Why are there so many uphappy lawyers?

This article in the Pittsburgh Post-Gazette mulls over the alarming rate of depressed lawyers leaving the profession -- 40,000 per year. That's roughly equal to the number of new attorneys entering each year. Central to this article are two former attorneys, Richard Delgado and Ron Fox, founders of the Center for Professional Development in the Law, a career planning service for attorneys.

Billable hours, stress and an uncreative atmosphere are cited as the main causes of dissatisfaction with the legal profession. If your job is out of alignment with your values, that does not mean you should (necessarily) quit tomorrow. Balancing professional and personal needs is important. Or as my colleague Joel Zand would say, Get a Life, Counselor!.

You can read the story here.

Sometimes I forget that legal blogs occupy only a very small corner of the greater blogverse. There's some entertaining stuff going on out there, like this "Hot Abercrombie Chick for President" thing.

Long story short: There's considerable debate over whether a decent looking female's blog is real or a hoax. There's a compelling case against the gal's veracity (amassed in part by our own Justin), which essentially boils down to this: hot chick has too much presence in the blogdex to be who/what she claims.

This seemingly trivial amusment does raise a couple of legal and ethical issues: 1) Is it ethical to blog under a false identity? 2) If HAC is in fact a hoax, is it legal to try to get a non-existent person elected President?

In terms of the first issue: Within legal blogging, I believe the standards are somewhat different than the general blogging population. A lawyer who blogs under a hidden identity is probably ok as long as the legal information s/he dispenses is honest and not misleading. If the lawyer's blog is not legal in nature, s/he has a lot more latitude to joke around, but s/he should still be mindful of ethical canons that guide a lawyer on and off the clock. Also, there are varying levels of hiding one's blog identity -- one's actual initials (e.g., TPB), a nom de plume (e.g., Samuel L. Clemons as Mark Twain), a false identity (e.g., some guys claiming to be a hot chick).

Regarding issue 2, I defer to the wisdom of editor David who says
"You have to define "try to get." There are many steps to a political candidacy. Trying to raise money for a nonexistant candidate or setting up a company to raise political funds for a nonexistant candidate: definitely illegal (and most likely a felony). Getting a name on a ballot that may not, in fact, represent a single legal entity: legal in many states. Building a website for an imaginary candidate: totally legal (1st Amendment defenses, parody, etc.)

So no, you can't get them put in jail, unless they are actively raising money and claiming it is for a political campaign and there is no indication (reasonable person standard, I would guess) that the site is parody."

Clayton Cramer ruminates on the question.

More on Linux/Microsoft/SCO/lawsuits (see my "Yee-Haw!" post, below, for a basic intro to this byzantine tech business absurdity):

I hope this nasty scheme was cooked up in the humid, Diet Coke fueled back rooms of the Redmond campus, rather than in the prim offices of Microsoft legal counsel in SF or NY, because if it's the latter then those lawyers have serious ethical issues on their hands. It will come out one way or another in the end. Note to the lawyers involved: remember, frivolous lawsuits are sanctionable under the Federal Rules. Walk away now and pretend you never got involved with this ugliness.

Good investigative reporting by Chris Preimesberger at NewsForge.

Dennis Kennedy doing his best to help lawyers avoid further embarassing metadata situations.

In the future, if a client sues a firm over a metadata goof, what do you think the firm's malpractice carrier will say?

Perhaps some firms might want to, first, review their wordprocessing technology and establishing some guidelines/standards on the metadata issue, and second, speak to their carriers about coverage for such technological disasters.

Is it ethical to manufacture comments to one's blog?

My guess is that the answer depends on the form and degree of manufacture that occurs.

On the "innocent" end of the spectrum, asking people to read and contribute to your blog discussion seems acceptable (though mildly desperate). A blogger becomes more culpable when s/he solicits comments from strangers -- this is akin to "cold calling" or bulk emailing your resume. Then again, some may see this strategy as valid self-promotion.

When a blogger routinely post comments to his/her own blog using a pseudonym, I think the practice has reached unethical deception. This issue brings up a recent case in California, Rezec v. Sony Pictures, where Sony manufactured movie quotes from a film critic who doesn't exist. The fictitious reporter, Dave "Everyman" Manning, would say stuff like, "One hell of a techo-effects thrill ride!" in promotional materials for Sony films. But I digress...

Most bloggers thrive on attention, and it's no fun talking to the wind. In a way, comments validate the posts.

So, who knows the secret to getting real blog posts? (ah, the old end-the-post-with-a-question technique)

Tech Law Adviser points to Aaron (RSS 1.0 co-author) Swartz's call for lawyers with an interest in such things to "sue for freedom".

First in his list of intellectual property windmills to tilt at is a suit for the protection of Seth Schoen's right to distribute his DeCSS haiku.

Schoen: "I was angry at the attempts by lawyers for the entertainment industry and the government to trivialize the free expression rights of programmers and other people engaged in technical communication."

Absolutely. Code is expression. A very powerful form of expression, but expression nonetheless. Courts do not yet really, fully understand that.

But then, the courts have been letting the IP laws beat the 1st Amendment with a stick, so why should we expect them to rise to the occasion and understand as sophisticated a concept as the essential expressiveness of code; or the long term value in protecting code as fully as any other form of expression.

But some people absolutely get it. Enjoy the Judge Kozinski quote in Swartz's post. Kozinski pithily demonstrates the ludicrious results from copyright law's victory over the First Amendment.

As SCO keeps finding new companies to sue, I thought it might be helpful to link to this handy illustration of the litigation landscape that uses - for ease of understanding - the cast of Dukes of Hazzard.

Boy, if I had a dollar for every time a litigation mess could be analogized to a Dukes of Hazzard episode I might one day be able to repay my law school loans.

Here's a neat Slate piece revealing that we have infamous Hollywood screenwriter and fabulist Joe Eszterhas to thank for the SCOTUS' seminal 1974 ruling in Cantrell v. Forest City Publishing.

Fast forward to 2004, blogs, RSS feeds, aggregators, etc.

It's a fairly straightforward issue when a piece that is supposedly a factual account is, in fact, mostly fiction. But it becomes more complicated when a story - moving from machine to machine in the news feeding chain that is the web - changes from factual account to fiction. How will "false light" survive in the digital age? I'm guessing it won't.

A recent post on Blogcritics.com outlines a basic ethical ruleset for bloggers to adhere to. Its stated purpose is to "promote civility and intellectual honesty in the blogosphere." The author feels that "both civility and intellectual honesty are two necessities in the blogosphere if it is to remain a credible source of information."

In the legal realm, civility is often a sorely lacking trait. Anyone who has practiced in the area of family law can surely attest to this. However, while the seven guidelines proposed in the article are purportedly noble in their cause, they may not have practical meaning for blogging lawyers. For that matter, they may not have practical meaning for anyone who reads or writes weblogs.

Touted as a media revolution, blogging has some rather high standards to meet. The community at large values "trusted source" information, and cringes anytime its grassroots nature appears violated. "Commercial blogs" are often reviled as no better than kiddie-porn.

However, there is a risk that imposing too rigorous a ruleset on blogging will ultimately kill it. Credibility and forthrightness are estimable attributes. Yet, if the level of expectation remains unattainably high, writers and readers may abandon their journals because they cannot live up to their own (self-imposed) expectations.

The important thing to remember is that blogging will become just like every other form of media. That is to say, it will be just as co-opted and rife with disingenuous sources as books, newspapers, television, radio, and the internet in general.

Blog readers and writers should not complain about having to be challenged within their own arena. Already we must wade through myriad "traditional" sources of information to find the most reliable facts, cogent arguments, and admirable ideas. The same will need to be done for weblogs. In fact, we already do it, it's just going to keep getting harder.

Indeed, if these seven rules were applied to talk radio, liberal or conservative, the airwaves would be empty. Talk radio is more or less a flame war with intermittent traffic reports.

Here are the seven rules, with various polemical retorts:

(1) Misinformation and/or false information shall not be published or permitted in the blogosphere.

We all know and love perjury laws, so false information is definitely off-limits. However, misinformation is the sophist's ball peen hammer. If facts won't win your client's case, perhaps smoke and mirrors will do. If the White House can use misinformation, so can anyone who writes a weblog.

(2) Posts or comments should remain civil, however, if someone does flame you in any way, shape or form, they should expect to be flamed in return in the form of a post or comment and they should not complain that they are treated in the same way that they have treated you. Libeling anyone should be refrained from entirely.

We actually have rules already for the lattermost portion: they're called libel laws. Also, as far as flamers not complaining about being flamed, it's a flame war: all is fair. The better version of this rule would be "Do Not Flame." Telling someone that they should expect to be flamed in return means it is open season for authors to stoop to that level once they have been flamed. For me, the practice of law has always meant taking the higher ground. Those in practice know that it is not always easy, especially considering the obligations to your client.

(3) Information in a post shall not be stolen from a source or plagiarized. If information from a source other than your own is used, that source shall be cited.

I'm sorry, I thought we were talking about the internet here. In fact, Creative Commons should add a new element to their license that is slightly lower than "attribution required" called "no passing off". While attribution is certainly the proper thing to do, the internet has a good deal of noble buccaneering. The rapid dissemination of information may at times necessitate simply propagating data without trackbacks or hrefs. Just don't say you came up with it.

(4) You have the complete and total freedom to express your views and opinions in any way, shape or form you choose, as long as no one is flamed directly or libled [sic] in the process. You should not expect everyone to agree with your views and you should expect discussion and debate of your views openly when they are posted.

Basically, you can say anything you want. But you may never call someone a "booger-eating moron." I am afraid that you can't give me "complete and total freedom to express your views and opinions in any way, shape or form you choose" without letting me call someone names.

(5) Posts that purposefully state something that cannot be proven about another blogger in order to increase traffic to your blog shall not be permitted.

So, if I posted that there is no number "n" other than 2 for which

(Joi Ito)ⁿ + (Lawrence Lessig)ⁿ = (Glenn Reynolds)ⁿ

and then told you to buy my book, I would be in violation. And not just because the formula above is obscene even with the number 2 as "n". Technically, I suppose Fermat's Last Thereom is something unproven to be unprovable.

(6) Bloggers shall do their best to adhere to good use of the English language, as to ensure a readable post by their readers.

teh rule above clearly does not apply to l33t h^x0r5.

(7) Violation of any of these guideliness [sic] shall constitute the violating blogger's permittance [sic] of his/her fellow bloggers posting juicy posts detailing his/her violation(s) in full.

Permittance? Not only is it not a word, but as if he/she is anything other than powerless to stop them. Plus, whenever someone uses the word juicy, it usually means that they are salivating as they write it. In other words, if you are bad, the flamers and bloggy gossip mongers will eat you. Finally, perhaps the author of these rules should consult his own Rule #6. I had to use sic three times.

Pardon my candle lighting.

[reposted excerpts from a 12/11/03 post on Airblogger.com regarding the Supreme Court's decision in McConnell v. Federal Election Commission]

Regardless of your position on the rightness or wrongness of the BCRA or the Supreme Court's decision upholding even its most controversial provisions, the fact is that a new regimen has been set up, a whole new system of rules that political consultants and lawyers must play by.

It's all about hard money now, and a great way to raise hard money – as the Dean campaign has shown – is on the Internet. The way the army of Dean bloggers funnels eyeballs to the main Dean site (and where eager eyeballs go, so hard dollars follow) is pretty impressive. But it’s probably a trifle compared to what could be done on the Internet once serious resources on invested.

Large corporations and interest groups – whose desire to influence the outcomes of elections remain unchanged, regardless of the BCRA and the Supreme Court ruling – will simply adjust to the new reality. Instead of spending tens of millions of dollars on last minute ads, they will have to seek out independent Internet groups and solo consultants and operators of various kind to create the Internet equivalent of a last minute issue ad. Make no mistake: the total amount of money that will be spent will remain the same, only now some of it will be spent online instead of on television.

One could argue that this is a natural progression. Any blogger or blog reading fanatic could tell you that television is becoming less rather than more relevant every day, and the online world is where the future is. Thus, according to this view, the BCRA and the Supreme Court’s ruling only legitimizes and accelerates an existing phenomenon.

I recognize of course that at the present time even the most popular bloggers or websites do not obtain a fraction of the attention of the citizenry as say a popular television show does. Clearly, paid television ads get the message out in front of far more people, instantly, than any other medium, presently.

But when you look at the numbers more closely, in terms of actual voters as opposed to mere television watchers, the differences becomes arguably a little less dramatic. And unlike television viewers, the number of people reading and participating online is still growing rapidly.

In short, this opinion accelerates the process of bringing big money politics online. I would not be surprised to see top bloggers and websites approached by corporate and organizational money in the coming months. Glenn Reynolds has stated that he has already been approached by someone to ghost write an editorial. Any blogger could potentially be a paid shill for a political candidate and nobody would know. Nothing in law would require them to disclose their status as such.

There is one obvious and immediate counter argument to all of this: one could argue that given the present power law distributions within the Internet (a handful of speakers enjoying vastly more traffic than all the other speakers combined) any attempt at paying off one of the top speakers would be transparent. But there's the rub: an organization would not need to pay off the top speaker, they could easily pay very small amounts to a thousand little speakers and get a buzz going that would mimic the look and feel of a true grassroots movement but for a fraction of the cost of a single issue ad. In other words, widely distributing monies that previously went to one big last minute television push could end up proving more effective.

Carolyn of MyShingle had a great comment on my prior post/hypothetical that I felt deserved its own post:

The problem with legal ethics questions such as the one you've posed is that each state has its own hyper-technical definitions of "solicitation" and "deceptive advertising" and my guess is that most bars would find the advertising you described to be an impermissible deceptive practice.

Nevertheless, my own view is that in the dynamic blogosphere, there isn't any reason to regulate this conduct. That's because any law firm that engages in the kind of practice described in the hypothetical is going to get caught - someone will find out about the blog and people writing in and being solicited and will spread a rumor of it around the blogosphere. The attorney will be tainted and no one will want to use that firm's services. That's what happened back in the Cantor/Siegel days (when they spammed newsgroups about their immigration law practice) . And that "free market" approach is a better way to combat deceptive or sleazy advertising practices than regulation by a heavy handed bar association.

She nails an issue that I hope will be addressed by the Blogbook: can the "reputation economy" and market forces take the place of regulations online?

Okay, this is not really a legal blog issue, but it touches on law, blogs and undercover marketing. Here's the hypothetical: a class action lawyer, say someone specializing in tobacco suits, hires a writer to start a blog called "Lung Cancer Blog." This blog purports to be a diary of a lifelong smoker who had no idea that smoking was dangerous and is now dying of lung cancer. The blog is beautifully written and a real tear jerker. It soon begins getting attention all over the blogosphere, and emails too. Emails from smokers who are now sick. The lawyer then turns around and replies to these emails.

Is this solicitation? Would it be legal in most states? Ethical?