I don’t know that “persecuted” is the right word to use to describe people who face possible punishment for something they did—let’s be blunt—out of avarice. But okay.

Carolyn is impressed by the lawyers’ defense that Total Bankruptcy doesn’t recommend lawyers but only refers clients to them. (Under the Connecticut rule at issue, it’s illegal for a lawyer to give someone something of value for recommending the lawyer’s services.)

The Total Bankruptcy sites refer clients to lawyers by asking them to provide a zip code, at which point clients are referred to the sponsoring attorney’s website for that geographic location.  (Response at 10).  But Total Bankruptcy doesn’t recommend or endorse any of the Sponsoring Lawyers – a fact that is highlighted in the site’s terms of service.

The distinction between a “referral” and “recommendation” makes all the difference.

I wonder if Carolyn went and tried out the Total Bankruptcy site. A friend of mine did, and found that he was asked for details of his circumstances—amount of debt, type of debt, monthly income and expenses—that one would expect to be used by someone recommending the best lawyer for the job. And whatever the site’s terms of service were (they actually don’t say anything about “recommendations”; it is the disclaimer, that low-contrast small type below the fold, that does), my friend wasn’t presented with them before he hit “submit” and was told this:

Congratulations! You’ve taken the first step toward financial freedom!

One of our Consumer Advocates will be contacting you shortly to set up your consultation wtih Reese Baker of Baker & Associates.

If you would like to see if somebody is available to speak to you immediately, we encourage you to call us at: (877) 349-1309.

So you know it’s us, our number will appear on your caller ID as:
(800) 510-6420

If we happen to miss you, be sure to call us back at: (877) 349-1309!

In the meantime, if you would like to visit this attorney’s web site, please go to http://www.bakerassociates.net.

It sure looked like a recommendation (Consumer Advocates! Yay!), and it appeared to have been made based on all of the information my friend provided.

So it wasn’t really a recommendation. So my friend didn’t have to provide all that information. So nobody at Total Bankruptcy really knows whether any of the lawyers who are paying for recommendations oops referrals is worth a damn.

Is the test whether the terms of service (nudge nudge wink wink) describe it as a recommendation? Is the test what is happening behind the scenes? If a site is called “Total Bankruptcy Attorney Recommendations” but functions like TotalBankruptcy.com, are lawyers using it off the hook because, despite all appearances to the contrary, they are not paying for recommendations?

Of is the test whether it looks like a recommendation to the client?

What makes sense? Isn’t the point of the rule that clients shouldn’t be misled into thinking that they are getting a recommendation based on their needs, rather than based on payments by the lawyer? Because that’s exactly how Total Bankruptcy looked to my friend.

And also to me.

These Connecticut lawyers aren’t being “persecuted,” they’re being punished for participating in what should have appeared to them to have been a marketing scheme of dubious legitimacy at best.

Outsource your marketing, outsource your ethics.

During the course of this process I praised so many of my colleagues and even told Mike who to talk to, including Jed [Silverman], Gary [Trichter], Troy [McKinney], [Mark] Thiessen, Murph [Doug Murphy], Jim Medley and others. It was Mike’s choice who he decided to include. I also told Mike many things about our role and the noble profession we are members of. There were so many positive things I discussed with Mike about what we do and the problems we face and try to solve for our clients that the public is unaware of.

And yet, exclaims Tyler, “any of the good stuff would up on the editing room floor.”

As though that’s some surprise.

When you’re talking with the press, every word counts. These people write down the things we say, and use them to tell the stories they want to tell. Their job is not to boost our practices, but to inform the public. As Chronicle Reporter Brian Rogers will freely tell you, “I am not your friend.”

Tyler, if you didn’t think Mike Giglio was following you around to make you look good, you probably should have been more circumspect, and not said:

Listen, most of the people we get off are intoxicated. But that’s the justice system.

Then you wouldn’t have found yourself making this Clintonesque nonapology:

I apologize to them if the net effect of what was WRITTEN did damage or offended.

And if you thought Mike Giglio was following you around to make you look good, I’ve got some SEO magic to sell you—guaranteed to keep you at the top of Google.

I was done with this story, but Tyler got his D&G panties* in a twist and compared my posts about the Houston Press article to Andy Nolen’s pseudonymous flaming astroturf:

Mark Bennett loves to bash other lawyers such as Andy Nolen for allegedly posting negative comments about lawyers at Yahoo reviews or other places online. Now Mark engages in the same practice himself. Search Mark Bennett at Bennett and Bennett and you will see a flurry of recent blog posts bashing Tyler Flood for an article in the Houston Press

Yes, that’s the entirety of the post.

Yes, Tyler Flood is willingly comparing himself to Andy Nolen.

If Tyler wants to put himself in Andy Nolen’s company, I’ll accept it and explicate: like Andy Nolen, Tyler has a reputation (we learned from the article) for badmouthing other criminal defense lawyers to potential clients; and, like Andy Nolen, Tyler has (we learned from the article) left a positive review of himself online.

I left a comment to that post, which is awaiting moderation (and which I doubt that Tyler will publish—his “blog,” which I’ve blogrolled since I first saw it, seems to be for purposes more of advertising than of discussion [update: he did]):

You’ll recall that when Andy Nolen left his pseudonymous false reviews, one of them was for you.

http://bennettandbennett.com/blog/tag/tyler-flood

That ain’t bashing. That’s quoting. If there’s anything incorrect there, I hope you’ll correct the record.

As I’ve said before, I like Tyler. But there is no grey pinstripe wall of silence (Simple Justice on Matt Brown) that dictates that, when a local criminal defense lawyer becomes news, I can’t comment on it. I am a commentator, and I will comment.

Tyler, if you were misquoted or taken out of context, I’ll be the first to spread the word of Mike Giglio’s journalistic sins. If you want to correct the record somewhere that people will read it, you’re welcome to do so here. If I have misstated any of the facts, I will eagerly correct them.

If the article was factual, though, and if I got the facts right (and nothing you’ve written so far leads me to think that it wasn’t or I didn’t), I stand by my conclusions and opinions.

Are we done?

[Update: Why does Tyler Flood talk about himself in the third person on his blog?]

[Further update: Tyler tells me that he hasn't read any of my posts "attacking" him. Which—along with the use of the third person—suggests that someone else is blogging in Tyler's name at his blog on his website. Why do lawyers let that happen?]

*Disclaimer: I don’t really know what brand panties Tyler Flood wears.

Disclaimer: What I write here, I write not with the intention of making myself more presentable to clients, but only of telling the truth, revealing a bit of myself, and maybe entertaining or educating. Some of my posts have probably scared off potential clients—not everybody wants to hire the monkey waving around a cocked .45 (as a friendly judge described me recently). I haven’t written the “how to choose a criminal defense lawyer” post because it is usually a thinly-veiled “why you should hire me” post.

I’ll avoid that trap, but the fact is that I like getting hired, for three reasons: it’s fun defending people; it’s how I feed my family and my habits; and it’s how I make others’ lives better. I believe I’ve developed excellent ways of treating and helping people.

There are things that we do because we are forced to by circumstances, and there are things that we do because they are right. Those practices that we adopt because they are right, we presumably think are in our clients’ best interests. For example, if I think it is in the client’s best interests for a lawyer to wear purple socks, I am going to wear purple socks, and I am going to recommend that other clients seek out lawyers who wear purple socks. If wearing purple socks were the Right Way to Practice Law (RWTPL), I’d be doing potential clients a disservice by not informing them of my opinion.

My practice is intentionally very low-volume because I think it’s in the client’s best interests to have a lawyer who has few enough cases that he can spend as much time as the client’s case demands. So naturally I think that a client should seek out a lawyer with a low-volume practice. This is the RWTPL.

Similarly, I answer my own telephones when I can and return calls promptly when I can’t because communication is the most important thing to a criminal defense lawyer. So I have a strong preference for lawyers who can be easily reached by clients, and would recommend that this be a criterion heavily weighted in choosing a lawyer. This is also the RWTPL.

I was never a prosecutor, but I know some former prosecutors who are great criminal defense lawyers—not because they are former prosecutors but despite it. Criminal defense takes heart, and many who have fought to put people in jail don’t have their hearts in fighting to keep them out. (Not all lawyers who haven’t fought to put people in jail have the heart for criminal defense either.) I would call prosecutorial experience a neutral-to-weak-negative factor in choosing a defender: if I had to choose between two lawyers, and all I knew about two candidates was that one had been a defender for a decade and the other had been a prosecutor for five years and a defender for five, I would choose the former. But if that were all I knew about the two candidates, I wouldn’t have done a very good job in researching my potential lawyers.

So how should you choose a criminal defense lawyer?

Get as many names of possible choices as you can. Talk to friends, family, other lawyers.

Google them. You may be able to shorten the list.

Try to talk to as many of the survivors as you can stand to on the phone. How easy they are to reach now is a gauge of how easy they will be to reach when you’re in the middle of litigation and you’ve suddenly realized that there is a witness who can clear your name. It’s an imperfect indicator—I return calls much, much, much less quickly when I’m in trial than when I’m not—but nothing is perfect.

Make a smaller list, based on your phone calls, of people you want to meet with. Make appointments with as many as you can find time for.

Then meet with them. See how interested they seem in you as a human being, and in your story. A lawyer who spends a half-hour consultation talking about how great he is (or worse, how lousy his colleagues are) isn’t communicating. Do you feel like you’ve been heard? You probably have, and that’s a good start for any relationship. Criminal defense requires trust; trust requires communication; communication requires listening. How lawyers communicate with you is a gauge of how they will communicate with the jury, which is, at the end of the day, what will matter most.

Here’s an excellent question one potential client asked me recently: “if you had this problem, who would you hire?” (Even if I thought I was the best guy for the particular job, I couldn’t say, “me!” because only a fool would represent himself.)

When you’re looking for a criminal defense lawyer, you’re probably in extremis. It might help to take along a trusted loved one when you meet with your prospective lawyers. You can’t talk about the facts of your case around anyone but the lawyer, but it can help to have someone a little more objective help you judge the trustworthiness of the lawyers you’re talking to.

So that’s how you choose a criminal defense lawyer: learn as much as you can about as many lawyers as you can stand to, and pick the one you trust.

Pretty simple, eh?

A lawyer can’t pay a nonlawyer for a referral. This is an uncontroversial proposition. In Connecticut, paying a nonlawyer for a referral can even be a felony. So when five Connecticut lawyers signed on to pay totalbankruptcy.com $65 per referral, they shouldn’t have been terribly surprised to find themselves the subjects of a Memorandum of Fact and Law by Disciplinary Counsel (via Simple Justice).

TotalBankruptcy.com, in its bottom-of-the-page low-contrast disclaimer, calls itself a “cooperative advertising website”—a claim handily dispensed of by the Disciplinary Counsel:

This $65 per contact price is fixed, and not contingent on the number of attorneys “sponsoring” Total Bankruptcy, distinguishing it from a cooperative advertising model.

Saying it in a disclaimer doesn’t make it true. Lawyers know that. And Total Bankruptcy’s website sure looks, to the desperate-by-definition potential client seeking bankruptcy, like a referral site if not a full-blown law firm. Disclaimer notwithstanding, it is designed, I would argue, to look like a referral site.

Boosters of online marketing (like Carolyn Elefant) are up in arms:

If the bar wants to prohibit TotalBankruptcy as unethical so be it, as long as it does so prospectively.

(Carolyn also analogizes TotalBankruptcy to Google’s pay-per-click. She quotes a small part of the Disciplinary Counsel’s rationale for distinguishing Total Bankruptcy from pay-per-click, but leaves out the meat of it as well as a crucial word in a key sentence, so that it appears in her post that the Disciplinary Counsel is just haggling over the price. This is far from the truth.)

Carolyn’s indignation is misplaced. If the bar is correct that Total Bankruptcy is in fact an unauthorized referral system in violation of the rules, then this should come as no surprise to the lawyers disciplined: they were, after all, paying to have cases steered toward them, and only toward them. Total Bankruptcy was serving the role of Ollie’s cabdriver; I doubt that Ollie claimed surprise when he got indicted because the law doesn’t specifically forbid barratry by cab drivers.

We don’t get a free bite at the apple every time the next shiny place to advertise comes around just because it’s not explicitly forbidden; it’s our responsibility as lawyers to know whether their advertising passes muster or not, and to avoid advertising that might violate the rules. Being dazzled by “Web 2.0″ bullshit is not, and should not be, a defense to a claim of unethical conduct by a lawyer. As Eric Turkewitz first said (and I shamelessly stole):

outsourcing marketing = outsourcing ethics

When it comes to marketing, let the buyer beware.

“Listen, most of the people we get off are intoxicated. But that’s the justice system,” he says. “I’ve always thought people would be very concerned if they knew what we were doing.”

Tyler: You know that you’re talking to a reporter, right?
And you know that he’s most likely going to print what you say?

You know that what he prints is going into a weekly newspaper with print circulation over 600,000?

You know that among that 600,000 are more potential jurors than potential clients?

And you want to tell them that most of your clients are intoxicated?

This probably didn’t occur to you, but some of those readers will draw broader conclusions. Some of the jurors on my next DWI case are going to have read your claims that most of the people you get off are intoxicated. And some of them are going to assume that it’s true of my clients as well.

Gee. Thanks, Tyler.

Wait, wait. That’s just the effect on me and every other lawyer trying DWIs in Houston.

For you, it gets even better.

The Houston Press is published online. There’s a permanent record of every word ever said about you online. And jurors can use the web to research the lawyers on their cases. Which they do.

So the next time you have a jury picked, when they break for the evening some of them are going to go home and look you up. And, along with all of your marketing efforts, they’re going to find the Houston Press article. And they’re going to learn that most of your clients are intoxicated. And they’re going to return to court the next morning. They’re going to share what they’ve learned with their fellow jurors. And, armed with that knowledge, they’re all going to be looking for confirmation that this particular client fits that pattern.

Had it gotten too easy? Were jury trials too fair for you? Not stimulating enough? Did you have to add this additional presumption of guilt to your clients’ burden to get excited?

Those reading along at home might be asking: Is it true? Are most people accused of DWI intoxicated?

Emphatically not.

If it’s true that most of Tyler’s clients are intoxicated (or it may be hyperbole), then there’s either something strange going on with his clientele, or something strange going on with mine.

Almost universally, whether my clients charged with DWI were intoxicated is doubtful. Their videos look okay—they could show intoxicated people, or could show ordinary people who are nervous and tired. Family and friends watching my clients’ DWI videos usually agree: it looks like they have the normal use of their faculties, which is the central issue in most DWI trials.

The DWI cops, hungry for overtime, hang their hats on the voodoo of HGN—horizontal gaze nystagmus. The Press article calls the HGN “pen test” “the most incriminating in the field sobriety lineup,” but juries disagree; they can’t see it, and generally don’t buy it.

Is it just me, representing all of the factually-innocent people charged with DWI? No. From the same article, comments by Houston DWI lawyers Gary Trichter and Doug Murphy:

[Gary] Trichter was a cop in the 1970s before switching to criminal defense, which he views as another way to enforce the law — by keeping the state in check. He started with drug cases. “If you were interested in being a Constitutional lawyer, that’s where you needed to be,” he says.

But according to Trichter, the brunt of the state’s abuse of power soon shifted to DWI, for which he estimates more innocent people are arrested than any other crime combined. Trichter paints breathalyzers as junk science, field sobriety tests as outrageous affairs cooked up to incriminate, and forced blood tests, which take place during no-refusal weekends and have recently been permitted in any stop involving a child passenger or an injury, as a menacing specter for a modern democracy.

[Doug] Murphy, who runs Trichter’s Houston office now that Trichter has relocated to the cowboy town of Bandera, says if a cop smells any alcohol at all on your breath, you’re likely getting arrested. He points to the signs found on highways throughout the state. “Drink, Drive, Go to Jail is not the law,” he says. “But it is exactly how it’s enforced.”

Murphy claims cops target people driving nice cars or from nice bars for DWI arrests, hoping they’ll pay to fight in court, which brings extra overtime. He keeps handy a 2006 Houston Chronicle article that found one DWI officer making more than $100,000 of overtime in a single year. DWI lawyers say they now get a huge chunk of business from Washington Avenue. (They should get another boost from the 1,200 convictions that will be revisited now that a Texas Department of Public Safety employee was caught faking breathalyzer inspection records.)

That—junk science, rigged tests, the overtime game, the lies cops tell to make cases stick—would make a great article, and one that would have benefited society as well as one self-aggrandizing lawyer. But that’s not the story that Mike Giglio wanted to tell, and it’s not the story that Tyler Flood was telling him.

Given the bully pulpit, why wouldn’t Tyler want to tell the story of bad arrests and junk science, to the benefit of each of his clients and of society generally?

Maybe he saw an advantage in telling the “I get factually-guilty people off” story. Maybe his potential clients who weren’t intoxicated will figure that if Tyler can get off people who are intoxicated, their cases will be easy by comparison.

On the other hand, though, those same innocent people might—not unreasonably—want to distance themselves from the lawyer who publicly claims that most of his clients committed the crime they are accused of. That’s a club few people would want to join.

On all of his sites, Flood’s biography starts with his No. 4 class rank in law school. It doesn’t mention that he graduated during the summer with 17 other people. (In fact, the site for Flood Publishing, which sells law school flash cards, claims he graduated in May.) Flood also has a reputation for bad-mouthing other lawyers to potential clients, a serious sin in the cliquish community of DWI defenders. When clients make their free consultation rounds, those who’ve already seen Flood might be getting his texts while sitting in the next lawyer’s office.

“I can’t help it,” Flood says.

I’ve got nothing against Tyler Flood. In fact, I like him. I wasn’t even aware that he had a reputation for badmouthing other lawyers for potential clients—it doesn’t seem to have done me any harm—but it doesn’t change how I feel about him (lots of my clients friends have impulse-control problems).

I’m glad to learn it, even.

If there’s one type of client I hate to represent, it’s the type that wants a lawyer who badmouths other lawyers to get a case. So from now on at least I know who to steer those potential clients toward:

Look: I’ll try to keep you from making any huge mistakes in hiring counsel, but all of those criminal defense lawyers who you’ve told me you’re considering are highly ethical and extremely good at their jobs. You can’t go wrong by hiring any of us; your only problem is picking the one you trust most with your freedom. You want to hear bad things about other criminal defense lawyers? I can’t help you. Call Tyler Flood.

Thanks, Tyler. You da man!

Flood pays someone to keep up his Google search rankings. . . . He has reviewed himself on Yahoo (five out of five stars): “Tyler Flood is one of the smartest lawyers I have ever met…reasonably priced also!”

(Here’s the profile giving Tyler that review.)

Which is unfortunate for the 10-15 “precommits”—larval lawyers who have committed to working for the DA’s office at $12 per hour while awaiting their bar results, in exchange for the promise of an actual salary beginning when they pass the bar (results due at the end of this week).

Because apparently someone forgot to ask the Commissioners Court for permission to put these folks on salary. (This is the account I got from a senior prosecutor; I can’t document it.)

So now they have to wait till December to start making more than they would make waiting tables at Chili’s. (And another three months for benefits.)

Which sucks for them. Neither the administration’s disorganization (hey, remember when Pat Lykos was the candidate with “administrative experience”?) nor the nonexistent legal job market justifies the DA’s Office breaking its promise to these kids.

I eagerly await Pat Lykos’s statement on who is “negligent and incompetent” this time.

If, like them, I  was trembling with impotent rage but I piddled all over myself every time I thought about having my name associated with unpopular opinions, I would admit publicly that I deserved whatever boss I wound up with.

I’m glad my community’s safety doesn’t depend on that effete bunch of craven whingeing circlejerkers.

Damn.