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Perspectives (Column)
Lawyer Seeks Self-Censoring of Report Because She Vouches for Client
By Roger M. Grace
“The U.S. Circuit Court of Appeals yesterday affirmed a judgment in favor of the Los Angeles Police Department, two of its officers, and the police union in a suit brought by former Universal Pictures chairman Brian Mulligan,” an Aug. 30, 2016 news story in the METNEWS reports, continuing:
“Mulligan claimed that officers James Nichols and John Miller assaulted him in Eagle Rock in May 2012, and that city officials and the union retaliated against him, in violation of the First Amendment, by falsely claiming that he had acted aggressively and that he was a drug abuser.”
Mulligan lost his case in the District Court; the Ninth Circuit upheld the judgment; this newspaper carried an article on the Ninth Circuit’s opinion.
That article, it is asserted by a Miami lawyer in a communication to this newspaper last week, should be relegated to oblivion or, at least, be “de-indexed.” The latter neutering process would preclude the article from being spotted by search engines, so that access to it would be restricted to those who happened to be on the METNEWS website, combing through 2016 stories.
The lawyer, one Jennifer A. Kreder, insists that (no matter what the courts determined) she can provide an assurance that Mulligan, who happens to be her client, was “kidnapped by two LAPD officers,” that they “concocted a story,” and that Mulligan “committed no crime but was the victim of a terrible one.”
Her version, conceivably, is accurate. Police misconduct does occur. But does Kreder truly expect that this newspaper’s response would be: “Well, if you tell us that your client should have prevailed in the litigation, gosh, we gotta take the story down”?
Kreder recounts, dramatically, the hardship Mulligan and his family suffer by virtue of the continuing availability of information on the ill-starred litigation her client instituted. However, unless the proposition is accepted blindly that whatever Kreder says in support of a client is so, it appears from the outcome (unjust though it might possibly be) that Mulligan is the author of the harm.
★
The Florida lawyer (who also operates out of New York) boasts in her email of successes in causing major news outlets to de-index stories involving her clients in response to her requests. She declares:
“Publications such as the Chicago Sun Times, New York Post, ABC, NBC, Fox, Cleveland Plain Dealer and The Houston Chronicle (just to name a few) have done this for my clients.”
I would hope that in any such instances, Kreger presented something far weightier than what she provided here—and that newspapers and broadcasters are not capitulating based merely on Kreder’s emotion-grabbing rhetoric, inducing knee-jerk reactions and overriding sound journalistic judgment.
Her pronouncement that efforts such as hers are proving efficacious triggered the editorial appearing on the adjacent page telling of this newspaper’s policy against dislodging news accounts from its website, and questioning the wisdom of contrary actions.
★
The email Kreder sent last week (on May 23) was not her first communique to this newspaper. There have been several, though involving only two other articles.
On March 24, 2020, she asked for the deletion or de-indexing of a 2002 article reporting that the State Bar had suspended a lawyer from practice based on her having assaulted her mother and passed a bad check.
(While no justification appears for jettisoning the 2002 story from our website—a story which necessarily included the lawyer’s name—her present obscurity and the lack of any current public interest in her identity strike me as reasons for not bothering to mention her name here.)
No response to Kreder’s March 24 email was provided; experience has shown that the only response that’s desired is one that this newspaper won’t provide, and nothing is to be served by engaging in dialogues.
Attached to a later email from her was a minute order showing that on March 1, 2010, a Los Angeles Superior Court commissioner had granted a motion, in light of the woman having completed probation, to reduce the two felony counts to misdemeanors and allow her to change her pleas to not guilty. The commissioner then dismissed the case.
Did that mean that the woman has been absolved of any possible wrongdoing so that maintaining the 2002 report on the website should, like the conviction, be caused to vanish?
Well, Kreder did not happen to mention that her client was disbarred on Oct. 23, 2004 and remains disbarred.
In any event, a Penal Code section authorizes the un-doing of felony convictions; no statute does, or constitutionally could, mandate the retroactive suppression of news stories on appellate court opinions upholding those convictions. Sound policy considerations, I submit, militate against a newspaper dumping an article from its website, or excising portions of it, absent its recognition that the report contains errors—which would, certainly, compel some sort of effective remedial action.
In the period from March 24, 2020 to March 19, 2021, Kreder sent the METNEWS 32 emails relating to her request for the deletion of the 2002 article. I wonder if she offers a one-year subscription plan for her pestering-services?
★
Does Kreder have a three-month plan? She wrote on June 29, 2020, asking that a report concerning another client be killed, then sent five more emails, the last coming on Sept. 21, 2020.
Her efforts there concerned an Oct. 15, 2013 article by staff writer Kenneth Ofgang (since deceased) which begins:
“The Ninth U.S. Circuit Court of Appeals Friday affirmed a five-year prison sentence for a well-known Sacramento businessman who pled guilty to wire fraud.
“The panel rejected contentions that the sentence imposed on Collins Max ‘Collie’ Christensen Sr., now 55, was excessive, even though it exceeded the top of the guidelines range, which was 41 months, and the 33-month term recommended by prosecutors as part of a plea bargain.
“Christensen, a prominent and seemingly successful real estate speculator and member of Sacramento society, admitted that he obtained about $2.4 million from 14 investors. The presentence investigator concluded that nearly $1 million of that was obtained by interstate wire and was used either for personal expenses or to make unauthorized investments.”
Kreder was seeking suppression then, as she does now with respect to the article on Mulligan, of a report on a court decision concerning a prominent figure and attendant events that attracted wide news coverage.
She argued that “people’s lives should not be ruined for a mistake they made picked up by the online media,” adding:
“The harm to a person from the story often is much more severe than any punishment the law imposed for the crime. That is true for Mr. Christensen, who has served his sentence.”
The purpose and the function of online archives are not to “punish” persons on whom stories reflect unfavorably but to provide a pubic service by maintaining access to news reports. A Ninth Circuit opinion I’ll discuss tomorrow supports the view that Kreder’s use of the word “punish” is inapt. Any adverse consequences from providing access to online archives derive not from a newspaper’s unwillingness to remove stories—that is, to engage in a retroactive cover-up—but from the conduct that drew attention in the accounts—here, Christensen’s own volitional, criminal acts.
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Kreder is, of course, not the only lawyer seeking to persuade newspapers trash past reports.
A curious letter came on Nov. 22 from one “John Lambert, Esq.,” as he identified himself, calling for the lifting of a 2008 profile on then-Deputy District Attorney Eduard R. Abele who was a candidate that year—an unsuccessful one—for the Los Angeles Superior Court. Abele is now on voluntary inactive bar status. Lambert wrote:
We are reaching out on behalf of Eduard Abele in connection with an article published on your website at the following URL:
http://www.metnews.com/articles/2008/judi051508.htm
While we support free speech rights we do have some concerns about the content contained at this URL. Specifically, additional facts and/or context, of which you may be unaware, may would change the nature of the story or result in potential inaccuracies. Furthermore, there are ongoing negative impacts as a result of the above URL and the ease with which it is discoverable via simple internet search engines.
We are happy to provide details related to the above. However, due to the sensitive nature of some information we are only able to do so if you agree to keep any information disclosed strictly off the record.
Please be advised that this letter does not constitute a notice of intent to take legal action. Though the undersigned is an attorney, we have been engaged as negotiators and facilitators.
Lambert, a New York lawyer, disavowed a present intent to sue on behalf of Abele but, by mentioning his status as an attorney, did subtly hint at the prospect of a lawsuit. He continued:
“[W]e would like to request that the article in question be removed from your website. Alternatively, we are open to compromise arrangement such as de-indexing the article or, perhaps, removing our Eduard Abele name from the article.”
Again, reference to reaching a “compromise” suggests engaging in an effort to avert litigation. A light-touch threat is still a threat. And a threat to bring litigation over a patently meritless claim could be viewed as extortive.
The article, by then-staff writer Steve Ellis, notes that Abele “has been the subject of a whisper campaign within the District Attorney’s Office alleging that he embraces and has expressed anti-Semitic views”; it reports that “Abele says he became aware of the allegations earlier this year, but vehemently denies them as ‘preposterous,’ ”; and notes that Abele pointed out that his fiancé was Jewish. No allegation was made by this newspaper that he is anti-Semitic; rather, the existence of a whispering campaign to that effect was reported, as was Abele’s acknowledgement that such rumors were flying, with his potent disputation included.
Lambert suggests that the METNEWS could simply remove Abele’s name from the 2008 article containing a profile on each of the three candidates for Los Angeles Superior Court Office No. 94. Under that proposal, the report spotlighting that race, as appearing in the online archive, would recite that the candidates were Deputy District Attorney Michael J. O’Gara (who won), Deputy Public Defender C. Edward Mack (now retired), and Deputy District Attorney “X” or “John Doe” or [name deleted].”
Yet, the names appearing on the ballot in 2008 were those of O’Gara, Mack, and Abele. What Lambert sought was a distortion of history, a bastardizing of news coverage.
★
A particularly cheeky demand came from Ventura attorney Steve Pell on Jan. 6, 2015. His directive was commented upon in an item in this column six days later. See:
http://www.metnews.com/articles/2015/perspectives011215.htm.
Pell contended that “false claims” by this newspaper in a 2013 article reporting on a Court of Appeal opinion constituted “an unfair detriment” to his “legal practice” and that these claims were “damaging” to his “ability and right to practice law undisturbed,” adding:
“Please remove these false disparaging claims within 30 days of this request date….”
Pell didn’t happen to specify what “claims” he contended to be “false.” Actually, there were no “claims” by the newspaper; there were recitations of what the Court of Appeal had said, and the article, by Ofgang, strikes me as faultless. It accurately reports:
“The Court of Appeal for this district yesterday ordered a Ventura lawyer off an appeal he was retained to bring.
“In a per curium opinion, Presiding Justice Arthur Gilbert and Justices Kenneth Yegan and Steven Perren of Div. Six, acknowledged that the action was unusual. But they said that Steve Pell had been given four chances to file a proper brief, had muffed all four, and had rendered ineffective assistance to his client.
“The court rejected the attorney general’s motion to have the brief stricken or the appeal be deemed abandoned. ‘We do not punish appellant for the ineptitude of his counsel,’ the justices wrote.”
Foolishly, Pell, through his demand, drew renewed attention to Div. Six’s opinion.
When Pell ran two years ago for the Ventura Superior Court, his county’s bar association rated him “not qualified” and in a two-person race, he garnered but 27.12 percent of the vote.
Tomorrow: a look at a lawyer’s removal request which, on its face, was bizarre and, upon scrutiny, was deceptive.
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