Internet Bluster Is Foolhardy
It continues to amaze me that anyone familiar enough with the internet to send an email or comment on a web site thinks that it could possibly be a good strategy to say "shut up or I will sue you/report you/retaliate against you."
The tale begins with Radley Balko's explosive article at Reason suggesting that medical "experts" may have offered entirely bogus testimony leading to the wrongful conviction of one Jimmie Duncan for the murder of Haley Oliveaux in Louisiana. Patrick discussed the case, and Balko's take on it, here at Popehat. Balko's piece is in the best emerging tradition of internet journalism. Over at Patterico's Pontifications, Deputy District Attorney and dedicated blogger Patrick Frey was skeptical, and engaged in his own extremely thorough and extensive analysis, which reveals his skills both as an attorney and as an investigative journalist [warning: it also includes disturbing pictures]. Balko's piece focused on evidence that medical experts fabricated forensic evidence; Frey's piece, in addition to probing that evidence, reviewed evidence consistent with Duncan's guilt. Agree with Frey's conclusions or not (and Frey is actually rather cautious in reaching conclusions), he didn't just spout off on the topic — he conducted independent investigation and analysis, including contacting potential witnesses.
Enter Kathy Kelly, attorney for Jimmie Duncan. Kelly is unhappy that Frey has disagreed with Balko's exonerating approach to her client, and that he reached out to witnesses in the case. She (or possibly someone posing as her to embarrass her, I suppose) appeared at Frey's site and left an odd and rather confused threat and cease-and-desist demand:
I’m am [sic] Mr. Duncan’s lawyer. This case is currently on appeal. You are not the prosecutor, the judge or a forensic expert. You have noted contacting several people who are potential witnesses in the case and who will be called as witnesses later on in an evidentiary hearing. As a lawyer you should no that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar. As far as the comments you are making regarding the civil case you have distorted the facts. The hopital and CPS were found not liable for missing evidence of any past sexual abuse and several doctors testifed that the head injuries were consistent as being accidential. Dr. Hayne himself testifed that there was no evidence of past sexual abuse. The child’s 3 previous hospitizations that you refer to were a history of seizures caused by reactions to medications,She had these problems long before Mr. Duncan even knew her. You are a memeber of the general public you have no right to be demanding that this child’s autopsy or medical records be turned over to you. Again you are neither the DA or the JUdge in this case.
Comment by Kathy Kelly — 3/1/2009 @ 1:08 pm
Pressed (reasonably) by Frey, Kelly refused to specify what ethical rule Frey was allegedly violating, and bowed out of the argument.
As informed California lawyers will tell you, and other lawyers and reasonably sensible laypersons will guess, Kelly is full of shit on this point. Frey has not violated the California Rules of Professional Conduct. Though Frey, as an attorney, may not contact represented parties in connection with the matter on which they are represented, and may not (for instance) urge witnesses to evade testimony, absolutely nothing in the Rules prevents him from investigative journalism like interviewing witnesses to a case. Ben Sheffner at Copyrights and Campaigns and the Legal Ethics Forum make short work of Kelly's assertions. Kelly's bluster is self-defeating: the assertion "you have no business talking to witnesses when you are not a party to this case" is transparently bogus and almost comical.
My point is not so much that Kathy Kelly is woefully wrong on the law, however. My point is that Kathy Kelly is foolish in the extreme to resort to a "shut up or I'll report you" (and a poorly drafted one at that) threat over the internet. The result was predictable to anyone with a modicum of sense or experience with blog culture — the threat has now been widely distributed, dissected, and (appropriately) ridiculed. The pinnacle of this foreseeable process was when Eugene Volokh picked the issue up, assuring a ridiculously wide audience to Kelly's embarrassing conduct. The probable long-term result is that Kathy Kelly's name will, through the magic of Google, be permanently associated with her regrettable and feckless thuggery. Attempts to shut bloggers up through threats — especially hasty and baseless threats — are inherently counterproductive. Engage in them at your peril.
I can't think of a theory under which Kelly's threats will be helpful to Jimmie Duncan. One hopes, for Jimmie Duncan's sake, that Kathy Kelly devotes a higher quality of legal reasoning and judgment to his legal defense.
Incidentally, while Ms. Kelly is recklessly threatening to report people to state bars for writing things she doesn't like or communicating with witnesses, she might want to take a close look at Louisiana Rule of Professional Conduct 4.4:
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . . .
Edit: Legal Blog Watch also picked it up.
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