These are interesting scenarios, but let's not forget that the rules are only binding under the threat of being caught and punished. They aren't like the laws of physics. So if a lawyer isn't supposed to engage in trickery, they might do so anyway, especially if they think they can get away with it and their client happens to be a rich criminal who pays them extra to do shady stuff.
Source: Lawyers wouldn't have the reputation they do if all the members of the club had integrity.
> Lawyers wouldn't have the reputation they do if all the members of the club had integrity.
Some anecdotes:
- A company I started, hired a big-brand SV legal firm, super expensive. We thought they would be great. But we were so little to them, it was sometimes even hard to get a timely response. In the end we stopped using them, but not before we signed a bunch of documents they reviewed and told us were fine to sign, when in reality those contracts left us fatally exposed (and were in great part responsible for the downfall of the company later).
- Had a complaint filed against me personally earlier this year. The complaint has some truths twisted to paint a mostly false story, but it also has plenty of lies and omissions. The lawyer(s) that wrote the complaint knew what they were doing, yet no one is ever going to get punished for it.
- Looking for lawyers to defend the case (and in previous experiences), I realized that most lawyers have certain formulas or patterns they follow for specific types of situations that they already know how to address, if you don't fall into those, then they'll either pretty much fail at the job, not do what they actually should do (sometimes even if you ask them directly), or just refuse you as a client. It is very hard to find a lawyer that will actually take the time to really listen to you, understand your story/situation and then work on a personalized strategy/solution.
I think that any lawyer that intentionally mis-represents stuff in their work, or tries to shoehorn their clients into their formulas, or just half-asses their job, are seriously lacking in integrity. And by my experience, this seems to be the case for 50%+ of lawyers. A lot of them will probably do a ton of damage both to their clients and their counterparties, and they will never be held responsible.
Per your second point, if you can prove that a lawyer knowingly put lies in a civil complaint that's a slam dunk for the Bar to sanction them. Another way to say "truths twisted to paint a mostly false story [with] plenty of...omissions" is "making a legal argument."
Per your third point, I was once wrongly accused in a criminal case. I was a nobody, random person making like $30k a year at the time but was able to retain someone from K&L Gates. I think he felt bad for me because he basically lobbied the partners for permission to take me on at a reduced rate (like $1.5k total). A couple letters and a court appearance later and the misunderstanding was rectified. But the important part is I was obviously a nobody, the partners at this firm bill tens of thousands of dollars a day. $1500 is probably less than a single office location spends on coffee in a week. But this guy sat with me for hours going over the case and where the problems were.
There's a big difference between a lawyer who will take a case and a lawyer who can handle a case.
I agree 100%. One thing I do is look for similar cases and contact the lawyer on the winning side.
The "formulas" do save you money, though. Would you rather pay 5k for them to use an existing template slightly edited, or 25k to write a complaint from scratch? It depends on the case, there is no right answer.
You can also literally just look up a lawyer's cases on PACER and see how they write, see if they've won, and use your judgement as to whether they're an effective advocate. If you're dealing with a big case, this is absolutely worth doing.
You have excellent points, and I hope I had known them many years ago.
One of the main issues for non-lawyers is that the first time you need to hire a lawyer, you have no idea what you are doing, so there's a huge learning curve and a lot of information asymmetry to overcome.
I do not want to dismiss what you are saying (in fact I find it extremely interesting) but don't 80%+ of people in all professions (or even out in society) just suck? I am more surprised that you consider 50% to be the minimum of bad lawyers rather than a higher percentage.
It's not that lawyers suck, per se. It's that you're dealing with an adversary, and if you get a 50th percentile lawyer to go against a 90th percentile lawyer, well, you could still win if you've got a good case, but it's certainly not as likely as the reverse. In many cases you get what you pay for.
80% of doctors (especially cheap ones like the lawyers mentioned above) would fail to get optimal results in complex scenarios like presented above, just like the lawyers.
The doctors wouldn't be put in that position, though. While lawyers will often gladly take a case that they have a low chance of winning without fully disclosing that.
Yes! Also, satisfaction scores are pretty low for people who've been indicated for aggrevated murder, same as if you're diagnosed with stage 4 lung cancer. If your goal is to walk away free and unharmed then just about everyone is gonna suck, most of the time. Also, you can't bribe cancer.
Not sure about percentages, but it is definitely true that for any professional service, most people are just trying to make some money and go about their they without being bothered or caring too much. So you almost always have to deal with people that don't care about you or your situation and will just give you some template solution that fits their situation and their past experiences (not yours).
In particular it is very evident with doctors when they see you for barely a few minutes and diagnose you. Sure, if it's something super common you'll be fine, but if it's not, good luck trying to convince them to keep digging. They seem to think they are always right and you have no idea what you are talking about because you are not a doctor.
Or most people do poor work 80% of the time and good work 20% of the time. I think most people are capable of doing good work, if they are motivated and free of distractions.
I worked with a lawyer who thought his job was to negotiate a contract with the least amount of liability for us. In theory that sounds good. But these contracts ended up sounding ridiculous to customers with statements like:
"Under no circumstances will vendor be liable for any damages in excess of 10% of the purchase price of the vendor services"
Customers assume you are trying to scam them with language like that. But he didn't care, he just wanted to be able to be proud of how little liability we took on. I finally had to point out that the best way to reduce our liability is to shut the company down and end our need for legal services all together.
I've dealt with almost two dozen lawyers over the past twenty years and I am quite knowledgeable about the practices of stock brokers. In both cases it seems that the chances of getting a practitioner, at random, who will work with you in good faith is closer to 20%. Getting both honesty and capable ability is lower.
And then there is the family law lawyers ("it's not family and it's not law" according to one) but it does line a lot of lawyer's pockets at the expense of the public, at least in the five eyes. Most other jurisdictions have opted for a saner system.
So, yes, it's jungle out there. Imagine if your doctor prescribed medicine that would make you sicker so that he could charge you more later. If you don't have good reliable connections going in you really need to be careful, shop around until you find someone who seems good and honest, and then pray.
re "Had a complaint filed against me personally earlier this year." - unfortunately, the fact that the plaintiff's lawyer painted that picture is what's expected, and required of him. He advocates for his client, in the best way possible. Painting the most favourable picture for his client goes with that.
Well... certainly not omissions. The job of a lawyer is not to lay down facts but to know and understand the law and use the knowledge to argue on behalf of their client. It is prosecutor's job to lay down facts without lying or omitting. In fact lawyers have obligation to omit facts when it is a wish of their client.
The scenario I’m quoting from seemed like it was a lawsuit. In that scenario I think it’s clear that omissions could reasonably be grounds for disbarment. I happen to think that filing a sufficiently brazenly frivolous lawsuit should result in the lawyer who filed it being disbarred. Whether or not a lawsuit is frivolous can easily hinge on omitting information, like suing someone for trespassing on your property but leaving out of the filing that they have an easement to travel on your land. If a lawyer agrees to file such a suit for their client, knowing that such an easement exists, they should be disbarred for it.
I am not versed in US law (I am neither a lawyer nor from US). Generally, lawyers are not exempt from the law and can face professional responsibility (called disbarment in US).
Lying to a judge is grounds for disbarment but in general a lawyer has no obligation to verify clients' statements.
It would usually be difficult to prove what the lawyer did or did not know but, hypothetically, if you could prove that the lawyer knew that there was no trespassing then a statement to the court to the contrary can be construed to be a lie and result in consequences.
A lawyer could be disbarred for lying to a judge, but in practice it is extremely infrequent that lawyers are disbarred, even for relatively severe misconduct. I also personally think that the standards for what constitutes misconduct should be more broad, and should extend to cover bad faith use of the legal system for purposes other than seeking legal rulings, like harassing people or wasting their time or money. The existence of default judgements, where the defendant has to appear and present a defense or be found responsible in even the most flagrantly illegitimate of cases incentivizes lawyers to carry out filings in bad faith.
For example, lawyers in the US routinely file or threaten to file defamation suits in scenarios where the law is clear that no defamation has occurred. I feel that in such situations the most charitable interpretation is that the lawyer is an idiot, and the less charitable interpretation is that the lawyer is a criminal. When a judge considers and ultimately dismisses such a suit, two options present themselves. Either the lawyer is so incompetent as to think that the suit had legitimate grounds, in which case they should lose the ability to file such suits, or the lawyer is maliciously exploiting the legal system for the purpose of harassment, and should similarly lose the ability to file such suits. The fact that judges largely refrain from sanctioning lawyers for even the most severe misconduct results in a world where wealthy individuals are frequently able to use the legal system or the threat of the legal system to harass individuals like journalists into not discussing their activities that are of public interest.
A similar example manifests in patent law, where patent trolls can pursue expensive sham litigation with impunity, to the extent that an entire market exists based on shaking companies down by threatening legal action and offering a settlement for less than the company will have to pay in legal fees to eventually prevail against the sham accusation.
Bad faith and basically anything that is only in your mind is such a difficult thing to prove and that's why it is so problematic.
There are judges who are sensitive to it and will go out of their way to punish it. I think part of the problem is that there are many occasions to "fix" the process by getting case resolved in a state that is known to be lenient to certain kind of behavior (very popular with patent trolls).
I don't think there is going to be an easy solution that could be written in law. Rather, the solution is to publicize "bad faith" behavior and lenient treating by judges.
> Bad faith and basically anything that is only in your mind is such a difficult thing to prove and that's why it is so problematic.
While true, this is to a certain extent the reason why we have judges. We already rely on judges to dismiss lawsuits that are illegitimate, and since filing an illegitimate lawsuit demonstrates either incompetence or malice nothing really needs to be proved about the state of the lawyers mind.
Every person has a right to defend themselves. Even guilty ones, because until proven, how would you decide they are or they aren't guilty to figure out they have right to defend?
Most people don't know the law enough to adequately defend themselves. Even though you have the option, you would usually be well advised to use help of somebody that knows the law very well because knowing it is their profession and helping you is responsibility.
Just think about this, half of the population has intelligence below mean (ha! not average! but close). You need to generally be highly intelligent to be able to adequately dispute and represent yourself in a court.
So while I loath the fact that criminals use lawyers to escape prison I also recognize that this is their right and that lawyers serve an important function in a society the same way policemen who stop you for speeding or tax auditor looking through your papers do.
Do you disagree with "Painting the most favourable picture for his client goes with that"
Semi-related but very valuable advice, if well-known - when I was off sick the council brought a complaint against me. They actually lied and implied criminal behaviour (fraud) on my part (also not turning over all the evidence to the tribunal that followed). So here's the important bit:
DO IT IN WRITING AND KEEP COPIES OF EVERYTHING, EVERYTHING YOU WRITE, EVERYTHING THEY SEND YOU. INSIST ON IT BEING ON PAPER (NOT TELEPHONE), AND PRINT EMAILS OUT.
I could rebut almost everything bad they said about me. The tribunal threw out their case before I even turned up.
(I know this is obvious and everyone says get it in writing, but things would be smoother if people actually did).
But there is no truth in an adversary justice system (and I'm not sure about the other systems either). There are only the parties' differing perspectives (if they were not differing there wouldn't be a complaint) and a court ruling at the end, which we take for impartial.
Imagine I receive a letter from a lawyer saying "It appears your product A infringes our client's patents B and C"
That's fairly clearly a statement of fact - that in their professional opinion they believe their client has a reasonable chance of prevailing in court.
Do lawyers not have an obligation to display good faith and professional candour in making such statements of fact, even to their adversaries?
I do not agree that's clearly a statement of fact. An unrelated example that demonstrates why: laat week, I was having a (text) conversation with two other people, and I made a comment to the effect of, "I think it's a waste of time for you to argue about X, figuring out how to do Y would be more productive instead." To which one of the other participants responded, "...but we were talking about Z, not X!"
The literal words we had written were the facts. Their meaning was up for interpretation. If something as basic as the subject of a conversation cannot be necessarily be agreed upon, something more complicated like "does this infringe on a patent?" certainly has room for disagreement.
While I am aware of the audience here, I'm not trolling. There is a remarkable similarity between the "helplessness/vulnerability", for lack of a better term, of clients using a lawyer and the helplessness/vulnerability of users in using software authored by someone else (not to mention clients who hire software developers to write software for them). In each case, the client/user is required to trust the lawyer/developer.
One key difference is an issue sometimes discussed on HN:- there's no licensing requirement for developers. Lawyers have to be licensed, and the licensing requirements include ethical obligations, violations of which can result in losing one's license. While this system in practice may have some shortcomings, software developers do not have anything equivalent. There are states in the US where lawyers are disbarred every month, but I am not aware of any software developer who has been banned by a regulatory body from writing software for use by others.
Both lawyers and developers are probably subject to negative stigmas as as a result of the "bad apples". Not all are unethical.
> (And there are strong parallels between big tech and biglaw, especially for junior devs/associates, but that's a bit of a tangent)
Are there parallels? I mean to some degree all large, well paying orgs are going to have similarities, but a plucky undergrad coming out of CalTech will get $130k+ at a FAANGM or orgs that pay roughly in that continuum, and be able to jump to all sorts of other options, while most newly minted lawyers are looking at average salaries of $70-$80k USD while having huge law school debt on top of undergrad debt. This means ruthless wageslavery at BigLaw until you make partner or you pay off enough of that debt to walk.
As a dude with a PoliSci degree and a minor in IT, I did a good hard look at the cost benefits when I graduated... and went IT. As the bad tattoo says: "no regurts".
Big law associates start at $190k, straight out of law school. Big law associates are, however, the top graduates from the top law schools. Most new law graduates don’t make that much, just like most new CS grads don’t make FAANG starting salaries.
> Lawyers wouldn't have the reputation they do if all the members of the club had integrity.
While it's true that some lawyers are unethical some of the time, it seems highly unlikely that lawyers are unethical as often as their reputation suggests. A much more likely explanation is:
1. The complexity of the law.
2. The incongruity between the law and many people's ethical codes.
3. The skill gradient that exists among lawyers, as it does in any profession.
4. The limited resources afforded to public defenders.
5. The limited success pro se litigants typically have.
And that a lawyer's job isn't even to ensure that the law is enforced. A defense attorney's job is to get the defendant the least punishment possible, regardless of what the defendant actually did and the legality of such action. The prosecution's job is to seek the the most punishment possible. In a criminal case, a fair outcome hinges on the two lawyers being roughly equally skilled and resourced, but if this isn't the case then the case will be a blowout; but it's still the winning lawyer's job to crush their opponent without mercy, which in any other context (e.g., sports) would be considered scummy. Unfortunately, that's just the job.
It’s fairly clear to me that maximizing punishment ought not be the prosecution’s goal and I’m not even sure that it’s currently the goal. It seems like maximizing conviction rate is closer their apparent goal.
I know a lot of lawyers. Most lawyers in law firms are just as unethical just as often as their reputation suggests. There are high-integrity lawyers out there, and if you find one, cling onto them. They're out there, but they're rare.
A much more likely explanation are misaligned incentive structures, combined with a protective guild-like bar organization which lawyers belong to.
Any professional in a competitive field fakes immense selective pressure to be unethical. It doesn't matter how honest one is, the system will select for the cheater. This goes for lawyers, bicyclists, tradespeople, anywhere where the client or victims of externalities can't verify the quality of the work and hold them accountable.
I think the "competitive" piece is more important than the "can't verify" piece. I'd add academics, politicians, and executives to that list.
A lot of professions are structured like pyramid schemes, with partner/tenure/presidency/CEO at the top, and crap at the bottom.
On the flip side, my experience is most tradespeople are quite scrupulous, not because I can verify the work, but due to lack of competition. If my handyman takes 30% longer to work, he perhaps makes 30% less money, but life goes on. If an academic misses tenure, or a politician gets knocked out of office, careers end.
And TV. Real life lawyering isn’t nearly interesting enough so writers have to zhush it up by having lawyer characters operate in the grey area or completely cross the line as a matter of course. It’s more exciting that way!
The way real lawyers are unethical and the way TV lawyers are unethical is completely different.
Real lawyers will mostly do things like inflate hours, inflate conflicts, exaggerate expected outcomes, and generally blow things up so as to maximize billable hours rather than acting in the interests of their client. That doesn't make good TV either.
Yeah, I didn't realize how downright nefarious lawyers can be until I read "Bad Blood" and thought to myself "How is what David Boies does to help Theranos legal? This seems extremely unethical at the very least, and highly illegal at most"
As someone who (in an earlier life) started off in the profession, here's a dirty little secret - I'd say around 2/3 of lawyers get by on pure bluff, bluster and intimidation. I'm talking shouting on phone calls, slamming fists on tables, threatening letters, and so on.
Once you have the slightest clue about the law, it's easy to just laugh it off. The problem is, most people don't know any better, so these tactics are incredibly effective a lot of the time.
However, you do get a truly lethal combination when you combine an asshole lawyer with a well-funded client. That's not because it's some highly intelligent, sophisticated legal team who can craft superior legal arguments. Rather, it's because they can simply brute-force their way through by outspending you.
It doesn't matter how legally "right" you are if you're not willing/able to spend the money in court to prove it. A lot of people take advantage of that, including the asshole lawyer (who, of course, profits from it).
> As someone who (in an earlier life) started off in the profession, here's a dirty little secret - I'd say around 2/3 of lawyers get by on pure bluff, bluster and intimidation. I'm talking shouting on phone calls, slamming fists on tables, threatening letters, and so on.
"If you have the facts on your side, you pound the facts. If you have the law on your side, you pound the law.
If you don't have facts or law on your side, you pound the table"
Totally agree about Boies. This behavior should have consequences. He behaved like a mafia hitman who doesn’t care who he is bringing down as long as the money keeps flowing. Basically he is a psychopath with no ethics.
Is that the best you can do? One can almost argue if you have been disbarred, you are no longer a lawyer. Though I guess that didn't stop the Air Force from hiring the guy to be a lawyer, then praising and promoting him multiple times.
> Former Apple lawyer Gene Levoff, who oversaw the company's Insider Trading Policy as corporate secretary and senior director of corporate law, was on Thursday indicted for insider trading and faces a maximum penalty of 120 years in prison.
> Ironically, Levoff was in charge of enforcing the blackout period as part of Apple's wider trading policy and would sometimes conduct illicit trades after notifying others of the restrictions.
> According to prosecutors, he used that information to seek unjust enrichment through a series of beneficial stock trades that generated $227,000 in profits and avoided $377,000 in potential losses.
This seems like a trivial amount of money for someone that high up to jeopardize their career or spend years of their life in prison for. I would maybe even understand the risk/reward if it was in the tens of millions but this sounds nowhere close.
I am genuinely curious to know if this happens regularly - what is the real motivation for committing a crime that barely pays relative to the penalties?
It doesn't even need to be due to "poor" intentions, either.
For example, a lawyer who thought she was doing the right thing and protecting many people has caused endless problems, both legal and moral, and likely ended up protecting (by tainting the case against) the very people she sought to bring to justice.
Given that she became an informant after the police gave her the choice of becoming a snitch, or getting the book thrown at her, I don't think she had any illusions about whether or not she was a scumbag.
It’s been a saga of massaging the optics, very interesting to see the 3 requests evolve. #1 I was never served, #2 they bluffed and didn’t show up, #3 was utter slander and filed in a new county (SC, first 2 in SF proper over the course of a year). Head screw, it hurts to try to recall it all. It’s also extremely offensive to read. It’s put a serious mark on me, both credibility and also the private investigator(s) following me everywhere, hence being homeless and isolated. The original issue was an improper firing (where UI was granted, and it was improper compared to their own training).
Biz@harlanji.com. I have the latter 2/3 of the filings, and my response that I couldn’t file and a BAR complaint written (I wasn’t seved #1 but #2 references it).
There are a number of structural mechanisms that make “getting away with it” difficult. First, the process is adversarial—there is another side with huge incentives to discover any fabrication. Second, there is an ethical duty to reveal misconduct in your knowledge, under punishment of penalties to yourself. It’s not enough for a rich criminal to pay off a lawyer; they have to pay off everyone else who might know. Third, ethics proceedings can destroy a person’s entire livelihood, and the standard is not “proof beyond a reasonable doubt,” but “more likely than not.” And there’s no statute of limitations—misconduct can come back to bite you decades later.
What is this "destroy a person's entire livelihood" thing? For prosecutorial misconduct, it's nearly impossible to sue the prosecutor. They have the same qualified immunity police officers enjoy, and incidents of state bars punishing prosecutors for misconduct are nearly nonexistent.
Have you ever tried filing a misconduct compliant with a bar association? You'll get just about as far as a police violence compliant with the local PD. The bar is there to serve the lawyers, like any guild or union. For the most part, there are no checks on lawyer ethics.
> The bar does not exist to serve lawyers, it exists to regulate them.
Those are far from being in opposition. A cynic might say the bar exists to serve lawyers as a class by doing the bare minimum to appear to be regulating them.
It exists to avoid the courts stepping in to regulate them. If it weren't for the bar association keeping the worst out of view there would be a lot more lawyers reprimanded by judges instead. This is probably efficient, but not a sign that the bar association serves individual lawyers. It serves them collectively by keeping the dirty laundry within the organization rather than to submit to outside regulation.
For the most part, complaints are handled through the Bar. Unless something is a press-worthy scandal, they are promptly ignored by most Bars. The goal is to protect lawyers, not clients. A press-worthy case hurts lawyers. Normal scams are, well, what most lawyers do.
Suing a lawyer for malpractice in courts is very tough. There are all sorts of barriers. For example, let's say your lawyer fails to file legal paperwork on-time, and you lose a case. You can sue, but to collect damages:
* You have to show that in the alternative case, you would have won. The lawyer will argue you would have lost in either case.
* The case against your lawyer will likely impact your main case, and not in ways you like.
If your lawyer charges billable hours without actually working -- something which is standard practice among lawyers in my community -- you need to be able to prove that. It's the culture here:
* I've been to lunch with lawyers who bragged they were billing someone else for the time
* Lawyers routinely double-bill if e.g. handling client emails on a cell phone while in court for another client. ). How do you do that?
So it happens all the time, and I've gotten insane bills when nothing was done. You can't prove that in court, though. There's no case. And so on.
I once asked a high-school acquaintance of mine who had just graduated with a law degree, if she knew someone committed a violent crime, if she would still represent that person in court. Her answer was that even a violent criminal has a right for a fair trial. That sounded to me as evasive as it was rehearsed. I reckoned that this is something they have been taught/justified in law school.
The ethics behind this is has been deeply studied and debated, and the "right to representation" is an important right. The system is based on checks and balances, and there's no certainty the violent criminal is guilty for the specific crime they're being charged with.
This is likely related to the adversarial nature of the courts, prosecutors vs defenders. Defenders ethically need to defend equally, basic game theory, aka Prisoner's Dilemma.
In a nutshell, English barristers must accept cases from anyone regardless of their circumstances or character otherwise “an unpopular person might not get legal representation; barristers who acted for them might be criticised for doing so”.
“Justice” is the result of the process by which trials are fair - is one way of looking at it. Contrasted with the view that once we know who the bad people are (how?) guilt is presumed and summary punishment is all they’re entitled to.
Yeah it is. But what I was more interested in is what an individual lawyer might be thinking in that scenario. What I asked was a more specific question. Place where I live in, first degree murder carries death penalty. So, I was wondering what a lawyer would do/think if she knew for certain that her client committed an act that qualifies as first degree murder (e.g. He confessed to her). Because then as far as the justice system concerned, the outcome of a fair trial would be death penalty and she as the defendant would be trying to circumvent that. Not sure why I'm down voted, I genuinely asked her out of curiosity.
It has been several years ago that I discovered that despite a similar philosophy behind law-writing and programming, these worlds are very far apart and every year, even when I thought my cynicism was stable, the gap continues to widen.
This is from the American Bar Association, it is the opposite of a blog post you would end with IANAL. Yet, we read (at the end) that even professional lawyers are "struggling" with understanding why a given accepted practice is ok given the laws and obligation. And this on no small matter: it is about hiding that the plaintiff died before the trial. And it is not clear whether it is ok or not.
I had the "chance" to discuss with lawyers specialized in intellectual property. They did not even understand their subject or the imprecision of law. Every time I try to dig into legal issues surrounding IP I end up with the impression that the difference between a lawyer and a layperson is that the lawyer just is more up to date with what was made up in court recently.
Lawyers are going to help you if you are in a case that has happened tens of times in the past but is going to be clueless in a genuinely new situation. Just as the judge will be.
Recently I read about the licensing issues around deep learning models, the definitions of fair use and derivative works. We are used to IETF standards and IEEE specs. Even RFCs are usually pretty precise in how they define things. Laws are crappy when put to that standard. They are just there to provide arguments in a mud-slinging negotiation.
> the lawyer just is more up to date with what was made up in court recently.
...and not even that. I've been told several times by very senior lawyers to ask a senior technical person for advice on thorny software licensing issues. In one case that senior technical person pointed me to a recent decision that basically answered exactly the right question.
IME/IMO, lawyers are vastly over-estimated, vastly over-respected, and have far too much political power relative to other stations in this country. We need to reform our legal system from the bottom up so that it serves us instead of the guild.
> And this on no small matter: it is about hiding that the plaintiff died before the trial. And it is not clear whether it is ok or not.
I think the scenario in question had the complaining witness dying. Is a complaining witness same as plaintiff? I would think the plaintiff in this scenario is the state. Genuine doubt as I'm not a lawyer.
They the same thing with possible procedural differences (what they get called depending on the type of case) in some places https://en.wikipedia.org/wiki/Plaintiff
Legally speaking they are different, but to the layperson they mean the same thing (both are the ones on the opposite side of the defendant).
Well, I'd be happy to have someone to chat with and exchange ideas about it. I am currently digging that rabbit hole that seems to be basically uncharted waters.
I would like to find a way to make true open source deep learning models.
Debian legal newsletter [1] and lwn[2] have interesting takes on the relevance of GPL. To them, putting a trained model under the GPL implicates that you have to open your dataset too, which are the "sources". That seems somehow consensual but I still think it is debatable and could need clarification.
I also dug around the question whether a trained model can actually be copyrightable if the training code and the dataset are free. This is akin to a "compilation" operation that adds no creative input (anyway applying copyright to source code is already a bit of a hack). There is a pretty strong ground to argue that they are similar to "compilation of facts" which come with very little protection.
I am now wondering if open source can actually work for deep learning: if trained models are not copyrightable, open source licenses require strong copyright protection to be implemented. Maybe a DL model is not protected enough for that.
Finally, I am reassured by recent fair use rulings that a model will probably not be considered a derived work of its dataset and that proprietary data can legally be used to produce an unencumbered model but the legal uncertainty still exists.
If you are interested in helping me trying to figure out how to protect crucial models so that the first AGI will be beneficial to all and open sourced, I'd be very happy to have someone poke holes into my ideas.
The Debian ML policy linked above goes a fair way to making truly open source deep learning models. The biggest problem with the policy is they do not address the economic disparity that means only folks with a lot of money can train a model even if they had all the training software, drivers and source data under a free license etc. Perhaps Debian can get enough donated compute time that we can solve this though.
The products of compilation seem to be copyrightable, otherwise software piracy wouldn't be prosecutable. Perhaps the same would apply to trained models.
Do you have a link to those fair use rulings? Also note that fair use is an American concept and doesn't apply in many countries, some of which have similar but more restricted concepts. Also, I wouldn't consider a model produced under your example as a free model, that would be more of a ToxicCandy model in the Debian ML Policy parlance.
Thanks for the links below, reading these opinions took me two more hours of my time but helped me grind some thoughts!
First a quick answer to your two last questions. Programs and binaries are widely recognized as copyrightable. What I am wondering is whether the action of compiling a program constitutes a contribution worthy of protection and of additional copyright. To give a concrete example, imagine I am a company that uses gcc and big machines to provide compilation as a service. You feed it a BSD-licensed source code. My server returns a binary on which I claim a proprietary copyright. Are you allowed to dismiss it as being just the result of a totally deterministic and automated process and reclaim it as BSD? I would argue yes but it could be a non-obvious court case.
Anyway, I don't think I agree on the comparison between compilation and training.
> Do you have a link to those fair use rulings?
I was thinking about this [1] ruling (Authors Guild, Inc. v. Google, Inc.) in which Google scanned commercial books and used this obviously non-free dataset to provide in-text search mechanisms. I am pretty bitter about the fact that one of the main reason for the favorable outcome (Google won) was that the judge estimated it had an "obvious" usefulness when the ruling finally happened, some 10 years after the scanning started at which point it was certainly not appearing obvious to non-tech people. So Google had to prove a tech while in a legal grayzone, a luxury orgs like Debian may not have.
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Now for the real meat :-)
> The Debian ML policy linked above goes a fair way to making truly open source deep learning models
Actually, I am wondering if they are not a bit blinded by the way the GPL works and if they don't constraint themselves a bit artificially by imaginary legal precedent.
They all seem to assume that a trained model will be recognized as a compiled binary, but I see at least 5 competing comparisons that were proposed and could hold ground legally:
1. Trained models as compiled binary
2. Compilation of facts as proposed here [2]. I find it pretty persuasive even if its author dismisses it for what I think is not a good argument.
3. Rendered 2D image from a 3D model
4. 2D photograph of a real 3D object
5. Training as a copyrightable creative creation [3]
It is understandable that Debian maintainers think about everything in terms of programs and source but I feel they shoehorn a bit that notion in the case of machine learning and may not realize how much more flexible the legal framework actually is.
Admittedly, I am less interested in the consequences of slapping the GPL on a trained model than I am about finding a way to solve the potential problems caused by bad actors in the field, just like FOSS did it for regular software. I am strongly suspecting we may have to write a viral license adapted to ML.
One of my example is how would one go to prevent one's work being used by OpenAI the day they decide to refuse releasing their trained models? Or to prevent helping Google or Facebook gained an even more dominant position by adding data to an already good model?
We benefit a lot from the fact that, right now, there seems to be genuinely good will from wealthy actors to contribute to the research community but it feels to me like a Mexican standoff. What happens when one decides to run off with what is published and secretly improves it for commercial gains?
I must say that I have been happily surprised by how much things are free for use right now, from research, algorithms, frameworks and trained models. We avoided a lot of dystopias, probably through some unsung heroe researchers who imposed openness to their employers upon being hired.
The risk still exists though, as all this openness can be reversed on a whim. Basically, I am wondering how we can put all the chances on our sided that the first AGI will benefit the humanity instead of its owner?
Sorry for the wall of text, but if you are still there and would like to continue that discussion, here is fine, but real time discussion is also fine, you can shoot me a mail at yves.quemener@gmail.com and we can do Hangout or Signal from there.
There are lots of talks about that aspect on the debian MLs as well. They argue on whether they should have machines to redo the training of models that are considered open-source, if that should be part of the "build" process.
I think it is also worth noticing that we are going that way but there are a lot of actors with a lot of processing power. Notice how, two years after one model breaks records, there are ways to make it run with 1000x less power. We are bruteforcing the problem but I am having doubts that raw power is going to matter a lot in a few years.
Also a cat detectors is pretty usable at 99%, not everybody needs 99.99%.
More than processing power, the real power in distributed training lies in the variety of situations. A thousand users may have a hard time having more computing power than Facebook's TPU farm but it will be easier for them to have a larger dataset.
> the impression that the difference between a lawyer and a layperson is that the lawyer just is more up to date with what was made up in court recently.
In fact, to me that sounds like exactly what you would expect in a common law system.
While the difference in source material can be a wide gap as you described the bigger difference that people commonly point at is ethics.
As a lawyer there are rules that define standards of behaviors and violation thereof can quickly terminate not just employment but the career forever. Software doesn’t have that and the entire idea is utterly foreign. As a case in point all lawyers have a general understanding of the word ethic and how it applies to their profession. I have found, as a long time software developer, that most software developers have no idea what that word means and are quick to make faulty assumptions regarding its application. In the software developers’ defense there is not a lot of reason to accurately understand a thing that has never existed in the first place.
> As a lawyer there are rules that define standards of behaviors and violation thereof can quickly terminate not just employment but the career forever.
That may be true in theory, but in practice most lawyers will protect other lawyers, and their regulatory bodies do very little to discourage bad actors.
> As a lawyer there are rules that define standards of behaviors and violation thereof can quickly terminate not just employment but the career forever. Software doesn’t have that and the entire idea is utterly foreign.
This is mostly a function of the industry's age, and is not true of other fields of engineering. I'll be astounded if software isn't folded into Professional Engineering by mid-century.
Of course they are. Most software developers wouldn't pass a PE exam. Professionalization of software engineering won't be done from the ground up. It will be imposed form the top down.
I was bummed to see the examples, which I reproduce here to highlight their obviousness (or their, uh, being noncontroversial):
1. Can a lawyer who suspects the opposing party of breaking an agreement engage in plain-clothes trickery to figure out if that's true? Yes.
2. Is a lawyer obligated to essentially testify [respond to a judge's inquiry] in a manner that incriminates their client based on private information? No, thought when they do respond to the inquiry they should be vague rather than affirmatively lying.
3. Do prosecutors need to drop charges if, after a plea deal is signed, information comes up that would inhibit prosecuting the case in the absence of a plea deal? No, but this feels scummy.
I think 3 turns on the fact that this is more specific than just “information that would inhibit prosecuting the case.” That would include exculpatory evidence, which the prosecutor would have to turn over.
It's a soft requirement, because the witness will be 'necessary'[1] in court in the particular circumstances of this particular crime. If the prosecutor had a stronger case (Say, a different witness, or CCTV evidence, etc, etc, etc), then this particular witness would not be necessary.
[1] In the opinion of the average criminal lawyer, assuming that the case is litigated correctly, and that the jury isn't entirely composed of utter mouth-drooling morons prejudiced against the defendant.
Let's say it's a rape, and the victim dies, what's really changed?
You can hate the idea of plea bargains, but that's a different topic.
They admit they are guilty, so proceed on.
If it means they are screwed in challenging it later or in sentencing it might matter, but it doesn't seem the case.
Otherwise, very boring examples. Nicola Gobbo was a criminal lawyer and a police informant at the same time, but hasn't been charged with anything, I feel like there would be a interesting example in there somewhere. https://en.wikipedia.org/wiki/Nicola_Gobbo
I few months ago I was in court, I was suing 2 related parties and I was pro-se. One of the lawyers of one of the defendants lied 3 times in front of the judge, when I called him upon it, the judge didn't bling.
Was there clear and obvious evidence of the lies, or was it largely your testimony?
If there was clear and obvious evidence of the lies then you can submit a complaint to the bar (or whatever the disciplinary body is for lawyers in your state). The judge is NOT actually the one with the authority to enforce these professional obligations.
The judge doesn't enforce professional obligations but absolutely enforces perjury. Of course the real question is why was the lawyer testifying at all?
> when I called him upon it, the judge didn't bling.
Now I'm imagining that judge getting presented with evidence the defence lawyer is lying to them, and whipping out a chunky gold chain and a diamond encrusted grill...
My wife is an attorney, family law, and it's clear from the years of stories and discussions on what's she has dealt with that most attorneys lie with impunity ... and so do the litigants going to court! The judges generally don't hold the liars accountable, the attorneys don't hold the other attorneys accountable, and no one holds the judges accountable ... and with no real accountability, it's a free for all. If the State Bars would hold their own members to their own supposed standard we'd be in a much better place.
It was interesting to read the scenarios but the result was only disappointing. I'm a non-lawyer expecting there to be complicated nuances that lawyers can use to explain their 'honesty'. Misdeeds by prosecutors (as in ignoring police lying on the stand because they need support from them for their next cases), not disclosing information like in this case cause me to take a very careful consideration of what a lawyer tells me.
I find it interesting in the US that we hold lawyers to the high standard of no lying, while law enforcement officers are given more latitude, esp in interrogation situations.
Seeing it in TV shows and movies, which often have officers and detectives lying about knowledge, evidence, other witness statements, all to get info, I assumed that it was fictional. In many cases, though not all, it appears to be allowed within limits in real life. See, for example, https://www.google.com/amp/s/www.adamsluka.com/amp/can-the-p....
This doesn't mean all cops are liars, and they still shouldn't commit perjury, but it's an interesting comparison to me. I guess it's a reflection of the advocate/adversary approach that is often a part of the legal process.
They would have to sit back, tell their client to plead the 5th, and let the prosecutor do their job of proving a crime was committed by the suspect beyond reasonable doubt.
I watched the OJ Simpson trial when I was a kid. I was sure he was guilty. I think his lawyers thought so as well. Once they realized the LAPD had tampered with the crime scene and the evidence they used that wedge to open the door for reasonable doubt. And they absolutely hammered at it for months. By the end the jury was full of doubt.
Most public defenders don't have the resources for that kind of defense. And most assume their client is guilty. Which is why plea bargains are prevalent.
An alternate explanation for the prevalence of plea bargains is that many defendants are actually guilty of something, that guilt is likely enough provable to not be worth the risk, and we’ve allowed sentencing guidelines and charge-stacking practices to amplify that risk to the point where it’s game theoretic sensible to take a light plea deal. I’m not nearly convinced that public defender assumption of guilt is a significant driving factor.
Unfortunately, there are reasons to accept a plea bargain even if you are perfectly innocent.
First, reality is not important per se, only how the judge and the jury see it. If you know you didn't do something, but there is evidence pointing towards you, and you have a reason to believe that people judging you would be convinced by it... it makes sense to accept a smaller punishment (for something you didn't do) rather than risk years of prison (for something you didn't do).
Second, the process itself is already a punishment. How many times can you be absent from your job because you are at the court, before you lose the job? How much will it cost you to pay for the lawyer, for travel, etc. If you are poor, it can make more sense to accept a smaller punishment for something you didn't do, rather than ruin your life in an attempt to prove your innocence.
His job isn't to claim that his client is innocent. His to make the government prove the client's guilt beyond a reasonable doubt.
If we don't require that from the government, the entire justice system breaks down.[1] Because once the government stops being rigorous about its methods for convicting guilty people, it can trivially start convicting innocent people.
[1] Which it largely has, given the ratio of criminal convictions that get plead out, as opposed to being litigated. Plea bargains are a blight upon justice.
Are you referring to court appointed public defenders? Oh, they don't work to find a defense for the defendant. They work to ensure the public's interests are defended. We don't want the state to get sloppy. Process and procedure needs to be followed and objections made to protect the public's interest in a fair trial.
If the defendant does not want to plead guilty then the attorney cannot plead guilty on behalf of the defendant.
"This morning the Supreme Court overturned a Louisiana inmate’s death sentence because the inmate’s lawyer – hoping to save his client’s life – had told the jury that the inmate was guilty, even though the inmate had expressly objected to that strategy."
It's the government's job to establish the guilt of the accused. It is not the defendant's advocate's job to help out. The actual guilt or innocence of their client is not a concern—legally speaking. Ensuring that they get a fair trial, and are afforded all the process due to them is.
A defense attorney will poke whatever holes they find in the state's evidence, in their theory, and in their conduct. They will work to suppress evidence that was gathered illegally, locate witnesses that can testify on behalf of their client, and argue before the jury that the state has not proven their case beyond the legal standard.
I'm sure it's much easier for lawyers when they themselves are convinced of their client's innocence. But when someone comes to you and pays you to advocate for them in court, that's what you do. Your personal opinion is irrelevant.
You are not going to convince the jury with a statement like that. You have to offer "alternative facts". Tell the jury it may have been someone else that committed the crime (even though you know that's not true.) Tell them your client wasn't present at the crime scene. And so on. Presenting a robust defense for a client you know is not innocent and sticking to the truth are fundamentally incompatible. In real life defense lawyers aren't known for their truth telling. Everyone knows this and expects this. Which is why this article from ABA is simply grandstanding.
This would be a problem if his job were to prove that his client is innocent. But it is.
Instead, the job is to argue that the prosecutor is not able to prove that guilt beyond a reasonable doubt and to advocate for his client's best interest, which possibly even includes the client admitting guilt in exchange for a lesser sentence.
"You defend the principle, not the man", or something to that effect.
The legal system is convoluted enough that it requires a guide and domain-specific expertise. That doesn't mean the public defender's goal is to get them off, simply to serve as that guide and offer them the ability to understand their challenges and options.
Sometimes you're guilty as shit and it's unambiguously on camera, so the defense attorney's job is not to magically get you off -- that ain't gonna happen -- but to ensure you don't get utterly fucked over by a shitty plead deal and/or that mitigating factors are taken into considerations; e.g. "normally offenders with no record who did $crime only got $sentence; why is this twice as high?"
Scenarios 1 & 2 are pretty obvious, and 3 is not about the lawyer at all. Makes sense though since you're unlikely to hear any criticism of the profession in a publication by the ABA.
Should prosecutors be able to add incriminating statements to a confession transcript? (I'm talking about damning statements that the defendant didn't make.)
The CA Attorney General at the time said yes. A CA Appeals Court said no.
I can't quite tell, but Kamala Harris might have been the AG in question.
That wasn't what the AG argued; the AG argued that case shouldn't be dismissed on those grounds. The question is closer to if the prosecutor adds incriminating statements to a confession transcript, is that grounds for dismissal.
> Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Appellant. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Respondent.
Source: Lawyers wouldn't have the reputation they do if all the members of the club had integrity.