The Grand Misdirect [With Final Update]


Pattis plays dumb:

So rather than engage in another link-building piece of naval [sic] gazing, I will submit the issue Bennett raised to my local Grievance Committee, the body that polices lawyers. I will publish the results of the complaint here. If I am wrong, I will admit it.

First, Pattis imagines that I seek revenge for some slight that he imagines that he gave me long ago. Apparently he has a longer memory for such matters than I. (There may be an example here: when, as inevitably happens to the best of us, you’re publicly caught wrongfooted, it’s best to shut up and move on.)

Then Pattis tries to make the question one of whether he “betrayed client secrets.” I’m not sure that anyone aside from his conscience has accused him of that. The post to which he refers says nothing about client secrets. Maybe revealing that these three particular clients were attracted to kids was part of his strategy; maybe these three particular clients consented to his revealing that they were attracted to kids; maybe he wasn’t telling the truth about them being attracted to kids; maybe these three particular clients don’t even exist. In any of those cases, he wouldn’t be violating the disciplinary rules. It doesn’t matter. Let’s all agree that Pattis hasn’t revealed any client’s secrets.

The problem with the too-much-information twitter post (as with a Houston DWI lawyer’s ill-advised statements to the Houston Press) isn’t that it’s a betrayal of client secrets or otherwise a violation of the disciplinary rules; it is, rather, the scenario I describe in the last three paragraphs of my last post.

If that scenario were far-fetched, I’m sure Norm would have told me so. Instead, he attempts the grand misdirect: if the local Grievance Committee says he violated the rules, Pattis will concede that he was wrong. Otherwise, I suppose, he will insist that he was right.

The Grand Misdirect doesn’t always work. Pattis’s logic is, as he well knows, fallacious: not everything that the bar regulatory authorities don’t punish is “right.” A grievance committee can tell us what violates the rules; it can’t tell us what’s right. If you need convincing, consider the case of Kenneth Kratz, or that of Sharon Keller. There are a lot of things that lawyers can do that are not grievable, but are still unethical, sleazy, harmful, mean, or dangerous.

Or just unwise.


Update 1:

Email, Norm Pattis to Mark Dubois, who is apparently part of a grievance committee (CC MB):

Mark:
I am writing to refer myself to the Grievance Committee upon a complaint of a fellow member of the bar that I have disclosed confidential information to the detriment of a client. I am attaching a complete copy of the author’s piece as it appeared with comments on the Internet today. I will respond if the committee finds probable cause and will refrain from further comments about the merits of this claim or the author’s motives in raising it unless and until a finding of probable cause has been made.
I realize this is unusual, but, having raised questions about professional integrity in a public forum, I would like either a determination about whether my comments violated any Rule of Professional Conduct. Because this member of the Texas Bar believes I have acted in a manner prejudicial to my clients’ interest and may have information you want to consider, I am sending this email to him as well. His name is Mark Bennett.
I am waiving any claim as to confidentiality of these proceedings.
Yours,
Norm

[Copy of TM vs. TMI post attached.]

Bennett to Dubois, CC Pattis:

Dear Mr. Dubois,
Deciding whether Mr. Pattis has violated your disciplinary rules would require you to determine whether the three clients actually exist, who they are, and whether they gave Mr. Pattis permission publicly to proclaim that they are “attracted to kids.”
Mr. Pattis can’t reveal any of that without unambiguously violating his clients’ confidences; he knows this, and knows as well that his email is a blustering waste of your time.
You have my sympathies.

Pattis to Dubois, CC Bennett:

Mark:
I won’t comment on the assertions of law made by brother counsel. I will submit the issue on the following stipulated facts:
1.  I represent three clients accused of se crimes.
2. I wrote the Tweet.
I can understand why Mr. Bennett would not want to join the issue. I frankly think it meritless.
Norm

Bennett to Dubois, CC Pattis:

Mr. Dubois,
I agree with Mr. Pattis: it’s not a matter of the disciplinary rules, but rather one of ordinary ethics and common sense.
Is wasting your time by making meritless referrals itself grievable? If not, I think you’re probably done here.

Pattis to Bennett:

Mark
I gather brother counsel from Texas is conceding something like defamation, or ordinary cowardice. Even so, he has raised a question of my ethics in a public forum, and I would like a decision. I will also stipulate that no client consent to anything I said. Let’s hold this fellow’s feet to the fire. He operates a blog called Social Media Tyro. He’s made his accusation. I admit I said what he claims. Assume there are clients. I say breach of a duty and that the complaint is silly. But Mr. Bennet made it.
Norm

Bennett to Pattis:

Norm,
I don’t think you are a fool, but you are acting one. You’d have been much better off letting this slide than continuing to call attention to your lapse (not a violation of any disciplinary rule, and I’ve never suggested that it is; call it a momentary lapse of judgment) and compounding it.
Still, if you want to keep trying to make this about something it’s not (a straw-man DR violation? a matter of honor?), I’ll continue to point out what it is about, which you haven’t come anywhere near addressing.
What would you advise a client to do in your position?
Mark

Pattis to Bennett:

Mark.
You chose to attack my reputation in a public forum in a manner that I find frankly petty and foolish. I would advise a client to do exactly what I am doing to avoid any appearance of duck

Pattis to Bennett:

Oops. … As I was ranting .., I would advise a client to do as I am doing and perhaps more.  I concede the comment can be misperceived.  But you elected to showcase it in a manner calculated to cause me harm. I will clear my name at the risk of compounding the harm because I think the allegation transparently baseless. I didn’t pick the fight; you did.    N

Bennett to Pattis:

If it helps, I’ll agree with you that the allegation that you are imagining I made—that your tweet somehow violated some DR—is transparently baseless.

Pattis to Bennett:

Mark
I’m moving on. Let Mark’s committee do what they will. Life is short and I try not to let the rearview mirror dominate the view.
Be well,
N


Update 2:
Interesting comment exchange at Pattis’s blog:
Pattis:

LS:
Alas and woe. Forgive if I avoid publishing your insults. Duly noted, now go play elsewhere

Lee:

You are forgiven. I wouldn’t either.

But I’d have also admitted I was wrong when it was called to my attention.

Pattis:

“Called to my attention” is an interesting locution. The author of the post who spotted this issue never informed me of his concerns or sent me the post. Someone else had to do that. He was less interested in correcting an error than in posturing as social media tyro cum ethicist. Forgive me if I find it a gutless performance on his part. I would rather submit the issue to a body that cares about ethics, and have done so. But casting pearls before swine is a pastime even Jesus warned against.

From which we learn: a) that Pattis still pretends it’s about ethics; b) that I hurt Pattis’s feelings (of course, Lee didn’t say that I had called it to his attention); and c) that Pattis doesn’t know what “tyro” means.


It keeps getting weirder:

The hate emails are the ones that tell you your readers truly care. The trick is to avoid being baited into wasting your to time with them. I fail at that to my sorrow; I’m told my private emails even get reprinted. It is a little creepy to have that kind of influence over others. I’m told I have a friend or two working the phones to discuss my posts. That’s just too weird for words, even if it is flattering in a twisted sort of way. On balance, I am leaning against comments; too much wasted time.

N

That’s Norm Pattis, who markets himself as “Leading American Trial Lawyer,” playing victim because his “private emails” (“waiving any claim as to confidentiality of these proceedings”) get reprinted.

This would make more sense if Pattis were a sociopath.


Final Update:

Mark Dubois to Pattis, Bennett:

You gentlemen apparently have WAY to much time on your hands. If I understand it, Pattis posts something (as he blogs and writes in his column) that he has another day in the trenches with clients accused of sex crimes on this Twitter thing. And someone in TX claims a disciplinary rule violation? Gimme a break.!
If you go to YouTube and put in a search query for “will it blend?” you can see a film where someone puts one of those Twitter machines into a blender. I suggest you both do that, and stop the foolishness.

It’s actually more absurd than that: Pattis was the only person questioning whether his tweet violated a disciplinary rule.

So, Pattis’s straw man having been incinerated, that’s the end of things, until Pattis starts claiming that it somehow vindicates his foolish Twitter post.

3. . . 2. . . 1. . .


11 responses to “The Grand Misdirect [With Final Update]”

  1. Mark,

    Unlike you, I have no history with Norm, other than being someone who admired him and enjoyed reading his blog. And I felt so strongly about this that I was moved to write about it after I read your “TMI” post yesterday. (I didn’t hit the publish button, however, until I read his follow-up this morning, and was dismayed to see that Norm didn’t see anything wrong with his tweet.) I say this not simply to promote my own blog, but to show Norm that your observations aren’t simply the skewed product of someone trying to settle an old score.

    Here are my thoughts about your exchange with Norm:

    If I were one of these clients, I wouldn’t care whether some committee determined that he violated a professional rule.

    But I would be furious that my lawyer – the person I trusted to protect me from the government – admitted in a public forum that I had a sexual interest in kids. And his explanation for the indiscretion wouldn’t make matters much better, since the people who read the tweet aren’t guaranteed to believe that explanation.

    Anyone can say (or tweet) something dumb. But to handle the fallout so poorly after having the opportunity to reflect is more troubling.

    Imagine how much better this situation would have been if he had handled it in the following manner (which is frankly what I expected from Norm):

    “Yesterday, a fellow CDL blawger posted one of my “trench menu” tweets on his site. Through a combination of carelessness and space limitation, I appeared to concede that the clients I represented in court that day had a sexual interest in children. That wasn’t my intent, though I understand how people could easily have viewed it differently. I was commenting on the motives that the government ascribes to these clients. I will make every effort in the future to avoid posting anything about my clients that can be misconstrued. Our clients pay us a great honor by placing their trust in us, and we must treat their confidence as sacred. Even the appearance that we are not doing so must be avoided at all costs.

    I’m embarrassed about my error, but want younger lawyers to realize how careful they must be when trying to develop an online presence. Equally important, it is important to admit our mistakes freely and openly when they are pointed out to us, no matter the source of the complaint.

    While I certainly can’t comment about my discussions with these clients, I believe that an activity that might reasonably be viewed as breaching the attorney-client privilege should be disclosed to the client. In the final analysis, it is their confidences at stake. Their understanding and forgiveness is at least as important to me as a technical determination of whether I violated a professional standard.”

    • Very well said, Brian.

      Since Norm has decided to stop allowing my comments as they have become critical of his actions and his response to Mark’s criticism, I’ll post the comment I finally left to his post that was about me though it didn’t name me (apparently Norm also thinks I’m a woman).

      “I will probably continue reading here because I enjoy much of what you have to say despite my increasing concern about your reaction to criticism from folks worth listening to and solicitation of adoration from folks, well, not so much.

      I will no longer comment as you never saw any need to regulate the completely unrelated rantings in the comments section but were quick to stop allowing comments when they became critical of you personally.

      One thing I will always agree with you about is that none of this matters too much and the politically incorrect maxim relating arguing on the Internet to competing in the special olympics is worth remembering. So, good bye, Norm. I hope the uncritical company of fools and conspiracy theorists keeps you well.

      And you know my email address as well, but I’ve said my piece here. ”

      As I conceded when he decided to publicly respond to my comment without publishing it, I probably wouldn’t have posted it either, but then I would not have handled this situation anywhere near as poorly as he has (again, conceding that we can all make stupid mistakes, me included).

      • Gentlemen,

        I reject the notion that any “history” with Norm played any part in my original post. Norm is, I have said before, one of the smartest lawyers I’ve known; I’ve admired his acute intelligence and the passion he puts into his work for more than a decade.

        My post was not about Norm, but about a single foolish and very public mistake he made. I would have written the same if it had been Greenfield or Tannebaum or any other lawyer I admire in his place. Had he been someone against whom I sought revenge, or had I for any other reason been trying to “cause him harm,” I would have at the very least used his name so that the post was more readily Googleable.

        Does Norm’s reaction, including his assumption that I was getting revenge for some slight that only he remembers, belie his protestations that none of this matters too much?

  2. I know I’m coming in late — I’ve been horribly self-absorbed lately, even moreso than the usual — but …

    Am I missing something? Under what circumstances, if any, would revealing that an (unnamed) client was sexually attracted to children be in that client’s interest? I mean, like, WTF?

  3. This really isn’t that difficult, guys. You both look foolish.

    As an impartial observer from another state who doesn’t know any of you folks: Lawyer 1 (Norm, I guess is his name) made a lapse of judgment in that his Twitter message could be misinterpreted. It was not intended to, nor did it, reveal client confidences. But it was obviously flippant, and could be misinterpreted.

    Lawyer 2 (Mark, I guess) made a lapse of judgment too. He wanted to communicate about what he thought was a lapse in judgment based on the susceptibility to misinterpretation of Lawyer 1’s message. However, Lawyer 2 was a bit too clever in how he wrote his blog post. It didn’t come right out and say anything, it just had insinuating questions. This post included a full screen grab of the message, displaying Lawyer 1’s full name. So, instead of reading clearly as a comment on the the original message (Lawyer 1’s Twitter post), the blog post could be read as a comment on the original messenger (Lawyer 1 himself — his judgment and maybe even his ethics).

    The they both started acting like children.

    I don’t know how y’all do things in Texas, but here’s how we would man up about it where I come from:

    Lawyer 2: Sorry about that, I may have given the impression I was trying to criticize you personally or professionally. I was just trying to comment on the issue of boundaries and judgment when lawyers talk about their cases on social media. I should have redacted your name.

    Lawyer 1: Apology accepted. For what it’s worth, I agree with you that I should have either refrain from writing about my cases or only do so for good purpose after some careful thought.

    [Everyone drinks beer.]

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