Archive for the ‘lawyering’ Category

Client in Chief: The Nightmare of Lawyering for Trump

Friday, July 14th, 2017

Washington Post app headline of July 14, 2017

Here’s something you already knew: “managing Trump” is a “‘titanic’ legal task.” That’s from the app-based headline for the this Washington Post story: Trump’s legal team faces tensions — and a client who often takes his own counsel.

I’ve actually thought often about what it would be like to have Donald Trump as a client. I can guess it would be like my single worst, most stressful day of practice — but maybe four to six days every single week.

So it’s not surprising that the WaPo reported “After one meeting in which [Trump's lawyers] urged Trump to steer clear of a certain topic, he sent a tweet about that very theme before they arrived back at their office.”

The WaPo story contains this quote from Trump campaign advsier Barry Bennett, which I think goes to the heart of the matter. About the 2016 campaign, he said, “do you know how many times people came to him and said, ‘That was lethal, you’re never going to survive it’? Every time, he survived. When somebody tells him he can’t do something, he’s at a minimum circumspect.”

No doubt.

If you’ve had a long lifetime of things working out amazingly no matter how much advice you’ve flaunted, I can see that the lack of motivation to hang on every admonition of your lawyer.

Debate Today: Should Lawyers be Licensed?

Monday, April 16th, 2012

DEBATE April 16 - Legal Licensure: Should Lawyers Be LIcensed ... At All?Today I’m debating Jacob H. Huebert at UND Law. Jacob will be arguing for the proposition that we don’t need any licensure of law schools or lawyers. I’ll argue the negative.

I really appreciate the Federalist Society for putting together and funding events like this. This is my second time as an opponent in a Federalist Society debate, and I’m really looking forward to it.

Volokh Steps In to Help Blogger Crystal Cox Challenge $2.5 Million Defamation Judgment

Tuesday, January 10th, 2012

Eugene Volokh (Photo: Jeff Barnett-Winsby / UCLA)

Arthur Bright at Citizen Media Law Project blog has the latest on Obsidian Finance v. Cox in Oregon: Professor Eugene Volokh of UCLA Law has stepped in to work on an appeal of the $2.5 million libel judgment against blogger Crystal Cox, which was rendered by a federal court last month.

Critical is whether First Amendment protections established by the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) will apply to Cox, or whether, as a blogger, she’s not a member of the “media.”

A post last month by Eric P. Robinson explores both the Gertz issue and the court’s ruling on the application of the Oregon shield law.

Bauble Bobble Estoppel: Why Kane’s Tack Against Forever 21 Worked

Wednesday, November 2nd, 2011


Blog Law Blog reader Amy e-mailed me with a good question about blogger Rachel Kane’s self-declared victory over Forever 21 in a legal dispute that never ended up in court.

Kane is the author of, a blog devoted to poking fun at Forever 21, the fast-fashion retailer famous for its dogged pursuit of trendiness with a torrent of bangely baubles and shiny swathery.

While they would seem too busy chasing down fashion ephemera to notice a tongue-in-cheek blogger, the folks at Forever 21 eventually looked up from their lamé long enough to dash of a cease-and-desist letter charging Kane with trademark infringement and demanding she take down her blog.

Now, as I pointed out, Forever 21′s legal position was meritless. But they’re a big company, and Rachel Kane is a solo blogger. So it makes for a problem.

What did Kane do about it? Through legal counsel, she wrote to Forever 21 laying out her legal argument for why the company’s claim was baseless and imposing a deadline by which, if she did not hear back from Forever 21, she would assume that she was free to continue blogging.

Thus the question from reader Amy. She writes:

This is a great strategy for bloggers and an awesome victory. However, can’t she still face legal action from the company even though there was no response past her self-imposed deadline?

The answer is that Forever 21 is not absolutely foreclosed from suing Rachel Kane after her self-imposed deadline passes. But by failing to get back to Kane, Forever 21 has evidenced an intent to abandon its claim. That severely compromises F21′s legal position. At this point, if Forever 21 tried to sue, Kane is now in a position to raise the legal defense of “estoppel.”

The idea of estoppel is that if you don’t deal with things at the opportune time, you can’t bring it up later if doing so would end up screwing over someone else. (Courts, in issuing judicial opinions, usually have some slightly higher-brow language than the phrase “screwing over,” but they can’t explain it any better than I did.)

So, through the estoppel defense, a court could rule that Forever 21 lost whatever rights it may have had to sue Kane when it failed to reasonably pursue its claim.

The law generally favors upholding parties expectations when it is possible to do so. Kane can say that, after hearing nothing by silence from Forever 21, she reasonably expected that the dispute was over and that she was free to continue blogging.

Now, key to making this work is that Kane approached this dispute in a reasonable way. She sent a letter explaining why the law did not support Forever 21′s trademark claim, and she gave them a reasonable amount of time to respond. It also counts for something that Forever 21 was the party that brought this up. Since they started the argument by sending a cease-and-desist letter, it’s certainly reasonable to expect that they will respond to Kane’s arguments if they are going to maintain their claim.

There’s nothing magical about estoppel – it’s all based on reasonableness. So don’t get carried away thinking you can get the drop on someone with estoppel. If you’re being tricky, then a court won’t look favorably your estoppel defense. But if someone sends you a legal threat, Kane’s way of dealing with it is a good one. Send a letter patiently explaining why the threat is baseless, and set a reasonable deadline for their response. It can be a good way to put spurious claims behind you.

Where Can a Blogger Get a Lawyer Around Here?

Thursday, September 29th, 2011

A person identifying himself as a friend of blogger Crystal Cox asked in a comment to yesterday’s post where Ms. Cox could find legal counsel. That’s a great question that a lot of folks have. And I am happy to say I have a number of places to suggest for any beleaguered blogger looking for a lawyer to throw them a lifeline:

The Berkman Center for Internet & Society has created, as one of its many projects, the Online Media Legal Network, a network of lawyers, law firms, and law clinics willing to represent qualifying media clients for free (pro bono) or at reduced rates. The list of members reveals a bunch of heavyweights, including Manhattan media-law powerhouse Debevoise & Plimpton. Not only have they represented the New York Times, but they even employed the author of Blog Law Blog as a summer associate back in the late 1990s! How’s that for a claim to fame? Of course, there are a bunch of other stars on OMLN’s roster as well. To get started in seeking representation through OMLN, read up on their process and requirements. They can’t help everyone, but it can’t hurt to ask.

There’s also the 800-pound gorilla, the Electronic Frontier Foundation, the granddaddy of public-interest law firms for electronic media. The EFF explains on their website how they select clients and how to contact them about possible representation. If you can get the EFF to represent you, that’s completely fansmashtic! But know ahead of time: Many will apply, few will qualify.

A more general source of information about getting represented can be found in the Citizen Media Law Project’s guide to finding legal help. Information there will help you learn about looking for pro bono representationgoing pro se (representing yourself), or, if it comes to that, hiring a lawyer (as in, paying them money).

Of course, if your problem is the opposite – if you are looking for someone to sue you – then Blog Law Blog recommends, por supuesto, BLOGGING! Especially effective is blogging about people or organizations (1) who are well-off enough to hire a lawyer, and (2) who are not already the target of a torrent of criticism.

So, my friends, lawyer up, and BLOG ON!

HuffPo’s Motion to Dismiss Tasini’s Lawsuit

Wednesday, August 31st, 2011

Last week I discussed the no-end-in-sight freelancer class-action litigation that was touched off by Jonathan Tasini’s landmark litigation in the 1990s against the New York Times for infringing freelancers’ copyrights by posting freelancer written material online without specific premission.

First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship?

Meanwhile, Tasini’s latest litigation escapade is suing the Huffington Post for not paying him or others for blogging they volunteered to do for free. The latest I can find out of that lawsuit is that the The Huffington Post filed a motion to dismiss [PDF]. That’s their response to Tasini’s complaint. I’ve already blogged about the complaint, so let’s go ahead and take a look at the defendants’ motion.

The motion is filed under Federal Rule of Civil Procedure 12(b)(6). That’s a very common procedural move, and it’s well-known to anybody who’s spent much time in law school. But in case you haven’t, I can explain.

Rule 12(b)(6)  allows defendants to have a judge bounce a lawsuit out of court in the earliest stage of a case in the event that, even if all the allegations of the plaintiff were proved true, there would still be no winnable lawsuit. So, how could it be that all of a plaintiff’s allegations could be true, and yet there would still be no chance of winning? Well, not everything worth complaining about entitles someone to compensation. In a civil lawsuit, the facts you allege have to give rise to a valid “cause of action.”

What Arianna Huffington, HuffPo, and AOL are arguing, through their lawyers, is that there is just no law out there that entitles Tasini to any money. Or, to state it more plainly, there’s no cause of action against someone for being greedy, mean, and successful. Here’s how the defendants say it:

Mr. Tasini … asks this Court to jettison his long-standing agreement with The Huffington Post and rule under New York state law that a competent adult in his position cannot agree with a website to publish his submissions in exchange for non-monetary consideration. He asks this Court to abrogate that agreement, as a matter of public policy, to combat “the broad detrimental effect of setting an artificially low price” for online content, and to reallocate at least a third of The Huffington Post’s value to recognize “the collective efforts” of other bloggers who also agreed to post without receiving monetary compensation. …

But no rule of statutory or common law, in New York or elsewhere, recognizes such a remarkable and unwarranted intrusion into the relationship between publishers and contributors. … [T]he fact is that no court, state or federal, has the authority under New York law to rewrite private agreements and reallocate private property in the manner Mr. Tasini seeks.

Now, while I think the law is on HuffPo’s side, this brief strikes me as being just slightly puerile. I get that there’s no precedent that supports the existence of a valid cause of action on these facts, but it seems a bit silly to me to be throwing around phrases like “a remarkable and unwarranted intrusion into the relationship …” First of all, that’s just creepy. It’s not like publishers and contributors are married. And since they aren’t, what’s wrong with intruding into their relationship? If it’s abusive, as Tasini suggests, then maybe we should intrude.

That’s why I think HuffPo’s lawyers are going a little astray here. It’s not about the relationship, it’s about the law, pure and simple. There’s no cause of action here. That’s all you need to say. When the law’s on your side – and boy is the law on HuffPo’s side – there’s no need to act like the sky is falling.

Suit Against Y’all Politics Blogger Dismissed

Tuesday, July 19th, 2011

The Associated Press is reporting that a Mississippi state court has dismissed a lawsuit against blogger Alan Lange of Y’all Politics.

FBI agent Hal Neilson brought the lawsuit against Lange and former federal prosecutor Tom Dawson over a book they co-wrote. That book, King of Torts, chronicled the scandal over superstar plaintiffs’ attorney Richard F.”Dickie” Scruggs’s attempt to bribe a state court judge to get a favorable ruling in a dispute with another lawyer over fees.

Neilson claimed in the lawsuit that King of Torts defamed him. But the judge tossed the litigation after Neilson and his attorney no-showed a hearing, apparently bailing out of the case.

Kane Declares Victory Over Forever 21

Thursday, July 7th, 2011

Black feather cape with broochRachel Kane over at blog has declared victory over Forever 21 in their nascent legal dispute. After Kane hired legal counsel and told the fast-fashion retailer their legal position was, in so many words, as silly as Feather Cape with Brooch ($39.00), there has been nothing but silence on the other end. So after Forever 21 failed to respond by Kane’s own imposed deadline, she interpreted silence as acquiescence and is now back calling out sartorial snafus on a daily basis.

In her words: “This is a dark defeat for MC Hammer pants, floral jumpsuits and blinged out mini hats, but a joyous triumph for those who like to make fun of them. Which is pretty much anyone with eyes.”

Note to bloggers who are on the receiving end of baseless legal threats: The way Kane handled this is instructive. Respond to the threatening letter with a patient explanation of how the claim is legally lacking, in a tone that is courteous but firm, and then say you’ll get back to doing whatever it is by such-and-such a date unless they give you a compelling response.

Congratulations, Rachel. Blog on!

South Carolina Supreme Court Filing Claims Righthaven Committed Unauthorized Practice of Law

Wednesday, June 29th, 2011

Todd Kincannon, the South Carolina lawyer representing Dana Eiser of the Lowcountry912 blog, sent me a petition that he just filed in the South Carolina Supreme Court alleging that Righthaven is engaged in the unauthorized practice of law.

I’ve posted the petition to my own server: [pdf].

I’ve been waiting for someone to do this since I heard about Righthaven splitting litigation proceeds with its newspaper partners. You can’t do that. Lawyers can’t split fees with non-lawyers.

Why not?

If a lawyer splits fees with a non-lawyer, then that means a non-lawyer is collecting fees for practicing law. And you have to be a lawyer to practice law. That’s the logic of it.

As the petition says: “[A]n entity in the business of seeking assignments, pursuing litigation in its own name, and splitting the proceeds with the assignor commits a fraud on the court and the unauthorized practice of law.” (Pet’n, pp. 4-5).

After I get a chance to take a better look at the petition, I’ll write with more.

The State Bar of Nevada Should Consider Attorney Misconduct Charges Against Steve Gibson of Righthaven

Thursday, June 16th, 2011

bar in courtroomI believe it is time for the State Bar of Nevada to begin an attorney misconduct investigation of Righthaven CEO Steve Gibson and, perhaps, other lawyers at the center of the Righthaven enterprise.

When I first read about the Righthaven lawsuits, I thought what Righthaven was doing was morally deplorable, but I assumed that Righthaven was on solid legal footing. I believed, as apparently did many judges, that Righthaven had become the legitimate owner of the copyrights upon which it was suing.

Righthaven’s acquisition of those copyrights from Stephens Media – mostly to stories from the Las Vegas Review-Journal – were prerequisites to being able to sue hapless bloggers and other individuals, and then threaten them with $150,000 statutory damage awards for having reposted articles or photos. By doing this, Righthaven got many individuals to settle for a few thousand dollars each, allowing Righthaven to do a volume business of minor shakedowns. The Righthaven business model, while vile, appeared to be perfectly allowable under the law.

But now we know that was not actually true. This week, Judge Roger Hunt of the U.S. District Court for the District of Nevada issued an order [pdf] in the case of Righthaven v. Democratic Underground that paints a withering portrait of plaintiff conduct in the case. We now know the assignments of copyrights by newspaper owner Stephens Media to Righthaven were, in fact, sham transactions. And because of Righthaven’s failure to be candid about the underlying arrangements with Stephens Media, it is now clear, as the court found, that Righthaven made material misrepresentations to the court.

Based on the federal court’s findings, this looks to be egregious attorney misconduct.

The federal court appears to be on the verge of sanctioning Righthaven. But the State Bar of Nevada can go much further. The bar has the ability to subject Gibson and other lawyers at the center of the enterprise to professional discipline, including, if warranted, disbarment.

I very much regret suggesting a misconduct investigation against any attorney, but this situation appears to be one with many real-life victims, and the behavior at issue, based on Judge Hunt’s findings, is wholly incompatible with the ethical standards expected of lawyers.

Consider what has happened: Righthaven lawyers constructed a sham transaction, and then made multiple misrepresentations to courts and third parties in order to hide the sham nature of the transaction. This was done in a bid to get a number of unsophisticated, unrepresented defendants to fork over substantial settlement payments, largely out of fear or because of their financial inability to mount a defense.

The potential to pervert our civil justice system in this way is one of the most important reasons attorneys are required to demonstrate a high moral character as a prerequisite to receiving a license to practice law. Righthaven’s behavior, in my opinion, is incompatible with that standard.

Let’s look at the Nevada Rules of Professional Conduct. Rule 3.3, called “Candor Toward the Tribunal,” states that “A lawyer shall not knowingly … Make a false statement of fact or law to a tribunal … ” Another provision, Rule 8.4, states, “It is professional misconduct for a lawyer to … Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] Engage in conduct that is prejudicial to the administration of justice[.]”

Those rules appear to have been violated in substantial ways. Consider the following quote from this week’s order from pages 10 and 11, discussing the Strategic Alliance Agreement (“SAA”), between Righthaven and Stephens Media:

As the undersigned issued one of the orders Righthaven cites for this argument, the undersigned is well aware that Righthaven led the district judges of this district to believe that it was the true owner of the copyright in the relevant news articles. Righthaven did not disclose the true nature of the transaction by disclosing the SAA or Stephens Media’s pecuniary interests. As the SAA makes abundantly clear, Stephens Media retained the exclusive rights, never actually transferring them to Righthaven regardless of Righthaven’s and Stephens Media’s current contentions. Further, Righthaven also failed to disclose Stephens Media in its certificates of interested parties, despite Stephens Media’s right to proceeds from these lawsuits. (Dkt. #79, Ex. 1, SAA Section 5 (granting Stephens Media a fifty percent interest in any recovery, minus costs).) … [T]hose orders were tainted by Righthaven’s failure to disclose the SAA and Stephens Media’s true interest …

And on page 15 of the order:

As shown in the preceding pages, the Court believes that Righthaven has made multiple inaccurate and likely dishonest statements to the Court. Here, however, the Court will only focus on the most factually brazen: Righthaven’s failure to disclose Stephens Media as an interested party in Righthaven’s Certificate of Interested Parties. … Making this failure more egregious, not only did Righthaven fail to identify Stephens Media as an interested party in this suit, the Court believes that Righthaven failed to disclose Stephens Media as an interested party in any of its approximately 200 cases filed in this District.

Based on these findings, it appears that Rule 3.3 was violated multiple times by one or more attorneys on the Righthaven side. Moreover, again, based on Judge Hunt’s findings, Rule 8.4 was violated in a very significant way in the Democratic Underground case. Of course, Rule 8.4 was likely additionally violated in many other Righthaven cases as well, if not all of them.

I don’t know that Gibson or other attorneys committed misconduct. That is up to the State Bar of Nevada to determine. I certainly can say at this point that there is strong reason to believe serious misconduct has occurred, and it’s more than enough for an investigation. Gibson and others should, of course, have the opportunity to defend and explain themselves. But the matter should, at least, be taken seriously by the bar. That is especially the case where many people have been hurt and public confidence in the legal profession may justifiably be undermined if nothing is done.

Rachel Kane Should Look to Princess Diana for Inspiration

Tuesday, June 14th, 2011

Here’s a tip for the lawyers of Rachel Kane, the California blogger who has vowed to fight back against Forever 21′s attempt to shut down her blog with a bogus trademark lawsuit:

Make sure you check out Franklin Mint Company v. Manatt, Phelps & Phillips, LLP, 184 Cal.App.4th 313 (2010). It’s a wonderful case which allowed the Franklin Mint to advance its malicious prosecution claim against the prestigious L.A. law firm of Manatt, Phelps & Phillips for filing a baseless trademark and right-of-publicity suit. That suit had been brought by Princess Diana’s estate against the Franklin Mint for, among other things, manufacturing the Princess Diana Vinyl Portrait Doll with blue beaded silk gown (which retailed for $245 – WTF?).

I blogged about the decision last year. As I said then, it’s a great case for bloggers, because it shows that there’s a downside for thugsters overreaching on trademark theories. In the Franklin Mint v. Manatt case, the California appeals court found that there was no “probable cause” to claim trademark dilution or right-of-publicity infringement, and, therefore, Manatt could be liable to the Franklin Mint for maliciously bringing a groundless lawsuit.

Manatt argued vigorously that trademark law was too fuzzy and unsettled for the California court to allow a malicious prosecution claim to go forward. But the court disagreed, saying that the “application of fundamental principles of trademark law to the facts of this case show there was no probable cause to prosecute the trademark dilution claim.”

The same exact thing could be said about Forever 21 v. Kane.

Now That is Impressive

Wednesday, May 25th, 2011

I was looking back at the bio of social-media-guru-attorney Michelle Sherman, and I noticed that when she left being a partner at Sheppard Mullin to go to the L.A. County Public Defenders office for a year to sharpen her trial skills, she won all of her jury trials.

I must have read that too quickly in the past, because I hadn’t really appreciated that. Dang.

You quite often hear about prosecutors who have won all their jury trials. Big deal. Let’s be honest. As a prosecutor, winning all your jury trials is kind of your job. If there’s a trial you don’t think you can win, then you can (and in most cases should) let the defendant out on an easy plea deal or simply drop the charges altogether. Then, on top of that, prosecutors have by far the easier row to hoe in court. They have better resources to devote to cases, and juries are famously inclined to side with “law and order.”

Now, public defenders don’t get to choose their clients, and they don’t get to drop the charges if they get tired of the case. And nearly every case they fight at trial is one the prosecutor figured was in the bag. So winning all your jury trials as a public defender is really something. I don’t know how many trials she did, but even if it was just two, that’s really something.

CMLP Legal Guide on DC’s New Anti-SLAPP Law

Wednesday, May 18th, 2011

CMLP logoThe Citizen Media Law Project has updated their online legal guide with information about Washington, D.C.’s brand new anti-SLAPP law.

An anti-SLAPP law is a tweak to court procedure that empowers defendants, who have been sued because of something they said about a matter of public interest, to quickly get rid of frivolous lawsuits filed against them. Anti-SLAPP short circuits the usual lengthy and expensive litigation process required to beat back an unmeritorious complaint.

The idea is to prevent the courts from being used as a way to gag critics of the well-lawyered. Thus, anti-SLAPP laws are potentially very important for bloggers.

The CMLP’s legal guide also runs down the anti-SLAPP laws in California, Florida, Georgia, Illinois, Indiana, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas, Virginia, and Washington state.

Lawyers Advised Not to Overreact About Ethics Rules

Monday, April 18th, 2011

You don’t see this every day.

Robert Ambrogi and Reid Trautz at the American Bar Association’s Techshow offered tips to lawyers on using social media to build business.

One sage tip was this:

“Don’t overreact about ethics rules.”

Okay, that may be true. But like I said, that’s something you don’t see every day.

The advice, apparently paraphrased by the ABA, continues: “Follow the same etiquette for sharing (and common sense) that you would at a professional cocktail party.”

Well, it depends on the cocktail party. At a cocktail party, the whole idea is to talk during the course of downing cocktails. I don’t recommend blogging under the influence, especially if you are writing about the law in a way that is intended to land you clients. But that’s just me.


Hill’s Brief Against Righthaven

Tuesday, March 22nd, 2011

Steve Green of the Las Vegas Sun has a great article covering in considerable detail blogger Brian Hill’s motion filed in his effort to defend himself against a Righthaven copyright infringement lawsuit.

It’s great reading.

Based on the quotes in the story, Hill’s got himself some excellent lawyers They are David Kerr and Luke Santangelo of Fort Collins, Colorado. Great arguments, well written. Fine lawyering. Good job, guys!

Hill, a 20-year-old blogger out of North Carolina, was sued for the Righthaven-standard demand of $150,000 plus forfeiture of his domain name. Hill blogged that despite the fact that he is unemployed and receives disability payments, Righthaven still would not agree to settle for less than $6,000.

Finding Pro Bono Legal Counsel for Bloggers

Tuesday, March 15th, 2011

OMLN and INN logosThe Online Media Legal Network of Harvard Law’s Berkman Center has announced a partnership with the Investigative News Network to help find pro bono and low-cost legal for INN member organizations.

INN was founded in 2009. Its members are non-profit journalism organizations producing non-partisan investigative news. It’s actively soliciting new applications.

OMLN is a network of lawyers willing to provide free and reduced-fee services to digital media creators, including online journalism ventures. OMLN includes law firms, law school clinics, and solo practioners. Interested lawyers can apply to OMLN to be part of its pro bono network.

In the Las Vegas Sun: My Take on the Rule 11 Threat Against Righthaven

Wednesday, March 2nd, 2011

Steve Green of the Las Vegas Sun interviewed me about Dana Eiser’s rule 11 motion against Righthaven:

Separately, two law professors who have been critical of Righthaven expressed skepticism about threats by Righthaven defendant Dana Eiser to ask a federal judge in South Carolina to order Righthaven to refund settlement funds from prior lawsuits.

Attorneys for Eiser made the threat Sunday as they challenged Righthaven’s standard lawsuit demand that Eiser forfeit her website domain name to Righthaven.

“I’ve never heard of anything like this, and I can’t imagine how it would work. Eiser’s heart is in the right place. I’d love to see Righthaven have to give back the settlement money, but I don’t know of any legal way of forcing them to do that,” said Eric Johnson, an associate professor of law at the University of North Dakota. “Eiser’s attorneys don’t cite any legal authority supporting their claim – at least in the motion.

“Courts perceive very strong public-policy reasons for not overturning or interfering with settlements, even when they seem very unfair,” Johnson said.

The full article also contains quote from Eric Goldman of Santa Clara University Law School. Neither Professor Goldman nor I see much prospect for success here. But I like the chutzpah.

Margaret Tarkington on Impugning Judges

Tuesday, February 1st, 2011

Mauricio Hernandez, a Blog Law Blog reader and an attorney in my home state of Nevada, e-mailed me about the work of Professor Margaret Tarkington of BYU’s law school. Tarkington has written on a somewhat obscure corner of lawyer ethics – the rule subjecting lawyers to discipline for impugning the integrity of a judge.

Model Rule of Professional Conduct 8.2 says “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.”

In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 Boston College Law Review 363 (2010), Tarkington notes several cases where attorneys and even their clients have been sanctioned for calling into question a judge’s fairness, even when those comments were made in court filings and were relevant to the matter at hand – such as arguing that a client was denied due process because of a biased judge.

From a blog law perspective, I’m particularly interested in the out-of-court/online expression of attorneys. As blogs open up more and more opportunity for attorneys to make their opinions known, I imagine there will be more judges with wounded sensibilities who will want to sanction attorneys. As a lawyer and law professor, I have tremendous respect for judges. But at the same time, I think it is particularly important that judges should be subject to criticism, and even invective when someone is moved. Ultimately, the rule of law is better safeguarded by thriving freedom of expression directed at the judiciary than a erecting a legal rampart to deflect unwanted words.

I like what Tarkington says here:

The speech at issue is by definition political speech—speech regarding the qualifications and integrity of public officials—and thus is entitled to the fullest protection offered by the Constitution. But rather than protecting such speech, courts have imposed viewpoint-based punishment regardless of the forum in which the speech is made, whether to the press, on blogs, in personal letters, or otherwise. Suppressing attorney speech regarding the judiciary frustrates democracy by denying the right of the attorney speakers to contribute to the robust, uninhibited, and wide-open debate regarding public officials that is central to our ability to self-govern. Such suppression correspondingly denies the right of the public to receive opinions from those who have the education, training, and exposure to best offer informed views regarding the judiciary. This manipulation of public debate regarding the judiciary in turn frustrates the ability of the public to employ democratic correctives to check the abuse of judicial power and allows for judicial self-entrenchment.

Id. at 431

Courtney Love Going to Trial for Tweet Libel

Thursday, January 6th, 2011

Courtney Love’s facing a civil trial in February for tweeting that fashion designer Dawn Simorangkir was a drug-pushing prostitute. If you’re looking to be a defamation defendant, that’s a good way to do it. Almost as on target as these folks.

Apparently Simorangkir was in a spat with Love over unpaid bills on a few thousand bucks worth of clothes.

I know an attorney in LA who sued Love a few years ago over unpaid wages owed to his clients. It was pretty funny to hear him describe his troubles in trying to serve the papers on her. I think he finally got her cornered at the Grammys.

But back to Simorangkir v. Love. THR, Esq. reports that Love may be planning a sort of insanity defense:

Love’s attorneys have their own witnesses, including a medical expert who plans to testify that even if Love’s statements were untrue, her mental state was not “subjectively malicious” enough to justify the defamation lawsuit.
That claim — something akin to an insanity defense for social media — suggests that Twitter was so appealing and addictive for Love that she had no appreciation for how the comments she posted would be received by others.

That’s just funny. And it really makes it sound like Love’s going down in flames. The only thing that makes Love’s litigation prospects look dimmer is this quote from her lawyer:

“We don’t believe there’s any defamation, and even if there were defamatory statements, there was no damage,” says James Janowitz, an attorney for Love.

But, you know, assuming just like THEORETICALLY that it’s defamatory to accuse someone of being a drug-pushing prostitute, we feel there’s a good backup argument on damages. Yikes.

Read the whole thing from Matt Belloni in THR, Esq. It’s totally worth it.

Smith v. Arden: Utah Attorneys File Funny, Misguided Complaint on Behalf of Motivational Speaker

Wednesday, December 29th, 2010

James Smith, motivational speaker. (Image: James Smith's Real Estate Group of Companies, Inc.; used without permission)

Motivational speaker James Smith has filed a defamation lawsuit aimed at some online tormentors who’ve accused him of extramarital wanderings. (Ha’p MLRC)

Smith is a “Get Motivated” speaker and purveyor of such programs as “Stock Cash Flow 3-Day Training” and “Tax Liens & Deeds Self Study Program.”

The defamation lawsuit is aimed at,, and the Xenophilia blog for defamation. The central allegation is (I think) that anonymous commenters accused Smith of having an extramarital affair.

It’s kind of hard to tell what the allegations are because the complaint [pdf], filed by the Stevenson & Smith, P.C. law firm of Ogden, UT, is a bizarre mess.

For example, one defendant,’s parent, Automattic, is being sued on the theory that, well, uh, I just don’t know. is a blog host, and Xenophilia is hosted on Those are the facts. Here is what is alleged.

Read this:

8. Defendant Automattic, d/b/a WordPress, d/b/a Xenophilia (hereinafter “Xenophilia”) is a California corporation doing business worldwide via the internet.

9. Defendant Xenophilia runs a website known as WordPress. Wordpress provides free blog hosting for its users. One such user is the Xenophilia blog located at

These attorneys don’t seem to understand much about blogs – nor did they bother to learn much before they filed the complaint. Clearly, they don’t seem to understand the difference between a blog host and a blog.

Nor, does it seem, do they understand the difference between a blogger and a commenter.

Here’s a passage I particularly like from paragraph 23:

Neither, or has revealed the contact information and identity of the bloggers, despite the fact that such information is not protected when the bloggers use the blog for illegible purposes.

I mean, that’s just funny. Can you imagine the law looking askance at blogs used for “illegible purposes”?

And you’ve got to wonder, if it’s illegible, how can it be defamatory?

(By the way, that’s the complaint’s original spelling of “” as “”)

And there’re also other problems, of course, such as, Section 230, which I’m not sure the attorneys understand either.


Fired Lawyer and Sex Blogger Sues Allen & Overy

Monday, December 20th, 2010

From the homepage of self-described "naked poet," Deidre Dare (a/k/a Deidre Clark)

Deidre Clark was fired from the Moscow office of London-based law firm Allen & Overy after it came to light that she was behind the online identity of Deidre Dare (NSFW).

Clark, a lawyer from New York, blogged about her sex life and penned an online book, Expat, about sex and drugs in the Russian capital, which she said was based on her own experiences at A&O.

Word from A&O is that Expat used names of A&O employees and even the name of a client.

In addition to her book, Clark’s website contains poetry, philosophical musings, and a set of boudoir photos of herself. Let me warn you: Her whole site should be considered NSFWUYHTEOBALP (Not Safe For Work Unless You Have The Excuse Of Being A Law Professor).

She is now suing her former employer for wrongful termination, seeking more than $5 million in damages.

I don’t know much about British or Russian employment law, but my thought would be, good luck with that!

Copyright Defendants Remember, Fees Go Both Ways

Tuesday, July 20th, 2010

Mary Jane Saunders, in the Marquette Lawyer, has some words of wisdom that are good for bloggers to keep in mind if threatened by copyright litigation:

All plaintiffs mention attorney’s fees in their cease-and-desist letters, but few of them remember that they might end up paying the defendant’s fees if they lose.

Saunders says that simply citing to the leading precedent, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), can “dissuade a plaintiff from bringing a questionable case.”

The article is here in pdf format.

(Righthaven defendants might want to take note.)

A Question About Jurors Online

Wednesday, June 2nd, 2010

Following up on my last post, a question:

At what point does checking out your juror online constitute unpermitted communication with a juror?

Obviously, you can’t “friend request” a juror to get access to their Facebook page. And you can’t leave a comment on their blog.

But provided you do so through an anonymous identity, can  you “follow” them on Twitter? That creates a kind of online relationship, though it is one-way and does not identify you as a lawyer.

What about visiting someone’s blog? The mere act of visiting someone’s blog leaves information for the blogger to find about your visit. It could, depending on the circumstances and how much information the blogger saves and reviews, reveal the law firm that checked out the juror’s blog. So be careful! But even if you take care to make sure that you review of the blog does not leave your fingerprints, does that count as a communication? In some ways, it is like “following” a person on Twitter with an anonymous identity. But it does feel less like a relationship than “following.” But is it a communication? With the internet, communication is always two-way, at least in certain limited ways.

Reading Jurors’ Blogs, Tweets and Facebook Pages

Tuesday, June 1st, 2010

From Ann T. Greeley, a trial consultant and psychologist, just published in the ABA’s Brief:

Jurors’ uses of social media provide a source of information about them. Jurors are addicted to their Facebook pages, their Twitter accounts, and their myriad Internet sources. Their use of these accounts to post personal information, to blog, and to post comments has become a source of pretrial data for those who know how to search the right Web sites. Trial consultants have developed methodologies for these searches that yield pretrial attitudinal data as well as jury selection information.
(39-SPG Brief 48, Spring 2010)

Yup. There’s a wealth of information you can learn about jurors by going online.

If you are quick enough, maybe with someone’s help outside the courtroom, you can read juror’s blogs, tweets, and facebook pages during voir dire, to inform your decision about whether or not you are going to use peremptory strikes to boot them from the jury box.

Even if you miss that opportunity, you can still scope them out afterward to learn about their likes, dislikes, fears, passions, prejudices, and allegiances – all of which may allow you to tailor your arguments and trial presentation right for them.

Jurors used to be so mysterious. Now everyone is getting less and less mysterious.

The bigger this world gets, the more personal it gets. It’s weird, but that’s how we live today.