I recently had a discussion with a lawyer from another culture. One of my clients is a potential witness in one of his cases, and my client got tired of hearing from him. So I sent the lawyer a brief email asking that he not contact my client anymore. I said “please” and “thank you,” but otherwise didn’t mitigate my speech. Because the rule is very simple:
in representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
(Texas Disciplinary Rule of Professional Conduct 4.02). I’ve been on both sides of the situation many times, and there’s never been any drama: you might push the bounds in dealing with someone whom you don’t know to be represented regarding that subject, but if another lawyer asks you not to talk to his client about the subject of his representation, you just don’t. It’s a matter not only of the law (the rule), but also of respect for the lawyer-client relationship.
The lawyer got upset that I had asked him not to speak to my client. He told me that my client was his witness, that he didn’t care about the rule, and that he would talk to my client if he wanted to. I think he wanted to fight me over it. His culture, you see, is a culture of honor, and apparently I had inadvertently1 offended him by asking him not to talk to my client.
If I were so assiduously looking for opportunities to take offense, I’m sure I would find it everywhere. I can’t imagine that would be much fun; it might make personal relationships difficult to maintain. And if the people who I perceived as having slighted me rejected and even laughed at2 the idea of letting me fight them to restore my honor, I’m sure that it would be very frustrating. I might even lash out, which in a culture of law could land me in jail and jeopardize my license.
So I don’t know how it works out, being a culture-of-honor lawyer in a big-city criminal courthouse. I suspect that long-term results are mixed at best.
I often say that criminal-defense trial practice is about playing “what’s really going on here?” At every phase of a trial case, we are dealing with people who aren’t telling us the whole truth, because they don’t know it, don’t know its importance, don’t want to tell it, or don’t want us to know it. The facts are usually, at first glance, bad for us (else the client wouldn’t be a client), but there is always more to the story than the facts reveal at first glance. So the criminal-defense trial lawyer’s job is to figure out what’s really going on, the interesting twist, which is probably not explicitly stated, and to turn that truth to the client’s advantage.
In improv class we’re working on finding “the game of the scene,” the interesting twist, which is probably not explicitly stated and…hey, that’s “what’s really going on here?”!
On an assault case recently a prosecutor described the disputed issue like this: “she says she pulled the gun on him because he was assaulting her; he says he was defending himself because she pulled the gun; that’s the game.” I might not agree with him that that is the game, but I agree with him that there is a(t least one) game.
Dallas’s index Ebola Zaire patient, Thomas Duncan, was at home for four days while he was symptomatic with Ebola. His family were not infected with the virus.
While Duncan infected two nurses at the hospital during his final days (when he was leaking blood from every available orifice) he didn’t infect the people who lived with him when he was very sick—sick enough to have gone to the hospital and been sent away.
One of the commenters on my last Ebola post pointed out that Ebola has a very low basic reproduction number, R0, of about two. R0 is not an inherent characteristic of a virus, but depends on the environment. The R0 for Ebola Zaire has been calculated as 2.7 in some outbreaks, but 2.0 in this one in Africa. As long as R0 is greater than one, the disease will continue spreading. If R0 were intrinsic, Ebola Zaire would continue spreading until eventually everyone got sick. Fortunately, R0 will be lower in a more developed nation than in the Third World.
Given that neither of the people whom we know Duncan to have infected appears to have infected anyone else, R0 for Ebola Zaire in Dallas in 2014 is something less than one (2/3?).
What about the scary transmission through the air? The good thing about that is that Ebola doesn’t make you cough or sneeze. So while an infected person can, contrary to the government’s assertions, transmit the virus through the air, it’s not a mode of transmission of which the virus has evolved to take advantage (contrast a cold or flu virus, which spreads by making you expel virus-laden particles at high velocity through your mouth and nose).
So I’m downgrading my concern about Ebola in the U.S. from “do something now” to “play Whac-A-Mole as cases appear.”
I’ve written here several times, under the category “math is hard,” about Americans’ innumeracy with regard to risk and danger. I have a theory:
Americans overestimate the danger (risk times harm) of things that they are willing to do something about (terrorism!), and underestimate the danger of things that they are not willing to do something about (obesity!).
The government, meanwhile, has an interest in overstating the danger of things that it is profitable for corporations to do something about (terrorism!) and understating the danger of things that it is unprofitable for corporations to do something about (obesity!).
There are 8,000+—about 2^13—Ebola Zaire cases; that number is doubling monthly. There are 2^33 people on earth, give or take. That’s 33 months from one case to everybody being infected, at the current rate. We’ve used up thirteen of those months; we have twenty months left. Of course the current rate of infection can’t be sustained—the virus might not spread as fast in more affluent countries with their indoor plumbing and their medical care,1 and at some point the population becomes sparse enough that the survivors aren’t hanging out with each other much anymore.
It can spread like the common cold flu, it doubles every month, and it kills 70% of the people it infects.2 How do you stop this world-changing bug?
If you don’t already have an off-the-shelf solution (and we don’t—see fn1), it seems obvious that you buy some time by slowing it down. You quarantine everyone who wants to enter the U.S. after having been in the most-infected countries in the last thirty days.3
But there’s not much money for the corporations in a quarantine, so the government plays down the danger posed by Ebola. And the Americans who are willing to do something about it (quarantine!) overestimate the danger while the Americans who aren’t willing to do it (it wouldn’t work!) underestimate it.
The raw numbers—doubling every 20-30 days; 70% mortality—seem pretty compelling to me. Do I overestimate the danger? It’s possible, but if Ebola cases double in eleven days in a hospital in Dallas, I think it’s reasonable to be extremely concerned about what’s going to happen when it hits the Harris County Jail, and to look to the government to at least try to delay that catastrophe.
Or it might:
9/24: Duncan symptomatic.
9/25: Duncan goes to hospital. Is sent home.
9/28: Duncan returns to hospital via ambulance.
9/30: Officials confirm that Duncan tested positive for Ebola.
10/8: Duncan dies.
10/11: Pham tests positive for Ebola.
10/15: Vinson tests positive for Ebola.
So the first known Ebola case was known in Dallas on September 28th. Seventeen days later, there were three known cases. That’s equivalent to doubling every ten or eleven days—in a state-of-the-art hospital in a modern city among people who knew that Duncan had Ebola, and how to avoid catching it. We should know in the next week—t+25—whether Duncan infected other people before being admitted to the hospital; we should know in three weeks whether Pham or Vinson infected anyone before testing positive. ↩
It’s not very good at its job, which is to replicate. But it is good at killing its hosts. ↩
This is different than the cargo-cult solution of barring flights from the most-infected countries. Airplanes don’t carry viruses, people carry viruses. ↩
I’ll take the last point—which may be literally true—first: “Ebola is not spread through casual contact with someone who has no symptoms of the disease.” Per the CDC, “Initial signs and symptoms are nonspecific and may include fever, chills, myalgias, and malaise. … The most common signs and symptoms reported from West Africa during the current outbreak from symptom-onset to the time the case was detected include: fever (87%), fatigue (76%), vomiting (68%), diarrhea (66%), and loss of appetite (65%).” So as long as everyone you have casual contact with does not have a fever, feel chilled, have muscle aches, have diarrhea or vomiting, or feel worn out or not hungry, you’re probably okay. But those symptoms are nonspecific, which means that people who don’t obviously have Ebola (have you ever had fever, fatigue, vomiting, diarrhea, and loss of appetite without having Ebola Zaire?) may be infectious.
“Ebola is not spread through casual contact with someone who has no symptoms of the disease” is cold comfort. Ebola Z is spread through bodily fluids “including but not limited to urine, saliva, sweat, feces, vomit, breast milk, and semen.” Ever have involuntary contact with a stranger’s saliva (cough, cough)? Sweat (don’t touch that doorknob)? Other bodily fluids (achoo)?
Sneezing and coughing bring us to the White House Lie, which I call the Droplet Deception: “Ebola is not spread through air.”
The medical consensus, it appears, is that Ebola cannot be transmitted via an airborne route. But what doctors mean by “airborne” is not what most Americans mean by “airborne.”
If you are standing three feet from me, and I’m sick with a virus, and I sneeze, and you become infected by the virus by inhaling or otherwise touching microscopic droplets from that sneeze, is the virus airborne? Most people would say “yes.”
Doctors would say, “not necessarily.” There’s an explanation here: experts distinguish between “droplets” and “an airborne route.” Ebola Z cannot, it appears, be transmitted through the latter (involving droplet nuclei that have a very high surface-area-to-mass ratio and so can remain suspended in air currents indefinitely), but can certainly be transmitted through the former—droplets travelling through the air.
When you use a word in an unusual way, knowing that your audience doesn’t understand it the same way, it’s deceptive. “Ebola Z is not spread by an airborne route” is literally true (a doctor might say) but it is nevertheless deceptive to the general public.
“Ebola Z is not spread through the air,” however, is a flat-out lie. It is not in any sense—literal, metaphorical, or other—true.
Ebola Z is spread through the air like some viruses we know well—the flu, for example. What does the White House think the American people would do if they knew that truth?
On April 5th TSU law student Amir Tavakkoli sent me this message via my website:
Your name: Amir Tavakkoli
Your E-mail Address: [redacted]
Your Phone Number: [redacted]
The defendant’s Name: Amir Tavakkoli
The defendant’s date of birth: [redacted]
The court: Texas Court of Criminal Appeals/Appeal from 9th COA
The case number: 09-13-00082-CR
Your message to Bennett & Bennett:
Dear Mr. Bennett:
I hope this email finds you well. My name is Amir Tavakkoli and I am graduating from law school in May. You may know me from my days working at the Texas Criminal Justice Coalition. I have a request.
I filed a writ of habeas corpus last year for a 2006 misdemeanor conviction that I have which is giving me immigration issues. This is the only thing on my record. When I google my name, there is a link to your cite that takes it straight to the opinion for my writ. As a lawyer, you know the importance of reputation and the use of google by perspective employers. While I know that I must disclose my misdemeanor to employer, I do not necessarily want to let everyone know about the immigration issue and hope to put it in the past. I am requesting that you remove this case from your list. The case number is 09-13-00082-CR from the Ninth Court of Appeals and discretionary review denied by TX Court of Criminal Appeals.
As a matter of principle I won’t remove a blog post unless I got the facts objectively wrong. The opinion in question is public information and always will be. It’s available directly from the court. There are other public records—on the Ninth Court of Appeals site, on the Montgomery County Clerk’s site, on Publicdata.com, and on the Harris County District Clerk’s website—about Tavakkoli’s criminal history. But knowing the importance of reputation, not wanting to contribute to Tavakkoli’s issues, and being a nice guy (at least until I get poked with a stick) I changed all occurrences of Tavakkoli’s name to “A.T.”2
A month later Tavakkoli emailed me again (poke!):
Hi Mr Bennett
I hope this email finds you well. Sorry for the inconvenience, however, it seems that the content is still active on your site. Below is a message I receive from google when I request to remove the URL.
The content is still live on the web.
Before Google can remove it from our search results, the site owner needs to take down or update the content.
Research Editor, Thurgood Marshall Law Review
Vice President, Thurgood Marshall School of Law Class of 2014
I had already updated the content. I responded:
Your name is not on that page.
He replied (poke!):
May we please remove the whole link? Although the name does not show on the page, when my name is searched “Amir Tavakkoli Houston”, the link is still at the top and a quick reading of it shows enough identifying information, such as born and raised in Iran, that the reader would know it is me.
Thank you for your attention.
I wrote back:
In short, no. Your problem is with Google. Stop bugging me.
To which Tavakkoli responded:
If you were in my situation, what would you have done? I am in no way trying to bug you or disrespect you. Like you, I have other things to focus on as well, like preparing for the bar. A removal of the link from your site would solve this issue.
I have just graduated from law school and looking for a job, and you know that this information can be very hurtful.
You will not receive any more emails from me.
That was May 31st. I thought that was the last of it: I had done Amir Tavakkoli the entirely unnecessary favor of redacting his name, and his beef was with the search engines for continuing to index the site as though it contained his name.
In the same way that sovereign citizens and jailhouse lawyers take snippets of language from cases and quote them as gospel truth, applicable in all cases, anti-revenge-porn zealots take snippets of language from cases and quote them as gospel truth, applicable in all cases:
While Bennett has accurately described categories of speech that the Supreme Court has deemed “unprotected,” there are other types of speech that are lesser-protected. The most established example of lesser-protected speech is commercial speech.
The Supreme Court has also recognized that “speech on matters of purely private concern” receives “less stringent” protection from the First Amendment (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985)). That sounds quite a bit like the speech Citron is talking about when she says that revenge porn bans should be limited to private communications between people in a trusting relationship. And footnote 190 of Citron and Mary Anne Franks’s article, Criminalizing Revenge Porn, suggests that this is precisely the area of First Amendment doctrine Citron is referencing.
The distinction between speech of purely private concern and that of legitimate public concern has been invoked by the Supreme Court in public-employee speech cases, among them Pickering v. Board of Education; Connick v. Myers; and City ofSan Diego v. Roe. Public employees may speak freely on matters of public concern. Outside of matters of public concern, their speech is less protected. A governmental employer may impose on the speech of its employees restraints that would be unconstitutional if applied to the general public.
The 2004 unanimous opinion in San Diego v. Roe is instructive: John Roe was fired from his job as a San Diego cop for making pornography. The Court concluded that Officer Roe’s porn did not qualify as a matter of public concern.
Speech of purely private concern is not less protected from prosecution. I have not found a challenge to a criminal statute in which the Supreme Court invoked the distinction between speech of purely private concern and that of legitimate public concern. But if the Court did, we know from San Diego v. Roe that pornography is not a matter of public concern.
Danielle Citron and Mary Anne Franks profess support for people’s right to take erotic pictures of themselves and send them to their intimate partners. Two things put the lie to this:
Their eagerness to adopt Eugene Volokh’s goofy suggestion that the Court might treat revenge porn (“along with many consensual depictions of nudity”) as obscenity; and
Their willingness to import a “purely private concern” test into First Amendment criminal law.
If the Court treats many consensual depictions of nudity as obscenity, or if speech of purely private concern receives less-stringent protection, then the creators of erotic images will risk criminal sanction along with those who publish them without consent.
Citron’s and Franks’s argument for revenge porn being less protected as purely private speech depends on those snippets of language from as-applied challenges in tort and public-employee cases applying to as-written challenges in criminal cases. Supreme Court jurisprudence is all over the board, and there have been changes both radical and incremental in First Amendment law in the last century. A test that applies in an as-applied public-employee case or a tort case doesn’t necessarily apply in an as-written criminal case; nor should it. Nor does a test used in 1985 necessarily apply in 2014.
So how, if we can’t rely on language from 1985’s as-applied defamation case, Dun & Bradstreet, Inc. v. Greenmoss Builders, do we predict what the Supreme Court will do with a challenge to a revenge-porn statute?
We look at what the Supreme Court has done in recent years in procedurally analogous cases.
Procedurally, a challenge to a revenge-porn statute will be an as-written criminal statutory challenge. The best guide we have for how the Court will analyze a revenge-porn statute is the Court’s recent as-written-statutory-challenge cases, such as U.S. v. Stevens, 2010’s crush-film case, or U.S. v. Alvarez, 2012’s “stolen valor” case.
In both of these cases the Court applied, with no mention of strict scrutiny, the categorical test that I described in First Amendment 101; in neither of these cases did the Court even bother to discuss whether the speech (commercial depictions of animal cruelty in one; untrue claims of military service in the other) were “commercial speech,” were “matters of purely private concern,” or otherwise could evade the categorical test.
So no, speech “of purely private concern” neither receives less protection in the criminal context, nor should receive less protection than speech of legitimate public concern. Even zealots should be able to see the slippery slope we’re on if the Supreme Court signs off on their cocakmamie theories.
Danielle Citron compensates for her ignorance of First Amendment law with her certainty:
Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.
Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots, so it falls to practicing lawyers to point out that this is the state of First Amendment law:
Speech is presumptively protected.
Content-based restrictions on speech are presumptively void.
For a content-based restriction on speech to pass muster, the restricted speech must fall (at least mostly) within one of several narrowly defined categories of unprotected speech:
Advocacy intended, and likely, to incite imminent lawless action;
Speech integral to criminal conduct;
So-called “fighting words”;
True threats; and
Speech presenting some grave and imminent threat the government has the power to prevent, “although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain.”
Those are the categories of speech that the Supreme Court has recognized as unprotected.1 So Citron’s assertion that “disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection” is incorrect. It might be her wish, but for it to be so the Supreme Court will have to make it so by recognizing another historically unprotected category
In her law review article with Mary Anne Franks Citron argues (from Supreme Court dicta and other courts’ opinions) that the Supreme Court might recognize such a category, for example, as Eugene Volokh goofily proposes, by redefining obscenity to eliminate the requirement that the material be of prurient interest, as well as the requirement that the material be utterly without redeeming social interest.2
Indeed the Court might some day recognize a category of unprotected speech that includes revenge porn.3 How the Supreme Court responds to private images may depend on how the case arrives at the Supreme Court. I can see the court treating the disclosure of consensually made images differently than the nonconsensual making of images. But we’re a long way from there, and while Citron’s certainty may affect the lawmakers whom she is trying to convince to pass revenge porn statutes, it won’t convince the courts that will be hearing the inevitable challenges to those statutes. Those courts are bound by Supreme Court precedent, which contra Citron, does not put revenge porn into any unprotected category.
(See also Scott Greenfield.)
In fact they are redundant—child pornography is unprotected because it is speech integral to criminal conduct. ↩
Citron and Franks cite Volokh’s proposal approvingly even though Volokh notes that his notion of obscenity would render unprotected “many consensual depictions of nudity.” They would cut down every tree in England…. ↩
And perhaps it should. But it’s hard for this First Amendment lawyer to see how an exception could be crafted to exclude from protection revenge porn but not exclude socially desirable communications, such as Volokh’s consensual depictions of nudity. ↩
from practicing law in Texas, holding himself out as an attorney at law, performing any legal services for others, accepting any fee directly or indirectly for legal services, appearing as counsel or in any representative capacity in any proceeding in any Texas court or before any administrative body or holding himself out to others or using his name, in any manner, in conjunction with the words ‘attorney at law,’ ‘attorney,’ ‘counselor at law,’ or ‘lawyer,'”
So what’s Robert S. Bennett doing now? He’s “President” of “Bob Bennett Licensing Services.” In his LinkedIn page he categorizes the company as “legal services” (which would violate the court’s order):
In the description of “Bob Bennett Licensing Services for Professionals,” Bennett writes:
Mr. Bennett is the owner of Bob Bennett Licensing Services for Professionals. The licensing counselors in this licensing service are especially proficient in cases involving, matters before the Office of Chief Disciplinary Counsel, the Texas Medical Board, the State Board of Law Examiners, and other Boards involving professionals and DTPA violations, ethics defense, and white-collar criminal defense involving licensing issues.
The Bob Bennett Licensing Services for Professionals concentrates on representing attorneys, doctors, judges, and other professionals who have professional licensing issues and find themselves the subject of federal and state investigations. This includes representation of both law students and medical students who have run afoul of the Texas Board of Law Examiners or Texas Medical Board. Medical students and doctors who have issues with the United States Medical Licensing Examination, the National Board of Medical Examiners, or the Federation of State Medical Boards have retained Bennett Licensing. Whether the matter involves a grievance hearing before the Texas Office of Chief Disciplinary Counsel or a privilege hearing before a hospital committee, this Texas Licesning entity is known for aggressive representation and success. See client reviews and peer recommendations: www.avvo.com.
Specialties: Representing law students and lawyers with licensing issues before the Board of law Examiners or cases with the Office of Chief Disciplinary Counsel or before the Texas Board of Medicine or other professional boards that license professionals.
This sounds a lot like practicing law to me (which, as well as being a crime, would violate the court’s order). “Representing law students and lawyers with licensing issues before the Board of law Examiners” is certainly “appearing … in any representative capacity in any proceeding … before any administrative body,” which is interdicted by the order of disbarment.
Here’s what RSB’s website for Bob Bennett Licensing Services says in its small-print “DISCLAIMER AND NOTICER [sic] REGARDING MR. BENNETT’S LEGAL BACKGROUND”:
While in law school, Mr. Bennett served as an intern in the Harris County District Attorney’s Office and the United States Attorney’s office. Upon graduation, both law enforcement agencies offered him positions. He was a licensed attorney, former Assistant United States Attorney and was Board Certified. At the present time he is not a licensed attorney. His history of representing and working on licensing issues goes back to 1974 when he was hired by the Interstate Commerce Commission as an enforcement attorney to review licenses and permits in the transportation industry. As you can tell from his avvo.com site, 165 former clients have used his services and over 41 attorneys have provided peer reviews of his licensing work. Since he is presently not a licensed attorney, he cannot provide legal advice but having worked nearly forty years with every imaginable professional license, he can advise you about any business decisions concerning your license issue and if your fact situation is one that you should have an attorney assist you or not. It may be that you license concern or do to the simplicity of the licensing issue, your licensing issue can be handled without hiring an attorney. Every licensing issue does not require the assistance of an attorney, but if you decide it does, Mr. Bennett is extremely well qualified to help you with your business decision ( at a price that is not lawyerly!) and provide recommendations as to the best attorney to handle your case. . An example of this decision process may be helpful. Staff members with the Texas Board of Law Examiners as a matter of course would tell applicants they did not need to hire an attorney. In some instances that was correct and in others it was disastrous. With years of experience with business decisions about your application or license, Mr. Bennett may be able to save you thousands of dollars, and the first phone call is free.
What he describes on LinkedIn as “legal services” here becomes “help[ing] you with your business decision.” By calling them “business decisions,” I imagine that he thinks he’s shielding himself from a) contempt charges; b) an unauthorized-practice-of-law suit; and c) another grievance (should he get his license back) for UPL.
Protip: whether it is practicing law or not does not depend on what you call it. According to Section 81.101(a) of the Texas Government Code,
In this chapter the “practice of law” means … a service rendered out of court, including the giving of advice … requiring the use of legal skill or knowledge….
Advising people on “handling licensing issues” is giving legal advice. “You’d better talk to a lawyer” might not be legal advice, but “you don’t need a lawyer” damn sure is. Making “business decisions” of this sort requires legal skill and knowledge.
In fact, the experience that Robert S. Bennett describes to explain his qualifications is all legal experience: law school, prosecutor intern, licensed attorney, AUSA, board certified, enforcement attorney, etc. If you eliminated his legal experience, there would be no experience left:
At the present time he is not a licensed attorney. Since he is presently not a licensed attorney, he cannot provide legal advice but he can advise you about any business decisions concerning your license issue and if your fact situation is one that you should have an attorney assist you or not. It may be that you license concern or do to the simplicity of the licensing issue, your licensing issue can be handled without hiring an attorney. Every licensing issue does not require the assistance of an attorney, but if you decide it does, Mr. Bennett is extremely well qualified to help you with your business decision (at a price that is not lawyerly!) and provide recommendations as to the best attorney to handle your case. An example of this decision process may be helpful. Staff members with the Texas Board of Law Examiners as a matter of course would tell applicants they did not need to hire an attorney. In some instances that was correct and in others it was disastrous. Mr. Bennett may be able to save you thousands of dollars, and the first phone call is free.
There is a sucker for every charlatan, but I have to wonder: if a law student has such horrible judgment that he would pay a disbarred lawyer for advice on how to get licensed, shouldn’t that law student be, ipso facto, barred from practicing law?