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2016.010: Brown & Musslewhite

Blog - Wed, 05/18/2016 - 10:38

The Houston personal-injury firm of Brown and Musslewhite was ripping off Houston criminal-defense badass JoAnne Musick’s blog posts. So she did what any self-respecting lawyer/writer would do in that situation: she gave the firm a polite telephone call to ask confidentially that they remove the offending comment—

Just kidding. JoAnne did what any self-respecting lawyer/writer would do in that situation: she called Brown & Musslewhite out publicly so that from now until the crack of internet doom there will be a record of their dishonest unethical ways:

I would never hire a lawyer engaging in such practice. It’s unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don’t try to make yourself look better; be better!

Amen, sister.

Why is writing the post better than making the call? Because — and I’m speaking from extensive experience here, having made the call time after time only to be left flat on my back like Charlie Brown — when you make that call you don’t get taken seriously. Instead you waste your time listening to excuses — “my marketer did it” — and rationalizations — “well, we gave you credit.” The extreme, by contrast, always seems to make an impression.

It makes an impression on its subject, and it makes an impression on others. If JoAnne had made the call, maybe Brown & Musslewhite would have stopped stealing content, but nobody else would have learned anything from the exercise. By posting about Brown & Musslewhite’s theft, JoAnne both discouraged others from stealing content and stopped Brown & Musslewhite from doing so—

Just kidding. Brown & Musslewhite took down JoAnne‘s content, but they still are republishing as though it is their own writing by people outside their firm: William K. Berenson, Randy Sorrels, Sam Adamo, Jr. (on HCCLAtv.com), and others.

HCCLA cares about people stealing its content, but what if none of the others care about Brown & Musslewhite stealing their content? We are not even personal-injury lawyers, for crying out loud. Shouldn’t JoAnne just mind her own business? Shouldn’t I?
Yes, absolutely, because this is profession for ladies and gentlemen, and ladies and gentlemen mind their own business—Just kidding.Lawyers minding their own business allow unethical lawyers to thrive, giving the bar a bad name. And while I joke that it’s a small fraction of the bar that gives the other 1% a bad reputation, the truth is that most lawyers are concerned with practicing ethically themselves. They would not deserve the bad name that the minority give them, except for one thing: They mind their own business. Like the majority of bad cops whose only offense is following the blue code, lawyers who don’t speak out against unethical lawyers are also unethical lawyers.
Writing is thinking. Publishing someone else’s work as though it is your own is a lie. Publishing the work of a lawyer outside your firm as though it is your firm’s is fraud: Potential clients will see it, will naturally believe it is characteristic of the firm’s thinking, and will make their decision based on what they believe is a sample of the firm’s thinking. If you think lawyers should mind their own business when they see lawyers defrauding potential clients, you are part of the problem.

2016.010: Brown & Musslewhite

Mark's Blog: Defending People - Wed, 05/18/2016 - 10:38

The Houston personal-injury firm of Brown and Musslewhite was ripping off Houston criminal-defense badass JoAnne Musick’s blog posts. So she did what any self-respecting lawyer/writer would do in that situation: she gave the firm a polite telephone call to ask confidentially that they remove the offending comment—

Just kidding. JoAnne did what any self-respecting lawyer/writer would do in that situation: she called Brown & Musslewhite out publicly so that from now until the crack of internet doom there will be a record of their dishonest unethical ways:

I would never hire a lawyer engaging in such practice. It’s unethical and just plain wrong. Color me offended and sad that they have chosen to use my name and my words to try and make themselves look better. Don’t try to make yourself look better; be better!

Amen, sister.

Why is writing the post better than making the call? Because — and I’m speaking from extensive experience here, having made the call time after time only to be left flat on my back like Charlie Brown — when you make that call you don’t get taken seriously. Instead you waste your time listening to excuses — “my marketer did it” — and rationalizations — “well, we gave you credit.” The extreme, by contrast, always seems to make an impression.

It makes an impression on its subject, and it makes an impression on others. If JoAnne had made the call, maybe Brown & Musslewhite would have stopped stealing content, but nobody else would have learned anything from the exercise. By posting about Brown & Musslewhite’s theft, JoAnne both discouraged others from stealing content and stopped Brown & Musslewhite from doing so—

Just kidding. Brown & Musslewhite took down JoAnne‘s content, but they still are republishing as though it is their own writing by people outside their firm: William K. Berenson, Randy Sorrels, Sam Adamo, Jr. (on HCCLAtv.com), and others.

HCCLA cares about people stealing its content, but what if none of the others care about Brown & Musslewhite stealing their content? We are not even personal-injury lawyers, for crying out loud. Shouldn’t JoAnne just mind her own business? Shouldn’t I?
Yes, absolutely, because this is profession for ladies and gentlemen, and ladies and gentlemen mind their own business—Just kidding.Lawyers minding their own business allow unethical lawyers to thrive, giving the bar a bad name. And while I joke that it’s a small fraction of the bar that gives the other 1% a bad reputation, the truth is that most lawyers are concerned with practicing ethically themselves. They would not deserve the bad name that the minority give them, except for one thing: They mind their own business. Like the majority of bad cops whose only offense is following the blue code, lawyers who don’t speak out against unethical lawyers are also unethical lawyers.
Writing is thinking. Publishing someone else’s work as though it is your own is a lie. Publishing the work of a lawyer outside your firm as though it is your firm’s is fraud: Potential clients will see it, will naturally believe it is characteristic of the firm’s thinking, and will make their decision based on what they believe is a sample of the firm’s thinking. If you think lawyers should mind their own business when they see lawyers defrauding potential clients, you are part of the problem.

2016.009 Three Good Deeds

Blog - Wed, 05/11/2016 - 11:19

Speaking of kindnesses…

She was never my favorite judge. She was fair in trial, which is more than I can say for most of our local bench, but she was irascible in the runup to trial; it didn’t seem personal, but she was not “patient, dignified and courteous,” as required by the Texas Canons of Judicial Conduct. Still, when the Harris County district court judge tragically lost her grown son, I sent her my condolences because it was the right thing to do. She hugged me in the hallway and thanked me the next time she saw me. We were cool for a while. She treated me professionally, and not with the usual rudeness.

When the judge ordered one of my colleagues into custody for doing her job I stood up for my colleague. When she filed a grievance against the judge, I wrote an affidavit describing what I had observed. Because it was the right thing to do. The judge received a private reprimand, (a big deal coming from the usually toothless Commission for Judicial Conduct, which usually disciplines judges by requiring them to buy the next round): A judge who has once been privately reprimanded doesn’t want to be grieved again.

When another colleague died, I took over one of his cases in the judge’s court. It was, again, the right thing to do. Last week I had a sweet deal worked out for that client. I realized as I was going over the plea papers with him that we hadn’t checked with an immigration lawyer to make sure that the sweet deal was really sweet. I asked the judge for two more days before doing the plea. Giving me two days would have cost her nothing and benefited me no farther than keeping me from committing malpractice. Everybody knew I was going to get my two days, but the judge was rude to me. I had “just asked her for another day yesterday” (not true) and “was losing credibility.” That a new personal edge to the old failure to be patient, dignified, and courteous.

I explained that I hadn’t crossed this particular T because of the irregular way the case had come to me — as a mitzvah to a fallen comrade. I hadn’t done my usual intake.

The judge said, “well, no good deed goes unpunished.”

Okay, judge. Okay.

On reflection, I wonder which of these three good deeds the judge was talking about. I doubt that it was the first, and maybe it was the third, but I have a sneaking suspicion it was the second — my representation of the lawyer she had unlawfully jailed.

Was the judge butthurt by my providing a factual account of that incident to the Commission on Judicial Conduct? Is she bent on punishing me? I would like to know. Not so that I can avoid the same sort of good deed in the future but so that I can it more. I’ve got a defiant streak, and if you try to punish me for doing the right thing, I’ll look for more opportunities to do the right thing the same way.

And opportunities abound. Remember: Patient, dignified and courteous.

2016.009 Three Good Deeds

Mark's Blog: Defending People - Wed, 05/11/2016 - 11:19

Speaking of kindnesses…

She was never my favorite judge. She was fair in trial, which is more than I can say for most of our local bench, but she was irascible in the runup to trial; it didn’t seem personal, but she was not “patient, dignified and courteous,” as required by the Texas Canons of Judicial Conduct. Still, when the Harris County district court judge tragically lost her grown son, I sent her my condolences because it was the right thing to do. She hugged me in the hallway and thanked me the next time she saw me. We were cool for a while. She treated me professionally, and not with the usual rudeness.

When the judge ordered one of my colleagues into custody for doing her job I stood up for my colleague. When she filed a grievance against the judge, I wrote an affidavit describing what I had observed. Because it was the right thing to do. The judge received a private reprimand, (a big deal coming from the usually toothless Commission for Judicial Conduct, which usually disciplines judges by requiring them to buy the next round): A judge who has once been privately reprimanded doesn’t want to be grieved again.

When another colleague died, I took over one of his cases in the judge’s court. It was, again, the right thing to do. Last week I had a sweet deal worked out for that client. I realized as I was going over the plea papers with him that we hadn’t checked with an immigration lawyer to make sure that the sweet deal was really sweet. I asked the judge for two more days before doing the plea. Giving me two days would have cost her nothing and benefited me no farther than keeping me from committing malpractice. Everybody knew I was going to get my two days, but the judge was rude to me. I had “just asked her for another day yesterday” (not true) and “was losing credibility.” That a new personal edge to the old failure to be patient, dignified, and courteous.

I explained that I hadn’t crossed this particular T because of the irregular way the case had come to me — as a mitzvah to a fallen comrade. I hadn’t done my usual intake.

The judge said, “well, no good deed goes unpunished.”

Okay, judge. Okay.

On reflection, I wonder which of these three good deeds the judge was talking about. I doubt that it was the first, and maybe it was the third, but I have a sneaking suspicion it was the second — my representation of the lawyer she had unlawfully jailed.

Was the judge butthurt by my providing a factual account of that incident to the Commission on Judicial Conduct? Is she bent on punishing me? I would like to know. Not so that I can avoid the same sort of good deed in the future but so that I can it more. I’ve got a defiant streak, and if you try to punish me for doing the right thing, I’ll look for more opportunities to do the right thing the same way.

And opportunities abound. Remember: Patient, dignified and courteous.

2016.008: The Texas Criminal Subpoena

Blog - Tue, 05/10/2016 - 18:17

Suppose that you are a civil lawyer representing a business or government entity in Texas, and your client is served with a subpoena in a criminal case. The subpoena is returnable “instanter,” and asks that your client produce certain documents along with a business-records affidavit.

What do you do?If you are Shannon Kackley of Austin’s Denton Navarro et al., you look up the Texas criminal subpoena statutes, notice that a subpoena must require the witness’s appearance “before a court” “at a specified term of the court or on a specified day” (and not instanter), and send the defense lawyer this email:

Mr. Bennet,

This Firm and I represent the City of Bay City, Texas and the Bay City Police Department.

We have been informed that you have recently provided a copy of the attached document to the Bay City Police Department. We have reviewed the purported subpoena and determined that it is invalid and unenforceable.

If you wish to obtain documents from the Bay City Police Department, please properly serve it with a valid subpoena duces tecum under Article 24 of the Texas Code of Criminal Procedure.

If you have any questions, please do not hesitate to contact me.

Why is that the wrong call? Because, while you may not realize it, I have done your client a kindness by allowing it to produce the records along with an affidavit instead of—as the statute clearly allows me to require—appearing before the court to testify on a specified day. Not accepting this kindness, and refusing to comply with the subpoena because it doesn’t strictly track the statute, is maybe not in your client’s best interest.

Now, you don’t realize this because, like a teenager who has invented sex, you are so impressed with yourself for finding What the Dumb Old Criminal-Defense Lawyer Did Wrong. So when you get the next email, you don’t know what’s coming next:

I don’t know why you’d want to make things difficult for me, but okay. Will you accept the subpoena on behalf of your client?

If you had bothered to consult with a criminal-defense lawyer, she would have told you that I had offered your client a kindness, and you could have avoided making the wrong call. But you don’t. Instead you email back:

I can’t. My boss won’t allow us to accept service. …

It probably would have behooved you to go and talk to your boss about accepting service, but nope. Fine, I’ll serve your client with bells on.

There’s a certain loser logic in all of this so far—21-year civil lawyer who is still an associate and doesn’t even have discretion to accept a subpoena on behalf of a client fails to recognize the gift that his client has been offered.

Here, though, is where it gets inexplicable:

… But when you serve the PD with a valid subpoena, please attach the business record affidavit that you want completed. It makes it easier for the PD and ensures the correct document is executed.

After I’ve pointed out that you are making things difficult for me, why on Earth would I want to make things easier for your client? Your client has done nothing but try to make things difficult for me. Why are you still an associate? Big mystery. Could it be because you are a poster child for poor legal judgment?

Maybe the subpoena is unenforceable. We’re not going to find out because I’m not going to request an attachment. Instead I’m going to serve your client with another subpoena, as you requested. And the subpoena will strictly comply with the statute, as you requested.

That statute allows a subpoena to “direct that the witness bring [something] and produce it in court,” but does not provide for documents to be produced otherwise, as with a business-records affidavit. So I won’t bother offering your client that out.

The statute also requires that the witness summoned to court remain there “on [every] day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness.”

So if you’re Shannon Kackley you’ve just helped your client avoid producing documents with a business records affidavit, but signed your client’s custodian of record up to come to court and  stay there (on your client’s dime) perhaps for the duration of the trial.

As I wrote to Kackley in my response:

Well done, counselor.

2016.008: The Texas Criminal Subpoena

Mark's Blog: Defending People - Tue, 05/10/2016 - 18:17

Suppose that you are a civil lawyer representing a business or government entity in Texas, and your client is served with a subpoena in a criminal case. The subpoena is returnable “instanter,” and asks that your client produce certain documents along with a business-records affidavit.

What do you do?If you are Shannon Kackley of Austin’s Denton Navarro et al., you look up the Texas criminal subpoena statutes, notice that a subpoena must require the witness’s appearance “before a court” “at a specified term of the court or on a specified day” (and not instanter), and send the defense lawyer this email:

Mr. Bennet,

This Firm and I represent the City of Bay City, Texas and the Bay City Police Department.

We have been informed that you have recently provided a copy of the attached document to the Bay City Police Department. We have reviewed the purported subpoena and determined that it is invalid and unenforceable.

If you wish to obtain documents from the Bay City Police Department, please properly serve it with a valid subpoena duces tecum under Article 24 of the Texas Code of Criminal Procedure.

If you have any questions, please do not hesitate to contact me.

Why is that the wrong call? Because, while you may not realize it, I have done your client a kindness by allowing it to produce the records along with an affidavit instead of—as the statute clearly allows me to require—appearing before the court to testify on a specified day. Not accepting this kindness, and refusing to comply with the subpoena because it doesn’t strictly track the statute, is maybe not in your client’s best interest.

Now, you don’t realize this because, like a teenager who has invented sex, you are so impressed with yourself for finding What the Dumb Old Criminal-Defense Lawyer Did Wrong. So when you get the next email, you don’t know what’s coming next:

I don’t know why you’d want to make things difficult for me, but okay. Will you accept the subpoena on behalf of your client?

If you had bothered to consult with a criminal-defense lawyer, she would have told you that I had offered your client a kindness, and you could have avoided making the wrong call. But you don’t. Instead you email back:

I can’t. My boss won’t allow us to accept service. …

It probably would have behooved you to go and talk to your boss about accepting service, but nope. Fine, I’ll serve your client with bells on.

There’s a certain loser logic in all of this so far—21-year civil lawyer who is still an associate and doesn’t even have discretion to accept a subpoena on behalf of a client fails to recognize the gift that his client has been offered.

Here, though, is where it gets inexplicable:

… But when you serve the PD with a valid subpoena, please attach the business record affidavit that you want completed. It makes it easier for the PD and ensures the correct document is executed.

After I’ve pointed out that you are making things difficult for me, why on Earth would I want to make things easier for your client? Your client has done nothing but try to make things difficult for me. Why are you still an associate? Big mystery. Could it be because you are a poster child for poor legal judgment?

Maybe the subpoena is unenforceable. We’re not going to find out because I’m not going to request an attachment. Instead I’m going to serve your client with another subpoena, as you requested. And the subpoena will strictly comply with the statute, as you requested.

That statute allows a subpoena to “direct that the witness bring [something] and produce it in court,” but does not provide for documents to be produced otherwise, as with a business-records affidavit. So I won’t bother offering your client that out.

The statute also requires that the witness summoned to court remain there “on [every] day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness.”

So if you’re Shannon Kackley you’ve just helped your client avoid producing documents with a business records affidavit, but signed your client’s custodian of record up to come to court and  stay there (on your client’s dime) perhaps for the duration of the trial.

As I wrote to Kackley in my response:

Well done, counselor.

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