Just when I thought I’d put the April Fool’s fun behind me — and started to plot next year’s prank — comes this little nugget:
April Fool’s Day Isn’t For Everybody: Once again, Ethics Alarms will declare that it is irresponsible for anyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun” … yes, even on April 1.
Who the heck is this blogger and why is he such a killjoy? And more importantly, does his argument have even a grain of merit?
The blog is Ethics Alarms and appears to be the work of Jack Marshall, who claims to run an ethics consulting firm in Alexandria, VA and mixes seminars with music and theatre. Marshall, it seems, had me in mind for his posting. The giveaway was that he used my name. Let’s explore the post further:
Eric Turkewitz, a New York lawyer, has an astounding post on his blog ridiculing the New York Times ( as well as some blogs and websites) for believing and reporting his fake announcement that he had been appointed the official White House law blogger.
Well, I’m flattered he thought it was astounding. But there was no ridicule for blogs and websites (plural); only for the New York Times. And the ridicule was earned because the paper failed to do a simple fact check of its story. They didn’t even bother to call me until hours after it was posted, when they realized they’d been had. While the WSJ reporter was initially taken in by the joke, he didn’t write about the hoax until after he’d phoned both me and the White House. He did his job.
But let’s cut to the ethics part because, while I understand that some don’t like April Fool’s jokes, the issue of ethics is more important than the issue of whether such pranks are your cup of tea:
…lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct,
Rule 8.4? OK, let’s run that one down. Rule 8.4(c) states that “A lawyer or lawfirm shall not…engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
Marshall claims that there is no exception for humor. I disagree. More importantly, I believe that the courts will stand behind me. And that is based on the recent legal battle over New York’s 2007 amendments to our attorney ethics rules in Alexander v Cahill. As it happens, I’ve written plenty of posts about this ongoing legal struggle over what can, and cannot be used in legal advertising.
And one of the things that the court had to decide was whether deliberate misrepresentations by a lawfirm were ethical when done with humor to make a point.
In Alexander v. Cahill, the State of New York took aim at the ads of Alexander & Catalano, as they claimed, among other things:
- Lawyers being retained by aliens;
- Lawyers having the ability to leap tall buildings in a single bound;
- Lawyers stomping around downtown Syracuse, Godzilla-style.
The State Attorney General claimed the ads were unethical because they were literally false. They actually made this argument (not on April 1st) and you can read the State’s brief if you want. (My tax dollars at work, thank you very much.)
But the ads were upheld by the District Court when the rules were found unconstitutional, and more importantly, upheld again by the Second Circuit when it likewise found the rules unconstitutional. It was all about First Amendment protections of free speech.
The Second Circuit wrote that the use of humor was not only OK, even if a false portrayal took place, but that it might actually be beneficial in some circumstances:
Moreover, the sorts of gimmicks that this rule appears designed to reach — such as Alexander & Catalano’s wisps of smoke, blue electrical currents, and special effects — do not actually seem likely to mislead. It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client’s house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens. But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe — purely as a matter of “common sense” — that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics. Indeed, some of these gimmicks, while seemingly irrelevant, may actually serve “important communicative functions: [they] attract[] the attention of the audience to the advertiser’s message, and [they] may also serve to impart information directly.”
So now we turn to blogs. Would a court rule that blogs such as this one are an advertisement to gain clients, or non-commercial speech? In our analysis, it wouldn’t matter. Though restrictions on speech are greater for commercial speech than non-commercial, the use of humor (even with false depictions) has already been upheld in the stricter (commercial) setting. An April Fool’s prank that can be immediately debunked with a single phone call or email is not one that could hold up for more than a day and not one that could be taken seriously.
Moving one step further along, though it really isn’t necessary, the April Fool’s hoax has a role in social commentary in that it was designed to root out people that act on a serious news story without fact checking. I wasn’t expecting The Times to fall for it, of course, but I did think that others would and that there was a good point to be made about people rushing to fall for stories, even on a day when they should be on the lookout for such things.
Thus, Rule 8.4 cannot be read in a vacuum. The claim by Marshall that “there is no April Fool’s Day exception” would seem to be pretty clearly wrong. There is an exception, and it’s called the First Amendment.
So, leaving aside the easy responses one might have to those that would criticize an April Fool’s prank such as the one I pulled with my co-conspirators, it would seem that, on the law, the First Amendment rules the day.
And the rules also wouldn’t apply here because the hoax wasn’t pulled in conjunction with the representation of any client. Thus, if you make the April Fool’s joke an ethical violation, then so too are misrepresentations surrounding surprise parties, Santa Claus and The Tooth Fairy.
Two final notes: First, the jester in the photo is me, circa 1995. Sorry I couldn’t find a photo with a clown nose. Second, same time next year?
(No clients were hurt in the perpetration of this hoax.)
When I read about Marshall's response to your prank, my first thought was that Marshall must have written it on April 1st. No, turns out he was serious.
Now I'm looking for someone to start a class action against you for disappointing all of us who were hoping to have a shot at the White House Blogger job when you were done with it.
When I read about Marshall's response to your prank, my first thought was that Marshall must have written it on April 1st.
Me too. But the URL indicated April 3rd, and he linked to my April 2nd deconstruction of the hoax.
Excellent analysis. very funny prank, and a good defense of it. If I ever need a personal injury attorney in NY I'll be sure and look you up.
Max
Boy, Eric, I was all prepared to be dazzled by an original and pointed defense, and what I get are strained analogies to…advertizing? Seriously? Using an exaggeration or metaphor in a marketing context where the life experience of the reader or observer makes it overwhelmingly likely that he or she will understand that such language is NOT to be taken literally, and in which there is no misrepresentation whatsoever, is comparable to a lawyer using his blog—and the special credibility his member ship in the Bar is supposed to confer—to intentionally mislead others? I think not, and you will find that the famous “I was only kidding” excuse has not fared all that well when judges and other lawyers themselves were the ones fooled. Nor does a lawyer have a constitutional right to lie, even for the fun of it.
Your “defense,” if it can be called that, is nothing more than an assertion that the Rules and NYRPC 8.4 in particular are not enforced in cases like yours, and that is true, because dishonesty of this sort, like incivility, is not momentous enough to occupy the disciplinary process’s time when far worse violations abound. Both are death by a thousand cuts. But lack of enforcement does not confer compliance, and it certainly does not get around the obvious (to me, anyway) ethical violation created when a lawyer causes media outlets, blogs and undoubtedly some readers to believe something that isn’t true, regardless of whether he has a jolly motive or not. It’s too bad, because I like fooling people too, but the viral nature of web news means that web hoaxes that aren’t extremely obvious cause real and predictable harm….as this one did to the readers of the Times. That means that ALL such hoaxes are wrong, and that lawyers in particular can’t indulge themselves…including you. It’s not just dishonest, which is specifically forbidden in the Rules, it is irresponsible.
If you canvas the members of the Association of Professional Responsibility Lawyers, of which I am one, most of them will argue that misrepresentation outside the practice of law should not be the object of discipline except in extreme circumstances, and I agree with that. But like most of the Rules that try to protect the integrity of the profession, 8.4 depends on the individual lawyer following its guidelines and not looking for unwritten, unrecognized loopholes, like April 1.
By the way, I don’t “claim” to be a legal ethicist, I am recognized as such by the New York Bar and elsewhere, teach the topic full-time in law firm and bar associations across the country, and will be launching a new three-hour legal ethics CLE program at the DC Bar’s Judicial Conference this week.
Boy, Eric, I was all prepared to be dazzled by an original and pointed defense, and what I get are strained analogies to…advertizing?
Why would you expect to be dazzled? You didn't cite even a single case or disciplinary opinion that says an April Fool's hoax — that is not made in the course of representation and not before the court — is unethical.
Nor does a lawyer have a constitutional right to lie, even for the fun of it.
I'll try to remember that the next time The Tooth Fairy pays a visit to my kids.
Your “defense,” if it can be called that, is nothing more than an assertion that the Rules and NYRPC 8.4 in particular are not enforced in cases like yours, and that is true, because dishonesty of this sort, like incivility, is not momentous enough to occupy the disciplinary process’s time when far worse violations abound.
BS. You failed to provide any support for your theory that the rules apply in my regular life, as opposed to those times I am engaged in representation.
You failed to provide any support for your theory that my First Amendment rights to free speech — using a joke to make a point — have somehow been surrendered.
That means that ALL such hoaxes are wrong, and that lawyers in particular can’t indulge themselves…including you.
Repetition of your thesis doesn't make it true. You need actual support for it. And you will have a tough time finding any given that the First Amendment allows me to use humor to make a point.
By the way, I don’t “claim” to be a legal ethicist, I am recognized as such by the New York Bar and elsewhere… yada, yada, yada, plug for seminar tucked in at end…
Maybe you are, maybe you aren't. I don't believe everything I read on the web.
By the way, since you have now invoked the New York Bar, I decided to look you up to check on your registration.
And the online directory indicates that there is no one registered as an attorney by the name of Jack Marshall in the State of New York.
Readers can do their own checking at this site:
http://iapps.courts.state.ny.us/attorney/AttorneySearch
Jack Marshall represents all that is bogus about "ethicists." Questionable, muddled analysis with bases that are even more questionable, at best. Typically practiced by people who take themselves WAY too seriously.
Congrats, Eric, you pulled a damn funny prank and took this joker to the mat. My hat's off to you.
Almost forgot the other trademark move of "ethicists":
Making ludicrously over-broad statements.
That is all.
Law is all about judgment. Lawyers without judgment are worse than useless; they are dangerous. In getting all worked up and a bit hyper about a joke, Marshall, in my opinion, is not showing the best possible judgment.
Marshall's reading of the rule is literal, but naive. It leaves out two implicit limitations – that the misrepresentation be material, and that someone might reasonably rely on it. Otherwise, every white lie ("you look good in that suit"), every exaggeration for humorous effect, every bit of satire or sarcasm, fall into the ambit of the rule. All of us – well, all of us but Marshall, apparently – will immediately recognize that this is not so.
Not to endorse your joke, which didn't seem all that funny a piece of linkbait to me, but I don't think anyone would reasonably rely on it – especially in the context of April Fool's Day – and I don't think any reliance was involved beyond that of pulling people into the joke itself.
For those reasons, and not just the de minimis violation reason, this just isn't something that would ever, ever lead to enforcement under the rules, and any legal filing asserting otherwise would, in my opinion, have a pretty good chance of getting hit with sanctions for being frivolous.
So what does all this say about Marshall? I don't know enough about him to know whether, in other settings, he really has anything useful to say on the laws relating to regulating the legal profession, but in my opinion his take on this issue raises real questions about his judgment and expertise. To the extent he really is a maven with valuable things to say, I don't think he is putting his best foot forward by branding himself as the guy who thinks lawyers who tell jokes should be sanctioned. He doesn't want to create a situation where the idea of paying him money for ethical advice become a joke all on its own.
I question the legal acumen of anyone who can't understand why a case on advertising is relevant to activity on a blog. How is that a strained analogy? Advertising is the #1 area in which rules like NY's 8.4 are applied. If we want to understand what the rule means, it makes sense to read cases that applied it.
The point was not that the rule isn't enforced in humorous situations, it was that NY Courts found that the First Amendment was a defense.
Also, I noticed that Mr. Marshall does not appear to be listed as a current Adjunct Professor of Law at the Washington College of Law at AU as claimed on his website. It would be a good idea to update whichever of the two sites is incorrect.
http://www.wcl.american.edu/faculty/#adjunct_faculty_spring_2010
@Rob:
Hilarious. The "ethicist," with a misleading/false website. This guy is indeed a joke.
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