Blawg Review #275

This week, we are very proud to play host to the blog carnival for everyone interested in law, Blawg Review.  Trust Matters readers, please say hello to the nice visitors from Blawg Review. Blawg Review readers, welcome to our little sandbox and please make yourselves at home.

A Bit of History

It was two years ago and change that we played host to Blawg Review #150, so it’s high time we hosted again. 

Not only that, but the famously anonymous Ed. (short for ‘editor’) of the Blawg Review is simultaneously hosting this month’s Carnival of Trust. Touching, and appropriate, as Ed. played an enormous role in getting the Carnival of Trust off the ground at its inception.

But enough about common lineage. Let’s start with the post “Trust and Compliance” by Doug Cornelius, where he pretty much nails the distinction between those two key concepts (with a Jennifer Hagy cartoon for good measure). Which comes first?  Does one cause the other? Is one a necessary or sufficient condition for the other? When do we need trust, and when compliance? Doug is crisp, succinct, and I think solidly right. 

And wait—what’s this? More common lineage: Doug just happens to have hosted last month’s brilliant Carnival of Trust as well. It’s getting all incestuous around here. 

Moving right along.  Eric Turkewitz at the New York Personal Injury Law Blog gives some lessons on blogging etiquette and just plain class, and displays said class himself by using Walter Olson as an object example.   

David Kopel at The Volokh Conspiracy went to the movies and was inspired to write Understanding Inception. Two of the 60 comments sum it up: “Fantastic analysis of the movie,” and “the analysis was better than the movie.” Which raises an obvious conundrum—to go see a meta-movie, or to just read the meta-review? Maybe I’ll just sleep on it. 

Also in The Volokh Conspiracy, Eugene Volokh covers the law’s struggle with that age-old riddle, Q. when is a rape not a rape? A. when it’s religiously permitted. The lower court agreed; the appellate court reversed. 262 commentators continue the debate in the Green Room; hurry and you’ll be #263.

David Lat at Above the Law has the Quote of the Day: What Crawled Up His Robe?

Scott Greenfield at Simple Justice has a different spin on the same case, in Unexplained Removal For Unfortunate Hostility (Update: Explained, Sorta).  Judges are hostile all the time, says Greenfield—to the defense, that is. But why the unprecedented removal of a judge—is it for being hostile to the government?  SG is suspicious. A novel position for SG, but hey just because you’re paranoid doesn’t mean… And he just may be right.

Criminal Defense Attorney Mark Bennett at his law blog Defending People re-invents the concept of Inbound Marketing for lawyers: nothing makes you so credible as recommending others along with yourself. Read his Small Lesson. A lesson not just for lawyers, or even marketers, but for the Manual for Living Life.

Criminal Defense Attorney Mark Bennett, on his Social Media Tyro blog asks ‘which do you want–reputation or exposure?’  They’re not the same.  

Want your blog to drive traffic to your website?  Kevin, at Real Lawyers Have Blogs, asks the right question: Why Would You Want That?

Can you tell when someone’s lying?  That debate will continue unabated, but here’s a small cool part of the puzzle from Keene Trial Consulting, in We Know Liars When We See Them.  Folks who watch the TV show Lie to Me do not get better at telling when someone else is lying; but they do get a lot more suspicious about everyone.  Want to empanel a jury of conspiracy freaks?  There you go.  You’re welcome.

As long as we’re on the subject of not-nice behaviors, Dan Harris at China Law Blog raises an interesting question about bribery.  Does Your Home Country Even Care?  He notes a recent report on how actively home-countries enforce anti-bribery laws on companies doing business in China. Interesting to see which countries are high- and low-active countries; interesting, Canada, eh?

Big fish, little pond? Or little fish, big pond? Ashby Jones at the Wall Street Journal Law Blog has the answer: New Study: Forget the Rankings, Just Bring Home Straight A’s

Apparently HLS students agree with Jones’ blogpost above, being as how they’re all atwitter over a nonchalant attitude toward grades by a prof and the administration. Read Elie Mystal at Above the Law: Grading Shenanigans at Harvard Law School? Spring Evidence Students Confronted ‘Irregularities’.  Hey no problem; just send them a copy of that study,  Sander & Yakowitz’s paper, I’m sure they’ll get over their bad Harvard selves and see the light.

Frank Pasquale at Concurring Opinions helps distinguish between being Anti-Business and Anti-The Worst Businesses. There’s an added bonus in a lengthy comment to that post by Patrick O’Donnell.

What’s the penalty for offering to take sexual services in barter as payment for legal services rendered? In New Jersey, it’s a one-year suspension.  Bobby Frederick, of South Carolina Criminal Defense Blog, seems to think that’s odd.  Fuggedaboudit, Bobby. 

Walter Olson (not a lawyer, but the proprietor of the oldest "lawblog" Overlawyered) writing on the law at Cato about the ADA and the Chipotle Grill Experience. What does the ADA filing mill have in common with patent trollery, copyright mills, and “citizen suit” filings? They’re all like the sausage factory; pretty ugly inside.

Speaking of ADA, did you see last week’s Blawg Review #274 at LoTempio Law Blog, marking the 20th anniversary of the American’s With Disabilities Act?

In closing… Insurance lawyer George M. Wallace blogging personal interests on his "fool in the forest" blog.

And that’s it. Many thanks to Ed. for the honor and privilege of once again hosting the Blawg Review.  Followers of law blogs and regular readers of Trust Matters will find more great links to blogs worth reading in the last Carnival of Trust, hosted today by the Editor of Blawg Review.  Enjoy!

November Carnival of Trust is Up

Jordan Furlong, of Law21, is this month’s host of the Carnival of Trust.  He brings a most interesting perspective to it.

Most obviously, Jordan’s a lawyer.  Second, he has that bemused  Canadian perspective about things south of the border.  Finally, two of his interests shine through: innovation and collaboration.

These traits show in his choices, and in his thoughtful commentary linking his choices. 

Jordan has written about trust before.  Perhaps that’s why he moves easily among the various blogposts he has chosen to highlight in this month’s carnival.

Pop on over to the Carnival at Jordan’s site, and here’s a taste of what you’ll get:

– How recent thinking on the economics of law firms has affected client trust levels;

– The effect on trust of both in-court tactics and extra-court marketing;

– The ties linking referrals, trust, innovation and collaboration;

– The relationship between trust and risk;

– How contracts and trust are in some ways opposed.

Add to that a delightful vignette, and a dozen extra-credit mentions.

Good stuff, food for the heart and the brain alike.  Jordan has done fine work here for all thougthful people interested in the subject.

Many thanks, Jordan, for a most excellent Carnival. I invite all readers to go benefit from his hosting.


You can also look at past Carnivals, and enter your own blogposts or those of others for future carnivals by going to the Carnival of Trust homepage.




Do You Trust Anonymous?

Anonymity iStock_000010799839Small.jpgIt may sound like one of the most obvious platitudes of all: trust increases as you get to know people.

After all, you wouldn’t hire a financial planner without talking to their references, would you? You wouldn’t hire a new employee without finding out their work history, would you?  You wouldn’t let your kid stay overnight with unknown neighbors, would you?  Don’t we always equate trust with transparency, openness, getting to know more about others? 

Well, not necessarily. In fact, sometimes—no. Like all trust-related things: it depends. Trust is a bit like Justice Potter Stewart’s definition of obscenity: you may know it when you see it, but it sure is hard to define.

Anonymous Blogger Meets Anonymous Blogger

Take the case of two anonymous law bloggers meeting in Las Vegas—“Ed” of Blawg Review  and “Kael” of Legally UnBound (Not their real names–I mean, what’d you expect?)  Both are distinguished in their fields.

Read “Kael’s” account of their meeting,  and you discover some serious, powerful ways in which anonymity does not decrease trust—it actually increases it. Anonymity can free you to speak truths. Anonymity forces people to confront you as you ‘really’ are, not as your accumulated biography. (Remember, part of Bernie Madoff’s charm was his resume–decidedly public, entirely non-anonymous).

More interesting is the question it raises about just “who” it is that you’re trusting when you trust someone anonymous. Here’s “Kael”:

What do I mean by persona? You see, all I know of Ed is what Ed allows me to see. While I’ve seen ‘him’ (the opinions and thought of Blawg Review), I have not seen ‘him’ (the man that may have been married and raised children). But the only Ed that I want to see is the Ed that he allows me to see. The same is true, from my end.  Thus, our trust and our relationship is based upon the information that each allows the other to see.

Much too often, I believe that our collective, societal opinion of a ‘trusting relationship’ is FULL DISCLOSURE. I disagree. I think that our curiosities about others and our desires to place judgments upon others is the basis (in part) of the relationships in which we engage. Our trust is therefore contingent upon the amount of disclosure we make to the other entity, instead of simply taking whatever disclosure is given and either finding a basis for commonality, or not.

The terms ‘keeping it real’ and ‘puttin’ my heart out there’ are all too commonly the basis for our understanding of what it means to ‘trust’. We don’t have to ‘keep it real’ to establish trust. We only have to identify the boundaries and the common goals, then allow for the personal disclosures to build the trust. Yes, personal disclosure is the key to trust, not TOTAL disclosure.

Principles Before Personalities

Ed and Kael (I’ll drop the quotes now, we know them well enough at this point) are not cranks. Some of the more successful organizations in the world are the 12-Step programs, originating in Alcoholics Anonymous.

The common view of “anonymous” is that meetings assure anonymity to those who don’t want outsiders to know of their condition. But the 12th Tradition (the organizational correlate of the 12 Steps for individuals) is “Anonymity is the spiritual foundation of all our traditions, ever reminding us to place principles before personality.”

In other words, the (main) purpose of anonymity is not to keep outsiders from knowing members’ names—it is to prevent members from forcing their particular biographies on others, both within and without the organization. You are trusted, in other words, if you remain anonymous, so that others can see that you speak only from your own inner truth, unclouded by your, and their, inevitable prejudices.  That way we minimize the judging that Kael speaks of.

Both Kael and AA speak the same truth: the ‘you’ that matters is not the ‘you’ of your lineage, your family name, your profession, your accent, or your resume. There is another authentic ‘you’ within, and—in a sense—that is the only ‘you’ that can be trusted.

Trust increases as you get to know people. Yes? Or no?

As with all things trust-related, and human-related–it depends.

Do Non-Solicitation Clauses Pose Conflicts of Interest?

I would sincerely like to ask my professional services readers, and particularly those in the legal profession, for some help. I’m not being snarky or sardonic this time, this is a genuine request for perspective.

Professional services firms commonly have several clauses affecting relationships with their employees and subcontractors. The list includes non-competes, intellectual property restrictions—and non-solicitation clauses. It’s this last one I want to focus on.

Most such clauses boil down to something like “as long as you work here and for X time after you leave (typically up to two years) thou shalt not approach a client (or future client, or anything vaguely resembling one who ever breathed the same air as you) with the intent of selling work ‘similar’ to what you did for us.”

Or, in simpler terms: hands off–that client belongs to the company, not you, and we’ll sue if you try to steal ‘our’ client from us by doing what we hired you to do.

As you can tell, there is something that rubs me the wrong way about this. Yet I also have a feeling I’m missing something. Most things in life exist for a reason. I may be missing a big fat reason on this one.

Here are the arguments against such clauses, as I see them.

• Firms requiring this clause position their clients as property to be bartered over. The phrase “who owns the client” has to be somewhat offensive to the putatively owned client.

• There is an inherent conflict of interest with the principle of client service. Say an ex-employee or subcontractor develops a better product, at a lower price, offering greater value, and meeting a need clearly expressed by a client of the existing firm. Non-solicitation clauses mean the employing firm is preventing their client—to whom they are presumably devoted to giving great service—from even hearing of the potential better deal. This is a “dog in the manger” strategy. It may not be legal restraint of trade, but isn’t it a violation of basic client service principles?

But, what’s the other side? What’s the social rationale for non-solicitation clauses? Can someone offer an explanation of how they are, on balance, in the best interests of client, employer and employee together in the long run?

Thanks in advance for any enlightenment; I look forward to the dialogue.