Bad Ideas

beer alcohol drinking.jpg* “I’m not as think as you guilty I am, occifer.” [Kansas City Star via How Appealing; New York Times]
* If she’s caffeine, I’ll be having decaf with my French Toast Fantasy this morning. [WSJ Law Blog]
* I’m not necessarily saying that taking a bus to a college town, pitching a tent, and hacking up a bunch of coeds in an attempt to become a “criminal superstar” was a “bad” idea; let’s just say it suffered from poor execution. [ CNN.com]
* Ok, when I said I wasn’t going to run for President, what I meant was, yeah, I’m probably going to run for President. [Washington Post; New York Times; Associated Press]
* I say that the bar owners are negligent. I mean, they’ve got the colleges and the rivers sitting right there. Can’t they see what’s gonna happen when they have $3 pitcher “drown your sorrows” night? [AP via Online Athens]

bully video game.jpgHere at Above the Law, we’re not all about silliness. We have a serious and more practical side, too.
Last month, in honor of fall recruiting season, we shared with you our Top Ten Interview Tips. This is what’s known in the trade as “service journalism,” or what U.S. News and World Report calls “news you can use.”
We now bring you the first post in an occasional series of ATL Practice Pointers. You’ve landed the legal job of your dreams. Now, what do you have to do in order to keep it?
Today’s tip is about being a good loser. Even the most talented attorneys lose sometimes. Superstar litigator David Boies, for example, lost a little case called Bush v. Gore. So what’s the best way to handle professional setbacks?
Practice Pointer #1: Don’t send the judge nasty, ad hominem letters after he renders a decision against you.
The ACS Blog brings us this news:

Florida attorney Jack Thompson recently lost a case seeking to enjoin the sale of “Bully”, a video game which puts the player in the shoes of a high school ruffian. In response to his loss, Thompson delivered a letter to the judge in the case:

Dear Judge Friedman:

Now that you have consigned innumerable children to skull fractures, eye injuries from slingshots, and beatings with baseball bats, without a hearing as to the danger, let me tell you a few things, with all respect for your office and with no respect for the arbitrary way in which you handled this matter. I can handle an adverse ruling by a judge. I’ve had plenty of those in my lifetime, and that’s fine. But the way you conducted yourself today helps explain why a great Dade County Judge, the late Rhea Pincus Grossman, could not abide you. She was not the only one….

Luckily for Thompson, Judge Grossman is no longer around. She probably wouldn’t have appreciated being ratted out like that.*
The letter goes on for a while, before concluding as follows:

Next time you promise a “hearing,” I’ll bring a parent with me whose kid is in the ground because of a kid who trained to kill him or her on a violent video game. Try mocking that person, I dare you.

Which brings us to Practice Pointer #2: Don’t threaten a judge, either — even a mere state court judge.
* We’re assuming this enmity between the judges was not open and notorious; but maybe it was.
How Not To Speak To a Judge [ACSBlog]
Judge Gives Bully Game the Go Ahead [Tech Law Prof Blog]
“Bully” Case Document Dump [GamePolitics]
Letter from John Thompson to Judge Ronald Friedman [GamePolitics.com (Word document)]
Earlier: A PSA from ATL: Top Ten Interview Tips

cameroon cameroun.jpgOkay, so he’s actually a law student (as a number of you nitpickers would surely point out). Anyway, here’s the story:

A 26-year-old law school standout was arrested for pretending to be a New Jersey congressman, so he could obtain visas for relatives and others in his native Cameroon, said a federal prosecutor.

Njock Eyong is charged with impersonating a federal official, possession of fraudulent visa documents, and fraud by wire scheme, according to an Oct. 11 indictment in the U.S. District Court in Washington, D.C….

While in Washington, he worked as an intern for New Jersey Democratic Rep. Donald M. Payne. In summer 2003, Eyong used the congressman’s signature machines and official stationery to demand that visas be issued, said Barbara Kittay of the U.S. attorney’s office in Washington.

Was Eyong’s fraud hard to detect? Well, the feds knew something was up when letters like this one started emanating from Rep. Payne’s office:

Dearest BELOVED:

I am BARRISTER NJOCK EYONG, Solicitor. I am the Personal Attorney to ENGR: J.M. PEDRO a national of your country, who used to work with shell development company in Bakassi CAMEROUN, who is seeking a VISA…

Student Accused Of Impersonating N.J. Congressman [CBS/AP]

anna nicole smith.jpgProfessor Laura Appleman, who teaches at Willamette University College of Law and blogs at Legal Ethics Forum, has just written a fascinating and fun piece about the Anna Nicole Smith saga. Appleman examines the relationship between Smith and her attorney-cum-paramour, Howard K. Stern, from a legal ethics perspective.
Even those of you whose recollections of legal ethics are fuzzy have probably thought there was something fishy about Stern’s conduct. Well, you thought right. Appleman offers a laundry list of legal ethics rules that Stern may have violated.
We commend the entire piece to you. But those of you who sitting for the Multistate Professional Responsibility Exam on November 4 will especially appreciate this excerpt:

[H]ere’s our first problem: Assuming, as we are, that our fictional lawyer is sleeping with his fictional client, that said fictional lawyer has allegedly impregnated said client, and that there are some competing paternity claims, what is the best course for the lawyer to pursue?

Is it (a) withdraw from the representation of the client and advise her to seek objective counsel; (b) withdraw from the representation and engage counsel of his own to litigate the paternity claim; (c) withdraw from the representation, engage his own counsel, and appoint a guardian pro tem for the child; or (d) all of the above, while also retaining complete confidentiality of the client’s information, including any client information that affects his personal interests?

Apparently, Stern instead chose (e) continued representation of the client, failure to retain counsel for himself or the child, and disregard for the confidentiality of the client’s information. Stern, an overachiever, decided to accomplish this last goal in most dramatic fashion by outing himself as the putative father on “Larry King Live.” And although there is no specific Rule 1.6 prohibition on “Larry King Live” appearances (not even in the Comments—trust me, I looked), I think we can safely assume that flaunting your client’s secrets on national television is verboten.

And you thought WE were snarky…
(Disclosure: We went to law school with Appleman. And yes, she was hilarious back then, too.)
Please Don’t Squeeze the Client [Law.com]

fat person eating.jpg* Does fat = lazy or lazy = fat? Becker and Posner discuss the “Fat Law” and causation, but do not explain why there are so many fat people at Disneyland and on the Jerry Springer show. [Becker-Posner Blog (Posner); Becker-Posner Blog (Becker)]
* If we’ve committed genocide, you’ve committed genocide. French-Armenian crooner Charles Aznavour would have some profound words, or perhaps a melody, about this legislative controversy. [Jurist]
* Since when is political incorrectness a crime? I think the only crime here is this girl’s overplucked eyebrows. [Daily Mail]
* We know that law school + Texas = limited party options, but please, no one does “Pimps and Hos” anymore. [In the Pink Texas]

naked man with keyboard.JPGWe’ve blogged a fair amount about Scott Blauvelt, the Ohio prosecutor charged with public indecency for walking around his office in the nude. His lawyer, Michael Gmoser, seems to be laying the groundwork for an insanity defense. In a statement issued yesterday, Gmoser said that his client was seriously injured in a 2005 car accident, suffers from mental illness, and is “an American with a disability.”*
But Orin Kerr, blogger and criminal law professor extraordinaire, offers a more persuasive defense:

Was Blauvelt’s conduct actually a crime? Let’s assume Blauvelt was conscious and not having some sort of seizure that might raise voluntary act or mens rea issues. Here’s what I gather is the relevant text of the Ohio public indency statute, R.C. § 2907.09(a):

No person shall recklessly do any of the following, under circumstances in which the person’s conduct is likely to be viewed by and affront others who are in the person’s physical proximity and who are not members of the person’s household . . . Expose his or her private parts.

There are some interesting ambiguities in the statute, but it seems to me that the key question is whether Blauvelt was naked “under circumstances in which the person’s conduct is likely to be viewed by and affront others who are in the person’s physical proximity.”

We don’t know a lot of the facts here, but based on the story it doesn’t seem like this element has been satisfied. As best we know, the only person who saw Blauvelt was the security guard, who saw him at night via a remote security camera. If the courthouse was closed and no one else was expected to be physically nearby, I would think that the statute probably wasn’t violated.

Good stuff. Professor Kerr is one academic who actually knows his way around the real world of law. (This should come as no surprise. Before joining the ranks of the Elect, by clerking for Justice Kennedy, he was an Honors Program trial attorney in the Justice Department’s Computer Crime and Intellectual Property section.)
We have offered some irreverent commentary on Scott Blauvelt’s case. But for the record, we are all in favor of working in the buff. Isn’t that one of the best aspects of working from home?
* Query: Might it be a “reasonable accommodation” under the ADA to let Blauvelt walk around naked?
The Strange Case of the Naked Prosecutor [Volokh Conspiracy]
Earlier: The Case of the Naked Prosecutor, and A Brief Note on Owning It
Scott Blauvelt Needs a New Office Chair

scott blauvelt 2.jpgEarlier today — at 7:30 this morning, actually — we wrote about Scott Blauvelt, the Ohio prosecutor who faces criminal charges of public indecency “for walking around the Government Services Center after business hours without clothing.” Now we learn, via CNN, the explanation he’s offering for his conduct:

Blauvelt’s lawyer, Michael Gmoser, said in a statement Tuesday that his client was seriously injured in a 2005 car accident, suffers from mental illness and is on medication for seizures.

“Scott Blauvelt is an American with a disability,” he said.

Now, we are the last people to take mental illness lightly. We know all too well the havoc it can wreak in people’s lives. But Gmoser’s statement did put us in mind of this post by DealBreaker’s Bess Levin, to which we commend you. Here’s an excerpt:

In light of the rampant levels of douchebaggery (in practice and in speech) these days, we’ve got something to say: it matters not whether you are of the douche bag variety or not, only that you f***ing man-up and OWN your female cleansing product status. Mark Foley: a douche bag, yes, but doubly a douche bag because he doesn’t own it. So you IM underage pages asking them if they’re made “horny” by your presence–who cares?! You like them young and boyish and all we have to say about that is, more power to ya, sister!

But the fact that you can’t just go, “Hey, Congress, I like them young and boyish and I don’t think I have to explain myself to anyone, let alone you people,” and insist on blaming your alcoholism, menstrual cycle, etc. really gets our goat; gets us angry, if you will. So much so that we’ve been popping blood vessels all afternoon thinking about how much we want to do something about it which means we’ll probably try and drink away our rage the second we get out of the DealBreaker Janitorial Closet tonight, pass out in a gutter and render ourselves unable to do anything about it; all your fault, for not owning it.

Good stuff. Read the rest of it here.
Another person who refuses to “own it”: former New Jersey Governor James McGreevey, who refused to acknowledge his own corruption, demonstrated by his giving a sensitive government security job to his paramour. Jim McGreevey instead tried to cloud the issues by declaring himself to be “a gay American.” Indeed, Gmoser’s statement — that his client “is an American with a disability” — appears to be modeled after the McGreevey declaration.
Authorities: Naked Prosecutor Caught on Camera [CNN]
Planespotting: Owning It [DealBreaker]

When you’re spending long hours at work, you want to be as comfortable as possible. Late at night or on weekends, we used to pad about our law firm office in socks. Eventually we brought in a pair of white fuzzy slippers, courtesy of the Ritz-Carlton in Chicago, for this purpose.*
But this may be taking things too far:

A top law-enforcement official in Hamilton, City Prosecutor Scott Blauvelt, is accused of “walking around the Government Services Center after business hours without clothing,” the Butler County Sheriff’s Office says.

Blauvelt, 35, who was charged with two counts of public indecency, was booked into the county jail and then released. He awaits a hearing in Hamilton Municipal Court, where Blauvelt usually works, said Sheriff’s Maj. Anthony Dwyer.

Calling the situation “an odd occurrence,” Dwyer said investigators don’t know what motivated Blauvelt to disrobe. He was alone at the time.

Right now you’re wondering exactly what we we were wondering: What does this guy look like? Would we WANT to see him strolling around buck naked?
As it is for pretty much every question within the law, the answer is: It depends.
scott blauvelt naked nude.jpg
The determination turns on which of these photographs is more accurate. In the picture on the left, Blauvelt looks kinda cute. In the photo on the right, less so.
(Blauvelt’s conduct was discovered by a security guard monitoring video footage. If by some miracle we can get our hands on this, we will happily upload it to YouTube.)
* We stayed at the Ritz-Carlton Chicago back in the days before the Peninsula opened. So don’t fault us for inadequate knowledge of hotels.
Prosecutor Naked at Work [Cincinnati Enquirer via How Appealing]

baby eating blackberry blackberries baby girl.JPG

“No,” Daddy tried to explain, “it’s not THAT kind of blackberry…”
Photograph provided courtesy of a former Wachtell Lipton colleague of ours, Scott L. Black (whom we identify here with his permission; our default rule is anonymity for tipsters). Meet the absolutely adorable Shoshana Black, daughter of Scott and Marnie Black, a high-powered exec at MTV.
You may recall Scott Black from this recent Fortune magazine piece on the David Pajcin / Gene Plotkin insider trading scandal, which we highlighted in a previous post. Black, senior trial counsel at the SEC, nailed Pajcin in deposition questioning. Pajcin pleaded guilty to criminal charges and is now assisting the government with its investigation.
Partners in Crime: I-bankers, Insider Trades, Moles, Strippers… [Fortune]
Earlier: Non-Sequiturs: 09.22.06

Good morning. David Lat is in Bumrungrad International Hospital in Bangkok, Thailand for the weekend for what has been euphemistically called “elective surgery.” Rest assured, D-Lat will return Monday, safe, sound, and happy to blog, if having to sit on a comfy pillow to do so, and we should all be supportive of the very difficult decisions involved.
In the interim, Lat has asked me to fill in a few posts this Friday, and I’ll start by introducing myself. My name is Ted Frank. Some fifteen years ago, I correctly identified the sequence at which Victoria, William, Xavier, Yolanda, and Zachary were seated at a circular table, filled in all corresponding ovals correctly, and was rewarded with a wheelbarrow of money to attend law school in a variety of bad neighborhoods in Connecticut and Massachusetts and Illinois. Because law interested me as a public-policy mechanism, I picked up a copy of The Economics of Justice while I was in a Chicago bookstore visiting that school, and smitten enough to decide to go there on what they called a “Public Service Scholarship.” A year of clerking and a dozen years of BigLaw taught me that litigation incentives actually create miserable public-policy results, and I’ve been writing about this problem on Walter Olson’s Overlawyered blog since 2003 and the Point of Law blog since 2004. In 2005, the American Enterprise Institute invited me to run their Liability Project directing research on the tort system and its effects; it’s a pay-cut, but the issue is important to me, and then there’s the whole Jewish guilt thing over not yet having done the public service I had hypothetically been awarded a scholarship for. And all of this has culminated in today’s guest-blogging opportunity on Above the Law, surely the highlight of my career, and worth a tenth of a point if Lat ever scores my wedding. More after the jump.

double red triangle arrows Continue reading “Guest-blogger checking in”

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