Update: Now as usual it turns comical. Apparently the lawyer Schmalfeldt did consult with himself appears to be engaged in unauthorized practice of law—because his license is apparently suspended. Jump to the end for details.
So sorry for the blog silence, but I have been very busy helping friends move out of their home. They are frankly disabled and thus not able to do much of it themselves, and they didn’t have very much money so they got three burly guys to move all the really big things (couches, tables, beds, etc.) and then for the rest of it, I was the muscle. Which if you have ever met me in real life you’d know that was a sign they were in trouble. I do alright, but I am not exactly Schwarzenegger in his prime. Heck, I probably not even as good as Ahnold today.
But in the meantime, Bill
Schmalfeldt (who shall hereafter be called Señor
Neckroll™) has gone off the deep end.
He has created not one, but two websites, dedicated to telling everyone how
evil I am in terms that makes gives “ranting” a bad name. The first is called (I kid you not) “@aaronworthing
is a cowardly c*nt.” And the second is a
close mimic of the name of this site.
Neither will be linked, because I don’t want to risk exposure to
viruses. He is associated with criminal
hackers, after all.
But the latest tirade is his
claim that I have engaged in authorized practice of law in Maryland by 1) briefly
giving Seth Allen legal advice on Maryland law while I was in physically in Virginia,
and 2) appearing in Maryland on my own behalf to defend myself against
Kimberlin’s various abusive filings in Kimberlin
v. Allen. Now, sharp-eyed readers
might notice a certain familiarity with this.
This is because this is exactly the same complaint Kimberlin filed with the Virginia Bar which
ultimately was dismissed out of hand. I
provided the Virginia Bar with all communications between myself and Seth Allen
and all documents related to my appearances in Maryland fighting Kimberlin’s
abusive motions and they found the following: 1) I didn’t engage in unauthorized
practice of law in Maryland by giving Seth Allen legal advice, and 2) all of my
appearances in Maryland courtrooms were on my own behalf and not on Mr. Allen’s. Mind you, I said to you, dear reader, and the
Virginia Bar Association that I hoped that what I filed might benefit Mr.
Allen, but they were filed on my own behalf and were primarily designed to
protect my own interests.
And allegedly he gets this
response from David Kennett, Esq. of Ohio.
Which is odd, because I attempted to call him to verify he had really
done such a thing and all of his official listings give a false number. But this is his alleged response:
So Señor Neckroll™ declares “Aha! Now I got him!” Apparently the Virginia State Bar didn’t know
what it was talking about, so he pledged to file a new bar complaint against me
before the same bar association.
Now, assuming that Señor Neckroll™ really did contact this
David Kennett and all, does anyone start to see the problem, here? Well, by Señor
Neckroll™’s interpretation of the law, Mr. Kennett himself has engaged in authorized practice of law while discussing
what constitutes unauthorized practice of law.
After all, he is not admitted in Maryland or Virginia (I checked) and
yet he is giving advice on the application of Maryland law with an eye toward
potential discipline in Virginia. Which
suggests that perhaps Señor Neckroll™
is making a mistake.
The answer is that Señor Neckroll™ has made the classic
error of GIGO: Garbage In, Garbage Out.
It is a computer acronym that is short for the idea that if your inputs
are bad, your outputs will be bad, too. Señor Neckroll™ asked a bad question
and thus got a bad answer.
Can anyone see the crucial fact
that Señor Neckroll™ forgot to
mention? The fact that all of this
advice was given while I was in Virginia.
This is not just my opinion,
either. First, take a look at the
Maryland Rule Against Unauthorized Practice of the Law, which you can read, here:
Rule 5.5
Unauthorized Practice of Law; Multijurisdictional Practice of Law
(a) A lawyer shall
not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is
not admitted to practice in this jurisdiction shall not:
(1) except as
authorized by these Rules or other law, establish an office or other systematic
and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the
public or otherwise represent that the lawyer is admitted to practice law in
this jurisdiction.
(c) A lawyer
admitted in another United States jurisdiction, and not disbarred or suspended
from practice in any jurisdiction, may provide legal services on a temporary
basis in this jurisdiction that:
(1) are undertaken
in association with a lawyer who is admitted to practice in this jurisdiction
and who actively participates in the matter;
(2) are in or
reasonably related to a pending or potential proceeding before a tribunal in
this or another jurisdiction, if the lawyer, or a person the lawyer is
assisting, is authorized by law or order to appear in such proceeding or
reasonably expects to be so authorized;
(3) are in or
reasonably related to a pending or potential arbitration, mediation, or other
alternative dispute resolution proceeding in this or another jurisdiction, if
the services arise out of or are reasonably related to the lawyer's practice in
a jurisdiction in which the lawyer is admitted to practice and are not services
for which the forum requires pro hac vice admission; or
(4) are not within
paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the
lawyer's practice in a jurisdiction in which the lawyer is admitted to
practice.
(d) A lawyer
admitted in another United States jurisdiction, and not disbarred or suspended
from practice in any jurisdiction, may provide legal services in this
jurisdiction that:
(1) are provided to
the lawyer's employer or its organizational affiliates and are not services for
which the forum requires pro hac vice admission; or
(2) are services
that the lawyer is authorized to provide by federal law or other law of this
jurisdiction.
Now, what is crucial at all times
is that the unauthorized practice must occur in that jurisdiction, in this case
Maryland. So (b)(1) talks about establishing
a continued practice in Maryland. I have
never done that. Subsection (b)(2) talks
about claiming you are qualified to practice in Maryland. I told Seth Allen from the beginning I was
not a Maryland lawyer and couldn’t appear in a Maryland court (we lawyers say this
sort of thing as almost a pavlovian reaction).
Subsection (c) talks about “provid[ing] legal services on a temporary
basis in this jurisdiction.” But I was
providing legal services in Virginia. And
subsection (d) doesn’t even look like it might have any applicability at all.
If you don’t believe me, perhaps
you would believe the Illinois bar association.
Their rule on unauthorized practice of law is identical to Maryland’s
(probably both based on the model rules), and on their own website makes it
clear that what jurisdiction the lawyer is presently in is crucial:
[I]f the lawyer,
located in Illinois, is retained by a Wisconsin client simply to give legal
advice on Illinois, Wisconsin or federal law, the lawyer would not be
considered engaged in the unauthorized practice of law simply because the
client is situated in Wisconsin. In advising clients on Wisconsin or federal
law, the question really is one of the lawyer's competence. If the lawyer met with the client in
Wisconsin, the lawyer would have to determine whether Wisconsin considered
the nature of his activities in Wisconsin to be the unauthorized practice of
law in their state.
The reality is what I did for
Seth Allen (for free!) is what happens all the time in the large firms. Lawyers in D.C. take on clients in L.A. to
work out a deal in Houston. I have
personally been witness to hundreds of such transactions. For instance, I once represented an online gaming site. As you might imagine,
such websites have to ensure compliance with each state’s laws and the relevant
federal laws (including any relevant federal territories). I was one of a team of lawyers who divided up
the country and collectively learned the relevant laws of every
jurisdiction. I don’t even remember
which specific jurisdictions I was assigned to learn about, except for New York
State because at one time their courts banned coin-op video games (like
Pac-man) based on the claim it was gambling and thus it stuck in my mind. There was about five of us and virtually none
of us were researching where we were admitted. Indeed, how could an internet company such as Amazon or Ebay or this gaming site obtain this needed advice under
And it happens all the time. For instance, just to pick a guy
at random, let me introduce you to Laurent Alpert. This is his picture on the right. He is a partner
in the firm Cleary Gottleib a fairly large and famous firm. I never heard of him before, but given his background and current career achievement he is almost certainly a great attorney. According to the firm’s site, he is a member
of the New York State bar in good standing, and that is the only jurisdiction
he is admitted in.
And yet his webpage brags that
Major recent
assignments in which Mr. Alpert represented U.S. and foreign corporations
include ... Lafarge North America in the sale of its cement and concrete assets
in the United States to Eagle Materials[.]
Lafarge is a French company. Eagle Materials is a Texas company. Any competent lawyer would have to know
something about both French and Texas law in order to negotiate such a
deal. Even if the contract designated
that New York law would apply and jurisdiction was granted exclusively in New
York State, one would have to know whether the courts in Texas and France are
likely to accept that assignment of choice of law and jurisdiction. And yet this partner in a firm not only purported
to represent this foreign client, he bragged about it on his website.
And the reason why he did is
because there is nothing even slightly unusual about it. Yes, most of the lawyers I have known
would flatly refuse to speak about French law but it is not because we are not
admitted to the French bar, but because we don’t know anything about French
law. And many lawyers admitted in
America will not give advice on the laws of other states but again the reason
why is because they are concerned they do not know that state’s laws well
enough. But the bar associations have
made it clear that if you do the work to make oneself competent in a given
jurisdiction (which includes learning another language in France’s case), you
can give people advice about the law in that jurisdiction even if you are not
admitted there as long as you are not in the forbidden jurisdiction when you
give such advice.
Indeed Señor Neckroll™ might consult with his Maryland lawyer Tae Kim about
the application of Virginia’s stalking laws to some of his online activities,
specifically including telling the world at large that if anyone would like to
do me harm—including Islamic terrorists—he will gladly provide my home
address. Kim probably won’t know the
answer off the top of his head, but with a little research he can give him the
answer.
And in fact, I bet he wouldn’t
even need to crack open a law book to know that what Señor Neckroll™ was doing was begging
for legal trouble even if he wasn't sure if it would violate a specific statute. Lawyers learn when
activity raises a red flag, too, and this would be more like a flashing red
siren than a mere "flag" to any rational person.
Update: Well, thanks to “Army Vet” on
twitter, I learned that David Kennett doesn’t appear to be in good standing in
Ohio. If you search Ohio’s attorney
directory, and follow the link on “Attorney Discipline and Sanction History”
you get the following:
Disciplinary Action Effective Date
Attorney Registration Suspension 12/03/2007
Attorney Registration
Reinstatement 03/31/2009
CLE Suspension 11/13/2012
I can’t link to that directly,
but if you go here
and do what I described, you will see the same thing. CLE stands for “continuing legal education.” Every attorney in every state is required to
remain competent in the law and thus up-to-date on changes, but some states require
you to affirmatively prove you have remained up to date by imposing CLE requirements.
Also if you click on the button
that says “CLE Enforcement” it indicates that he was suspended in November of
2012, that he had a $750 sanction put upon him, and that he has never paid it
off.
Of course these are computer
records. They can be wrong. For instance, they oddly stated that he is “active”
but sometimes jurisdictions distinguish between a membership being “active” and
in “good standing” requiring you to actually be in good standing. So I tried a simple experiment. I used google to find a name of a lawyer who
was suspended. I found the name of William
J. Detweiler, who was found to have solicited a client for sex. His license was suspended for a year on May
2, 2013, all according to
this source. It is backed up by
this court case. And if you search
for his name in the state directory you see he is listed also as “active” and
the disciplinary history indicates he is suspended.
Still, I will call the Ohio bar
people and verify tomorrow. Computer mistakes
might have been made. Unlike Señor Neckroll™ I will give Mr. Kennett
the benefit of the doubt.
But if he is currently suspended,
he has plainly violated the rule on unauthorized practice of law. Ohio’s
rules of professional conduct are nearly identical to Maryland’s in this
respect. And I have searched in vain for
any evidence that he is admitted anywhere else.
---------------------------------------
Disclaimer:
I have accused some people,
particularly Brett Kimberlin, of
reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice I want is through the
appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally wrong,
but it is counter-productive.
In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed communication. I say this in part because under Maryland
law, that can quickly become harassment and I don’t want that to happen to him.
And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).
And do not contact his
organizations, either. And most of all, leave his family alone.
The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That
this is a key element in making out a harassment claim under Maryland law—that
a person asks you to stop and you refuse.
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