Thursday, June 30, 2011

The Baby and the Bathwater


The picture you see was taken from a blog post about a coal mine explosion that occurred on April 6, 2010.  It’s alleged that Massey Energy, owner of the mine, concealed records of safety defects from government regulators. 

Crash! The sound of blasted rock and screams echoed through the cavern. The miners and I, we ran to the sound. Rubble, and debris filled the room, as black dust burnt our eyes. The foul stench of methane numbed my senses, as the taste of iron filled my mouth. Suddenly, a thick wave of heat overwhelmed me.

To see how this story ends, click HERE.

But the story, really, is only just beginning.  The rest of the story is about what happens next.   Who will win, the coal miners, or the company?  Will we continue to have noxious government regulations controlling every aspect of the coal mine and making it impossible to make a profit?  Will we throw out the regulations and, instead, look the other way when mine explosions cost lives? 

So, yeah, this post is about the very boring subject of government regulations. 

What role should government take in our lives, and what is the role of the people in that decision?   There is a serious political agenda of de-regulating all sorts of matters that were previously controlled by government.  Is this a good idea? 

Beginning with Reagan’s deregulation of the banking and airline industries, and continuing on through today’s Tea Party and Libertarian demands to dismantle government and get government out of people’s lives.  When people advocated getting rid of “government programs,” do they realize what they really mean by that?

I recently heard of someone complaining about “government programs,” only to find out that he was complaining about the existence of taxes from a local government sewer authority.  Now, do we really want to eliminate public sewer services in cities?  Doesn’t it seem that these are offered for a reason? 

I believe that today people are forgetting that the reason behind those damn government regulations, is that the alternative can be worse. 

If you recall the plague that decimated the population of Athens, Greece, as described by Thucydides, I’m sure you’ll remember that it was spread by the nasty things that were flowing through the open sewers.




Photograph of

Athenian sewer, which was open to the air like a canal.  Photo is from a web page, HERE 


Is this what we want for our culture, or no sewers at all?

Of course, they say that people who don’t know their history, are bound to repeat it.  


This is a painting which depicts the plague of Naples, source is HERE


I don’t know about you, but I want good government, not gutted government.  

I’d prefer not to die from Plague, or cholera, or other nasty things we humans catch when we live around each other with no sanitation.  And I don’t want men to die in unsafe coal mines, either, even if imposing safety regulations would cause the coal mine to shut down.  Do you? 

There’s a reason for “government”. There’s a reason for safety regulations in coal mines, just as there is a reason for OSHA regulations, or for the FDA, or for the USDA.   My view is that we need to make the regulations better, make government better, not just throw the baby out with the bathwater.    However, this requires a bit more sophisticated analysis than just "yes" or "no", "black" or "white". 

It also means we must engage in conversation with the “other side”.  We need to listen to each other, balance interests, and find a middle way.   

Too bad that today’s partisan politics is the opposite of what we need.  Today’s political climate is built on the adrenaline of the news environment.  Every story must be shocking.  Every public policy argument must be a drama. 

To satisfy the demand for political discourse that is as easy to understand as a soap opera, cartoonishly drawn arguments, caricatures of any reality,  are pitted against one another, with a winner triumphing over a loser in a take-no-prisoners battle over policy.  And of course then the loser gets back in power by proving that the other side’s policy is a failure.  How?  By sabotaging it.  

How can America get back to democracy?  How do we get back to values of decency and fair play?  How do we get back to reasonable public policy, policy that puts regulations in place that protect workers’ lives and then enforces those regulations, without placing unreasonable burdens on business? 

This will be a major challenge, not only if we are to survive as a nation but if humans are to survive as a thriving presence on our planet. 

At one time, when there were fewer people, problems in one area didn’t necessarily spill over to affect problems in another.  We all had plenty of land and the oceans were large to absorb our wars and pollution.  But no longer. 

War refugees flow across international borders to destabilize governments on either side, pollution crosses international boundaries and destroys ecosystems of entire oceans. 

There is no longer room in the earth for cowboys.  We all live in a crowded neighborhood. 

So now, let’s figure out how to get along. 

Thursday, June 23, 2011

Restorative Justice Part IV

Restorative Justice involves healing tears in the fabric of community.  The theory of restorative justice is not to be “soft on crime” but rather to hold the offender accountable in a way that has the possibility of transforming the offender’s outlook.  In the USA, some of the possible outcomes of a restorative approach to justice include apology, restitution, community service, and referrals to therapy.  In other countries, the range of possibilities can be larger, including doing whatever it takes to make the victim as whole as possible again. 

The justice methods to implement restorative justice, or practices to implement it, are called (drum roll) Restorative Practices.  Restorative Practices include such things as Restorative Circles and Truth and Reconciliation Commissions.   I was excited to learn that Prison Fellowship runs a Restorative Circle process through its Sycamore Tree project. 

Unfortunately, as I attempted to find information about the Sycamore Tree Project in the USA, I learned that in the USA, Restorative Practices are hampered by victim offender laws that prohibit practices that enable contact between victims and offenders.  In other words, while other countries in the world are running full throttle toward implementation of these types of programs, the USA is handicapped from implementing cutting edge justice practices on account of our own laws.  Still, some innovative programs are able to work around these barriers.   In one such program, HERE, the case is referred into a restorative process before it ever enters the “justice system”.  Restorative Justice also is hampered by a lack of understanding about what it is.  In the article I just cited, for example, no judge has ever made a referral into the program.

When we say “justice,” we could mean any number of things.  I urge people to think for yourself, what do you mean when you think of the concept of “justice”?  Do you think it means purely revenge, or does it mean something more?  If you were a victim, wouldn’t it be more satisfying to have the offender apologize, repent, and rebuild your house? 

Just think about it. 

Sunday, June 12, 2011

Social Media for Lawyers: An Ethics Primer

Caveats and disclaimers:  Since I’m a blogger and an attorney, I’m interested in this stuff.  It’s only relevant to attorneys.  I compiled this for my own use and am now sharing it.  To my fellow lawyers: Of course this is just a beginning of the conversation about what is permissible and not, use it as a starting point for your own research.  Please give appropriate credit if you do use it in later written materials! 



Warning area: web site, blog, Facebook, tweets, Craigslist, everything

Issue:  Is this communication commercial speech?  If not, the state does not have authority to regulate it. If it is commercial speech, the rules of professional conduct apply. Commercial speech is that which beckons business or proposes a commercial transaction.  What if the content does not beckon business, but the purpose of the communication is to attract clients? 

Texans Against Censorship, Inc. v. State Bar of Texas, 888 F.Supp. 1328 (E.D. Tex. 1995), afd 100 F.3d 953 (5th Cir. 1996)(lawyer who ran newspaper advertisement expressing opinion about method of judicial selection was not engaged in commercial speech even though his intent was to generate clients); Stern v. Bluestone , 12 N.Y. 3rd 873 (2009)(even though there is an incidental effect of increasing clients, look at content of communication to see if proposes commercial transaction;, accessed October 18, 2010). 

The main criteria is whether the communication is intended for sharing of information or whether it is promotional in nature.  Does the communication beckon business?  If so, it is advertisement. 

Rule 7.2 et seq.

Rule 7.2 (b) If it’s an advertisement, a copy must be filed with the Commission on Lawyer Conduct. 

According to ABA recording linked below, courts do not distinguish between “blog” portion of web site and “home page” portion of web site. 


Warning area: Directory sites, blogging, tweeting. 

Issue:  Any real time communication with people who are not clients should be considered carefully with the question in mind, “is this communication an attempt to solicit clients, motivated by pecuniary gain?”  Secondary issue:  has the prospective client invited the communication?

Rule 7.3, Communication with prospective clients

Rule 7.3(c) requires every written or recorded communication soliciting employment be filed with the Commission on Lawyer Conduct and certain information to be kept on file for two years

Imagine a person posts a tweet: “Just got released from Richland County jail, need atty fast.” Would it violate Rule 7.3 for an attorney to respond to that tweet? What if it mentioned being released from jail but did not solicit a response?


Warning area:  LinkedIn has a box for “specialty”

Issue:  Limits on ways lawyers may describe their areas of practice and expertise

Rule 7.4 regulates communication of fields of practice and specialization

Do not allow yourself to become inadvertently designated as a specialist on LinkedIn: Unless you are certified as a specialist by a state bar accredited authority in your jurisdiction, you should leave blank the LinkedIn profile field for “specialties”. Additionally, the “Answers” section in LinkedIn toolbar designates you as an “expert” after you’ve answered a certain number of questions and gotten positive responses. Therefore, avoid responding to questions in the official “Answers” section of LinkedIn. On the other hand, you can demonstrate knowledge and build relationships by answering questions in LinkedIn discussion groups, since there is no “best answer” or “Expert” designation in that area.


Warning area:  Directory sites, Endorsements, Ratings, Martindale Hubbell, Avvo

Issues: information that is non-verifiable, misleading, or stated without personal knowledge

Rule 7.1(c) (prohibits comparisons to other lawyers’ services, unless substantiated by verifiable objective data

Rule 7.1 (d) prohibits testimonials

Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation

Rule 7.2(c) prohibits giving anything of value in exchange for a recommendation

S.C. Bar Ethics Opinion 09-10 (peer endorsements must meet all general ethics requirements related to solicitation and testimonials, )

An attorney should prescreen recommendations on Linked-In before they get posted for public view.  Do not make reciprocal recommendations. Do not give anything of value to a non-lawyer for the soliciting prospective clients


Warning areas: Directory sites, archiving sites, hiring ghost bloggers, gaining access to information through pretexting

Issues:  Anything that involves creating an appearance that we are something other than who we really are

Rule 7.1

Philadelphia Bar Assoc Advisory Opinion 2009-02 (ruled it was unethical for an attorney to use a third party to “friend” an adverse witness on Facebook in order to gain access to impeaching evidence,

Hiring a ghost blogger to fill your web site might arguably mislead clients into thinking that you are more knowledgeable than you really are


Warning area:  Shared drafting and collaboration platforms such as Google Wave, Blogging, twitter, JD Supra, Foursquare, Facebook, Photos, and other geo-tagged communications.  It’s not just in the elevator anymore!  Anyone, anywhere could be eavesdropping on your electronic communications, and even your locale could give away important confidential information (e.g. alert client’s competitor to M&A activity if you sign into Yelp and rate a restaurant in city of acquisitions target).

Issues:  Disclosure of client information or failure to adequately protect; potential disclosure to third parties through copies or email forwarding

Rule 1.6

Rule 8.3


Warning area:  Directory sites, blog comments sections, advice sites

Issue:  Attorney gives advice in an online forum.  Take care to phrase discussions in terms of offering general legal information rather than legal advice. 

Rule 1.4

Rule 1.16

Rule Rule 4.4


Warning area:  emails or advice given over internet between people who have peripheral or scant relationship


Warning area:  Legal advice sites, blogging, web page, Facebook, twitter

Issue:  Geographic boundaries are non-existent online.  Take care not to establish attorney client relationship or give legal advice in distant jurisdictions. 

Individual state laws define what is the practice of law.  Have you read them all? 


Warning area:  Directory sites

Rule 7.2

and see also

Rule 1.7

Rule 1.8

Rule 5.4


Warning area:  Facebook, Linked-In, and other community sites where lawyers can “friend” judges

Issue:  Communication with a judge outside the scope of a case.  The informality and increased access of social media make it easier to engage in ex parte communication.  Think before you talk. 

Rule 3.5(b)prohibits ex parte communication


Warning area: Facebook, Twitter

Issue:  Lawyer “friends” a defendant or communicates with a witness

Rule 3.5 (b)

Rule 3.5 (c)


Warning areas:  Facebook

Duty to preserve evidence and avoid spoliation likely applies to communications via social media whenever litigation seems likely



ABA Division for Media Relations and Communication Service, “Beyond the Ethics of Web 2.0 – What’s Now, What’s Next, What If” (audio) (accessed October 18, 2010)

Bottom Line Law Group, “Ethics Tips for Lawyers Using Social Media” (accessed October 18, 2010)

Bruce, Deborah, “12 Social Media Ethics Issues For Lawyers,” (accessed October 18, 2010).

Burgus, Laura, “Top 5 Social Media Ethics Concerns for Lawyers” (accessed October 18, 2010)

Elefant, Carolyn, and Nicole Black. Social Media for Lawyers: the next Frontier. [Chicago, Ill.]: ABA Law Practice Management Section, 2010. Print.

Wall Street Journal Digital Network, “Q&A: Lawyers, Ethics and Social Networking” (accessed October 18, 2010)