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The Price of Lawyer Free Speech

December 19, 2011
An image of a sniper I made on MS Paint that I...

“By placing discretion in the hands of an official to grant or deny a license, such a statute creates a threat of censorship that by its very existence chills free speech.”

Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 964 n.12 (1984) per U.S. Supreme Court Justice Harry Blackmun

Over the past six months, I have faced a professional conduct complaint initiated by an “anonymous” lawyer and later at the behest of the Law Society of Upper Canada relating to my personal Twitter account: @apribetic.

I won’t go into detail, but suffice it to say that an “anonymous” lawyer did not take kindly to three of my “retweets” or “RTs” and decided to lodge a complaint against me. The fact that both my Twitter account and The Trial Warrior Blog are personal, as opposed to professional endeavours, did not forestall a lengthy Law Society investigation.

Thankfully, I received a letter today confirming that the “Law Society’s Proceedings Authorization Committee decided that discipline proceedings should not be initiated as a result of this complaint and that this matter should be closed.”

Here is a redacted copy of the LSUC letter dismissing the complaint.

For any lawyer to face a formal complaint from a governing law society or bar association is professionally worrisome and emotionally taxing. The fact that the complaint is subjectively frivolous is irrelevant; until the bar complaint is formally dismissed and the file is officially closed, your professional and personal life remains in turmoil.

You can imagine the amount of time it took for me to respond to numerous letters from the Law Society requesting explanations, clarifications and re-clarifications; all valuable time that I will never get back.  The distraction was unnecessary and a disservice to the Law Society’s regulatory mandate.

Admittedly, the Twitter complaint weighed heavily on my mind , as well as my heart.  The price of expressing strong opinions and speaking out against social media fraud is having a large bulls-eye painted on my back.

So be it.

I can take it.

Just next time: stand up and be counted. If you disagree with something I say or write, then call me on it. I am prepared to listen and to be persuaded to change my mind. Just don’t hide behind the cloak of anonymity and file an anonymous complaint. That’s what cowards do.

It helps when you have someone in your corner. In my case, I was fortunate to have the collegial support of not one, but two of the top American criminal defense lawyers and blawgers on my side : Brian Tannebaum and Scott Greenfield. In the latter case, it was Scott’s supporting letter, which in my mind, was dispositive of this “Twitter” complaint.

There is much talk about lack of “civility” in the legal profession.

In the end, civility is neither a substitute for free speech nor an excuse to not expose uncomfortable truths. United we stand, divided we fall.

Related articles

Posted in Uncategorized | 9 Comments »

Wrongfully Convicted Man Released Thanks To “Spectacularly Incompetent” Lawyers

December 9, 2011

Martha Neil of  The ABA Journal reports:

Convicted and sentenced to life last month, LaDondrell Montgomery had insisted all along that he wasn’t the man identified by eyewitnesses to an armed robbery.

But a Texas jury didn’t believe him and found the 36-year-old guilty in the Harris County case. Yesterday, his conviction was reversed and State District Judge Mark Kent Ellis personally apologized to Montgomery, reports the Houston Chronicle.

A few days after he was sentenced, Montgomery’s attorney, Ronald Ray, who is also representing him in other pending robbery cases, took a close look at his client’s rap sheet and realized he was in jail at the time of the 2009 crime in which he had been convicted. Ray had asked Montgomery before trial where he was during the armed robbery, but he just didn’t remember, the newspaper explains.

“It boggles the mind that neither side knew about this during trial,” the judge said yesterday, blaming both the prosecution and the defense for not realizing earlier that Montgomery literally had an iron-clad alibi. “Both sides in this case were spectacularly incompetent.”

In order to avoid another Rakofsky-esque defamation lawsuit, here is the original quote from the article written by Brian Rogers of the Houston Chronicle, who reports:

State District Judge Mark Kent Ellis shook his head as he berated Ray and prosecutors for the oversight.

“It boggles the mind that neither side knew about this during trial,” Ellis said Thursday. “Both sides in this case were spectacularly incompetent.”

The judge personally apologized to Montgomery, who stood at the bench in an orange jail uniform.

I presume that neither criminal defense attorney Ronald Ray, nor Harris County Prosecutor Alison Baimbridge, will be pleased with the judge’s harsh assessment that they were “spectacularly competent”.

While Ray and Baimbridge each try to put a positive spin on this fiasco, the only good news is that an innocent man will not have to spend the rest of his life in prison protesting his innocence.

Posted in Uncategorized | 2 Comments »

Having Some Fun with the New Math

December 9, 2011

Recently, Slaw.ca , the well-known Canadian group law blog announced a  change in its advertising policy and is now accepting “sponsorships”. The most prominently displayed banner is by the online lawyer marketing outfit:

In today’s post, Simon Fodden mentions New Math, a website by Craig Damrauer who ”makes language sub for numbers and comes up with some wry products.”  Fodden excerpts some examples:

Or, to pick something likely even closer to our hearts:

 I think this form of heuristic (or linguistic shortcut) can be applied in many contexts, including using it effectively for lawyer marketing purposes. Here’s one I came up with:

If you have any equations you wish to share, feel free to post a comment.

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Posted in Flawg, Flawging, Flawgosphere, social media, Uncategorized | Leave a Comment »

Sir Winston Churchill: On Writing*

November 24, 2011
Churchill at Potsdam, July 1945

Image via Wikipedia

“Writing is an adventure. To begin with, it is a toy and an amusement. Then it becomes a mistress, then it becomes a master, then it becomes a tyrant. The last phase is that just as you are about to be reconciled to your servitude, you kill the monster and fling him to the public.” – Sir Winston Churchill *

* The attribution of the quote to Churchill may be apocryphal. I have been unable to locate the original source from Churchill’s writings, and, yes, I Googled it and checked WikiQuote to no avail.

Richard Langworth, Churchill by Himself: The Definitive Collection of Quotations (Ebury Press,UK, 2008) at p. 49 cites the source of the Churchill quote as:

“1949, 2 November, Grosvenor House, London (Churchill Archives Centre).”

(h/t to a spam commenter, with my apologies for deletion. Keep trying.)

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Posted in Uncategorized | 1 Comment »

When Is A Laneway A Sidewalk, But A Sidewalk Not A Laneway?

November 7, 2011
"Sunken and Cracked Sidewalk" after ...

You’ve probably heard the imponderable: “Why do people drive on the parkway, but park on the driveway?”

In Guy v. Toronto (City), 2011 ONCA 689, the Court of Appeal for Ontario attempts to answer a similar vexing question: “When is a laneway a sidewalk, but a sidewalk not a laneway?”

[3]              Section 284 (1) of the Municipal Act requires that the municipality must “keep [a highway] in a state of repair that is reasonable in light of all the circumstances including the character and location of the highway.”  We do not accept Mr. Williams’ able submission that the trial judge judicially declared the laneway to be a sidewalk.  Instead, he found that the laneway – designated as a commercial roadway – was used both as a vehiclar roadway and a pedestrian passageway and the city knew that many pedestrians were using it on a regular basis in that fashion.  It was open for him to take this approach on the record.  The trial judge therefore declined to apply the seven-day notice requirement that applies to sidewalks, but when it came to determining the standard of care, decided to apply the higher standard of gross negligence that applies in sidewalk cases.  This favoured the city and we see no error in these circumstances in his doing so.

[4]              The trial judge found on the evidence that the city was grossly negligent.  We need not decide whether the standard of gross negligence was called for here.  As noted, it favoured the city, and in the particular circumstances of this case, we see no basis for interfering with his conclusion.

[5]              The Divisional Court affirmed the trial judge’s decision.  Again, we see no error.

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