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The Bad Apple
An Essay by Gary L. Wolfstone
garywolfstone@gmail.com
 The legal profession has adopted a wonderful
colloquialism, viz. the Bad Apple, which singles out any attorney
who violates the ethical rules with reckless abandon. This term is roughly the equivalent of
using a pejorative racist label to refer to a person of color. It is a code word or short hand
designation which invokes the image of a lawyer who is thoroughly dishonest and who is guilty of
consistently bad behavior in the practice of law.
Avvo-com and Mark Britton, Avvo's former CEO, draw binary lines around
marginalized people, and lawyers with discipline who are striving for their redemption are a distinctly
marginalized group within the legal profession. See Memo to Disciplinees.
Based on Mark Britton's original Avvo business plan, Avvo-com is irrevocably committed to demonizing and shaming lawyers with
discipline who are striving for their redemption. Team Avvo invites each lawyer to "Claim Your Page" and then goes ahead and publishes your page
whether or not you have "Claimed" your page. Stated otherwise, Mark Britton and Team Avvo will create and publish your Avvo Page and shove it down
your throat. Thus, when Avvo makes a national spectacle of the lawyer's Reprimand, he will soon learn that Avvo's re-branding has reclassified his career as Road Kill.
Avvo diminishes the legal profession
because it rewards cruelty and degrades nobility. Avvo creates a zero sum game between
lawyers with discipline and lawyers without discipline ~ in Avvo's book all lawyers with
discipline are Bad Apples. Certainly some lawyers are Bad Apples, but the organized
bar associations have never delegated their policing role to a self-appointed narcissistic
middle-aged businessman who has not dedicated his law career to bar leadership.
Lawyers who face the bar association have the protection of due process of law. Lawyers
who face Mark Britton, the former CEO of Avvo, are standing in the path of a runaway
freight train. Mark Britton and his Team Avvo are anti-intellectual and one-dimensional.
Mr. Britton has created a sleazy parade of damaged and disciplined lawyers to add spice to
his Avvo website. The organized bar associations claim that publishing lawyers'
discipline is necessary to preserving public confidence. However, public confidence
is not preserved when Team Avvo and Mark Britton, the King of Lawyer Bashing, make a public spectacle
of lawyers' discipline. Instead, the disciplined lawyers' suffering is amplified and enhanced when Team Avvo
publishes a disciplined lawyer's so-called "Avvo page" which the disciplined lawyer never claimed. Team Avvo
highlights the disciplined lawyer's Avvo page with red lettering which shouts: Reprimand.
Avvo's business plan is nothing more than a fratricidal race to the bottom. The disciplined lawyer must carry the
stench of Avvo and the stench of Mark Britton in his nostrils for the rest of his life. All lawyers are
diminished by Avvo insolido across the board.Thus, Avvo is a House of Desolation.
The Bad Apple is a value laden term which may sound
innocuous but which is highly corrosive when fastened upon a sister lawyer. The Bad
Apple is described as a lawyer with a well deserved bad reputation. Once identified, the Bad
Apple finds herself living a life of tribal banishment. Of course, the ultimate
tribal banishment [maastakarkotus] is disbarment, predicated on a finding by the bar
association of moral turpitude. However, Avvo and Mark Britton have made minor disciplinary infractions
the equivalent of infractions that are felonies. The offender tagged with a minor infraction will suffer slanderous gossip and sub rosa condemnation by
gossip mongers regardless of the seriousness of the offense. The gossip mongers are more destructive
than the decision of a tribunal expressed on pressed parchment. The cluck of a thick tongue
in a lowered voice can be fatal. To say that s/he is a Bad Apple is to say
that s/he weaves a tangled web of deceit and that s/he should never be trusted! To
say that s/he is a Bad Apple requires very little proof! To say that s/he
is a Bad Apple requires no confrontation! To say that s/he is a Bad
Apple is the first of a thousand cuts!
When you condemn a brother or sister lawyer as a
Bad Apple you are indulging in the ultimate act of Schadenfreude. It is the equivalent of
taking a snapshot of a human being and saying "This snapshot defines this person's life from
the beginning to the end." In journalism, we call this a "defining moment." In legal
circles, we call it outing the Bad Apple. In law and in life, we call it a "trial in
absentia." In the feminist movement, it is another case of "She just doesn't get it!"
And we (i.e., the "we" are the people without sin) know that the Bad Apple deserves the
appelation of Bad Apple because "Jane said so." And if you are not satisfied with Jane's
condemnation, just ask Martha or Mildred. Equally telling just ask Alice or Betty or
Charleen or Donna or Ellen. Et ainsi de suite, Et ainsi de suite!
The Bad Apple is described as a flat character by the self righteous people.
In "Structure and Content," An Introduction to Literary Criticism. Edited by Marlies K. Danziger and W. Stacy Johnson.
Boston: D.C. Heath and Company, 1961, E.M. Forster describes purely flat characters as "constructed around a single idea or quality."
(P. 192) He goes on to say that a single sentence or formula will describe the flat character, e.g., She is a Bad Apple.
Flat characters are easily recognized in literature by the reader's "emotional eye" (P. 192-193). E.M. Forster explains that there are
varying degrees of flatness in characters. Once a literary character gains enough aspects about her to contain the "incalculability of life," she is a round character.A round character is capable of surprising and convincing the reader. (P. 192,198) Once a lawyer is branded as Bad Apple, she is denied the ability ~ at least in the minds of fellow lawyers ~ to surprise and convince. Her humanity has been stripped away by the self-righteous people.
She is consigned to the scrap heap of history within her legal community.
Only the self-righteous people - the people without sin are capable of rotundity.
A hypothetical case illustrates the seriousness of bar discipline.
Posit a case where our hypothetical lawyer is ordered to receive a reprimand (which is published)
by order of her disciplinary board. In this hypothetical, the discipline is based on conduct in two
cases involving her failure to act with reasonable diligence, failure to expedite litigation, and violation
of court orders with respect to discovery and case scheduling deadlines. The Reprimand
is well deserved, in my opinion, and is particularly important because these are matters
that lawyers deal with on a daily basis. Our hypothetical lawyer learns that there are serious consequences to her misconduct,
and this hypothetical lawyer has, in my opinion, diminished herself. The hypothetical lawyer has also been
downgraded by Team Avvo. The hypothetical lawyer now finds herself on the slippery slope of reputational
damage. The moving pen has writ, and having writ moves on.
In the words of the poet, not all your piety nor wit can lure it back to cancel half a line of it,
nor all your tears wash out a single word of it! This hypothetical lawyer has no one to blame but herself.
She has shown herself in an unflattering light, and henceforth, she should be more concerned
about her own reputation and less concerned about condemning other lawyers.
The private website which purports to rate lawyers also
publishes comments by her clients. One of this lawyer's clients has made the following comment:
"Client Review: I had the misfortune of trusting this attorney with a case. She broke every promise to write a letter for which I had paid and tried to charge an ongoing unlimited fee just to begin writing it.
"When I refused she dragged matters out for months with the end result that when she did finally start negotiation opposing counsel came back with a worse offer than the one they made before she had taken the case. Her work was extremely sloppy, she did not care about the case, she was only interested in money.
"I learned that she had been disciplined, because cases she handled were dismissed since she refused to comply with court deadlines. I also learned that clients had complained about her for decades but the legal community did nothing about it until the courts started complaining about her behavior.
"She is extremely dishonest. She seems to take on multiple cases to make a lot of money and allows many of them to fail since she does not bother to pursue them diligently. It is shocking the legal community has known about this and still allows her to practice."
In fairness to this attorney, she also wrote and published a rebuttal.
Should we characterize this lawyer as a
Bad Apple? In my personal opinion, she is the prototypical Bad Apple. This example invites several questions: Can the disciplined lawyer redeem herself? How can she redeem herself? Should she be required by her licensing
authority to take classes in ethical conduct? Should her Reprimand be followed by a
probationary time period during which she is required to seek counselling? Was her bar
association too gentle in simply imposing a Reprimand without placing limitations or
reporting requirements on her law practice? This essay only asks these questions ~ the
reader is left to offer answers.
Avvo Watch speaks Truth to Power.
Avvo Watch exposes Mark Britton, the founder of Avvo, as the King of Lawyer
Bashing. Gary Wolfstone, the President of Avvo Watch, expresses the opinion
that Avvo diminishes the legal profession. Mark Britton claims that his Avvo website
enables him to shine his flashlight into dark places, however, Mark Britton needs
to shine his flashlight into his own face and stand in front of a mirror.
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