PHUTATORIUS
If anyone wondered why "adult film actress" and reputed lover of Tiger Woods Joslyn James felt the need to go out and retain a big-time lawyer, the picture is getting clearer by the day. Here's my "lawyer's take" on what's going on:
Yeah, sure, Joslyn James was going to find herself in the glare of the public eye, and a lawyer can help manage the publicity and keep the press at bay (i.e., "That one's lawyered up, and Allred is something fierce. Maybe I won't try to break in Joslyn James's house and get pictures of her in the shower.").
But James isn't just in a defensive posture. Consider that she invited press to listen along beside her as she took in Tiger's self-serving soliloquy back on February 19. Consider, too, that when Tiger was finished, Ms. James took the podium and delivered her own tearful statement, demanding a direct apology from Woods. An awkward angle to try to work, this "I thought I was the only Other Woman" bit. But the statement was thick with shots across the bow of Woods's legal team: little tidbits of information that might add up to lawsuit against Tiger. She loves Tiger, and he made her promises. She had pregnancies that ended in miscarriage and abortion. She gave up her career at his request. Yeah, Gloria and Joslyn are laying the groundwork for threatening all sorts of legal claims. Lousy claims, but claims nonetheless, and the point isn't whether you can win or lose on these lousy claims; the point is whether you can get Tiger to pay you some money to make sure they don't end up in court to begin with. What Tiger will pay to settle these claims has very little to do with the value of the claims themselves. He's confronting a potential lawsuit, brought by his mistress, which will extend this scandal for another couple years well past the endpoint he'd hope to establish for it (with his apology speech) and vivisect his sordid personal life, laying it open for the world to see in public legal proceedings.
Which brings us now to the text messages that Joslyn James recently released to the press.
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This is hardball. Joslyn James earlier said that she has some 11,000 text messages from Tiger Woods. She released a small subset — only around 100 — of those messages. Release of the messages suggests what should have been obvious following Ms. James' delivery of her counterstatement on February 18: that Allred and Woods's attorneys are negotiating a settlement that will keep James from suing Woods and posting any more damaging information to the media. One of the following is true: (1) they're not close to a deal, or (2) they've reached a deal, and James released the texts anyway. Both scenarios are intriguing.
Scenario (1) suggests that Joslyn James has information far more damaging than what she released yesterday — and the texts she released yesterday were pretty darn damaging, describing Woods' interest in sadistic sex acts. No way no how does Gloria Allred let Joslyn James disclose the most lurid info she has. If this were the worst of it, Woods's attorneys would have no reason to bargain with her, as James couldn't hurt Woods any more than she has to date. We therefore have to assume that the ~100 texts that James disclosed yesterday were carefully selected to generate a modest amount of media buzz (thereby getting her back in the news) but not so much as to leave Allred without leverage going forward. We have to assume that there is something much worse in the rest of the 11,000 texts (or, theoretically, in some other explosive format: video?).
Moreover, the timing of the release was calculated: Tiger announced on Tuesday that he would return from his golf hiatus to play in the Masters next month. He's starting to get back into business as usual, and he's back in the news, too. James counters with the release of the text, which destroys any positive PR momentum he has.
Under Possibility (2), Woods and James have already reached agreement, and James has been already received a lump-sum payment of hush money. There is presumably an enforceable contract here, negotiated by attorneys: Woods pays James an unspecified amount (confidential, of course, per the terms of the contract), and James hands over any documentation of the affair for Woods to destroy. But of course, James could always surreptitiously keep a copy of her materials, to publicize after she cashes her check. This would be a breach of the contract, and Woods could sue her, but would he? If he did, well, there's that very public lawsuit again, and on top of all the other nastiness that would come out about the affair, there would be this new distasteful overlay: Tiger wrote a big check to keep this girl quiet, and now he's suing her over it. In theory, then, James could get paid both by Woods (to keep quiet) and by the press (to spill her secrets). Woods's lawyers, if they have any sense, would therefore have every reason to structure the deal to require payments over time — perhaps an annuity — so that they could preserve some leverage over James going forward, other than resort to the courts. We should assume that Woods's lawyers have quite a lot of sense, such that Scenario (2) is therefore the much less likely of the two here.
All of the above analysis is predicated on the assumption — and I think this is right — that James stands to gain more from Tiger if she withholds her information than she can get from anyone in the press if she discloses it all. The value of a "hot news" exclusive, in this day and age, isn't really all that. Once the texts are out, anyone can pick them up and run with them. It makes sense that Tiger would pay millions to James to keep her quiet; it makes much less sense that a media organization would pay a comparable amount to break this story five minutes before everybody else.
And of course another assumption is in play: that James isn't just an irrational "woman scorned" figure here, whose interest is simply to throw everything she has at Tiger, to hurt him as badly as she can, and damn the settlement offers. This seems to me unlikely. You don't hire Gloria Allred unless you want to work an angle, and Gloria Allred doesn't continue to represent you if you're delivering all your best stuff to the press in anger. And for that matter: ELEVEN THOUSAND TEXTS? James was clearly archiving these messages, either as keepsakes because she loved Tiger so much or rather to save for a rainy day — or a day of opportunity. Hm.
Showing posts with label attorneys. Show all posts
Showing posts with label attorneys. Show all posts
Friday, March 19, 2010
Wednesday, December 17, 2008
Don't Prosecute the Lawyers
PHUTATORIUS
Milan Markovic writes in Slate that a case can be made to prosecute the Bush Administration lawyers who served up the facile and intellectually bankrupt legal opinion approving the use of torture in terror interrogations. And what a lousy case it is, too. In fact, I'm not sure it would even pass the "John Yoo standard."
Markovic cites a 1919 Second Circuit case in support of the notion that an attorney can be prosecuted for advising his client to commit a crime. He also argues that soldiers have to deal with difficult legal gray areas all the time, but they enjoy a war crimes immunity for following orders — so maybe the best bet is to go after the lawyers who rationalized the orders (because apparently it's not enough to take on the superiors who issued them). And finally, he argues that the concerns attorneys have expressed about prosecuting for advice are simply the expected, instinctive responses of professionals protecting their own.
This last bit is a bummer, because I'm an attorney, and Markovic's preemptive strike has disqualified me from explaining why his article is idiotic. But what the hey, right? It's my blog, and I can blather if I want to. And I think maybe I can purchase back some of my credibility by stating that, as a personal matter, the Yoo memo was a lousy piece of work, and that the policy it promoted was godawful and indefensible. But don't prosecute the lawyers. Just don't do it. Here's why:
First, the law isn't always clear, and clients seek out attorneys to give them answers that allow them to go forth and do their work, despite the fact that very often the amount of legal uncertainty can be paralyzing. I can't tell you how often, in my three years working in-house, I've been consulted on a question of considerable legal ambiguity and asked to opine on whether my clients would be running afoul of the law, to the tune of considerable civil and even criminal liability. Lawyers have to be in a position to make judgment calls.
Second, a written legal opinion is First Amendment-protected speech. Sure, there are exceptions (most notably, when the crime is accomplished by speech, as in a fraud case), but we generally don't punish speech in this country. We don't punish a blogger who sits down at his desk and writes that we should torture people. Should we likewise punish an attorney who sits in abstraction and writes his opinions on whether a policy condoning torture is legally defensible? Incitement to violence or riot isn't constitutionally protected, but this isn't a case of the lawyer standing by with the electrodes, chanting DO IT DO IT DO IT into the ear of the covert intelligence operative. "Aiding and abetting" is Markovic's theory. He only has to go as far back as 1919 to find a case that supports it. That's usually a bad sign, especially when the First Amendment is in play. There wasn't a heck of a lot of protection given to freedom of speech back then. That came later.
Third, prosecuting attorneys for their advice implicates attorney-client privilege. Love it or hate it, Mr. Markovic, the ability of clients to consult their attorneys in confidence is a bedrock principle of Anglo-American law. The privilege itself is not in issue in this instance, because the Yoo memorandum was leaked to the public. But the notion that attorneys may have to answer to criminal prosecutors for giving bad advice begs the question: would law enforcement authorities have the power to compel them to surrender their privileged communications, toward the end of investigating the attorney? Even if not, and proponents of criminal counsel liability were therefore in a position to argue that in most cases an assertion of privilege would cut off the investigation, there's still the fact that it's not the privilege so much that is sacrosanct — it's the relationship between attorney and client, and the principle, which is fundamental to our law, that attorneys must not be impaired in their ability to give legal advice.
Fourth, Markovic makes the point that "lawyers can offer legal advice in such a way as to account for differing points of view when addressing controversial legal issues," and writing in this way would preclude liability. Yes, this is something that lawyers can — and should — do, if they want to be good at their jobs. But it's one thing to remark on the difference between good and bad lawyering — quite another to posit that this distinction ought to serve as the dividing line between legal and criminal conduct. Would it have been enough for Yoo to have written a disclaimer, a la "Authorities might come down on different sides of the question, but on balance I believe it's not illegal to torture detainees?" Should a recitation of those prefatory twelve words really make the difference between hard time in Leavenworth and a cushy post-government work gig with a Washington consultancy? Talk about your First Amendment concerns: Counsel, you're going to have do more "on one hand . . . on the other" in this memo, or you're going to be INDICTED.
Fifth, it seems at least reasonable to take account of the context in which this memorandum was written, and the power relationships that surely drove its content. The respect and independence accorded to attorneys varies from one institution to the next. I would suspect that the respect and independence Bush Administration attorneys had was negligible, and that Yoo's assignment wasn't so much to give an honest, forthright appraisal of the policy but instead to write up the best possible legal justification for it. I can't say what Yoo would have written if left to his own devices, but I don't doubt he was under considerable pressure to sign off on the policy. It's my impression that Bush's people didn't think much of lawyers. It's a bad state of things when lawyers don't feel free to speak the truth about bad policy. You don't fix that by prosecuting the lawyer; you fix it by creating conditions where lawyers feel independent and empowered to do their job and do it well.
Look, Yoo's memo was one-sided and ridiculous. It was insulting. An astonishingly poor effort. (I'm running out of pejorative adjectives, and I'm tempted to use facile again simply because I like it so much.) But let's just call it what it was — lousy legal advice — and leave the criminal charges for the folks who did the waterboarding. If Rummy does time, in part because he relied on John Yoo's memo, there's always a legal malpractice action to help set things right.
Let's not tear down core values of our legal system in our zeal to see the Bush Administration and its brutal, excessive policies brought to heel. Today it's John Yoo. Tomorrow it will be the public defender or divorce lawyer down the road. As we say in the business, "bad facts make bad law." Going out of our way to punish the attorneys here, no matter how attractive a prospect that seems to folks who have The Bloodlust (and now The Upper Hand), would set an awful precedent.
Milan Markovic writes in Slate that a case can be made to prosecute the Bush Administration lawyers who served up the facile and intellectually bankrupt legal opinion approving the use of torture in terror interrogations. And what a lousy case it is, too. In fact, I'm not sure it would even pass the "John Yoo standard."
Markovic cites a 1919 Second Circuit case in support of the notion that an attorney can be prosecuted for advising his client to commit a crime. He also argues that soldiers have to deal with difficult legal gray areas all the time, but they enjoy a war crimes immunity for following orders — so maybe the best bet is to go after the lawyers who rationalized the orders (because apparently it's not enough to take on the superiors who issued them). And finally, he argues that the concerns attorneys have expressed about prosecuting for advice are simply the expected, instinctive responses of professionals protecting their own.
This last bit is a bummer, because I'm an attorney, and Markovic's preemptive strike has disqualified me from explaining why his article is idiotic. But what the hey, right? It's my blog, and I can blather if I want to. And I think maybe I can purchase back some of my credibility by stating that, as a personal matter, the Yoo memo was a lousy piece of work, and that the policy it promoted was godawful and indefensible. But don't prosecute the lawyers. Just don't do it. Here's why:
First, the law isn't always clear, and clients seek out attorneys to give them answers that allow them to go forth and do their work, despite the fact that very often the amount of legal uncertainty can be paralyzing. I can't tell you how often, in my three years working in-house, I've been consulted on a question of considerable legal ambiguity and asked to opine on whether my clients would be running afoul of the law, to the tune of considerable civil and even criminal liability. Lawyers have to be in a position to make judgment calls.
Second, a written legal opinion is First Amendment-protected speech. Sure, there are exceptions (most notably, when the crime is accomplished by speech, as in a fraud case), but we generally don't punish speech in this country. We don't punish a blogger who sits down at his desk and writes that we should torture people. Should we likewise punish an attorney who sits in abstraction and writes his opinions on whether a policy condoning torture is legally defensible? Incitement to violence or riot isn't constitutionally protected, but this isn't a case of the lawyer standing by with the electrodes, chanting DO IT DO IT DO IT into the ear of the covert intelligence operative. "Aiding and abetting" is Markovic's theory. He only has to go as far back as 1919 to find a case that supports it. That's usually a bad sign, especially when the First Amendment is in play. There wasn't a heck of a lot of protection given to freedom of speech back then. That came later.
Third, prosecuting attorneys for their advice implicates attorney-client privilege. Love it or hate it, Mr. Markovic, the ability of clients to consult their attorneys in confidence is a bedrock principle of Anglo-American law. The privilege itself is not in issue in this instance, because the Yoo memorandum was leaked to the public. But the notion that attorneys may have to answer to criminal prosecutors for giving bad advice begs the question: would law enforcement authorities have the power to compel them to surrender their privileged communications, toward the end of investigating the attorney? Even if not, and proponents of criminal counsel liability were therefore in a position to argue that in most cases an assertion of privilege would cut off the investigation, there's still the fact that it's not the privilege so much that is sacrosanct — it's the relationship between attorney and client, and the principle, which is fundamental to our law, that attorneys must not be impaired in their ability to give legal advice.
Fourth, Markovic makes the point that "lawyers can offer legal advice in such a way as to account for differing points of view when addressing controversial legal issues," and writing in this way would preclude liability. Yes, this is something that lawyers can — and should — do, if they want to be good at their jobs. But it's one thing to remark on the difference between good and bad lawyering — quite another to posit that this distinction ought to serve as the dividing line between legal and criminal conduct. Would it have been enough for Yoo to have written a disclaimer, a la "Authorities might come down on different sides of the question, but on balance I believe it's not illegal to torture detainees?" Should a recitation of those prefatory twelve words really make the difference between hard time in Leavenworth and a cushy post-government work gig with a Washington consultancy? Talk about your First Amendment concerns: Counsel, you're going to have do more "on one hand . . . on the other" in this memo, or you're going to be INDICTED.
Fifth, it seems at least reasonable to take account of the context in which this memorandum was written, and the power relationships that surely drove its content. The respect and independence accorded to attorneys varies from one institution to the next. I would suspect that the respect and independence Bush Administration attorneys had was negligible, and that Yoo's assignment wasn't so much to give an honest, forthright appraisal of the policy but instead to write up the best possible legal justification for it. I can't say what Yoo would have written if left to his own devices, but I don't doubt he was under considerable pressure to sign off on the policy. It's my impression that Bush's people didn't think much of lawyers. It's a bad state of things when lawyers don't feel free to speak the truth about bad policy. You don't fix that by prosecuting the lawyer; you fix it by creating conditions where lawyers feel independent and empowered to do their job and do it well.
Look, Yoo's memo was one-sided and ridiculous. It was insulting. An astonishingly poor effort. (I'm running out of pejorative adjectives, and I'm tempted to use facile again simply because I like it so much.) But let's just call it what it was — lousy legal advice — and leave the criminal charges for the folks who did the waterboarding. If Rummy does time, in part because he relied on John Yoo's memo, there's always a legal malpractice action to help set things right.
Let's not tear down core values of our legal system in our zeal to see the Bush Administration and its brutal, excessive policies brought to heel. Today it's John Yoo. Tomorrow it will be the public defender or divorce lawyer down the road. As we say in the business, "bad facts make bad law." Going out of our way to punish the attorneys here, no matter how attractive a prospect that seems to folks who have The Bloodlust (and now The Upper Hand), would set an awful precedent.
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