Ben Sheffner (Copyrights & Campaigns) has the story, with all the links you can want. Patrick Frey confirms that the commenter does indeed seem to be the lawyer (something that's generally worth checking on the Internet). Here's an excerpt from Sheffner's long and detailed post:
Patrick Frey is a Los Angeles County Deputy District Attorney. He also has a blog called "Patterico's Pontifications," which features news, analysis, and commentary on subjects including politics, the criminal justice system, and media bias. Frey's blog includes a disclaimer on the front page making clear that his blogging is completely separate from his work as a prosecutor ....
Frey recently wrote a long and detailed post about allegations that 2 prosecution experts in a Louisiana murder case manufactured evidence that helped send the defendant, Jimmie Duncan, to death row. Frey's post included extensive analysis of the forensic evidence, and the results of an interview he conducted with a prosecution expert witness (who was not accused of manufacturing evidence)....
Duncan's appellate attorney[,] ... Kathy Kelly of the Capital Post-Conviction Project of Louisiana left the following comment on Frey's blog:
I’m am [sic] Mr. Duncan’s lawyer. This case is currently on appeal. You are not the prosecutor, the judge or a forensic expert. You have noted contacting several people who are potential witnesses in the case and who will be called as witnesses later on in an evidentiary hearing. As a lawyer you should no [sic] that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar.... You are a memeber [sic] of the general public you have no right to be demanding that this child’s autopsy or medical records be turned over to you. Again you are neither the DA or the JUdge [sic] in this case.
What? It's an ethical violation for an attorney who blogs as a hobby to act exactly as a reporter: interviewing witnesses and seeking relevant documents? On a case in which he has no official involvement as an attorney? ...
Sheffner analyzes the California Rules of Professional Conduct, and concludes there's nothing at all unethical in Frey's opining on the case. I'm not expert enough on the Rules to verify this, but I can say that First Amendment law should and likely does protect Frey's speech even if Sheffner is mistaken and the Rules do indeed purport to restrict Frey here (which I have no reason to believe is the case). The Court has upheld (in Gentile v. State Bar) some restrictions on lawyer speech about his client when there's an impending trial, chiefly because of concerns that the speech may unduly influence jurors. But this rationale certainly doesn't apply to speech by someone who isn't a lawyer for one of the parties, and who is speaking while the case is on appeal (and thus before judges, who presumably know enough not to be unduly influenced by public comments about the case).
Frey's response, which is much to his credit: "I don’t intend to cease exercising my First Amendment right to speak about matters of legitimate public concern because some lawyer who is mis[re]presenting the content of my post threatens a bogus complaint to my State Bar."
UPDATE: Prof. David Hricik (Legal Ethics Forum) agrees with Sheffner.
Related Posts (on one page):
- Louisiana Capital Post-Conviction Project Lawyer Retracts Claim of Unethical Conduct by Blogger:
- Louisiana Capital Post-Conviction Project Lawyer Trying To Suppress Blog Commentary About Case:
In my experience, bar disciplinary counsel can easily be used to harass, annoy, and chill the speech of lawyers with whom one is having a dispute.
As I say, I think Frey is very much in the right. My comment is only to suggest that the bar generally considers one to be a lawyer at all times, regardless of whether one is pursing a "hobby" or not.
And isn't Ms. Kelly just wrong about contacting witnesses? Frey isn't tampering, and the fact that he's not involved in the case would seem to make his contacting the witnesses less objectionable, not more.
The only objection I'd see is that as a prosecutor, Frey probably can't contact people about legal proceedings without them feeling some kind of coercion. As PatHMV notes, you can't just take off the lawyer hat whenever you feel like it.
For goodness sakes, folks: At least act literate!
Fair point. Ms. Kelly's comments don't give me great confidence that Duncan is receiving the representation he should be receiving.
Its certainly a violation to threaten reporting opposing counsel to the bar, but given that they do not represent opposing parties in this matter, can the tort exist if the attorney reasonably believes a violation has occurred?
Which is something that anyone bound by the MRPC (or equivalent state bar rules) ought to take into account. Honesty and forthrightness at all times is the rule. Commenters take note.
Cheers,
On the other hand, though, I wouldn't judge someone's legal acumen by typos in their blog posts. I generally don't put a lot of though or editing into my blog posts, while I do repeatedly edits briefs, deposition questions / defense materials, testimony / cross-ex outlines, etc.
If Louisiana law colorably authorizes Mr. Frey's activity, Ms. Kelly could be accused of ethical violations by bringing an unfounded complaint.
At least in Arkansas, then, lawyers are prohibited by the bar from involvement with undercover investigations? Including for white-collar crime?
I haven't read the original blog post that inspired Ms. Kelly's threat, but can anyone tell me why the hell a defense attorney would want to shut this guy up? It seems like he's raising great issues. Granted, they may or may not be issues worthy of overturning the case, but if they go to actual innocence, I think they have to have an effect on appellate judges. Am I wrong? For those who have clerked for appellate judges, could it be that evidence of actual innocence has NO effect on the deliberations over legal issues?
so lawyers can't play poker?
in hold'em for example, it's against the rules to tell the TRUTH about your hand. but accepted to lie
That explains why the defense attorney is objecting. Thanks for doing the research and enlightening my lazy ass.
What sort of possible punishment is there for breaking this rule? If people are expecting a lie strategic truthfulness could be very much to your advantage.
The most likely punishment is ejection from the game on grounds of colluding with another player.
The rule exists to avoid disclosure advantaging one of the other players relative to a third-party competitor.
Say you have KQs and the guy ahead of you bets big pre-flop. If while you are thinking some random other dude announces "I have Kings" and you know he's telling the truth, you would become much more likely to fold. And that guy ahead of you, with say AQo, would be mighty pissed.
If you really believe that you are a fool. Most cases are lost because the judge or law clerk gave insufficient attention to counsel's arguments. The natural human laziness (best case) that allows this to occur can easily be triggered by sloppy writing.
Frey confirmed via email with Kelly that she did indeed leave the comment on his blog (as Prof. Volokh notes in the first paragraph of his post).
All right, I'll consider it. Unless you are alleging that Frey has somehow engaged in misconduct involving
"dishonesty, fraud, deceit or misrepresentation" - where are you going with this?
Not only that, but the state network of criminal defense attorneys will undoubtedly offer assistance to Ms. Kelly. More importantly, the strong and motivated nation-wide fraternity of anti-capital-punishment attorneys and institutions (e.g. the Death Penalty Project, Southern Poverty Law Center), as well as "public interest" concerns (e.g. ACLU) could see Mr. Frey as the prosecutorial version of the "Great White Defendant" from Tom Wolfe's Bonfire Of The Vanities. They very well may view this as a wonderful opportunity to make Mr. Frey the poster boy for prosecutorial misconduct and strike a great ideological blow. (Truth and fairness have nothing to do with being made a target of these people, who were teethed on Saul Alinsky's tactics.)
All this to say, this is a serious matter, about which Mr. Frey needs serious counsel and representation.
I was thinking about being truthful about low cards during a bluff. I see collusion as a different issue from truthfulness.
And, since you brought it up, Patterico is not the exemplar amongst bloggers, much less lawyers, IIRC.... But I agree with most here that his statements and actions on this case are hardly worthy of bother (pending any further facts concerning his involvement that I don't know about).
Cheers,
As I mentioned to OK, he isn't entitled to effective (ie. competent) counsel.
I read the posts. It appears that what Kathy Kelly really doesn't want is someone out there challenging her claim that her client is actually innocent and being framed by evil people.
And of course, she objected just as strongly to Radley Balko, who Patterico is refuting.
(not in order of appearance)
First post:
1. memeber - for member, clearly a typo
2. JUdge - another typo
3. no - for know, not a typo, but here is the context: As a lawyer you should no that you have no business....
in another post by Ms. Kelly:
1. probelm - typo
2. addreses - typo, subsequently spelled correctly
3. sides - should be sides'
yet another post:
I’m don’t want... - typo, subsequently used correctly
Seems to me that the brain was ahead of the typing .
My conclusion:
Ms. Kelly shows impeccable use of grammar, good choice of vocabulary and proper, coherent use of language.
I'd caution against the conclusion that Ms. Kelly is deficient as a defense attorney due to her poor grammatical skills.
I agree that it's a serious matter for an attorney to accuse another of an ethical violation and to threaten to complain to the state bar. (I also think it's seriously outrageous to make such charges falsely.)
But are you aware of any cases, in any state, where an attorney was found to have transgressed ethical standards where he interviewed (but did not tamper with) a witness in a case with which he had no official involvement?
I understand that attorneys may enjoy fewer First Amendment rights with regards to cases in which they actually participate, but Frey had no participation in the Duncan case as an attorney. What he did was no different from what newspaper reporters do every day. The fact that he did it as a blogger, and that he has a day job as a prosecutor, should not change the analysis.
To read:
3. no - for know, not a typo, but here is the context: As a lawyer you should no that you have no business.... Seems to me that the brain was ahead of the typing .
.
.
.
promote this guy to judge ASAP
In every game I've ever played in, my experience has been this: it's unacceptable to make any claims--true or false--about your hand, or offer speculation about anyone else's hand, as long as there are more than two players in the pot.
(Talking about previous hands, or making general comments about the game, etc., is fine.)
If it's heads-up, though, there's no chance of collusion, so you can say whatever you want. (But in my experience you're usually harder to read if you just keep quiet.)
It's too bad no one knowledgeable can support/invalidate my conclusion that in Arkansas lawyers cannot participate in undercover investigations.
The text seems to be very clear; is this excerpt unmodified by any other part of the bar association rules?
Substantively, I found Patterico's blog's attempts to cast doubt on the relevance of the video to be a game effort, but he is ignoring that the so-called "bite marks" evidence has recently been discredited and these two experts have a very questionable track record, at best. But the defendant seems to be guilty, nonetheless.
I am aware of no such cases - having, I am thankful to say, never found such a search necessary. But do you really doubt that prosecutors are generally not considered "part of the gang" in most state bars? Or that there will most likely be more professional sympathy for Ms. Kelly's position? Otherwise you're preaching to the choir: your arguments would be mine as well. But any attack by Kelly et al. won't be limited to hornbook issues.
What I'm saying is, Mr. Frey may very well have in store the unfortunate experience of becoming a symbol, even a scapegoat; and because of that he needs to gird for battle well and soon. I don't think most people grasp the sense of mission and sacrifice which motivate so many of those who have devoted themselves to legal special interests and so-called "justice" projects. They truly see themselves as righteous crusaders against evil and tyranny; and they will see, and cast, Mr. Frey as the avatar of a tyrannical power. I'm not kidding - this is how many of them think and act.
Doubtless they would see a bar action brought by Ms. Kelly against Mr. Frey as a fight of good against evil. And because of that, they could persuade themselves that anything they do to further that fight, no matter how false or pretextual, is justifiable. It would be no difficult thing for them to start the rumor underground railway; start a netroots campaign; gear up media blitz; dust off the street march strategy - any or all of the usual cynical sleight of hand so useful in poisoning public opinion. And don't think a bar committee is immune from public opinion.
Finally, the result of a bar complaint hardly matters if it gives them an issue with a face. All they need is to put something in play. There's no downside for them.
That's why Mr. Frey needs to get ahead of the curve and not wait on Ms. Kelly.
If Mr Duncan were mentally deficient, he would be safe from execution, regardless of any evidence or argument against him.
But since it's his attorney who seems to suffer that debility, no problem!
YDNRC.
I'll admit that I have no experience outside of the jurisdiction I practice in. But, in my jurisdiction, all lawyers are routinely given very light slaps on the wrist for very serious violations...including DAs. Including some who have very high positions in the Department of Law to this day. I just don't see what you're complaining about.
But, as far as people seeing themselves fighting for good and so anything they do is justified, that describes a lot more DAs I know than defense attorneys. Fortunately, it's not a majority of either group.
in the WSOP it is more than acceptable to lie about your hand. and it's very commonly done.
one player who pushed the envelope in being (somewhat) truthful about his hand was jamie gold a couple of years back. he REALLY ruffled some feathers, and even had the commentators going off on him.
So, her grammar is sufficient. Accordingly, she must be color-blind and unable to see the red and green lines under what she's typed.
Nieporent, you stupid ignoramus, the Code of Ethics of the Society of Professional Journalists says,
Mr Fafarman,
The Volokh.com comment policy prominently displayed here states:
(Emphasis added.)
I don't think there's any doubt that that policy applies to your comment here. Enforcement might be a matter of some question, especially under doctrines espoused by Professor Kerr. But the policy applies to you.
On the other hand, continuing beyond the name-calling in your comment:
Mr Frey does not appear to be a member of the Society of Professional Journalists (SPJ). While he might choose to voluntarily comply with their code of ethics, I see no duty.
Mr Frey's pursuit of journalism stands entirely apart from his membership, or lack of membership, in the SPJ. I know of no general duty for journalists to belong to the SPJ or any other professional society. Nor do I know of any duty for journalists in America to be licensed.
Bipartisan Campaign Reform Act of 2002, exceptions to the 30 and 60 day name mention rule, 2 USC 434. It looks one hell of a lot like a federal class of journalists to me.
'If you meet elements 1-3, you get to speak prior to an election. Otherwise, no public speaking'
1. I have hidden evidence in defense of my client that I want to spring on the court.
2. I don't want my incompetence to be revealed.
When Balko blogs about this guy's supposed innocence, he drums up media attention for the contention that the guy is innocent. Balko is making this baby rapist into a cause celebre, which can affect how much attention an appeal gets.
When Frey blogs in the opposite direction, exposing the truth, that threatens to undermine the baby rapist's celebrity.
Mr. Nieporent, an implicit reference to another commenter as a "nut[]" isn't quite as bad as an explicit "you stupid ignoramus," but please tone it down.
Some of the greatest hits here and here and here. There's plenty that didn't even make the chart. Of course, that's just my opinion, "exemplar" being a somewhat personal standard; Y (and the readers') MMV.
I'll give you one thing: Glenn Greenwald (subject of your "Glenn Greenwald: Douchebag" epithet) does give you props for those instances when you do act responsibly (and don't follow the more screaming RW foamers -- such as AoS, AP, Misha and Malkin -- off the cliff). But that's a low bar to cross.
Cheers,
Cheers,
Hi-hi, Mr. Volokh -- did you really think that you could get rid of one of the Internet's most notorious trolls so easily?
Here's the rule again:
They believe that journalists have the obligation -- it's just not an enforceable obligation.
I would file a complaint with the law journals that frequently cite this blog, but they don't care. Most of them are not peer-reviewed or even faculty-reviewed but are just student-reviewed, so they don't care very much about accuracy and considering a variety of views.
Voice in the Urbanness views my blog as a great threat to his dogmas about Darwinism and the holocaust and so he has been trying to sabotage my blog by posting the following kinds of comments:
(1) Comments containing nothing but insults and ad hominem attacks.
(2) Comments that lie about objective facts.
(3) Gossip about my private affairs.
The 'sic' in question were on Patterico's site, presumably added by him. The mitspelt "mispresenting" was also on his site. So in neither case did Prof V make a change to the original text. Perhaps parentheticals of some sort would be in order, I'm not sure. Or remove the 'sic' and just use (Mistakes in original), I'm honestly not sure.
Your links to strident left-wing sites prove little more than your own political leanings. I think I won those arguments, and that any objective person who reads my posts on those issues (I bet you didn't -- you just read the other side's) would agree.
But the Internet is full of non-objective people, and so I bet most liberals (probably including you) think those links totally show me up, and most conservatives will think I totally walloped the other side (though more delicate souls might tsk-tsk me for some of my wording).
So you managed to show that left-wingers disapprove of me as a blogger. Congratulations.
But you went further and suggested I'm a bad *lawyer*. Where does that come from?
Are you now going to take the position that I *must* be a bad lawyer because you don't like my *political* arguments?
I think you're falling into the Kathy Kelly trap: you don't like the content of what I say, ergo I must be bad at my job, or unethical, or whatever.
Should we conclude that you are bad at whatever you do for a living if we believe your comments are poorly argued or your examples not on point?
Actually, I like the interpretation posed by Mr Fafarman.
I think I'll call MSNBC to ask for an open exchange of views with Mr. Olberman. I think 15 minutes of his program time will be enough for me.
Does the Society have a disciplinary board?
FWIW, your attack on Greenwald for alleged "sock puppet[ry]" was of course the time-honoured (attempted) argumentum ad hominen. Which gets you respect from all concerned, hosannahs from your devoted readers, and invites to TV news shows and mention in newsmagazines. Right? So why bother actually addressing the substance of Greenwald's posts? Particularly when there's kerning to be examined, and your Photoshop "zoom" button is languishing from lack of attention....
Cheers,
The big difference is that broadcasting air time is severely limited whereas comment space on blogs is virtually unlimited, meaning that there is much less reason to pick and choose which public comments to present on blogs.
Now that I have explained that fact (which should have been obvious), you should like my interpretation even better.
That's the only thing you've said that makes any sense. But it makes *so* much sense, it compensates for all your nonsense.
As the Greenwald sock puppets might say: "Good DAY, sir!"
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