I. In dealing with other persons involved in the litigation process, a lawyer should be courteous and civil in all communications.A. Lawyers should act in a professional manner regardless of the ill feelings that their clients may have toward others.B. Lawyers can disagree without being disagreeable. They should recognize that effective representation does not require antagonistic or acrimonious behavior.C. Lawyers should not use vulgar language or make demeaning characterizations of other persons.
Ray Beckerman, New York "country lawyer," foe of the RIAA and major record labels, "adhere[nt] to old fashioned values," and blogger, on his opponents:
[Opposing counsel]... is essentially an extortionist. His machine has many similarities to organized crime.
And some final thoughts on civility, from a "country lawyer...with integrity":
Posts
What is the point of this post, Ben? Are you really saying that the invective by Ray Beckerman is 1) un deserved and 2) more legally egregious than the RIAA's legal tactics? IIRC, the RIAA has filed more than 30,000 sham lawsuits, where the RIAA files impermissibly joined John Doe suits for an impermissible purpose, to use the discovery power of the courts not to continue the lawsuit to seek relief but as a way of getting information to be used by the RIAA's collection agents. The RIAA files their impermissibly joined suits ex parte, gets their discovery, then drops the suits. What should an officer of the court, such as yourself, have to say about such a tactic?
ReplyDeleteYou have said that you are in favor of the RIAA's litigation campaign but said you don't agree with some of the particulars, in spite of the fact that Ray Beckerman's issues with the RIAA litigation campaign have everything to do with the particulars. AFIK you have never indicated any substantive specifics that you disagree with RIAA on, and you certainly haven't elucidated any in your blog, your position on court video coverage notwithstanding. Would your disagreement with the RIAA's "particulars" take issue with:
1) Filing 30,000 sham lawsuits, designed to use the discovery power of the courts to perform an investigation to gain information for the RIAA's collection agency.
2) Impermissbily joining un-related John Doe's in almost all of the above proceedings in spite of an order not to do so.
3) Falsely claiming to have detected an "individual" in court filings when their own expert admits their techniques do no such thing.
4) Falsely claiming to "have all the necessary evidence to prevail" at trial in collection letters.
5) Suing dead people, people who have never used a computer, children, etc.
...and much, much more...
The RIAA does all of that and you are attacking Ray Beckerman? Seems to me you should look at the reasons why a veteran litigator has been pushed to such extremes and consider whether or not the RIAA has been doing the legal profession any favors. In my opinion, actions speak louder than words. You seem far more upset by Ray Beckerman's words and not at all by the far more significant **actions** of the RIAA.
While I think your blog is a valuable addition to the IP blogospehre, this latest thread seems like churn than news, as if you've been hired to counter Ray's Blog.
-Todd
"Country lawyer." Interesting. Which country? He uses some former USSR rhetoric.
ReplyDeleteI was curious, and followed some of the links to the presumably objectionable utterances. I would just like to point out that some of them link to comments made by people other than Mr. Beckerman, (e.g., people who have commented on his website).
ReplyDeleteFurthermore, while it behooves a lawyer to be civil at all times, there is a difference if such comments occur within or without the litigation process.
To Todd:
ReplyDelete"What is the point of this post, Ben?" I thought it was pretty clear, but in case not: the point is that Beckerman's public communications are not consistent with standards of attorney civility.
Of course anyone is free to argue against the record labels' legal positions. But they should stick to the issues, and avoid the name-calling. All the issues you mention have been raised in courts, which have addressed them on the merits. Calling the labels' execs and attorneys "idiots," "morons," "freaks," and all the rest does nothing to contribute to legitimate legal discussion. I write plenty on the merits of these lawsuits, and I make no apologies for also writing about the way these lawsuits get discussed in the public arena.
I am not "attacking Ray Beckerman." I am quoting him, verbatim. Any wounds he may suffer (and I don't actually expect him to suffer any) are entirely self-inflicted.
Lastly, I can assure you that I am not paid a dime by anyone to write this blog.
To Ernst Kaufmann:
ReplyDeleteI just checked all of the quotes once again. Unless someone is impersonating Beckerman, all the quotes are directly from him. (Some are in comments he left on his own blog.) If you have a specific example of a quote I used that you believe is *not* from Beckerman, please email me at copyrightsandcampaigns@gmail.com. If I made an error, I will correct it.
Thanks for the response.
ReplyDelete"I am not "attacking Ray Beckerman." I am quoting him, verbatim. Any wounds he may suffer (and I don't actually expect him to suffer any) are entirely self-inflicted."
You can certainly argue that point. I do think you are attacking Beckerman. You may be doing so on the merits and you may even be justified in doing so, but I think it is disingenuous to claim no attack exists. This post isn't based on a news report that you are following up on but your own inspiration on a slow news day. While you can say you are only quoting Beckerman's words, I'd say that the *choice of words* and your juxtaposition of the NY Bar rules belies the "I'm merely innocently quoting Beckerman" claim.
As you attempt to impugn Ray Beckerman's integrity with your thread, where you specifically mention the word "integretiy" (oh, I know, you are only "quoting") I think you have failed in that regard. The RIAA has made false claims of fact in their filings, such as **repeatedly** falsely claiming to have detected an individual when their own expert has admitted their techniques do no such thing. To my mind, that kind of **action** speaks of low integrity, yet you are conspicuously silent on such issues. Meanwhile, you are very vociferous in your condemnation of the the opinions of Ray Beckerman in this thread rather than his legal filings. If you really are a disinterested party I'd expect you could be more objective in your examination of the pros and cons of the RIAA's litigation, yet I only see pros on your blog when it comes to substantive issues, and vague allusions to a lack of 100% agreement by you with the particulars, which, AFIK, you are 100% unwilling to be particular about.
I think you would have more of a point against Beckerman if, perhaps, his opinion were not, IMO, so soundly based on the actions of the RIAA.
I appreciate that you are both vigorous advocates for your client but I do note that you have avoided the issue of whether Beckerman's mere invective is more significant than the RIAA's questionable litigation tactics, by claiming to have addressed such issues in the past, a claim I find unpersuasive.
Todd
I am certainly critical of Beckerman's mode of argumentation -- that was the point of my post, as I said above. That is not the same as "attacking Beckerman."
ReplyDeleteI am hardly "silent" on the issues you raise. On the specific one in your last comment about "detect[ing] an individual," I think the issue is about the weight of evidence, i.e., how much and what kind of evidence is needed to prove that a defendant infringed the plaintiffs' copyrights. That is a perfectly legitimate issue for people to argue about, and courts resolve it all the time. The labels take the evidence they are able to collect, and make the best arguments they can based on that evidence. Sometimes they win, and sometimes they lose; that's what litigation is all about.
Lastly, you say that I am acting as a "vigorous advocate[] for [my] client." That is false. I have been very open about my sympathies and background (which are listed in the right side of the blog), but in case it wasn't clear: I do not represent any of the record labels, and I would obviously disclose it if I did.
This comment has been removed by a blog administrator.
ReplyDeleteI was mistaken: those are indeed Mr. Beckerman's comments.
ReplyDeleteI assume, without confirming, that Mr. Beckerman was not - at the time such comments were made - acting as counsel for a party in litigation with the target of the comments.
"Lastly, you say that I am acting as a "vigorous advocate[] for [my] client." That is false. I have been very open about my sympathies and background (which are listed in the right side of the blog), but in case it wasn't clear: I do not represent any of the record labels, and I would obviously disclose it if I did."
ReplyDeleteI apologize. That was poorly phrased on my part and I did not mean to imply that you were working for a label. I meant, more generally, that you both vigorous advocates for your positions.
Todd
A slow news day at "Copyrights and Campaigns", so Mr. Sheffner occupied himself by studying the "Collected Works of Ray Beckerman".
ReplyDeleteUnfortunately, he included only utterances I have made as a citizen, not those I have made as an attorney.
As a citizen I have an untrammeled right to speak my mind about the dishonest pseudo lawyers representing the RIAA, as well as about the dishonest pseudo commentators like Mr. Sheffner.
As a lawyer I leave many of those rights at the door when I enter a courtroom, or file legal documents; Mr. Sheffner knows that, but intellectual integrity does not appear to be among his strengths.
An apology and retracton are in order.
To Ray Beckerman:
ReplyDeleteI'll bend my prohibition against "name-calling, personal attacks, or the like" in the comments, and allow yours, because your name-calling here only helps make the point of my post. "[D]ishonest pseudo commentator[]"? Is that the label you reserve only for those with the temerity to quote your words verbatim?
Who said you don't have the "untrammeled right to speak your mind" about your opponents? Not I! Indeed I hope you keep at your blog, as it provides me both information and amusement. The civility guidelines I cited are indeed "voluntary." So keep calling your opponents names if you truly think it helps your cause. And I'll keep quoting you.
An "apology and retract[i]on"? For quoting you verbatim? Seriously?
"An "apology and retract[i]on"? For quoting you verbatim? Seriously?"
ReplyDeleteYou seem to be forgetting what seems to me to be an attempt to imply misconduct by **first** quoting NY State Bar guidelines before quoting Beckerman's personal opinions.
Todd
To Ernst Kaufmann 2:44:
ReplyDeleteYou wrote:
"I assume, without confirming, that Mr. Beckerman was not - at the time such comments were made - acting as counsel for a party in litigation with the target of the comments."
Your assumption is incorrect. Beckerman was indeed "acting as counsel for a party in litigation with the target of the comments."
Beckerman has been counsel for the defendant in UMG [and other major labels] v. Lindor since early 2006 -- and the case is still ongoing:
http://recordingindustryvspeople.blogspot.com/2007/01/index-of-litigation-documents.html#UMG_v_Lindor
All of the comments I quoted were from after his representation of Lindor began.
To Todd 5:25:
ReplyDeleteNowhere in this post did I "imply misconduct" by Beckerman. I linked to the NYSBA guidelines, which makes clear that they are "voluntary" and "are not intended as a set of rules to be enforced by way of sanction or discipline but rather as guidance to those in the litigation process."
One does not commit "misconduct" by "violating" these "voluntary...guidelines." But that doesn't mean one shouldn't heed them.
""I assume, without confirming, that Mr. Beckerman was not - at the time such comments were made - acting as counsel for a party in litigation with the target of the comments."
ReplyDeleteYour assumption is incorrect. Beckerman was indeed "acting as counsel for a party in litigation with the target of the comments."
Beckerman has been counsel for the defendant in UMG [and other major labels] v. Lindor since early 2006 -- and the case is still ongoing:
http://recordingindustryvspeople.blogspot.com/2007/01/index-of-litigation-documents.html#UMG_v_Lindor
All of the comments I quoted were from after his representation of Lindor began."
Ah, ever the lawyer, with the cute attempts at implication.
You could have answered this post before...but instead you conveniently answer it after Ray Beckerman notes that all of the comments you quoted of him were by him as a private citizen. You ignore that point and then respond to Kaufmann to try, IMO, to imply that Beckerman was speaking improperly. You are, I think, a big one with the sly insinuations, all while you try and claim Beckerman is the one being in-civil--and yes, you are making that claim, IMO.
I have to say I think Beckerman is the straight shooter in this match up. But, I think this thread has served your purpose de jour, which is to gin up controversy and traffic to your blog.
Todd
"Ben Sheffner said...
ReplyDeleteTo Todd 5:25:
Nowhere in this post did I "imply misconduct" by Beckerman"
There we will have to disagree. I think you did, whether you thought you were doing so or not. You claim you did not. I think the average man who first saw you cite the "New York State Bar Association Guidelines on Civility in Litigation," and then saw your immediate juxtaposition of quotes you seem to think show Ray Beckerman in apparent violation of those guidelines, would think you were trying to imply misconduct. Seems to me the kind of question of fact a jury might be asked.
Why quote the guidelines if violating them has no legal consequences? Does it matter if you are technically correct if, instead, the average person reasonably perceives your juxtaposition to be an attempt to suggest misconduct? Should you take responsibility for that reasonably foreseeable outcome by your post to your public blog read by a wide audience including non lawyers? Or should you take refuge in the minutiae known to members of the NY Bar as to the enforceability of Bar Guidelines?
To Todd 5:46:
ReplyDeleteI do plead guilty to being a lawyer. But not to the Machiavellian scheme of comment-timing you've invented. The simple fact is that I just got around to checking out the timing around the "assumption" that Kaufmann posited. I suggest your time would be better spent focusing on the facts I've set out, and not on hunting for conjured-up "insinuations," sly or otherwise.
Beckerman is *both* a "private citizen" and a practicing lawyer. I think it reflects poorly on him in *both* roles when he engages in the kind of name-calling he displays on his blog and in interviews. There's nothing "sly" about pointing that out.
And yes: I most definitely am claiming that Beckerman's name-calling is "in-civil." That was the whole point of my post. And Beckerman just confirmed it by calling me a "dishonest pseudo commentator[]" in the comments.
To Anonymous 5:58:
ReplyDeleteMy post accurately identified the NYSBA guidelines as "guidelines." Not "rules" or "mandates" or "regulations" or "requirements," but "guidelines." And I provided a link to the document itself so that everyone could easily read the whole thing for themselves, including the fact that they are "voluntary" and "are not intended as a set of rules to be enforced by way of sanction or discipline but rather as guidance to those in the litigation process." I think the "average person" is perfectly capable of clicking on the link I provided.
"Why quote the guidelines if violating them has no legal consequences?" Simple: because they demonstrate that Beckerman's name-calling is inconsistent with the way that his state's governing body of attorneys believes that members of the bar should conduct themselves. If I had wanted to argue that Beckerman should suffer some legal consequences for his speech, I would have done so.
1. I really don't know why you would want to assert that you aren't attacking Beckerman or asserting that he is engaged in misconduct. Both seem to be the patent intent of your post. Why not own up to it?
ReplyDelete2. You imply that Beckerman has violated New York's voluntary civility guidelines. Ultimately it's a bit of a waste of time to parse voluntary guidelines too closely, since any disagreement about their scope can be resolved by simply refusing to abide by them. But I seriously doubt that the framers of the guidelines meant to discourage vigorous debate, criticism, and advocacy outside the scope of representation. The fact that Beckerman represented a client in one RIAA case does not transform all of his speech elsewhere and elsewhen into speech within the scope of litigation.
3. "Of course anyone is free to argue against the record labels' legal positions. But they should stick to the issues, and avoid the name-calling. All the issues you mention have been raised in courts, which have addressed them on the merits. Calling the labels' execs and attorneys "idiots," "morons," "freaks," and all the rest does nothing to contribute to legitimate legal discussion."
Not with you on this one. Beckerman's commentary is social as well as legal. Rough language is entirely apt in describing RIAA tactics as part of an effort to sway public opinion, as well as legal opinion, against the RIAA. Beckerman's style of advocacy may or may not be more effective in some circles than dry legal parsing.
On the other hand,
4. "An apology and retracton are in order."
I think Beckerman is completely off base on this one. Whether or not I agree with its points, the post is fair comment, as surely as Beckerman's posts are.
To Ken:
ReplyDelete1. I was criticizing Beckerman's use of name-calling. I see that as different from "attacking Beckerman." I have focused on his words -- not him. (An "attack" is, e.g., calling someone (me!) a "dishonest pseudo commentator[]," like Beckerman did in these very comments.)
2. I don't think it really makes sense to speak in terms of "violating" the guidelines, which can't really even be "violated," given their voluntary nature. But I do think it's instructive to contrast the guidelines, and the sentiments they represent, with the way Beckerman speaks about his opponents in public.
I'm all in favor of "vigorous debate, criticism, and advocacy," and I try to do that on this blog. But I also think it can, and should, be done in a civil manner. As the guidelines say, "Lawyers can disagree without being disagreeable. They should recognize that effective representation does not require antagonistic or acrimonious behavior.... Lawyers should not use vulgar language or make demeaning characterizations of other persons." I read lots of legal blogs, and I can't think of any others where the proprietor routinely refers to his opposing counsel and parties in such a nasty and personal way.
3. "Beckerman's commentary is social as well as legal. Rough language is entirely apt in describing RIAA tactics as part of an effort to sway public opinion, as well as legal opinion, against the RIAA. Beckerman's style of advocacy may or may not be more effective in some circles than dry legal parsing." Beckerman can comment all he wants on the social, legal, political, and culinary aspects of these cases; no one is disputing that, and no one is trying to shut him up. Maybe he does convince some people with all his nasty language. Personally, I think it undermines whatever legitimate points he may have, and it reflects badly on both him and the legal profession. Plenty of others are able to criticize the RIAA and the labels without resorting to name-calling.
4. I've been noodling over what such an apology would look like. "Ray, I'm sorry for quoting your words accurately, and verbatim. It was really unfair of me to tell my readers that you refer to opposing counsel and parties as 'idiots,' 'morons,' and 'freaks,' even though you indisputably do. And I'm also sorry for quoting (again, verbatim) from the NYSBA civility guidelines and your own law firm web site, because then people might get the (completely accurate) impression that your public comments are inconsistent with your self-portrayal as a humble, aw-shucks, 'country lawyer' with 'old fashioned values.'"
""As the guidelines say, "Lawyers can disagree without being disagreeable. They should recognize that effective representation does not require antagonistic or acrimonious behavior.... Lawyers should not use vulgar language or make demeaning characterizations of other persons."""
ReplyDeleteBut I think you are trying to buttress an argument about civility by taking a norm from one context and applying it to another context. I would never talk in court, or in a letter to opposing counsel, or to a client, the way I talk on my blog. But a blog and a professional legal environment are two entirely different animals. I think it is a good thing that lawyers can express themselves like writers and commentators on blogs. It leads to more open, vigorous, and useful discussions.
"""I read lots of legal blogs, and I can't think of any others where the proprietor routinely refers to his opposing counsel and parties in such a nasty and personal way."""
I think you are playing a bit fast and loose with "opposing counsel and parties" there. As I understand it, he was counsel for a defendant in a RIAA case. That's like saying that my blog posts about prosecutors and police -- which can get rough -- are about opposing counsel and parties, because some of my cases are criminal.
Also, I respectfully suggest that your list of law blogs may be narrow. There are plenty of lawyers who blog with equally blunt language about the people they face in a variety of areas of law. Marc Randazza is brutal in describing the sort of people he faces in First Amendment cases. Folks at Overlawyered are relentless in suggesting that many lawyers are dishonest and grasping. And so on.
To Ken 8:47:
ReplyDelete"I would never talk in court, or in a letter to opposing counsel, or to a client, the way I talk on my blog." True enough, but I've read your blog (and I like it), and I don't think you engage in any of the really nasty and juvenile name-calling that Beckerman does. Again, one can be informal and spirited without being nasty and personal.
I don't think I'm playing "fast and loose" at all. Here are the facts: in the UMG v. Lindor case, Beckerman *currently* represents the defendant against several of the record labels, who are represented by Holme, Roberts & Owen (and the RIAA is involved in a coordinating role). And Beckerman's quotes that I cited above are directed against those very companies, HRO, and the RIAA (as well as Matt Oppenheim, an attorney who represents the labels in these suits). Beckerman blogs (and comments elsewhere) about this very case. Here he is recently calling his opponents in the Lindor case "freaks": http://joelfightsback.com/get-involved/collaborative-lawyering/
In other words, he takes to his blog (and other fora) to call his *current litigation opponents* names. In fact, his statements on his blog have become an issue in the Lindor case:
http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/umg_lindor_080912PltffsMotDismissMemo.pdf
Blogging about one's current cases -- especially in such an inflammatory way -- raises all sorts of issues, and I admit I haven't fully explored them. In the rare instance when I have blogged about a case I'm currently working on (e.g., Jackson Browne v. John McCain), I've been very careful to do it in a very bare-bones way: just post public documents, and state what they are without any commentary. E.g.:
http://copyrightsandcampaigns.blogspot.com/2009/02/court-declines-to-dismiss-jackson.html
"Blogging about one's current cases -- especially in such an inflammatory way -- raises all sorts of issues, and I admit I haven't fully explored them. "
ReplyDeleteExcept that is the point of Beckerman's blog, not so much his current cases, but all current RIAA cases.
The RIAA's factory litigation, at 30,000+ suits is, AFIK, unprecedented. And as the plaintiff, the RIAA held all the cards and could dismiss any suits that weren't in its favor and try again for favorable rulings in virtual secrecy, indefinitely, allowing them a nearly unlimited number of "do overs" to establish case law in their favor, and giving the RIAA an enormous economy of scale for its boilerplate litigation and disparate economic power in any and all lawsuits.
Bekerman's blog is primarily, I think, an effort to level the playing field by providing a central source for litigation histories. Given the enormous power wielded so unceasingly against unsophisticated and economically disadvantaged defendants, one can see why Beckerman may resort to harsh personal opinions that clearly evoke strong images of the situation. You would have Beckerman do what? Be polite? In response to the RIAA's very uncivil civil litigation you want him to respond with gaged decorum? It think not.
If the RIAA's litigation was in any way "polite" I've little doubt that Beckerman's personal opinions would respond in kind. When the RIAA becomes a responsible and genuinely repentant litigant then, perhaps, Beckerman will become polite in referring to them in his personal opinion.
Todd
To Todd 10:19:
ReplyDeleteThe points you raise about this litigation are all perfectly appropriate subjects of legal debate. My point is simply that lawyers should litigate (and discuss legal issues in other fora) on the merits, not by name-calling. As the NYSBA guidelines say, "Lawyers can disagree without being disagreeable." I think it's pretty obvious that Beckerman does not follow that particular guideline. (And saying that you disagree with the fact that the labels have brought these lawsuits says nothing about whether their attorneys have acted "civilly" or "politely." You simply disagree on the merits.)
Ben said:
ReplyDelete"My point is simply that lawyers should litigate (and discuss legal issues in other fora) on the merits, not by name-calling."
Agreed.
Ben said:
"As the NYSBA guidelines say, "Lawyers can disagree without being disagreeable."
Agreed.
Ben said:
"I think it's pretty obvious that Beckerman does not follow that particular guideline. "
If it's so "obvious", name a single instance in which I "litigated" or "discussed legal issues" or "disagreed" over legal issues, by "name calling".
You will not be able to find any such instance.
When I discuss legal issues, I discuss legal issues. When I disagree over legal issues I disagree over legal issues.
When, in informal surroundings, I discuss my opinion of the character of some particularly disreputable lawyers, and their recurrent misbehavior, on the internet, I discuss their character and misbehavior, in terms which express my opinion of their character and misbehavior.
I have been in the litigation field for 35 years and have earned the respect of my peers. You should be more careful in your accusations.
Ray:
ReplyDeleteYour entire blog discusses legal issues surrounding the record labels' litigation. In the body of this post, I provided numerous examples of you calling your opposing counsel and their clients names: "freaks," "morons," "idiots,""ghouls," "liars," etc. You apparently think that's appropriate. I don't. In fact those quotations seem to me to be prime examples of "disagree[ing] [BY] being disagreeable."