My God, you are an idiot.

[Hank Chinaski]

Originally Posted by Adder

When did we start talking about a policy issue? The question was litigation strategy and the PR implications of that strategy. Ive never worked for te government but I know enough politicals to know that they want a heads up when they are about to look like asses.

Granted, they might have considered that and decided to go forward anyway. But to suggest that the voters have decided that the relevant entity should take on bad PR and is unethical to speak about it is silly.

Or maybe he means that the political processes can only weed out the asses if the asses aren't protects from their assness by counsel. Thats interesting and might be right, but I certainly dont see it as the more ethical choice. I could even argue that it's less ethical.

do you think an elected official would be able to sense the potential for damaging PR from asking for fees? p.s. I'm not taking Atticus's side, because, other than my having a legit shot at sainthood, I never understand what his position is.

[Atticus Grinch]

Originally Posted by Adder

Really? Considering you client's interest I malpractice?? You are one strange dude.

I realize my posts are too long to read, but your summarization skills suck. My "client's interests" are for the policy he wants to be effectuated, if that is not illegal. So I've considered my client's interest. What you're talking about is talking him out of a policy I don't like.

It is an overreach of my role to tell an elected official that what he proposes to do is stupid, if the stupidity of what he/she is about to do has nothing to with its illegality and everything to do with what I think the policy should be.

If you spent five minutes advising an elected official AS HIS LAWYER you would likely reach the same conclusion, unless you wanted your career to end whenever his did.

[Atticus Grinch]

Originally Posted by Adder

When did we start talking about a policy issue?

When we started talking about Con Law, i.e., from the very beginning.

[Fugee]

Originally Posted by Atticus Grinch

I realize my posts are too long to read, but your summarization skills suck. My "client's interests" are for the policy he wants to be effectuated, if that is not illegal. So I've considered my client's interest. What you're talking about is talking him out of a policy I don't like.

It is an overreach of my role to tell an elected official that what he proposes to do is stupid, if the stupidity of what he/she is about to do has nothing to with its illegality and everything to do with what I think the policy should be.

If you spent five minutes advising an elected official AS HIS LAWYER you would likely reach the same conclusion, unless you wanted your career to end whenever his did.

If all govt lawyers feel this way, that explains a lot of really bad policy decisions.

Not ever having been a govt lawyer, it still would make sense to at least include some thoughts of how an action is going to look in the public eye as part of the discussion. People get so fixed on their own point of view they often need a little help seeing if from another perspective and I think that's a valid -- perhaps essential -- role for a lawyer.

In this case, the principal could have used someone telling him it looks shitty to punish the victim of a sexual assault for not wanting to cheer for her assailant. And a good school district lawyer might have been able to come up with a compromise where the girl didn't have to cheer for him but it wouldn't be so obvious she wasn't cheering for him.

[Greedy,Greedy,Greedy]

Originally Posted by Atticus Grinch

I realize my posts are too long to read, but your summarization skills suck. My "client's interests" are for the policy he wants to be effectuated, if that is not illegal. So I've considered my client's interest. What you're talking about is talking him out of a policy I don't like.

It is an overreach of my role to tell an elected official that what he proposes to do is stupid, if the stupidity of what he/she is about to do has nothing to with its illegality and everything to do with what I think the policy should be.

If you spent five minutes advising an elected official AS HIS LAWYER you would likely reach the same conclusion, unless you wanted your career to end whenever his did.

I think you know I've had a more than passing involvement with government lawyers.

One thing about lawyers: we see a lot of shit storms, and often have a good sense for the things that might happen next and their consquences, legal and non-legal. Fully informing your client of the range of possibilities, including the idea that it's the kind of action that will be piloried and ridiculed, seems to me simply giving your employer the benefit of all your experience and perspective.

You seem to assume your clients will listen to you or give your words more weight than they deserve. There are plenty of idiot politicians out there, and that may be the case for them, but there are also plenty of people in government quite capable of figuring out how much weight to give them and how to weigh them in making their decision.

I've told plenty of elected officials over the years not to be idiots, they were walking into a shit storm. Now, I usually did that with a political rather than governmental hat on, but I sure hope the government guys did the same.

[Greedy,Greedy,Greedy]

Originally Posted by Fugee

In this case, the principal could have used someone telling him it looks shitty to punish the victim of a sexual assault for not wanting to cheer for her assailant. And a good school district lawyer might have been able to come up with a compromise where the girl didn't have to cheer for him but it wouldn't be so obvious she wasn't cheering for him.

proposing creative alternatives is also something else lawyer's ought to be capable of

So are we employing a whole bunch of people who purposefully put blinders on before rendering advice?

[Hank Chinaski]

Originally Posted by Fugee

In this case, the principal could have used someone telling him it looks shitty to punish the victim of a sexual assault for not wanting to cheer for her assailant.

seriously, what principal would need to be told this? this isn't some esoteric legal point.

And a good school district lawyer might have been able to come up with a compromise where the girl didn't have to cheer for him but it wouldn't be so obvious she wasn't cheering for him.

by the time the lawyer heard about it I bet basketball season was over.

[Fugee]

Originally Posted by Hank Chinaski

seriously, what principal would need to be told this? this isn't some esoteric legal point.

Apparently this one needed to be told just that or he'd have done something very different from what he did.

You're probably right that basketball season was already over by the time she sued the school district. But there still should have been a better solution than spending piles of $$ on litigation.

[Gattigap]

Joshua Green of the Atlantic watched Fox News' coverage of last night's Republican Debate.

[Hank Chinaski]

Originally Posted by Fugee

Apparently this one needed to be told just that or he'd have done something very different from what he did.

You're probably right that basketball season was already over by the time she sued the school district. But there still should have been a better solution than spending piles of $$ on litigation.

her family was clearly on a mission- how do you know there was any "solution?" I have a case that should settle. it won't unless the other side changes its mind and stops fighting to make a point. The school can't resolve a case if her family doesn't want to resolve the case.

[Fugee]

Originally Posted by Gattigap

Joshua Green of the Atlantic watched Fox News' coverage of last night's Republican Debate.

There was room for another bullet point: Nice guy but boring

[Sidd Finch]

Originally Posted by Atticus Grinch

I give whatever opinion I'm asked for, but to the extent I volunteer my view of "real world" consequences I am privileging my opinion over thousands or even hundreds of thousands of other constituents. You well know I have many opinions, some of them crackpot, but I consider it an ethical duty not to use my status as a lawyer to convey that my opinion on non-legal matters is anything of consequence.

So if I'm not asked, I keep my mouth shut. If I am asked and I don't reside in the jurisdiction, I demure until they insist to the point of assuring me that they'll give my opinion the same weight as any other non-constituent's. And if I do live in the jurisdiction, they really have to drag it out of me.

I have not always been as scrupulous about this as I'd like. The temptation to influence policy is strong. The career longevity of the public attorneys who do not respect their priestly role in dealing with elected decisionmakers is short. Nobody voted for me to make a decision, and I consider it an appalling abuse of my meager powers to use persuasion to influence policy. And that's why good public lawyers don't say "should" or "shouldn't" in public (unless they're parroting the client). They say "can" and (far less often) "can't."

What private firms do with private clients is their own business. Same with private firms representing public agencies in litigation. But in-house? There is such a thing as wrong (IMHO).

Wow -- Atticus is John Yoo.

[Sidd Finch]

Originally Posted by Atticus Grinch

I realize my posts are too long to read, but your summarization skills suck. My "client's interests" are for the policy he wants to be effectuated, if that is not illegal. So I've considered my client's interest. What you're talking about is talking him out of a policy I don't like.

No, he's talking about advising the client fully. For example, if the school supe says "I don't want to seek fees even though this is a frivolous case," do you just say "okay, that's legal" or do you suggest that he consider deterrent effect on future frivolous suits, fiduciary duty to the school, etc.?

Maybe government lawyers never do the latter. But if so, that points to how little the judgment of government lawyers is valued, how little you are treated as a trusted advisor rather than a legal tool. For you to call doing the latter "malpractice" is ridiculous.

[Sidd Finch]

Originally Posted by Fugee

In this case, the principal could have used someone telling him it looks shitty to punish the victim of a sexual assault for not wanting to cheer for her assailant. And a good school district lawyer might have been able to come up with a compromise where the girl didn't have to cheer for him but it wouldn't be so obvious she wasn't cheering for him.

I think you can figure out that I agree with you on what the role of a lawyer should be. They call us "counselor" for a reason.

On the specific situation that started this discussion, my concerns were really aimed towards the court for finding this "frivolous." Obviously I haven't read the briefs etc., but it still seems too harsh. (And it's the Fifth Circuit, so I give the zero benefit of the doubt.)

I would hesitate to criticize the lawyer for not advising on the things you mention, for a few reasons. First, I don't know that he didn't. Second, there are other considerations -- like, the school was worried about facing these sorts of lawsuits in the future, it wanted to deter them with a sanctions award, and even "we don't have to collect on the award, we can use it as a scare tactic towards others and maybe even leverage an apology out of her." Or even that getting a sanctions award could deter a particular lawyer from future suits. Or, quite possibly, the lawyer did give this advice and the super said "thanks, but this is what we are doing." etc., etc., etc.

As a lawyer, I have done plenty of things for clients that an outsider could point to and say "Sidd gave bad legal advice," and the outsider would be wrong. Sometimes, I gave opposite advice -- i.e., "don't pursue this claim, you are wasting your money." Sometimes, there are considerations that may not be obvious -- a client willing to spend $3x, even $10x, to fight over $x, because they know there are many others out there with similar claims for $x and they need to make their opposition clear (or need to establish a point of law). Etc., etc.

Quite honestly, if I were to criticize any lawyer here, it would be the cheerleader's. Where I've had clients reject my advice not to pursue claims, I've pursued those claims (after writing a "mother of all CYA letters") -- but ONLY if I could do so without violating Rule 11. That's a separate obligation to the court, that goes beyond any duty to the client.

[Sidd Finch]

Originally Posted by Hank Chinaski

her family was clearly on a mission- how do you know there was any "solution?" I have a case that should settle. it won't unless the other side changes its mind and stops fighting to make a point. The school can't resolve a case if her family doesn't want to resolve the case.

I just threw up in my own mouth a little


Translation: I agree with Hank.