Thursday, November 20, 2008

"One Man Band Of Competence"

An attorney who was disbarred for misuse of funds entrusted to him in his capacity as treasurer for a county Democratic Party sought reinstatement after his disbarment. The Vermont Professional Conduct Board recommended that the petition be granted subject to completion of continuing legal education. The attorney had pursued an interest in computer law issues after losing his law license:

Prior to the disbarment Lane had developed an interest writing and lecturing on issues relating to computers and the law.  In 1996, after the passage of the Internet Decency Act, he put together a book proposal which was accepted.  He spent two years writing the book, Obscene Profits, which was published in 2000. He has since written two other books, The Naked Employee, published in 2003, which deals with employer surveillance of employee's computer use, and The Decency Wars published in 2006 the idea for which was sparked by the FCC's reaction to perceived indecency during the Super Bowl entertainment in 2004.  He has recently had a book proposal accepted for The Court and the Cross which will focus on the religious right and the legal system.

           In order to assist with the research for his books, Lane subscribes to Loislaw, a case law database similar to Westlaw.  He especially reads cases from the U.S. District courts on issues relating to first amendment rights and technology issues.

           During the past several years, Lane has written regularly for, a website relating to technical computer issues.  He typically writes two short articles per day and is paid by the article.  He chooses his own subject matter and tends to write about legal issues relating to computers.  He is presently on leave from this job to write his next book, but could return at any time.

The publication of the books has led to seminar presentations for lawyers, which Lane is now doing on a regular basis.  This in turn has led to requests to act as an expert consultant. Attorney James Murdoch testified about his use of Lane's services as a consultant. Murdoch, who works as a family and criminal attorney, has known Lane since the mid-1990s when they worked together on a case involving computer privilege.  In recent years he has associated with Lane several times as a computer expert on issues of privacy and First Amendment rights in cases involving employee embezzlement and computer pornography.  He has found Lane to be always up to date on the technical as well as the legal aspects, and that he is an articulate expert witness. Murdoch believes that there is no doubt that Lane has stayed current with the law relating to the First Amendment and free speech.  He characterized Lane as an "extra-ordinary one man band of competence."

The Board concluded that sufficient evidence of moral rehabilitation had been presented to justify his reinstatement. (Mike Frisch)

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This case raises an interesting issue.

Discipline is said to serve two purposes. Primarily we consider that discipline is intended to protect the public from the lawyer. But discipline is also intended to protect the courts. Discipline inhibits the lawyer’s First Amendment free speech. Discipline effectively silences the lawyer. This is one of the reasons that our disciplinary system can be so dangerous to our political system. The courts have the power to block one of the check’s on their exercise of power.

So I think it is particularly interesting when a disbarred lawyer then takes on a roll such as publishing or teaching where he is able to continue to act as a voice which checks the judiciary’s power. This is one of the reasons that I find it disturbing that a number of law schools have tied continued employment to a professor’s continued standing as a lawyer and have dismissed professors who have been disciplined by the courts. Surely this is precisely the circumstance where the tenure system was intended to operate?

In the present case, I wonder if one of the reasons the lawyer was allowed back into the fold was because a disbarred lawyer cannot be controlled or regulated? This is always one of the risks of disbarment. Disbarment is the nuclear weapon. Once disbarred, the courts are no longer able to throttle a lawyer’s free speech which might be critical of that court.


Posted by: FixedWing | Nov 20, 2008 10:24:31 AM

Astonishing! What has the applicant's expertise to do with his moral rehabilitation. He may be a recognized expert but he also may be a thief!

Posted by: Mather, C. | Nov 20, 2008 6:11:42 PM

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