“First Amendment Badass” Under Fire

Marc Randazza is an outspoken, high-profile, and very polarizing First Amendment lawyer. If you know him you probably love him or hate him. Not many people fall in between. He’s done some high-profile First Amendment work, and he’s sued people for downloading porn illegally. Today, he probably earned more haters from this article by Joe Mullin in Ars Technica.1

The article is primarily based on an arbitration award (pdf) in which Randazza was found liable to his former client for over $600,000 for violating his fiduciary duty, unjust enrichment, and more, and on conversations with his former employer, porn studio Liberty Media.

According to the award and the Ars article, Randazza engaged clients with material conflicts of interest, took bribes from opposing parties, violated his fiduciary duty to his client, and more. The article casts Randazza as a phenomenally unethical lawyer who enriched himself at the expense of his client.

Before I write anything further, I’d better disclose that Randazza once represented LawyeristI very much admire his legal writing, and I owe him quite a few rounds of drinks from a visit to Las Vegas a few years ago. I’m absolutely predisposed to give Randazza the benefit of the doubt. And whether or not the arbitration award is correct, Randazza and Ken White, his lawyer, remain at the top of my list of lawyers I would want to represent me in a First Amendment case.

So rather than pile on or come to his defense, I’m just going to try to add some additional context that seemed missing to me when I read the article in Ars.

For example, here is Randazza’s explanation from his brief (pdf) for the “bribes” he was accused of negotiating with two separate parties:


Side offers are certainly not unusual when the defendant has reason to fear more lawsuits from the same lawyer. It’s not hard to believe that was going on whether or not Randazza initiated the discussion. In any case, Randazza never received any money from either settlement. From the outside looking in, it’s hard to know whether this was a legitimate-but-probably-unwise-in-hindsight strategy or a real attempt by Randazza to line his pockets at his client’s expense. The arbitrator obviously went with the second possibility.

Randazza was also accused of a conflict of interest in advising Liberty not to sue XVideos for posting Liberty’s videos without permission, since he represented both parties. Here is Randazza’s explanation:


In short, Randazza apparently determined that the DMCA would protect XVideos, so that a lawsuit would not be worthwhile. Could he make that decision while representing both parties? Maybe, if it was disclosed and both parties agreed to it. Liberty and Randazza appear to disagree about whether that was the case.

I also found the exchange of text messages revolving around the porn shoot in Randazza’s office to be well, a little sad. It apparently started while Randazza was out of the office. When he got back, he texted his boss, Liberty CEO Jason Gibson:

MR: I thought you were joking about shooting in here.

JG: not at all.

MR: is that going to be a regular thing?

JG: it can be if you like?

MR: I’m glad to help out if we need a place to shoot. I’d just ask that I get some notice so I can prep the place for it next time.

JG: I gave you notice!

JG: and I was the person who cleared off your “briefs” so no one else saw anything confidential.


MR: That’s helpful. I was concerned about that.


JG: I can get Sharon back in there to clean up […]

JG: and Jennifer’s bush artwork was in a bunch of the shots…

MR: That’s sort of cool. And I am sure that she’ll be just fine with that, if not honored. But, can you understand how I might not be all that happy?

MR: I guess the only thing that made me sad was finding my pictures of my kids and my dead best friend on the floor this morning.

I cut out some of the more explicit messages. Summary: it was a messy shoot and Gibson didn’t have Randazza’s office cleaned up afterward. I mean, I get that it’s a porn company and the atmosphere is going to be sexually charged. But can you imagine coming in the next morning to the aftermath of a messy porn scene, with photos of your loved ones scattered all over the floor?

There is a lot more about both sides’ arguments in the brief, the arbitration record, the arbitration award, and the Ars article. Liberty hired an ethics expert that says Randazza violated the rules of professional conduct. Randazza hired an ethics expert who says he didn’t. There are transcripts and disputes over relatively minor issues. Like most disputes that get to this point, it’s a big, complicated mess. Nobody comes out looking particularly good.

So did Randazza do anything wrong? Was the arbitrator’s decision really a “one-sided screed,” as Randazza’s attorney Ken White wrote in a letter (pdf) to the Law Society of Upper Canada? Not necessarily. Maybe the arbitrator got it right in the end. But there was clearly more to the story and I think the record is susceptible of more than one interpretation.

All I know for certain is that Randazza is having a bad day. Obviously. This is the kind of news that can taint a lawyer’s reputation forever. (Not to mention his online reputation. My guess is that the Ars article is going to haunt Randazza’s Google search results for a long time.) He didn’t seem too happy when he called me earlier after I emailed White to ask for more information.

So what now? Being arbitration, there is no appeal from this award. Randazza filed bankruptcy because he says cannot afford to pay the $600,000+ arbitration award. Whether Liberty ultimately gets paid will be determined in bankruptcy.

Related to bankruptcy, the Fight Copyright Trolls blogger posted this portion of Randazza’s bankruptcy petition in a the-plot-thickens comment at Ars:


I emailed White to ask about this, and he said he is not concerned about a malpractice claim; Randazza’s bankruptcy lawyer is just covering all the bases.

I expect law blogs will have a lot to say about this in the coming days (I might have more to say, too, if I find more in the arbitration records I received), and Randazza will be dealing with the fallout — deserved or not — for a long time.

  1. The story was originally reported by Fight Copyright Trolls, apparently. 


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  • Astraea_Muse

    I don’t think representing two parties that are actively adverse is a conflict that could be waived with the agreement of the parties. And certainly if you had such a waiver, you would get it in writing. Which Randazza obviously didn’t have, otherwise it would’ve been part of the record.

    I really have a hard time buying his argument of the fake conflict too. I can’t see how either site could waive that one legally either.