Et tu, Bennett?

Unless I missed something, what the anonymous blogger means by a strike is….”

Well, you missed something, Mark.  Like this.  And this.  And this.

Never mind.  It doesn’t matter.  My fault, too, for leaving the first post unedited for too long.

Besides that, you’ve ruled out a successful strike in advance.  A strike is a “collective action” and you’ve said that “…the criminal defense bar will never subscribe to any collective action that doesn’t put the client first…” and that all collective action fails that test “by definition”.

Speaking of “by definition”, if you complain that I have remained anonymous because that doesn’t provide grist for the ad hominem mill, it isn’t quite fair to speculate about my qualifications, or lack of them, and then box with the straw man.  As it happens, your musings that I must not have “represented human beings in court” and have “no leadership experience” are both factually wrong, but so what?  That’s a side issue we might take up later.

For now, though, do you have anything to say about Sharon Keller sitting atop your state’s criminal justice system?  Not so far.  The powers that be in your state have spoken, though.  They have “exonerated” her.  She said so herself, and I haven’t seen anyone disputing it.

Having ruled out a strike, do you have an alternative proposal?  Or is everything in Texas criminal justice as good as can be expected because, well, you can always hire Mark Bennett?  I’d be disappointed if you thought so.  I don’t believe you do.

Are you worried about the ethics of the matter?  How about this one:  Lawyers should “…participate in proposing and supporting…programs to improve the system, without regard to the general interests or desires of clients or former clients.”  EC 8-1

Maybe we should have a CLE lecture instead.  That will make us feel better.

So in the end you have rejected a strike other than the one that was actually called, took issue with phantom and factually incorrect characteristics of mine, cited some ethical considerations while ignoring others, and of course all of that was unnecessary if you really believe that collective action by real lawyers is never appropriate “by definition”.

And the net result is that Sharon Keller remains where she is while the real lawyers of Texas shrug their shoulders and say nothing, just like they have all along.  This is acceptable to you?

I’ll ask you to reconsider and make you an offer:  if you agree to strike and encourage colleagues to do likewise, I’ll drop the anonymity thing right away.


Filed under Striking lawyers

2 responses to “Et tu, Bennett?

  1. Bennett hardly needs my defense, and since my Texas license is inactive and I have (at least at the moment) no court appearances scheduled anywhere on Nov. 17 I have no striking available.

    Still . . . .

    I do this balancing.

    One the one hand, Sharon Keller is a terrible judge. She should never have been elected, should never have been reelected, and should be removed from the bench for closing the court and for other decisions and opinions indicating that she cares more about affirming convictions than about following the law or making sure that the system operates fairly and with integrity.

    On the other hand, I have a client. I have a trial or a hearing or an oral argument (on a motion, appeal, whatever) scheduled Nov. 17.

    I can strike, missing the court appearance and hoping that (1) Sharon Keller will recognize that she is doing a disservice to the judiciary and people of Texas and resign or that the rest of the Texas judiciary will bring her up on a new set of charges (inspiring criminal defense lawyers to go on strike?) and eventually remove her from office and (2) my client won’t suffer from argument or hearing or trial maybe occurring without me or from my pissing off the bench.

    Nope. I go to court.

    The “general interests of clients” may not be harmed by my action. The specific interest of the specific client may very well be. The courts tend to say (the Ohio Supreme Court very specifically does say) that my duty to the court (by which it means my duty to be open and honest and rat out my client as needed, not a duty to ensure better judges) is greater than my duty to my client. I don’t know any serious criminal defense lawyer who accepts that any duty – beyond the duty of ethics – is greater than the duty to the client.

    Like I say, it’s an easy call. If it’s better for your client to skip court on Nov. 17, then you should probably do it. If not, you show up. That’s the principle. And that’s why collective action is pretty much always at odds with the duty of being a criminal defense lawyer. Because the client, this one, today, always comes first.

    You say you’re a lawyer but don’t practice. If you don’t put the interests of your clients first, that’s probably for the best.

    I’m all for trying to figure out ways to get rid of bad judges and to improve the system. But not, not ever, at the expense of my clients.


    • I think you’re exaggerating the potential for damage to any given client. We’re talking about one day. What if you were sick or otherwise couldn’t attend? How much damage would the client suffer?

      OTOH, how much damage does your client suffer because of bad judging? How much damage do all your clients suffer because while the judge is afraid of the prosecutors and the police – and the police have no aversion to collective action – he has no countervailing fear of defense attorneys, and how their disapproval might affect his career?

      An attorney has a client who is in jail and it’s time for a bail application. What’s wrong with exempting that one appearance and striking with respect to any others, where no discernible harm could result?

      We could speculate endlessly about potential harms to clients. Realistically, under what is proposed they are negligible.

      The harm caused by Keller is not speculative.


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