A friend of mine writes a blog at Shot in the Dark, he posted a comment by an attorney who said the "State was incorrect in it's interpertation of the Constitution" (at least that's what I remember of the quote). The comment was posted on another blog, by a prominent attorney.
I asked a question, :what area does the attorney practice in." After the 14-20 insulting replies (reasonably typical right-wing blog trash) - I attempted to clarify, my understanding is that having a law degree doesn't make you an expert in all areas of law - which my friend essentially tried to suggest by saying 'He's a lawyer, as opposed to say you.'
Further, I said that it was my impression that practicing outside your area of expertise was certainly putting you at risk for a malpractice complaint. I talked with some friends who are attorneys, who essentially endorsed the point. However, I also overstepped my knowledge, by saying 'commenting out of area is malpractice.' That wasn't true - and this is my retraction of it.
Instead, making a comment like the one the attorney made, is considered irresponsible unless he's done his homework on the underlying law. State's don't normally (according to three different lawyers I know, one of whom is exceptionally well regarded) enact policy based on a Constitutional sentence or section, but instead based on bills/regulations passed by the legislature. SJ - the attorney in this case, was trying to assert that the state was incorrectly applying policy - and referring to the Constitution in doing so. The two points really aren't linked - but it saved SJ from having to be specific it appears - it was, from this vantage point - a parlor trick. I don't know what constitutional provision he felt the state was incorrect in, but normally, the application of a law/regulation is the issue. If SJ isn't practicing in that area, and doesn't take the time to familiarize himself with the policy or regulation - then he's being irresponsible. He also appeared to have been insulting and dismissive of whatever review the attorney for the state who either helped craft the policy - and also those who crafted the legislation - determined, without chosing to engage in a debate about the laws involved. In short, he took the easy way out - IT APPEARS.
That said, he had no client, and ANYONE, attorney or otherwise, is entitled to comment - but, it doesn't make that comment of any value. However, unlike a layperson, lawyers have some responsibility to be careful about what they say. If someone misconstrues SJ's comments (here or anywhere) in such a way that they rely upon it, certainly if they did so with his knowledge and approval - SJ has some level of risk - according to my friends. Further, those same friends were pretty plain that they are very careful to say that thier comments aren't legal advice - when it isn't (if they post such comments on blogs) - and shouldn't be construed as such. I don't know if SJ said such, but given his normal course of conduct, it seems doubtful. Certainly Berg didn't post SJ's disclaimer.
The bottom line is the argument that 'bieng a lawyer' means you are competent to provide expert commentary on any legal point is absurd. You know more than a layman and are expected to then grasp that part of that knowledge includes the knowledge that you don't know a LOT. Law school is the school you go to to learn how to research and learn how to argue - not to learn all about the law, the US constitution, or general premises enshrined in each state's constitutions. You DO learn some law, but FAR from most of it. You are expected to advise a client of your lack of expertise, should they decide to engage you outside your area - and some courts, some states, in fact require a defendent to atest to foreknowledge that their attorney isn't practicing within his/her specialty - if they aren't - before proceding through trial on criminal matters, to avoid the case being overturned on the 'incompetent counsel' appeal. Malpractice is the matter of someone not following the standards of practice, and being sued. A lawyer can also, regardless of representing someone, be disciplined for unprofessional conduct, and one area that leads to such findings is practicing out of area without providing a warning of such fact.
Thus, the claim that 'he's a lawyer' is no defense at all -if the lawyer doesn't do his research, then his opinion is worth slightly more than a layperson's, but far less than it needs to be to be responsible discussion regarding the law.
In addition, and Learned Foot at Kool-Aid Report disagrees with this (and he's an attorney - so his opinion carries weight) a lawyer is held to a higher standard of knowledge - and a layperson less - meaning a layperson has some level of dispensation in legal procedings based on lack of knowledge of 'legal-eese' - wherease the lawyer is expected to know and understand the text. Foot doesn't agree, and as is his wont, provided a disparaging and insulting reply, rather than fully address the point.
So, SJ is expected to know he doesn't know everything, and criticizing another attorney (as SJ did de facto here) when you didn't do your research is arrogant and reflective of a lot of hubris. Now, maybe SJ did do his research - but addressing the Constitutional aspects, rather than the law/regulation, implies very strongly he didn't. More than that, he basically called out the state (and it's lawyers) for failure to comply - but rather than having the discussion focused on what statute wasn't complied with, he made a likely irrelevant reference to the Constitution. Perhaps when he wants to claim incompetency by the state, this highly competent attorney shouldn't engage in making what appears like disengenuious, probably irrelevant points and commentary.
His claim was rather nebulous and disregards the real work real lawyers who seem more informed than SJ on the law in the area, have done. It reflected a back of the hand swipe - and a seemingly unqualified one (unqualified in that he's not practicing in the area - as a lawyer he's 'qualified' to comment - but unless he's done his homework - he's not qualified when compared to other peers). The ultimate point was - he was doing what many on the right do frequently, pretending expertise - not just above a layman, but above other peers - when he really hadn't (apparently) addressed the subject expertly. Defending his lack of clarity with "but he's a lawyer" implied the lack of knowledge of the responders. In one breath, my friend (Mitch) was admonishing me for 'pretending to know the law' and in the next, he was telling everyone that a lawyer has no risk posting his opinion on-line. I am no lawyer - and I was both in part right, and in part wrong, which is pretty common when laypeople start arguing the law - but of course neither is Mitch, and suggesting for a moment that lawyers bear no risk when posting opinion on-line underscores just how much Mitch isn't a lawyer. The answer is according to the laywers, as always with the law is, 'it depends'. An opinion given as legal fact, in a public space, which says that Joe Blah murdered Jane Doe, will get you in LOTS of trouble if it's not yet been proven. An opinion that a judge is incompetent, that the courts are in error in their interpretation - again, poses some risk - maybe not malpractice - but risk regardless - and a claim by a layman that it doesn't exist - is worth precisely as much as was paid for it. An opinion given as representation to a client (paying or not) posted for that client and others to rely upon, which is manifestly wrong, rendered outside your area of practice, without such stipulation - equally is highly risky conduct. For those who might think otherwise, visit DC2Iowa.blogspot.com, read the various disclaimers. If someone wants to heckle another for 'not being a lawyer' while commenting on the law - and then commenting on the law, is blatant hypocrisy.
The ultimate point is, if you aren't a lawyer, you're better off not pretending to be one. A claim that a lawyer can say 'anything' is bogus, and saynig it's to be assumed to be worth more than a $.10 cup of joe - is equally absurd. But then again, so is saying it's malpractice, that's wrong, I was wrong - sorry SJ.
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