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Monthly Archives: August 2013

DOUBLE SECRET PROBATION FOR LIST NEWBIES

 

In moderated mailing lists, every post must pass muster with a moderator, acting as a gatekeeper and editor to determine which posts are list-worthy and which ones are not. Unmoderated lists operated in a free-for-all environment, where all messages from subscribers are automatically distributed to the list. And self-moderated simply means that subscribers should govern themselves. Sometimes subscribers in unmoderated lists may find that making inappropriate posts lands them in the penalty box, where the list owner may moderate their messages.

A list’s rules and its culture shape the way subscribers post, but there is a learning curve. Some new subscribers pick up the cues more quickly than others do, and some have no intention of following the rules. Some lists are targets for protestors, snail oil salesmen, troublemakers, and spam artists. If those miscreants and errant souls are going to post something inappropriate for the list, they’re almost guaranteed to do so within hours or days of joining. Hit-and-run subscribers seldom hang around long enough to reap volumes of e-mail from mailing lists.

The shrewd list owner’s solution to this problem is to automatically put new subscribers on double secret probation for a month so, releasing those who readily make meaningful, relevant posts more quickly than those who’re simply lurking and serving their time. The next time you join a mailing list and find yourself on moderated status, don’t take it personally. Just think of yourself as a fraternity (or sorority) pledge, and regard this as relatively painless hazing which will end in due time. Newbie probation status isn’t worth raising ire with the list owner about why your messages aren’t distributed nanoseconds after you send them. It’s only part of the price of maintaining a commercial-free, spam-free, and troll-free mailing list. Catch and release works for fish, and it works for mailing lists.

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WHEN LISTSERVES AND LEGAL ETHICS COLLIDE

In a recent article, “Your Practice: Listserv Postings Raise Ethical Issues” (http://lawyersusaonline.com/blog/2009/08/17/listserv-postings-raise-ethical-issues/) appearing in Lawyers USA, Correy E. Stephenson points out the ethical pitfalls lawyers face when discussing client matters and cases on a mailing list. ABA Model Rule 1.6 (http://www.abanet.org/cpr/mrpc/rule_1_6.html) directs a lawyer not to “reveal information relating to the representation of a client unless the client gives informed consent,” except under limited circumstances. Real cases with real facts are the reason many lawyers look to law-related mailing lists for advice, direction and answers. Even though a prudent and careful lawyer would take steps to modify identifying details, asking questions of a general nature, the author set forth some guidelines to protect against ethics complaints: remembering that the post is permanent, understanding that different people have different interpretations of “reasonable;” and taking the discussion off-list, posing the question in general terms and requesting contact information from any list participant willing to provide information privately.

New York lawyer Lisa Solomon (http://www.questionoflaw.net/), in a post to the mailing list Solosez on October 6, 2009, thinks the author just didn’t understand why lawyers participate in listserves and says there’s something wrong with the author’s suggestion that these discussions be taken off-list for a number of reasons:

 

  • The knowledge that subscribers other than the original poster gain from the discussion contributes to the professional development of everyone.

 

  • Like other social media, listserves serve a marketing function. Those participants who share substantive answers demonstrate their expertise and raise their profile among their colleagues.

 

  • One-to-one communication through private e-mail or a telephone call may not be convenient for the lawyer who actually does know the answer. Or that lawyer may simply not feel that a private response isn’t a productive use of his or her time.

 

Asking for off-list responses may very well yield no response at all. Take the time to draft any post to a mailing list in a way that doesn’t reveal client confidences.

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DO YOU NEED A NAVAJO CODE-BREAKER TO UNDERSTAND MAILING LIST DISCUSSIONS?

 

E-mail has been around long enough that most users understand the standard acronyms of the game – FWIW (for what it’s worth), BTW (by the way), ROTFL (rolling on the floor laughing), LOL (laughing out loud), and IIRC (if I recall correctly). Lists can develop codes unique to the community, using identifying codes in a subject line to alert subscribers to a message’s content—WC (water cooler), OT (off-topic), POL (political), and NSFW (not safe for work). Sophisticated mailing list subscribers have learned to avoid idioms, slang and other turns of the phrase around those whose first language is something other than English.

A large problem looms in legal mailing lists, and that’s the use of acronyms known only to a select few.  It’s fair to assume that nearly everyone knows that the ADA stands for Americans with Disabilities Act, that TRO means a temporary restraining order, and that the ABA refers to the American Bar Association. When a list’s focus is fairly narrow, it’s fair play to toss out those terms of art with the expectation that nearly all on the list will understand. In lists involving subject matter of a general nature, or when the thread turns to a topic that’s not within the list’s usual domain, misunderstanding and confusion arises when terms such as IME (independent medical examination), RSI (repetitive stress injury), MJP (multi-jurisdictional practice), BFP (bona fide purchaser), and S/J (summary judgment) are bandied about.

If you’ve ever been around military folk who speak in code, tossing around acronyms like EOB, TDY, POV, FDU, and ETS, odds are that you felt left out in the cold. Other mailing list subscribers who practice in different parts of the country, in different practice areas, and even in different generations won’t understand acronyms and abbreviations that are lingua francae to insiders. Take the time, at the very least, to identify what the shortcut represents, just as you would in a legal brief. You’ll spare others possible embarrassment and the agony of misunderstanding.

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RENEWED INTEREST

Expired e-mail addresses, dead subscribers, and other flotsam and jetsam can bloat a mailing list’s rolls. Not infrequently subscribers will subscribe to a mailing list under multiple addresses, setting some of those addresses to NOMAIL so that they can post from any address while receiving e-mail at only one e-mail address. Or they go on vacation, suspend delivery, and then forget to renew. All of those events can cause a mailing list’s subscriber rolls to appear far greater than the number of living and breathing beings behind those e-mail addresses. A list which reveals its subscriber count to be 1200 may actually only have 800 real persons as subscribers.

Some mailing list subscribers will subscribe to a list, pay no attention about how to unsubscribe, and then go so far as to report e-mail from mailing list to their Internet service provider as spam, blackening the reputation of the listowner and increasing the host’s likelihood of being blocked by recipient systems.

A listowner who wants to get a better feel for the number of subscribers to a list and clean up its reputation as a spammer may need to periodically prune and trim dead wood from the list, purging stagnant addresses. One way is to periodically issue a request for subscribers to renew their subscriptions to the list, automatically dropping those who fail to do so within a certain timeframe. Determining the number of subscribers who actually read their listserve mail and value their subscriptions enough to renew is a side benefit of this procedure.

How hard is it for the average mailing list subscriber to understand a simple procedure? Even the most carefully crafted explanation won’t get the point across to a good many. And if you’re one of them, then simply re-subscribe to the mailing list to keep the flow of e-mail coming right along.

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IMPOSTERS, POSEURS, AND WANNABEES

 

It’s 10 p.m. Do you know who the people on a mailing list really are? Do you know if those who claim to be experts really are what they say? More than a few clients, lawyers and judges were taken in by Howard Kieffer’s claims of expertise with the Bureau of Prisons as a post-conviction specialist. What they did not know was the man who misrepresented himself as a lawyer had garnered that knowledge first-hand as an experienced jailbird. Calling himself the executive director of Federal Defense Associates, which appeared to be a law office in Southern California, he pretended to be a member of the American Bar Association, the National Association of Criminal Defense Lawyers, and the North Dakota Bar, and he apparently really did belong to the Federal Bar Association. He attended enough continuing legal education programs to convince those around him that he knew his business. Before anyone caught on, he’d managed to get himself admitted pro hac vice before federal courts across the country, representing con artists and other criminals in unsuccessful attempts to have their sentences reduced. And he ran one of the mailing lists reviewed in this column—BOP Watch.

Kieffer isn’t alone in its attempts to mislead and hornswoggle the legal profession. More than a few disbarred and suspended lawyers do just the same on law-related mailing lists—even those which require subscribers to identify themselves. Many will put their real name, address and contact information right out there, calling themselves “recovering lawyers” and alluding to their busy practices. What they don’t reveal is that their busy practices are in the past tense and no longer even open for business. What they don’t reveal is that their “recovery” from the practice of law wasn’t some self-imposed decision to while away their hours in pastures greener than a law firm.

Don’t let yourself be led astray by these crimes of omission. Verify, double-check, and ask around before blindly accepting the credentials of those you meet on mailing lists.

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KEEPING IT SECRET

A group of lawyers want to form a discussion list to discuss top-secret strategy and law. How can they keep prying eyes away from their posts?

The first and most obvious step would be to install a gatekeeper, charging him with examining the credentials of each would-be list subscriber (who would also be required to prove identity). Pledges never to disclose discussions and to promote and protect the group could be extracted from subscribers, who’re sworn to always stay on topic. A discussion group could be created that’s private, top-secret and locked up tighter than the Coca Cola formula, but is that any guarantee? A decision not to maintain archived messages sounds good, but that won’t keep list subscribers from keeping their personal archives of those messages. The sad truth is that there’s no sure-fire path to absolute protection. Pledges, affirmations, double-indemnity clauses, and even blood oaths are made to be broken. Even disappearing ink can be made to magically re-appear.

Then there’s the matter of a subpoena served upon the mailing list owner, user, target or service provider. Motions to quash, pleas for in camera review, and claims of privilege spell expenditures of time, money and energy.

Each layer of security can help cloak the list from prying eyes, but there is no way to ensure absolute, bullet-proof security of any web forum, discussion group or mailing list. All form of modern technology won’t defeat the chink in the armor: the human factor. The risk of moles who feed protected information directly to the other side always remains. A discussion list just isn’t the safest vehicle for transmission of top-secret secrets. In fact, it’s no safer than The Pentagon Papers were from Daniel Ellsberg—

or the sanctity of his psychiatrist’s office.

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WHAT KIND OF RESEARCH TOOL IS A LISTSERVE?

 

Posts to this list do not represent fully researched, authoritative or binding legal opinion for any purpose.

 

That caveat showed up on the introduction to one law-related mailing list. If you think that warning would hardly be necessary in this day and age, think again. Lazy, overworked and harried lawyers who’d never dream of scattering random citations throughout a brief or borrowing a best friend’s bodily fluids to pass that drug test or insurance physical can find it all too easy to rely upon listserve posts as substitutes for old-fashioned legal research and reasoning. Good writing skills and an air of confidence can make anyone with an e-mail address appear to be reliable authority. Posts made to listserves, even by those respected in their profession, usually are written quickly, without exhaustive and considered research, and unencumbered by an understanding of the facts. And they’re nearly always written by a volunteer with absolutely no vested interest in the opinion delivered. What research purpose does a legal mailing list serve if it doesn’t deliver up the goods?

Listserves remain important for research on a number of different levels:

 

  • They can point the way to reliable research sources.
  • They can warn against unreliable authorities.
  • They can act as a sounding board for theories and approaches to a problem.
  • Posts can provide confirmation that the subscriber is on the right track—or way off base.
  • They can serve as a reality check.
  • They can provide balm that the issue is not unique, suggesting how others approached similar problems.
  • They can be sources for “quick and dirty” answers.

 

It’s essential to remember that a listserve is only one tool in your research arsenal. Neither a compass nor a barometer provides the definitive answer to whether it’s raining in the north, but both lend direction and measurements. Keep the purpose a listserve in perspective in using it for legal research at all times.

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WHY IT’S MORE IMPORTANT THAN EVER TO TRIM THOSE POSTS

Back in the day when bandwidth didn’t grow on trees and dialup at the impressive speed of 14.4 kbps was considered hot and fast, listserve subscribers diligently trimmed posts, bracketing omitted material with a <snip>.  As broadband became ubiquitous, mailing list users forgot about that quaint netiquette practice of trimming posts, letting posts become shaggier than an ungroomed English sheepdog, making the task of simply locating the message and determining who wrote what a chore. At the same time, the volume of e-mail has increased exponentially, making list subscribers’ time more valuable than ever. Just sifting through the same bottom banners repeated over and over again and signature files of everyone who responded previously can make readers quickly reach for the delete key.

When posting a reply, abbreviate or eliminate the original message. Because the subject remains the same, readers can put your response in the context of the thread. If it’s absolutely necessary to include a portion of the original post, then eliminate all of the unnecessary verbiage, indicating deleted material with <snip>. Interspersing responses is a technique that’s perfectly fine for personal e-mail, but it guarantees confusion in responses to mailing list traffic—and it makes it extremely difficult for the next subscriber to comment upon your response.

So, you say that you just don’t have the time to futz around with deleted extraneous material? What makes you think that other readers have the time and energy to sort through a post to find your nuggets of wisdom? Today, the issue may not be one of bandwidth but of courtesy and respect for others’ time. Posting an entire e-mail only to add a response flouts the time-honored rules of netiquette, making it more likely that your well-considered words of response will become lost in the cluttered detritus of the e-mail chain. And, perhaps even more importantly, your signature file will find itself separated from whatever you write and appended at the very end of an earlier post.

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RULES FOR VENDORS AND SALESMEN

Salesmen – whether they’re peddling software or their skills as researchers and brief writers – have found law-related listserves fertile ground for hawking their wares and services. Some skillfully become part of a list’s community, and others come off slightly more annoying than door-to-door aluminum siding salesmen.

 

One mailing list established these rules:

1. If you are a vendor or consultant, you may not post publicly to the listserv promoting your own services or product. If there is a request on the listserv, then you should respond privately to the original poster.

2. If you are a law firm member or vendor and are making a recommendation for another vendor, you must include your name and your law firm/company affiliation in your signature. Your e-mail address will not suffice. Any messages that come through without the necessary information will be rejected. If you are uncomfortable publicly endorsing a vendor or service, then respond privately.

We’ll add a few more rules for vendors and consultants who prowl mailing lists:

 

1. Always identify yourself and your product.

 

2. Offer something of value. Advice on issues under discussion, generously offered, can be your best advertisement. With the list owner’s permission, offer the mailing list a discount that’s not otherwise available, a hosted gathering, or a free consultation.

 

3. Contact the list owner and offer to sponsor the list in exchange for banner advertising.

 

4. Do not use straw men to shill for you on the mailing list. Lawyers who participate in mailing lists can see right through that ruse.

 

5. Never use the list to harvest addresses—unless you’re trying to position your firm in the same category as the Viagra vendors.

 

6. Do not contact list subscribers off-list to offer your services, absent a request from the list subscriber.

 

7. If you or your product is being trashed by the list, don’t defend your product unwaveringly and to the death. Take the high road.

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IS OPPOSING COUNSEL LURKING?

            How can I access the names of everyone who reads this list’s postings? I would like to know if opposing counsel is lurking on this listserve.

While the names of subscribers frequently can be accessed by other subscribers, a mailing list may be configured so that subscribers’ names are concealed. Subscribers join, leave, and re-join all the time and for many reasons – too much mail, vacations, a needed break from listserve activity, pressing work, address changes. Listowners seldom verify that a prospective subscriber is a real, live, duly-admitted to practice in good standing lawyer, nor do they verify that attyclark@gmail who says he’s Peter Clark of Mansefield, Massachusetts, is really who he says he is or some silver-tongued, yellow-bellied imposter. Opposing counsel may have subscribed under an alias. Or he may have an associate, secretary or other trusted minion subscribe, read all of the list’s messages and trade secrets, and pass them on to the big boss. He may be able to access the list’s archived messages without ever having been a subscriber. Moreover, there’s nothing to prevent a legitimate subscriber from forwarding messages to opposing counsel, letting the cat out of the bag. Listserve messages may be read by an audience much larger than the list’s subscribership.

The wiser course of action is to act as if opposing counsel IS always lurking on the list, reading every message.

Never use a listserve to ask case-specific questions or to make case-specific comments on current cases in which you act in any capacity. Be very, very careful about what you write about opposing counsel, an adverse party, and even your own client. Inappropriate postings could not only compromise your work on a case but also violate ethical standards. It’s all too easy to forget that others are always watching.

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