1. david giacalone on March 29, 2005 11:14 AM writes...

Martin, I believe that fear of e-shaming will indeed help to improve lawyer conduct, as we see the ability of the web to uncover and spotlight poor conduct and judgment. Tom Mighell's reply post sets lofty goals, but no sensible lawyer should count on the discretion of recipients to help him or her avoid being e-shamed.

p.s. Viewing the Contributor Photos in the Left Margin, it is clear that this new weblog is alphabetically very fortunate. You're lucky you didn't invite anyone named Giacalone or ethicalEsq to join the group.

2. Tom Mighell on March 29, 2005 2:49 PM writes...

David -- are you saying it's a lofty goal to expect professional treatment from my fellow lawyers? I'm all for e-shaming -- I think online publicity of bad lawyer conduct has the interesting potential to curb that conduct -- but I disagree that lawyers should be the ones doing the shaming. Leave it to the media, disgruntled clients, the (non-lawyer) blogosphere, the applicable state bar association, and the like.

At the Dallas Bar Association, we have adopted Guidelines of Professional Courtesy, that all attorneys are required to abide by as a condition of admission to the Northern District of Texas. Among other things, the guidelines state:

(a) Lawyers should treat all people, including but not limited to other lawyers and the opposing party, and if a matter involves litigation, the court and the members of the court staff with courtesy and civility; lawyers must conduct themselves in a professional manner at all times.
....
(c) In any matter, though ill feeling may exist between clients, such ill feeling should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers.

I don't see anywhere the caveat, "...with the exception of blogging about your opponent's conduct in order to shame him."

I absolutely expect a lawyer on the opposing side to keep matters between the parties, lawyers, and the court, as I do in return. And if I engage in shameful conduct, I expect the lawyer to handle it in the appropriate, professional manner: by reporting it to the court or the grievance committee. If we have gotten to the point where I can't expect that level of professionalism, I might as well close up shop.

3. david giacalone on March 29, 2005 8:41 PM writes...

Tom, I hope you're misinterpeting the Courtesy Guidelines. You seem to be advocating some form of professional omerta -- a code of silence (similar to that among police officers, church hierarchies, and gangsters) that I believe serves no public purpose and has no particular virtue if applied to lawyers.

I am not advocating vendettas fueled by weblogs. But, neither do I believe that lawyers should be able hide inside their little Clubhouse. The best way to avoid being shamed is to avoid doing anything you'd be ashamed to have described or quoted. That's how to act in a "professional" manner. Expecting the Good Old Boys 'n'Gals to cover up your peccadilloes in the name of "professionalism" gives professionalism a bad name.

4. Tom Mighell on March 29, 2005 11:53 PM writes...

I have re-read my post several times, and I'm still stumped about where that interpretation came from. Let's see if I can be more clear:

If, in the course of a lawsuit, I do something for which I would be ashamed of having described or quoted to others, there are two ways (in my opinion) for opposing counsel to deal with it:

Unprofessional -- 1) run to the media to report it, 2) blog about it, or 3) otherwise communicate it to a third party outside of the legal profession for the sole purpose of shame or embarrassment.

Professional -- The professional response, I believe, is for my opponent to report my conduct to the judge or the grievance committee, either of which can sanction me for my transgressions. I'm just not sure how you consider that a cover-up. Or a code of silence, for that matter -- in my experience most court sanctions are a matter of public record, as are many (if not most) grievance records.

The Model Rules themselves state that when a lawyer becomes aware of professional misconduct, his or her duty is to report it to the appropriate professional authority. Nowhere in the rule does it provide that it is appropriate for the lawyer to report such misconduct to the local paper, the evening news, or to the online world via a weblog.

I think the shaming of lawyers who do bad things takes care of itself once the media gets ahold of it -- and they invariably do. Those two stories you mentioned in your e-shaming post came about (I think) after the press became aware through the court. I don't remember seeing the opposing counsel holding a press conference or blogging about it -- but the shaming was done, nonetheless.

5. david giacalone on March 30, 2005 12:40 PM writes...

You're setting a very low blush threshold, if you think that there is no lawyer conduct short of actual Code violations that is shameful and in need of deterrence.

How are we to tell whether a disclosure that makes another lawyer look bad is "for the sole purpose of shame or embarrassment"? Which purposes are acceptable, or do you assume that any such disclosures are done to shame the other lawyer? Do you feel that way when the broader press reports a story? If lawyers can post about egregious conduct by the opposing party or a witness at a deposition or trial, why stop them from discussing the conduct of opposing counsel? What purpose is served -- other than keeping our dirty laundry in-house -- by censoring attorneys who witness, or are the victims of, inappropriate conduct by another lawyer? I see no public interest in such limitations on attorney speech or granting of impugnity for misbehaving. If a weblogging attorney goes too far (uses distortion or hyperbole, or is just plain nasty), it will be the weblogger's reputation, and maybe his or her law license, that is at stake.

I do not believe that most shameful attorney conduct -- behavior for which a lawyer should feel ashamed and which we all would like to see deterred -- is "invariably" discovered by the press. Indeed, reporting conduct to a disciplinary committee is tantamount to covering it up in most cases, because it will never see the light of day. As I pointed out in an op/ed piece in 2003, fewer than half of complaints are "investigated" in any way in New York State, according to an ABA Study from 2000 -- and fewer than 3% of the ones investigated received any type of public discipline. According to the legal reform group HALT, the same ABA report stated that the Texas Office of Disciplinary Counsel investigates less than one-third of consumer complaints. (Summary of Findings, HALT Attorney Discipline Report Card). I also detailed in a recent posting the shortshrift that my own formal complaints against another lawyer received from the disciplinary committees in New York State in 1998 and 1999 (about very serious harm to clients). I was told that they pay very little attention to lawyer complaints, because most come from competitors with an axe to grind.

Delay is also a big problem in using the attorney discipline system. As the HALT Summary states:

Promptness: Finally, an issue of great concern is delay in the lawyer discipline system. Twenty-three agencies do not keep a record of how quickly they process consumer grievances. Of those that do track this information, even the best states – Arkansas, Maine, Mississippi, Nevada, North Dakota and South Dakota – take five months to file formal charges against attorneys. Lawyer discipline agencies can take as long as two and a half years to impose discipline. Most agencies have no deadlines for processing complaints and as a result, they have no incentive to promptly respond to consumer grievances. While agencies sluggishly review complaints, unethical attorneys continue to take new clients.

A story in the news earlier this month suggests that internet exposure might have helped to stop a Brooklyn lawyer years ago, who consistently engaged at court in outrageous and degrading remarks to and about female adversaries (and even clients). (posted here) In Matter of Robert a. Kahn, the appellate court that imposed a 6-month suspension on Lawyer Kahn, stated "There is evidence indicating that this pattern of misconduct goes back as far as 1991." A weblogging attorney with a little backbone or just outrage would have done the victims, the Bar and the public a lot of good exposing this behavior.

Tom, I am not suggesting weblog smear campaigns by lawyers against other lawyers. I do believe, however, that the potential for nearly instant public exposure will do more to improve the "courtesy" -- and maybe the diligence and competence -- of many lawyers than the passing of Guidelines. Lawyers should not use the concept of "professionalism" to protect unprofessional and unseemly behavior by other lawyers.

6. Tom Mighell on March 31, 2005 8:23 AM writes...

David, I have a suspicion that if we got together in a room and talked about this, we would agree a lot more than it appears from this dialogue. But I go back to my original position -- I do not think it is professional for a lawyer to:

1. Discuss his or her cases on a weblog, beyond a general/generic "lessons learned" type of post; and
2. Use his or her weblog as a weapon against other lawyers.

Just my opinion, nothing more.

7. John Gregory on April 11, 2005 1:35 PM writes...

I have a slight tendency to side with Tom rather than David in this one, but there is something on both sides.

In reading David's comments about tardy follow-up by professional regulators, I am reminded of a recent decision of the Supreme Court of Canada that found the Quebec Bar (the regulatory authority for lawyers in that province) liable to the client of a dishonest lawyer, because the Bar had known for some years of complaints about his probity but had not acted quickly enough. The delay was measured in years not months. The client had represented herself throughout in her complaint to the courts, I think.

Decision is online, in case you'd like to refer your own state bar authorities to it.

Finney v Barreau du Quebec: http://www.canlii.org/ca/cas/scc/2004/2004scc36.html

8. MT on May 29, 2006 11:12 AM writes...

You seem to be the only person on the Web attributing that ink-barrel quote to Mencken. Lots of people over the years seem to have been wondering online what the source is. Some say it's Mark Twain. Authorities quote recent invocations from politicians. You sure it's Mencken? I'd love to know.

9. Dave O'Donnell on July 7, 2007 10:18 PM writes...

The internet has changed so much of society including the manner in which the media reports news. Up until now, matters of legal ethics have been discussed and resolved solely in private by other lawyers in their bar association. Wow, that's like if a contruction worker does something wrong, a private meeting of other construction workers in the same dues paying club decide the punishment. Prof. Leslie C. Levin has something to say about attorney self policing.
Nowadays, a story of attorney misconduct has a chance to get the attention it deserves thanks to the internet. You would think that failing to promptly and fully disclose that a law firm was simultaneously representing a debtor, it's majority shareholder, it's secured lender, and the biggest claim trading holder of unsecured claims would have caught the attention of the U.S. Trustee, the creditors committee, or the bankruptcy judge. At least now the Supreme Court of California is looking into such a case. A revised 50 page complaint (with hundreds of pages of hyperlinked exhibits) is available for download at bankruptcymisconduct.com