October 4th, 2012

Docs to Cops: Drop Dead

This story comes via Scott Greenfield, and it is depressing, funny and heartwarming all at the same time.

This is the depressing part: Police down in Sarasota, Florida thought they had a brilliant idea on how to get information on people they thought were violating the drug laws with respect to abusing prescription medications. All they had to do, the geniuses figured, was have patients sign a form waiving all of their patient-physician privacy rights. This way, if they wanted to investigate someone, they wouldn’t have to bother with all that icky stuff regarding judges and search warrants. The doctors would just have the patient sign the forms, and then the cops could just dance right into the doctor’s office and start nosing around without the patient knowing. Brilliant

The waiver, as originally published in Sarasota’s Herald-Tribune, looks like this:

The local constabulary was obviously hoping that patients wouldn’t bother to read all the legal mumbo-jumbo and challenge their doctor regarding the form. When you go to a doctor, and are in pain, reading forms isn’t exactly high on the list of things to do. Especially when written in legalese.

When people seek out medical attention it is because they need treatment, so they generally sign whatever is placed in front of them. And they don’t want to pick fights about forms with doctors for fear of being shown the exit door.

One of the more comical aspects of this attempted end-run around the constitutional rights of the patients, came from Patrick Duggan, assistant general counsel for the sheriff’s office. He, along with Sgt. Debra Kaspar from the Sheriff’s office, were behind the scheme. Duggan had this to say:

We want to make good cases. We don’t want anyone’s rights violated. We drafted the form to give the doctors a mechanism to contact us. It was really designed more as a safeguard to protect people’s rights than anything else.

His ability to say this without doubling over in laughter qualifies him for political office, where mendacity is king.

Now I did say that this story was also heartwarming. How could something this awful be heartwarming?

Easy. Because the local doctors have told Duggan and Kaspar and their minions to go to hell.

From the Herald Tribune:

Kaspar and Duggan have no explanation for why doctors are not turning in any waivers.

The docs done good.

October 2nd, 2012

The Importance of Blogging

My writing has been a little light in recent months. There’s a reason, or perhaps I should say, many reasons. But the primary one is that this blog takes a back seat to more important endeavors.

There is, for example, family. I’ve got a couple of kids that are growing up, and let’s face it, they won’t be kids forever. Kids need attention. And family vacations will, one day, be more difficult to arrange. Family is important.

There is the matter of running, which I try to find time to do. A few weeks ago I went up to New Hampshire with a group of friends to run a 200-mile relay. (The three minute video is here, well worth the time.) Friends are important.

And there is the matter of a half-marathon trail race I am organizing, scheduled for October 14th, which will attract many hundreds of runners, and has, in just a few years, become one of the biggest events of its kind on the Eastern Seaboard. Community is important.

And did I mention that I have four cases coming up for trial in the next few months? Clients are important.

Where does blogging fit into all this? Well, at the very bottom. As I’ve written before, I do it for fun and I do it when I have time, but I can’t (and won’t) be a slave to it. There are plenty of stories I’d like to write about, and posts composed in my head as I read the newspaper on the train. But at work and at home, more important things often leap into the way.

Each year the ABA Journal does a Blawg 100, and they’ve selected my humble little bit of cyberspace each of the past four years. This year they are unlikely to do so, as my blogging has slowed down as real life takes precedence.

As between cyber life and real life there is no contest as to importance.

September 24th, 2012

The Extinction of a Blog (Mine)

Thoughts on my blog being vaporized.

I first saw the note on Twitter, about all the blog posts vanishing into the ether. Notwithstanding my views on Twitter, it was, I think, an apropos way to learn my blog had gone the way of the dinosaurs. I saw this just before going to sleep on a Saturday night.:

I shot off an email to my web guy, asking two all-important questions:

Was I hacked again, or was this some kind of techno glitch?
And, more importantly, can you fix it?

If you are reading this blog via an email or RSS feed, there is no need to visit my site to see if it was fixed. It was. If it wasn’t, there wouldn’t have been much point in linking to an old piece about being hacked.

But the greater issue for me is, what happens if my blog becomes involuntarily extinct? Nobody really knows how they will feel about their own blogstinction until it happens. (Is blogstinction a word? It oughta be.)

Despite over 1,200 posts in this forum over the course of almost six years, I was, surprisingly, somewhat calm about the prospect. Yeah, I had invested a lot of hours into writing, but nothing happened to my family, my health or my business. It was a lot of time, but I did it because I enjoyed it and if it was lost, I wouldn’t lose too much sleep over it.

Well, maybe that isn’t 100% correct. If it was lost due to a hack, I’d be plenty angry. If your house is vandalized you get angry, but if it’s damaged due to a falling tree, you might be merely upset at losses. There would be no sense of anger from violation.

I lost a little sleep Saturday night, but not much. Mostly I was thinking about whether I would try to revive it, and if so how. And I was mulling new posts in my head, the first of which started like this:

No, it isn’t April Fool’s Day. All the posts on my blog really have vanished…

And another one where, perhaps, I reminisced about a few of the ones I enjoyed writing the most (but was unable to link to them or prove they ever existed), and those I never wrote due to a lack of time.

My blog was obviously restored, for a techno glitch that I don’t pretend to understand, but it was a pretty good reminder of something pretty important since if also follows in the wake of the Go Daddy hacking from a few weeks ago: Having a hard copy of your site on a disk that is not linked to the Internet is a damn good idea.

September 20th, 2012

Is Kyle Prall an Extortionist?

Kyle Prall, founder of bustedmugshots.com, is seen in an undated police booking photo from the McLean County Sheriff's Department. Prall's website collects publicly accessible police booking photos and displays them. People who find their mug shots displayed on Prall's website, or others like it, can have the pictures removed for what they refer to as a "nominal fee." REUTERS/McLean County Sheriff's Office/Handout

Earlier this year the legal blogosphere saw a disturbing act, when First Amendment attorney Marc Randazza was the subject of abuse. A woman, that he declined to represent, bought URLs with his name, and those of his wife and child, and sought to destroy his Google reputation with her search engine friendly rantings. Then she offered to pull the postings down for a fee.

Bloggers ripped her up, down and sideways for her conduct, amid claims that this was extortion.

But she is not alone, it appears, in this type of racket. Enter, stage right, Kyle Prall, from Travis County Texas.

Kyle Prall doesn’t dwell in the sewer of creating content and then pretending to be in the “reputation management” business of offering it to be removed, but he is darned close.

His modus operandi is to get mug shots from those that are arrested, put them on the BustedMugshots.com, and index them with the name, town and state of the arrest. In other words, in a very SEO-friendly manner to make sure that anyone Googling the person’s name will find the picture.

Never mind that a mug shot isn’t a conviction of anything. You really think he cares? This is about reputation destruction.

Then he offers to remove the information for a fee. Reputation management, at your service. So what if he played a huge part in destroying that reputation?

From Reuters today comes the story and the, ahem, fees, for having him help you recover your internet reputation by taking down the mug shot and arrest information that he put up. The subject is Janet LaBarba, one of Kyle Prall’s victims:

LaBarba paid what the site describes as “nominal” fees – $68 per photo for service within 10 business days, $108 within 24 hours – to make the photos disappear. An Internet search of her name now leads to genial photos of LaBarba pictured with lots of friends.

I’m not a criminal defense guy, so I won’t give definitions of extortion. But I do wonder what others have to say on it, because it sure looks extortionate to me.

More importantly, perhaps, I wonder what Kyle Prall tells his family and friends what he does for a living. Does he tell them that he deliberately tries to hurt others so that he hopes to profit from the pain he induces?

When the book of his life is ultimately written, what will he say that he did for society? Who did he help? What did he create? What is his legacy?

What will his tombstone say?

The Dangers Of Legal Outsourcing

Usually, when I write about legal outsourcing, I’m writing about outsourcing your marketing, and therefore your ethics.

Not today. Today is about outsourcing your actual legal work, an issue brought home by a recent decision regarding the use of a per diem attorney in court. Note that I don’t mean sending the work overseas for any kind of document reviews, but hiring another lawyer to make a court appearance, this being the real nuts and bolts of much that happens in litigation.

This isn’t about the ethics of using a per diem — generally someone hired to cover a conference or deposition when the attorney has a scheduling conflict — if you want to read about the ethics of it, you can turn to this piece of Lisa Solomon.

No, the problem here is in the actual execution of the task, for if that contract attorney gives away the farm at a conference, it can’t simply be undone.

This problem came into sharp focus in Staten Island last month, while the legal profession was on vacation, in Kane v. City of New York. In Kane, the plaintiff says he was injured when he was assaulted by New York City police officers and then falsely arrested and imprisoned.

The case proceeded normally with a Preliminary Conference that lays out a discovery schedule and then depositions. At the plaintiff’s deposition, his lawyer blocked questions regarding prior arrests. As a general rule of thumb, only convictions are material, not arrests, which are merely accusations. Most defense lawyers wouldn’t even bother asking that question about prior arrests. But this was a false arrest case, and the City might conceivably try to get information on how personally familiar the plaintiff is with being arrested. I don’t think that’s a winning argument, but that is what was obviously being claimed as an excuse to get this information.

Then came the problem. The lawyer had a scheduling conflict and hired a per diem to handle the next conference. The attorney of record, knowing the sensitivity of the case, gave directions to the per diem. But the per diem dropped the ball. S/he then gave the case to another lawyer because s/he was too busy with other conferences that day. The specific directions regarding this case got lost in translation. The new order was not good for the plaintiff. As per the decision by Justice Thomas P. Aliotta:

On September 13, 2011, a stipulation regarding discovery was entered into at a court conference (“the Stipulation”). This document provided, in relevant part, that the examination before trial of defendants would be held on November 4, 2011; that plaintiff was to provide information about his entire arrest history (including authorizations for the unsealing of records) and NYSID number within 45 days; that he would further provide HIPAA compliant authorizations for any mental health treatment he may have received; and that defendants’ right to conduct a further examination before trial of plaintiff was reserved.

Oops. Plaintiff’s lawyer tried to valiantly undo this mess. He had done nothing wrong, having assigned the case to someone he trusted, but that someone breached the trust by taking too much work and passing the case to another.

In the attempt to untangle this, plaintiff’s counsel moved to vacate the stipulation, and argued that he hadn’t hired that second per diem and that person had no authority to act for his client. As per the court:

Plaintiff contends that the Stipulation should be vacated because the attorney who entered into it, ostensibly on his behalf, had no authority to do so and, further, agreed to provide certain items of discovery in violation of plaintiff’s rights. Specifically, plaintiff contends that his attorney of record was in a different court on the day that the Stipulation was executed, that the attorney of record had made arrangements with a specific per diem attorney to appear at the conference on his behalf; that this per diem attorney was apparently covering cases in more than one Part of the Richmond County Supreme Court on that date; and that she requested a different attorney to appear on her behalf for the conference in this matter. Plaintiff’s attorney of record claims that while he had authorized the first per diem attorney to appear for his client, he had no knowledge of the attorney who actually appeared, and had not given him the authority to do so.

The Court was not kind to plaintiff, discussing the preferences the courts have to having matters decided by stipulation, and the requirement that only those with authority regarding the case make appearances. The court wrote:

In view of the rigorous demands of present-day practice, this Court clearly cannot afford to take the time to inquire of every attorney appearing before it whether or not he or she possesses the requisite authority to enter into negotiations or binding agreements regarding any of the issues in controversy, and must rely on counsel’s compliance with the published rules of the Court.

Personally, I think the per diem that gave the case away should have fallen on his/her sword and put in an affidavit about doing something s/he wasn’t authorized to do. But that didn’t happen.

It may turn out that the plaintiff isn’t ultimately harmed by what occurred, for as Justice Aliotta pointed out, that which is discoverable during litigation is not necessarily admissible at trial. But it moves the ball one step closer for the defendant, and now comes down to trial rulings as the jury sits in the box one day. And that is not where the plaintiff wants to be.