This is the (long) story of how an "April Fool's" joke has turned into a debate about professional ethics. I will provide you with the links to the original story - which you should read to get the real feel of it - but to save you some time I will summarize it.
It all started early in the morning on April 1st when Eric Turkewitz, a very well known law blogger from New York, announced on his blog that he was shutting down his blog because he had been selected by the Obama administration to create and run a new White House Law Blog. His post was very convincing and included a photo of him meeting President Obama. I read his blog daily and saw the post early that morning. I totally bought it and felt instantly jealous! That original post is available here (although it may be updated now with the revelation that it was all a prank).
But that wasn't all. Two other popular bloggers were in on the joke and, right on cue, they soon posted their opinions on the "news." Simple Justice chimed in here. To add credibility to the "story," SJ added some concerns from the office of the President's press secretary. Meanwhile, the Volokh Conspiracy, another very popular blog, published very credible criticism (here). In response to these (fake) critiques, Turkewitz replied here.
The overall effect of the stories was a thing of beauty. It sounded totally credible and reached a lot of people out there.
Needless to say, it was all a joke; a made up story to see how many people would be fooled. And a lot of people were - including me.
Now, here is the thing: one of those fooled by the story was someone in the New York Times, who ran the story without checking its veracity first. Not only were they fooled, they were fools. (The Wall Street Journal, in contrast, did their job, contacted Turkewitz and were told the truth.) Eventually, Turkewitz revealed his joke (here). I was amused. The NYT, on the other hand, was not amused and cried foul.
And then the blog "Ethics Alarms" wrote: "Once again, Ethics Alarms will declare that it is irresponsible for anyone not pictured on his or her blog wearing a clown nose to put out false facts “just for fun”…yes, even on April 1. . . . No doubt about it, the Times was fooled, and should have checked the story. Then again, lawyers like Turkewitz are forbidden by their ethics rules (Rule 8.4, to be exact) from engaging in intentional misrepresentation or dishonesty, and there is no April Fool’s Day exception. The Times and other trusted Turkewitz to behave professionally and ethically, and he did not; and he is criticizing them? Web hoaxes are unethical, always, every day of the week, and web hoaxes perpetrated by lawyers are professional misconduct."
Turkewitz and Simple Justice have responded (here and here). In his reply, Turkewitz asks "Who the heck is this blogger and why is he such a killjoy? And more importantly, does his argument have even a grain of merit?" and then proceeds to make an argument against Ethics Alarms' position analogizing the humor in the April Fools' joke to the use of humor in lawyer advertising. Simple Justice's reply takes a different perspective on the issue but reaches the same conclusion: that Ethics Alarms "is dead wrong" and that its "knee-jerk punditry. . .completely misapprehends the nature of the a lawyer's ethical duty."
In conclusion, Simple Justice argues that Rule 8.4 does not turn lawyers into truthy automatons: "We're still human. We are not, by dint of Rule 8.4, forbidden from telling our spouse that those pants don't make her butt look fat. And we can have some fun by playing April Fools jokes without risking disbarment. . . . We maintain the right to express ourselves, to use the rhetorical mechanisms available to the rest of society, to have opinions and to be silly and frivolous, as in having some fun. We retain the right to be human, even though we're lawyers."
UPDATE 4/6/10: Ethics Alarms replies to Turkewitz and Simple Justice (here). Make sure you read the comments (and may want to continue to check them in the near future for more.)
UPDATE 4/6/10 11pm: The blog "Defending People" replies to Ethics Alarms here.
So let's just ask the question: do you think it is professional misconduct for a lawyer to post a made up story on a blog as a joke, particularly when the New York Times runs it without checking its veracity first and is later publicly embarrased when the story turns out to be a prank?
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