone, or Skype. State Bars (some, state Bars) want lawyers to have a physical location. That is not to the exclusion of technology based practices. Sure, there is an issue of files being kept on-line, but why should we as lawyers determine how the client's file will be maintained? The client isn't entitled to a physical file of documents because some of us want to keep them on our iPads while sitting in Starbucks?

Stephanie, wrongly, believes that through the use of technology and especially through the security of virtual law practice we have much more effective communication with our clients, and wants to know why we as attorneys want to give that up?

Give what up? Rules on virtual law offices are again, not to the exclusion of technology. The sky is not falling. The "clouds" are still there. More effective communication with clients is by email and phone, not in person? Says who? These are clients hiring lawyers. Is a face to face meeting such a terrible thing?

In the end, Stephanie's point really appears to be that a virtual law office makes things easier and cheaper:

But the benefit should be that the use of technology gives us the ability to better serve our clients and the time to focus on actually solving problems for individuals rather than getting bogged down in administrative tasks that we later have to find ways to cover in our legal fees.

Stephanie relates the prohibition of virtual law practices as creating "less customer service." I don't see it. I don't buy it. I think that advocates for virtual law offices just want to do what they want, claim it benefits the clients, when in reality it's really for the convenience of the lawyer. The lawyer doesn't have to pay rent, doesn't have to provide a place to meet with the client, and can work out of their trunk. While some clients appreciate this in terms of fees, if the virtual crowd wants state Bars to come into their 21st century of law practice, they need to stop whining and get on a Bar committee and open their mouth.

Located in Miami, Florida, Brian Tannebaum practices Bar Admission and Discipline and Criminal Defense. He is the author of I Got A Bar Complaint.