Friday, October 22, 2010

Interlude 20. On the Morals of Ethicists

Fourth in Mark Brennan Series

At the Legal Profession Blog, legal ethicist Mike Frisch
removed his post, rather than admit error or stand his ground. Frisch posted the usual state-bar character assassination, where the reporter recaps the worst allegations of the bar court, while omitting most of respondent’s contentions and denials and caricaturing the others. Two commenters replied. The anonymous first commenter posted insightfully on September 24:
I find this case troubling. As I read the opinion, I just get the feeling that there is much more to this case than is reported. It appears to me that the judge and the attorney were both engaged in a battle. In other words, it was not just the attorney that had lost control but also the judge.
I posted the second comment, noting the report’s lateness and referring readers to my blog posts at [scroll down]. Following these postings, Frisch modified his position without admitting his error or analyzing his biased attitudes and impressionistic methods. He wrote:
There has been a fair amount of commentary … on this matter, much of it favorable or at least sympathetic to the disciplined attorney. Carolyn Elefant has suggested that the sanctions here were unduly harsh or motivated by animus generated by the attorney's success in the underlying representation. Also, it is noteworthy that the case was decided last year but appeared in the September 2010 listed decisions of the Colorado disciplinary system.

While Frisch finally pays attention to the Colorado dates, it is also “noteworthy” that he doesn’t date his “Update.” When you change your position or correct an error in a commented blog post, the ethical consensus among bloggers dictates that you note the date of the comment, but Frisch’s lack of candor goes beyond this failing. Frisch posted the “Update” above the old September 24 date line, implying that he updated his entry on the same date as it was written, but the earliest he could have changed it was October 4, 2010 (from the dating of the web cache at Frisch concealed his falsehood’s duration. Like a shady state-bar respondent, he resorts to deceit short of outright lies, in the fatuous hope no one will notice.

I e-mailed Mark E. Brennan, the subject, about the defamatory posting. The Colorado web site Know Your Courts reported that when Brennan then tried to discuss the matter with Frisch, Frisch almost immediately offered to remove the posting. Know Your Courts reports that Frisch told Brennan, “It is just not that important to me.”

Obviously, it wasn’t: the post came down without further comment. It’s not the only instance of dishonest blogging or even the worst for the Legal Profession Blog. In the 4th Installment, “The State Bar and It Academic Allies Undermine Legal Sophistication,” I describe how another blogger associated with that blog suppressed my critical comments on his remarkably authoritarian advocacy of imposing a full-disclosure requirement of all anonymous posting to the Internet while bar applicants attend law school. Not only was my comment suppressed, but Lipshaw suppressed the other commenter’s already published response, quoted in that 4th Installment, together with Lipshaw’s self-damning reply, also quoted in that kanBARoo court installment. (In fairness, the other major academic state-bar-establishment Internet site, the Legal Ethics Forum, hasn’t resorted to dishonest blogging practices.)

Dedicated bloggers and all devotees of basic truthfulness revile this practice of removing and changing commented blog entries, practices where the dishonest blogger hides the truth and reneges on his implied agreement with commenters, who don’t reckon that if they win an argument or expose a deceit, the losing blog owner will destroy the evidence. For those unfamiliar with the norms, consider this controversy among theoretical-physicist bloggers, who scorn another physicist because (among other reasons) he blogs dishonestly:

At [Luboš Motl’s] blog, The Reference Frame, [Luboš Motl] often deletes comments. … In addition to that, Luboš Motl has the habit of editing posts after publishing which, taken together with deleting comments, makes others look stupid or out of place while supporting him. (Backreaction.)

In another physics blog, a commenter drives home the significance of Motl’s blogging practices:

If this claim about Motl is true, I think the ‘freakish little sociopath’ label is wholly justified.” (3 Quarks Daily.)

The point of the digression is to clarify, for those unfamiliar with blogging norms, the practices followed by bloggers dedicated to truth-based ideals. Not only must the state-bar establishment recruit ethical invalids, as only they will enthusiastically support the trashing of ethics in ethics’ name, but the state-bar enforcement culture and those academics closest to it (Frisch is Ethics Counsel at Georgetown University Law Center, rather than a professor) actively undermine genuine ethical commitment by its practitioners and their academic accomplices. These cowardly libelers are accustomed to hide behind the litigation privilege, which they remorselessly wield against the reputations of state-bar respondents. Hardly surprising that they may sometimes forget, when quoting the state-bar tribunals as if the findings are fact rather than allegation, that they are liable for damaging falsehoods. Without any moral constraints to oppose to expediency prosecuting a vilified respondent, they can lose track of prudential advice: they forget that the decision of a state-bar court doesn’t collaterally estop an action against a private defamer who parrots the false findings as fact.