Over the wire or under the wig

Give Judge Mills credit for redefining the meaning of a bug in the system with his comments on judicial ethics and earwigging on internet blogs – and letting us know he reads at least one blog.

Mills said if he doesn’t read the comments on a certain blog, someone in his office is bound to print it out and leave a copy on his desk.

Now, that comment not only caught my eye, it put a bug in my ear that started scratching when I read the story Sop posted yesterday – a bug to understand who in his office would copy blog posts and comments and leave them on his desk and why.

I found the answer – or at least one answer – in the Oxford Eagle story about the event.

“I know if something is said about someone local, and if I don’t read it, my clerk will make sure I see it,” Mills said. “It’s going to get copied and put on a judge’s desk. And I think people know that and I believe some write comments to influence the judges.

I suppose lawyer-people know that; but I’m not a lawyer. What I do know, however, is that Judge Mills and Judge Biggers have their offices in the Court’s Oxford office – where “local” means Scruggs, Lackey, Tollison and a host of others with various connections to USA v Scruggs.

No wonder Judge Mills is concerned about earwigging comments on internet blogs. In small towns, you can go from hello-to-earwigging faster than I can say Judge Lackey – who, according to the story in the Eagle, said something like that himself during the discussion.

Lackey, who helped the government in its case against Scruggs, talked about how being a judge in a rural area can make it harder to avoid talking to people involved in the cases he hears.

“Your circle of acquaintances gets larger,” he said. “But your circle of friends becomes smaller.”

Lackey said early in his career as a judge, family and friends would call him “Judge” instead of Henry.

“I would meet the ‘can-a-mans’ at the Post Office — those are the ones who ask, ‘Can a man do this?’ or ‘Can a man do that?’” Lackey said. “It’s indicative to a small town practice. It would be hard to tell them I can’t discuss the case with them.”

I couldn’t agree more and, since this post is intended only as an examination of earwigging on internet blogs, I’ll move on to this interesting comment from a law professor.

I don’t see how a blog comment is ex parte. The other side can read it too and respond, right? Lots of people read the oral-argument transcripts from the U.S. Supreme Court and try to point out things they missed, hoping to influence the Court. That can’t be earwigging, I think.

Granted, I’m not a lawyer; but, I see no correlation between the number of readers and right-versus-wrong; nor, do I doubt Judge Mills’ claim that attorneys, if not others, know judges read internet blogs. Given that, there are ample examples of attempts to influence the sentencing of those who entered pleas in USA v Scruggs and clearly that is wrong – and by far not the only example.

The cultural implications of these many examples provides insight about the impact earwigging on internet blogs has on the concept of justice for all. First, viewer count is not an accurate reflection of the number of readers because of the redistribution system in place. A count of one view may actually be a connection to a service that redistributes the post to hundreds, or even thousands of viewers.

Each viewer, in turn, has the potential to increase the distribution in a variety of ways including email or actual conversation. Consequently, a false statement can be so widely distributed it becomes the only truth known to the extent it is the actual truth that becomes subject to question.

The larger issue, however, is not how but how to recognize and what to do about attorneys who are earwigging on internet weblogs – particularly since there’s no way to pin the blame for this situation on Dickie Scruggs.

Judge Mills is to be commended for starting a timely conversation that needs to continue and will here on slabbled. Although, Sop and I are never certain if we’re the minority opinion or the voice of the silent majority, either suits us fine.

We host slabbed for the pleasure – the pleasure of giving hope to the slabbed – and the related pleasure of reminding our growing number of readers that not only are there are two sides to every story, the most popular version may or may not be true. Of course, if any are judges, they already know that.

15 thoughts on “Over the wire or under the wig”

  1. Surfing around this morning I noticed Alan Lange thought enough of your post enough to link on Yall Nowdy. I extend a slabbed welcome to his readers who check out this post.

    The implications you raise in this post have great ethical meaning to the legal profession. As Judge Mills noted blawgers and the commenters are sometimes not disinterested third parties. Nothing wrong with that per se unless ethical lines are crossed such as advocating a case position in ongoing litigation of behalf of a paying client a la David Rossmiller.

    The feedback I

  2. I, too, welcome Y’all readers, Sop, and thank Alan for using my post to increase awareness of the points Judge Mills raised in the panel discussion.

    “wiggblogging” – the name suggested by our reader duesouth- is not limited to lawyers. The emphasis was there because the panel was discussing judicial ethics with law students; but as you pointed out, the Judge was referring to anyone with an “interest” in a matter before the court.

    The key to understanding is the difference between “an interest in” and “interested in” – and it wouldn’t surprise me to see this issue surface in a courtroom soon.

  3. I think you are wrong on the law. The professor had it right: the essence of ex parte is the one sided, secretive nature of the communication, in which one side secretly communicates with the court, so the other side cannot respond.

    What Rossmiller does is so far from that as to be in the next state (like, say, Mississippi to Missouri.).

    And of course, to make it doubly inapplicable, he doesn’t represent anyone in any of these cases.
    Blogging on matters of general interest is squarely within bounds.

    I understand that Rossmiller’s success drives you nuts, but you are just going to have to get over that, just as you are going to have to get over so many of your other percieved injustices (like the flood exclusion actually excluding flood, or this being a capitalist society in which for-profit corporations try to make money) that bother you.

  4. Allstate is a client of his firm Mr Claimsguy. He had an economic interest in Weiss and the Qui Tam litigation due to that relationship. His partners have an interest in what Mr Rossmiller writes as well, you know, that joint and several liability thing that bit SKG/KLG in the rear end.

    As we found out from that ethics panel at Ole Miss which we linked, the internet is breaking new ground and pushing the boundries of legal ethics. Rossmiller had plenty of chances to reveal his biases but instead he held himslef out as an impartial observer despite Allstate’s relationship with Dunn Carney.

    This has nothing to do with the flood exclsion and you know that. I’ll disclose that sitemeter tells me alot about who is reading us, including some very interesting ISP’s from Missouri, that, if those readers are who I think they are (and unlike Mr Rossmiller) actually has an enrolled interest in the FCA case.

    If I’m right, it’s those guys who’s own ethics has been openly questioned by Mr Rossmiller based upon deposition exceprts quoted out of context. As those firms mentioned bloggers in their first reply memos, I would hope they found the information we presented here enlightening.

    And while I’m on that subject we also had a good bit of interest in that Blawging ethics post from the US House of Representatives. I don’t think they were all coming from Rep Taylor’s office.

    Time will tell if this matter is fully investigated. Something tells me we may not have heard the last of this topic. Thanks for stopping in Mr Claimsguy. Mr Rossmiller needs a defender here on slabbed, I’d love to hear your take on why he hid his firm’s relationship with Allstate while he was blogging on Weiss.

    sop

  5. 1. I note your non-response regarding the essential nature of ex parte.

    2. So because someone in Rossmiller’s firm having had, at some indeterminate point in time, represented Allstate, means he can’t blog on a case against State Farm? (I don’t see Allstate as a defendant in State, ex rel vs State Farm. Am I missing something?) Please explain. Do you therefore mean that because the firm represented one carrier, it is ethically prohibited from having an opinion (and publicly expressing that opinion) regarding ANY legal issue in ANY case in which ANY member of the insurance industry is involved? I’d love to see a cite to some case, statute or reg on THAT point, because I very much doubt that any such cite exists, because that is very clearly not the law anywhere.

    3. The essential nature of your argument is that general-circulation blogging, done in an open, obvious and public manner, is the legal and ethical equivalent to direct, secret, one-sided communciation with the Court. Such an argument is self-impeaching.

    4. This thread is the continuation of a trend: a failure to see the forest for the trees regarding the behavior of all concerned. In an effort to minimize egregious, illegal and unethical conduct by your champions, you strive to find something you can call unethical by others: Rossmiller, Lackey, et al. To try and put Lackey or Rossmiller on the level of Scruggs, SKG, and the Trailer Lawyers is a pathetic attempt to try and change the subject and to excuse the inexcusable.

  6. You do not address the concerns of Federal Judge Mills who expressed concern at the practice.

    Mills discussed an alternative type of

  7. While I don’t aspire to be the author of “blogwigging for dummies,” I’ll add a few comments here and then write a post on the topic and put it up over the weekend.

    The “recipe” requires
    1. a blogger with an “informed opinion” – meaning both legal knowledge in general and knowledge specific to a case.
    2. a reader who respects that opinion and is either a judge or someone in a position to influence the judges opinion such as a clerk.

    Who have some motivation…
    1. to lawyer it could be protecting interest of client in current or future case or attracting related new clients; something of personal interest – settling an old grudge, career advancement
    2. to reader it could be “well that sounds right” that influences decision or, in the case of a clerk, a “that makes my job easier” that directs research in a certain direction

  8. The ex parte rule is, in essence, “a rule of fairness meant to insure that all interested sides will be heard on an issue.” (Heavey, supra, at p. 559.)

    I believe Mr. Claimsguy that the Courts have a standard for all parties involved to ensure that each side is noticed of ex parte conversations between attorneys under the employ of one side and the Judge. It is not the case where an attorney can “volunteer” his services in an ex parte manner on the behalf of one of his existing clients. It matters not if he does not represent that client on the specific hearing.
    At a minimum he should notice both parties to matter and make a formal petition to the court to be heard. Not conduct a public ex parte communication with the Court. The internet may be new but the standards of the legal profession are not new.

  9. I would note that the quote I read is different than yours. This is from the Oxford Eagle on-line version, which I got to through Folo and do hereby cut-and-paste:

  10. The case I referred to in regards to David Rossmiller is Weiss, Mr Claimsguy. My partner Nowdy mentioned Allstate was also an original defendant in both Ex Rel Rigsby and Ex Rel Branch.

    The rules of conduct apply to all attorneys. However you mix apples and oranges lumping Hood, Moore, Schlomer and Graves in with Dickie Scruggs. Hood, Moore and Schlomer because they have nothing to do with Ex Rel Rigsby. Graves because there is no proof he acted other than completely above board and ethically.

    As far as outrages goes at Dickie Scruggs, this is the slabbed blog where insurance is the primary topic. We did cover certain aspects of the Scruggs case from a balanced perspective and we considered all the facts as they presented themselves.

    However we not a hanging blog and we derive no particular satisfaction from the guilty pleas in the judicial bribery case nor Mr Rossmiller’s ethical lapses. Frankly and I

  11. claimsguy, I’m not the “you” that should respond to all of your points and am responding only to those that appear to reply to what I wrote.

    1. I would further note that legal blogging is really an extension of opinion writing that has been present in the legal community for a very long time.

    my response: Legal blogging as an extension of opinion writing in journals should not be confused with blogwigging.

    I didn’t. You shouldn’t either.

    2.The standards you enunciate would eviscerate that entire field

    my response: I did not enunciate a single standard.

    I suggested a solution would be full and fair disclosure of both sides of an issue with opinions posted on blogs.

    How would that “eviscerate that entire field” of legal blogging,

    3. And did you really say that blogging goes undetected?

    My reply: No, “bloggwigging” not blogging!

    4. And the standards you propose seem to say that you have no problems with ignorant blowhards blogging, just people who are smart and articulate.

    My reply: see below.

    5. That

  12. I guess since blogwigging is a concept that doesn’t exist, you can define it however absurdly you like. If you want to enunciate a standard that says dumb guys can post all they want but smart guys can’t, go nuts.

    But what I read was a formula for the muzzling of good and valuable discourse.

    I think that the real beef here is that you guys don’t like Rossmiller for the very reasons you should respect him: he is an articulate, intelligent and informed commentator on some very important topics. We need more Rossmillers, not less.

    And finally, as for Graves, haven’t we been reading quotes in the paper from him regarding his conduct in State ex rel Rigby v State Farm? Please square those quotes with the ABA rule that you have only recently fallen in love with. Shouldn’t he have said “I don’t comment on pending litigation”? Wouldn’t that have been the ethical thing to do, as a “lawyer who is participating or has participated in the investigation or litigation of a matter”?

    Shall we look forward to your posts that passionately denounce him anytime soon? Of course not. And we all know why.

  13. You can find plenty of posts running down Todd Graves over at Mr Rossmiller’s blog Mr Claimsguy. However you bring up a good point about Mr Graves and his response to what he claims are unfounded allegations of unethical behavior levied against him. And lets be honest about motivations here, this is because he is representing the Rigsby sisters, who have also been subject to 6 months or so of vicious personal attacks. Was he commenting about Qui Tam specifically or did he say he was at Disney on 3-11-08? Did he call the attacks on his professional integrity false? Yes he did. Do I blame him? Nope, not one bit; he had no cyber surrogates unlike State Farm. I personally think he was right to defend his reputation.

    Unfortunately and despite the best efforts of Mr Rossmiller to poison the well the facts are due out very shortly. State Farm is going to have to put up proof of this unethical behavior or shut up. Given the tenor and viciousness of the attacks in the media, including here in cyber space, I wonder if this could be a cause for sanctions against State Farm? Perhaps an attorney could answer that question for us.

    Remember the depositions so frequently cited are from McIntosh, which State Farm’s lawyers used to perform free discovery on Ex Rel Rigsby. The problem is they discovered very little they did not already know.

    IMHO the undated April meeting is the key to this. Isn

  14. So your outrage really isnt about lawyers violating the ABA rule that you only recently discovered and fell in love with. It’s about lawyers YOU DON’T LIKE allegedly violating that rule. (And you are wrong about Rossmiller, for the reasons noted above.) Thank you for making it crystal clear that you harbor no pretense to neither fairness nor intellectual consistency.

  15. Hey claims boy if your looking for some bad talk on lawyers or event the entire unreal self serving crock known as the Mississippi judicial system. I’m your honey bun. Todd Graves doesn’t he work for this company daddy protected form being sued?

    No wait it’s a blog site. Let me get this right! the company got sued in fact the claims used for settlements were my family’s only we didn’t get any money because we were suppose to die. How’s that for justice? Any way it’s a pass it down to jr. thing as Graves jr. gets a job as does the Alston’s working for that holier than now firm in Jackson handling the Governors affairs.

    The courts in this state are nothing more than moot court actions directed by script serving state actors.

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