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Recent Blog Posts
2015.92: Matthew Responds
I sent Matthew a link to my last post.
He quickly responded:
And now you've committed a handful of torts, including libel by taking my words out of context and tortious interference with business.Enjoy the lawsuit I'm in the process of filing against you, psycho, arrogant, inferiority complex-ridden moron.MatthewAttorney At Law
What Matthew doesn't realize (because obviously he's not a guy who does his homework before inviting experienced lawyers to join him in what appears to be fraud against a major investment company) is that I am not some civilian who quails at the thought of being dragged into court. I have been sued before, and I will be sued again. Every time someone tries to attack me for my writing, I make free speech stronger by refusing to cave in. So I actually will enjoy the lawsuit he is in the process of filing against me.
I hope Matthew doesn't have a good friend with enough wisdom to tell him to stop digging. Maybe this'll be my chance to buy Marc Randazza the best steak in Houston.
2015.91: Will Anyone Help Matthew Out? [Updated]
Sometimes when I've written about ethical issues and use specific examples, people whine at me that I should be nicer; that instead of publicizing other lawyers' misdeeds I should contact them and counsel them.
The theoretical problem with being nicer is that I might make more of a difference by writing here than by counseling. If I send an email to a lawyer who has strayed, I might put him back on the ethical path, but nobody else benefits from the lesson. If I write here, though, everyone might have the benefit of the lesson. No professional courtesy is owed between lawyers where misconduct is concerned. In fact, lawyers have a special public duty to police themselves, which means that preventing misconduct trumps being nice.
The practical problem with being nicer is that it isn't appreciated. Like Charlie Brown, I keep making those calls, and time after time I am rebuffed. "Nice" is really only appreciated in contrast with something else, so the people who I call don't realize that by taking the time to call them and offer them the benefit of my experience and education I'm being nice.
2015.90: Poor Unfortunate Souls
The other day I met a University of Texas Law School first-year student. He told me about a legal research project that included a budget-the students were to keep track of their time, value it at 250 (imaginary) dollars an hour, and stick to an imaginary $4,000 budget.
When he thinks of quitting, he says, he thinks about that $250 per hour.
I'm not entirely sure UT Law is doing a good job of explaining the economics of the practice of law to its 1Ls. The expectation that a young lawyer will get $250 an hour is false.
The median income for lawyers licensed two years or less in private practice in Texas is about $69,000. Call it $34.50 per hour, assuming an unrealistically light 2,000-hour year. In-house counsel makes more money at every age. New lawyers in-house make a median $78k a year, and the 2,000-hour year is a little more credible for them. The top earners are lawyers with 61 to 65 years of experience working as in-house counsel; they make a median $278k a year, though I hope they aren't working 2,000-hour years in their 80s.
2015.89: “Oops,” he explained.
(I'm pretty sure my title is a JDogism.)
In my recent Texas First Amendment Update I omitted one of the statutes I'm challenging: Texas Penal Code Section 21.12(a)(3), the Improper Relationship Between Educator and Student statute.
You'll realize by now that the titles of Texas penal statutes often inaccurately describe the forbidden conduct. For example, the Online Solicitation of a Minor statute forbade non-soliciting communications to adults; the Fraudulent Use of Identifying Information statute and the Online Impersonation statute both forbid the nonconsensual "use" of someone's name with intent to harm (so basically criticism). The Improper Relationship statute forbids employees of a public school, from the principal to the janitor, doing certain things with students in the same school district, regardless of the students' age. ((This is a gloss on the statute, which you can read here.))
2015.88: Cocks AND Glocks
It is clearly free speech.
Waving a dildo around to convey a message is symbolic speech, which is speech. Waving a dildo around to protest guns on campus is not obscenity, and it falls into no other historically recognized category of unprotected speech.
This, to First Amendment lawyers, goes without saying.
And what are the chances that the University of Texas would arrest, ticket, or discipline a student for carrying a dildo around as part of a protest "to draw attention to the fact that carrying a dildo to class could be ‘prohibited expression' under university rules"? Nil, especially given that the university will have almost ten months to consult with counsel and choose the right course. I have heard (take it with a grain of salt) that the university has told students they will not be cited for carrying dildos in protest.
2015.87: Texas's Disorderly Conduct Statute Unconstitutional
My client was charged by information with
intentionally and knowingly display[ing] a deadly weapon, namely, A FIREARM, in a public place and in a manner calculated to alarm
This is an accusation of disorderly conduct under Section 42.01(a)(8) of the Texas Penal Code:
Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:.....(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
Content-based restrictions on speech are presumptively invalid under the First Amendment. Is Section 42.01(a)(8) a content-based restriction on speech?
Speech includes expressive conduct.
A statute is a content-based restriction on speech if it regulates speech based on its message, its subject matter, or its intent.
Section 42.01(a)(8) forbids not only the exhibition of firearms to threaten or for no communicative purpose, but also the symbolic speech of exhibiting firearms to make points, including political points, such as the open-carry demonstrations characterized by the media as "alarming."
2015.86: Texas First Amendment Update
In Ex Parte Fournier, the Court of Criminal Appeals rejected an actual-innocence claim from a guy who had gone to prison for violating Section 33.021(b). I hadn't had a lot of hope for the actual-innocence claim-I figured the state would find a way to wire around the damage done to it by Ex Parte Lo so that it wouldn't have to pay millions in civil claims. Judge Yeary dissented, joined by Judge Keller; they would hesitate to give Ex Parte Lo retroactive effect on the theory that there may have been some constitutional applications of the unconstitutional statute-some of the speech punished under Section 33.021(b) was not constitutionally protected.
And indeed some of the speech punished under Section 33.021(b) was not constitutionally protected; that speech was forbidden under other statutes as well. The state chose to prosecute that speech under the easy-to-prove-and-unconstitutional Section 33.021(b) rather than under a more-difficult-to-prove-but-constitutional statute. The State, rather than the accused, should bear the consequences of this decision.
2015.85: Reputation Management Expert Patrick Zarrelli Weighs In
We called you honestly and professionally about our client. We work in cyber bullying, a real field, that's important. You instantly began to swear at me, after admitting that you and Greenfield are friends who support each others blogs for SEO purposes. In this case to SEO under my clients name for advertising. Then when I told you why I called, and you realized you had exposed yourself and Greenfield in possible unethical advertising practices you freaked. Based on this article I cant tell your still angry and its clouding your judgment.There is nothing honest or ethical about this article or your advertising techniques. Now you say im on cocaine because I dare call you on the phone politely? That's really dishonest my friend. Im sorry your so angry, but what you are doing here is dark, unethical, and not benefiting of a lawyer or the bar you licensed under.All it is, is text book, cyber bullying. Posted for no other purpose except to hurt others, and encourage your friends, and fellow unethical marketers, to join in on the personal attack of an honest person.
2015.84: Dear Gary Ostrow (updated)
Dear Gary,
I had forgotten, to tell you the truth, that I'd written this little bagatelle about your ridiculous Gary Ostrow Lawyer Announces He Is Taking on All Celebrity Criminal Cases in Florida press release. It'd been a couple years, and it wasn't a big deal at the time. It attracted a few comments then slipped my mind.
Then I got a phone call today from some guy calling himself Patrick Zarrelli. He claimed to be doing reputation management on your behalf. He said something about cocaine-I can't be sure whether he was talking about himself or about you.
Anyway, this Patrick Zarrelli guy threatened to file a grievance against me if I didn't take the post down.
I tried to explain to Zarrelli that I'm a First Amendment lawyer and that I've been unsuccessfully grieved and sued for the content of this blog. He didn't seem to catch the gist; he kept threatening, acting like he thought he knew the law. There was some mumbo-jumbo about it not being "hot news," so that I had to take it down. Apparently he has lawyers in his family, so he's an expert. I know: crazy, right? (Do you think it was the cocaine talking?) [Update 10/30: Patrick assures me that he doesn't do cocaine, so he must have been talking about the cocaine in connection with you. How do you feel about that, Gary?]
2015.83 Dean Boland's Threats Untethered From Truth
I did not enter into any agreement called a "deferred prosecution agreement" nor even words to that effect. This statement is false and defamatory and damaging to my professional reputation......I never entered a deferred prosecution agreement with the government. This statement is defamatory and causing me real, financial harm which is calculable.
-Dean Boland, October 2015.
On the criminal side, the government alleged that Boland's conduct violated federal criminal child pornography laws, leading to a deferred prosecution agreement with him......In his deferred prosecution agreement, he suggested as much, stipulating that he "downloaded at least four... images, from the Internet, depicting four... real, identifiable minors in innocent poses," and then "digitally manipulated such images... to appear that each of the... minors was engaged in sexually explicit conduct." R.73-1 at 10. In his apology, he added, "I do recognize that such images violate federal law." Id. at 12.
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