In the course of the long and sordid drama surrounding “Internet lawyer” Charles Carreon and Matthew “The Oatmeal” Inman, there have been many opportunities for lawyers to learn from Carreon’s example. Or rather, learn what not to do by Carreon’s example.
Carreon may have held himself out as an “Internet lawyer” (whatever that is), but it is clear he was not well-equipped to do battle on the Internet. Or in court, as it turns out.
- Carreon ducked service for a while, giving the plaintiff the right to recover costs for personal service, plus attorney fees incurred as a result of his refusal to pay those costs.
- Carreon served a Rule 68 offer of judgment, which made the plaintiff the prevailing party, entitling him to attorney fees and costs.
- Carreon said he didn’t actually intend to sue everyone he threatened (which included everyone from Public Citizen to Walgreen’s), which means his unmasking of an anonymous blogger was probably unethical.
Does Carreon come off looking like an idiot with a big mouth? Absolutely. But he is hardly a newbie. He graduated from law school in 1986, and one presumes he has seen a fair amount of litigation, having worked for several law firms before starting his solo practice in 1995 before starting an “online media law” company in 2001. In that time, he seems not to have learned how important it is to sweat the small stuff. It doesn’t matter how much experience you have; every new issue you encounter is a good chance to screw up.
When I had a motorcycle, the best advice I received was to ride like everyone on the road is trying to kill me. Because they are, even if they don’t mean to. Well, the law is out to get you, too. This is what non-lawyers don’t fully appreciate about the law: it is the car you don’t see that will send you flying down the road like a squid. Everything seems smooth and easy — until it’s not.
The more you practice law, the better you get at avoiding those problems. But if you just react blindly, without thinking, or without a good understanding of the rules, cases, statutes, and everything else involved, you might be in for an expensive mistake. Or ethics problems.
Carreon’s mistakes are hardly outliers. A junior associate at a medium-sized firm once made a similar Rule 68 offer to a client of mind, and we were able to collect substantial attorney fees. It was an expensive lesson for him, and you can bet he won’t make it again. In fact, it is common enough that the National Consumer Law Center addresses it in its FDCPA manual. I doubt Carreon will make it again, either, if he survives this to continue practicing.
Many people think ducking service is a good idea. Many business partners fail to deal with ownership up front, only for the business to go down in flames and attorney fees later on. People make all kinds of decisions that have unforeseen legal consequences, all the time.
As lawyers, it is our job to foresee those consequences, and avoid them or figure out how to deal with them. To do that, we have to act like the law — and other lawyers, for that matter — is out to get us. Because it is, and they are. The law is full of cars hiding in your blind spots, driven by opposing counsel.
If you are handling something for the first time, even if it is a minor issue in a kind of lawsuit you have handled many times before, get help. Take another lawyer out to lunch and run it by them. Call up a lawyer-friend, tell her what you are planning, and ask her if it sounds like it will work.
Even then, you will make mistakes. But they will probably be smaller ones, and easier to fix.