Or at least, it didn’t look that way to being with.  For some reason, though, the blogging world has been buzzing about this duck for two months, and the overwhelming concensus has been that Kristen should keep the duck, should not pay for it, and should not be at all troubled by the “holier-than-thou” folks who for some reason believe that you should pay for what you take home from the store.

There’s been a lot of dismay voiced about how “worked up” people are getting about an inadvertantly stolen duck, but I don’t think that’s what people are worked up about at all.  I think people are worked up about the justification, the cheering, and the general sense that there’s no real reason to worry about paying for what you took home.  That perspective is much bigger than a stolen duck.

The controversy has grown to the point that tonight, Blog Talk Radio will be hosting a discussion of the “issue”.

I’m not especially interested in hearing people re-hash the ethical issues, which are fairly clear to me.  I am, however, interested to hear the analysis of the legal issues (which are equally clear to me).  A very popular “mommy blogger” who goes by the handle “LawyerMama” has been asked to serve as an “expert”, and I’m very interested to hear what she has to say.

You see, ethical issues and the relative importance of a $6.50 (or maybe it was $6.95–witness accounts vary) duck from The Gap aside, I’ve been utterly unable to come up with any LEGAL justification for keeping the duck.  Since I practiced criminal law, I have a bit of experience  working up legal justifications for questionable behavior, and in this case, I think my best approach would be to minimize, to paint a sympathetic picture of my client as a harried mother who just hadn’t realized.  That’d be a tough sell after she’s spent two months polling the internet community about whether or not she should keep the duck.

If LawyerMama has a legal argument as to why it’s okay to keep the duck, I’m very interested to hear it.  And if she doesn’t–well, then I’m very interested to find out whether she’ll risk sanctions from the bar association by encouraging a disregard for the law.  I don’t know that Kristen could rightly be called a “client” or what LawyerMama is offering legal advice, but if I were in her shoes, I’d be a little uneasy.   How does a lawyer justify proudly posting a “keep the duck” icon on her website when, so far as I can assess, there’s no legal justification for keeping the duck?  Even assuming this can’t be construed as advising a client to violate the law, what about the appearance of impropriety?

The law does vary–and so do ethical guidelines–from state to state, and my reading of her other posts indicates that LawyerMama is an intelligent woman, so I’m virtually certain that she wouldn’t be risking legal sanction to publicly take the “keep the duck” position without some kind of legal theory to support her advice.  I’m eager to hear what it is.

Not only did Shipman and Sears come up with this agreement, they apparently tried to hide it from the North Carolina court by going to Illinois to have it approved by a court. While lawyers are generally ethical, an unfortunate handful of high profile attorneys give the rest of us a bad name.

Because a ruling in a class-action applies to all potential class members, Federal and State Courts have rules requiring the class’s attorney to find class members, keep them informed at all stages of the case, and provide them an opportunity to opt out the case. Here, the attorney allegedly didn’t try to find class members, did not keep those he found informed, and tried to hide the final settlement.

After an Illinois judge approved the settlement, following a hearing where Shipman and Sears misrepresented the case, claiming there could be 1,500,000 class members (only 337 were found), the North Carolina court stepped in. The Court declared it would not be bound by the Illinois approval of the settlement, dismissing the case in a way that would allow the plaintiffs to bring the case again, hopefully without needing protection from unethical attorneys.

I would expect the lawyers will take this matter to the Federal courts to argue whether a North Carolina court can overrule the Illinois court’s judgment.

Any of us who have had cases held up, complicated, and generally turned into unnecessary headaches by the attitudes and tactics of those (blessedly rare) opposing attorneys who were looking for a schoolyard brawl instead of a professional proceeding will enjoy this order, in which a federal judge questions whether the counsel appearing before him in the case at hand ever attended kindergarten, since neither seems to have learned to play well with others.

But in the current climate of negative consequences for attorneys who do their jobs and nagging criticism of the personal injury plaintiff’s bar, it’s good to see people who understand the system–or have taken the time to analyze it–setting the record straight, whether those people are ethicists, attorneys, major newspapers, or just bloggers with something to say about lawyers.

Hicks’ tribunal was the first to be completed since the White House overhauled the system following a Supreme Court holding that the tribunals violated Constitution protections and the Geneva Conventions protecting soldiers and others captured on the field of battle. Hicks’ plea bargain and nine month sentence shows just how screwed up the tribunal system remains.

Hicks arrived at the courtroom with three lawyers, one Marine Major and two civilians. By the end of the day, he had only the Marine Major to protect him. The judge dismissed both civilian attorneys on questionable premises. The judge also berated Hicks for his attire. He explained that Hicks should be wearing business dress rather than the short-sleeved, khaki prison garb he had on: Such proper attire would ensure that Hicks was adequately protected by the presumption of innocence.
Hicks then signed a plea agreement, admitting he had trained with Al Qaeda, guarded a Taliban tank, and had scouted a closed American embassy building. Hicks had fought on the battlefield for a mere two hours, before selling his weapon to raise cab fare to flee to Pakistan. Fighting in battle has never been considered a war crime, until now.

His plea agreement has a unique feature. Hicks agreed to recant his allegations of abuse while in detention and not to speak to reporters for one year. Jennifer Daskal of Human Rights Watch said this unusual agreement for Hicks’ silence indicates that the primary goal of the US Government is protecting itself from the “disclosure of abuse.”

Meanwhile, the Government continues to try to scare lawyers off. Recently, Cully Stimson, deputy assistant secretary of defense for detainee affairs, publicly called it “shocking” that major American law firms could represent Guantanamo Bay detainees free of charge and said they would likely suffer financially after their corporate clients learned of the work. He said, in an interview on Federal News Radio: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms” He added that he thought some law firms were not actually representing clients free of charge and were “receiving money from who-knows-where.” Who-knows-where is obvious code for Al Qaeda.

If the US Government really wants to stop terrorism, that means preventing the next generation from growing up as terrorists. The way to stop a new generation of terrorists is to be all we can be, to hold these trials fairly and above board. Muslims throughout the world want to see the bastards that killed three thousand people on September 11th punished for their deeds, but they also want the United States to lead, to show their own governments how to hold a fair trial.

Attorneys and parties involved in pending cases are not allowed to communicate with the judge about the case except under specific circumstances: in court, in written documents also provided to opposing counsel, or in conferences where both sides are present.

The Florida Bar has referred an ethics complaint to the state Supreme Court.

Emerson reportedly made arguments about personal injury litigation in general during four trials in which he represented defendants. His comments centered around the idea that such trials wasted taxpayers’ money and jurors’ time, and were contributing to the declining view of the legal profession.

The unusual court ruling raises questions about the acceptable boundaries of arguing beyond existing law when addressing a jury, and may inspire judges to tighten standards for courtroom argument, at least in Nevada.