“Lady, your case is over when *I* say it’s over – I’m your lawyer.”

The author of this blog post, one Scott Greenfield, seems blissfully unaware that the main takeaway from it isn’t “what the hell is wrong with Eugene Volokh?” but rather “memo: never, ever hire this blogger to be my lawyer.”

Volokh apparently took pro bono a case defending an obnoxious blogger, and won. But the court wrote, “Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.” And Volokh then filed a motion to amend the op to remove the offending language. Which Greenfield takes as what I trust is a metaphorical indication that Volokh is “in bed with” this Cox blogger, and that some improper motive must be at work, because hey, it’s not a substantive point, Volokh won, case should be over.

That is not how TBA practices law – how ’bout y’all? I agree to take an appeal, it’s over when there’s no more relief to be had or the client says to call it quits.

UPDATE: Here is Pamela MacLean on the matter:

What Cox didn’t like was a single sentence in the opinion by Judge Andrew Hurwitz that stated, “Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction.”

Last week, her lawyer Eugene Volokh asked the court to amend its opinion, not to change the substance of the ruling, but to delete the offending sentence. The claim of “payoffs” was based on a single New York Times article in 2011.

“A judicial assertion of misconduct by a named person, even a judicial assertion modified with the word ‘apparently,’ could be based on the record in a case, or authoritative finding by another court. But it ought not be based on a newspaper column, which was written without the benefit of cross-examination, sworn testimony, or the other safeguards of the judicial process,” Volokh wrote. He said there “seems to be no ‘history’ of ‘seeking payoffs’ claimed in the article, he said.

Not surprisingly, some news outlets repeated the sentence but omitted the term “apparently,” he said. Journalists may perceive it as a factual finding, not just recitation of a newspaper column’s claim.

Good for Volokh.

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16 thoughts on ““Lady, your case is over when *I* say it’s over – I’m your lawyer.”

  1. I’m going to give something a try I rarely do, as it’s much like trying to teach a pig to sing, but here goes anyway. I admire that your gut reaction to a sophisticated line in attorney/client obligations is to do whatever your client asks of you. Many react the opposite, and so your effort to do more reflects an admirable approach to client service.

    That said, your comment failed to apprehend the point made in the post, or to be more precise, the line between what a lawyer is obligated to do and what a lawyer does as a matter of courtesy or choice. Experience is that clients ask lawyers to do all manner of foolish things, because it either makes sense to them, appeases some secondary need they have or reflects a poor grasp of tactical decision making. We are not obligated to do anything a client asks. Indeed, it is unethical to allow the client to make tactical decisions reserved to the lawyer. We are there to guide them, not to be their lapdog.

    When we are retained on appeal for the purpose of seeking reversal of an adverse judgment, our core representation is to obtain that reversal. Eugene accomplished that task, subject to a motion for rehearing. The client’s dissatisfaction with a sentence in the decision of no legal effect or consequence is an issue, but not an issue within the scope of the representation. It is a voluntary issue, subject to Eugene’s sound judgment. In other words, if he feels like screwing around with such nonsense, that’s fine, but he is under no duty to pursue litigation that has no impact on the matter for which he was retained other than the client doesn’t like it.

    You use “duty” in a vacuum, without reflecting a firm understanding of where it starts and where it ends. This isn’t a matter of my personal choice. This is what our ethical duties command. Having taught ethics across the country, I kinda know about this stuff. What we, as lawyers, do not do is conflate vague words like “duty” as if they have no meaning or parameters.

    Yes, I was condescending to you before, and am condescending to you now. You seem to be well-intended and zealous, and I write this because these are traits I respect in a lawyer. But you need to temper your zeal with information, not just vague notions of duty. After more than 30 years of doing and teaching this stuff, I get to be a bit condescending, and I get to explain more sophisticated concepts to lawyers who are not yet familiar with them. So I leave you this comment in the hope that some of this makes sense to you and helps you to understand what my post is about. If not, then at least I tried.

    And last point, while your approach of do whatever the client asks is admirable, it can well backfire, as this is happening to Eugene now with Randazza’s papers providing the court with a wealth of solid citations to support the offending sentence. In other words, Eugene’s client is already far worse off now than she was before the motion, because now everybody is focused on the numerous decisions Randazza raised. Add to your “duty” platitude, “do no harm,” before you rush to do whatever your client tells you to do.

    Now, you can take this comment in the spirit in which it’s offered or not. I hope it makes you think a bit harder. Best of luck, and I mean that.

  2. Moosebreath, you really wanna call this guy “patronizing”? My word. I mean, oink!

    … “When we are retained on appeal for the purpose of seeking reversal of an adverse judgment, our core representation is to obtain that reversal.”

    Miss. R. Prof’l Conduct 1.2(a): “A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued.”

    MRPC 1.2(c): “A lawyer may limit the objectives of the representation if the client gives informed consent.”

    Scott H. Greenfield: “I agree that the motion has some merit, and that the court’s cite to a newspaper article was inadequate.”

    SHG wants to argue that the objective is just “get the decision reversed” and that he doesn’t have to do anything that’s not a means to that end. He is free to draft his representation agreements to that effect. However, taken literally, that means that (for instance) the court could rule for the appellant but also, say, issue a show-cause order why the appellant should not be sanctioned on some issue, and the lawyer could shrug and say “good luck with that, you’re on your own.”

    SHG concedes that Cox’s motion “has some merit.” So as her lawyer, Volokh is supposed to tell her, sorry lady, even though your motion has merit and might be granted, I don’t feel like doing it?

    The only time the “means” question comes up in my practice is that the client can’t instruct me to act unprofessionally (e.g., to refuse reasonable accommodation to opp. counsel who need a resetting or an extension). I’m retained against the other party, not against the other party’s lawyers.

    Lawyer’s Creed (as adopted by Miss. Bar): ” I will strive to represent you as I would want to be represented and to be worthy of your trust.” It appears to me that Volokh is living up to that creed. We represent clients: we stand in their shoes: we put their interests above our own. I do not think SHG’s attitude passes the golden-rule test embodied in the creed.

  3. You make me sad. You show the character to be a criminal defense lawyer, but not the intellect or maturity. Oh well, I can only explain it to you. I can’t understand it for you. I hope time and experience will help you to understand better.

    I still urge you to think harder. The pain in your head will go away over time. Bye.

  4. To my surprise, Attorney Scott Greenfield completely missed a major point of your piece.

    You falsely attributed an accusation of an improper motive by Volokh to Greenfield. By suggesting that Greenfield accused Volokh of being “in bed” with his client, even as a clumsy metaphor, you put words into the pen of Greenfield that he never wrote or implied.

    Greenfield’s actual suggestions as to Volokh’s motive include a heightened sense of duty, a desire not to leave a “taint” on a victory, a desire to keep the client from damaging herself by going pro se. At no point did Greenfield suggest corrupt, prurient or venal motive to Volokh and his actual suggestions indicate the opposite.

    I will not speak for Mississippi’s ethics as I could not care less about the State and it is not the forum for this dispute. But your sloppy comment about “objectives” begs the question – how were the objectives defined? It is extremely unlikely that Volokh’s charge from his pro bono client at the start included “getting rid of meaningless dicta that I may dislike.” Accordingly, Volokh could likely decline under Model Rule 1.2’s “fundamentally disagree” language. Why might Volokh disagree? Because it may tempt Zeus to reconsider the whole thing, then or on a rehearing motion.

  5. Here’s what we know from these posts:

    1) Volkh has a client, and, consulting the client about legitimate goals, has acted on that client’s wishes about those legitimate goals.

    2) Volkh understands that “having a client” is like being pregnant– you are or aren’t. Refusing to pursue the client’s legitimate goals in litigation one has undertaken is not being the client’s lawyer. This even extends to repulsive clients.

    3) SHG is a blogger who appears to be a criminal defense lawyer, which means, presumably, that SHG has had the experience of pursuing the legitimate goals of repulsive clients, unless SHG has had an extremely unusual criminal practice.

    4. SHG apparently admits that Volkh’s efforts as Cox’s lawyer, in affirming an important free speech issue, is a worthy thing.

    5. SHG finds Cox repulsive from prior behavior, and therefore thinks Volkh should either decline to pursue Cox’s legitimate goals as a client or… I’m not sure or what. I’m also not sure what part of “a lawyer representing a client” SHG fails to understand, but am sure it’s an important part.

    I hope that SHG stays out of those areas of law where some think they can represent a “cause” as distinct from the client whose case embodies that cause.

  6. Typically, I would say that the Lorax would speak for Mississippi’s ethics, but the move from print to video was both distressful and disheartening. Placing that aside, let us not hope for SHG’s self imposed ban from any area of the law. For all its wrongness it is as if our host had offended C. Hitchens on some point which mattered.

  7. Hitch sneering at me would have been much more entertaining to read. Maybe SHG is making the mistake of blogging sober.

    I see btw that people have left 49 comments at his post, of which he’s blocked 7, as is his prerogative.

    … Correction: the comments may have been caught in moderation, not blocked, since at some time after I posted this comment, they appeared. (SHG & his commenters are puzzled where the numbers came from; they appear not to have noticed that the post will be listed as having one number of comments, & then when you click on it, a different number.)

  8. I will draw your attention to a blog that was at its day the bane of Cox’s internet life, and to this day is still on the front page of Google rankings when you search on her name.

    The reason I draw your attention to it is because this post which is a reference to Macbeth by Shakespeare is now directed at yourself:
    http://crystal-cox.com/post/20402320745/lifes-but-a-walking-shadow-a-poor-player-that

    and yes the last three lines are apt for not Just Crystal but this post of yours.

  9. I’m convinced.

    … The latest batch of comments includes these gems:

    Any trench lawyer knows this thing called “client control.” That’s where you say “Client, if you act like this, I am going to quit representing you.”

    Right. Because the court has nothing to say about that.

    At this point seems like the client is controlling Volkoh… not the other way around.

    A client controlling the person representing her! How bizarre! As if the lawyer were just there to serve the client!

  10. Sure, there are things a client could do or could demand from the lawyer that would easily justify the lawyer firing the client. But the notions that what Volokh did clearly involved such a client demand, or that Volokh did something wrong in complying with such a client request, are both pretty silly.

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