Creative Nonfiction and the Law

August 29, 2011 § 18 Comments

An article from the Associated Press exploring the question of whether a former law clerk must “adhere to the same ethical and legal obligations as an attorney,” what constitutes confidentiality, and further, how these issues apply to a work of creative nonfiction published in the Bellingham Review Brevity author and respected teacher Brenda Miller notes the dilemma faced by small magazines when embroiled in such issues:

NEW ORLEANS (AP) — A New Orleans law office specializing in death penalty cases is suing a former summer intern who wrote an essay about her work at the nonprofit group, accusing her of disclosing confidential information and undermining clients’ defenses.

The Louisiana Capital Assistance Center is seeking a court order blocking Alexandria Marzano-Lesnevich from publishing any privileged information she obtained while working as a law clerk for the center for several weeks in 2003.

Her lawyer says she is writing a book that is part memoir and “part literary journalism” about the prosecution of Ricky Langley, one of the center’s clients. Langley, a sex offender, was convicted of strangling a 6-year-old boy to death near Lake Charles in 1992 and sentenced to life in prison in 2009.

Marzano-Lesnevich, a Harvard Law School graduate who is pursuing a writing career instead of practicing law, wrote an essay on the same subject that was published by the Bellingham Review. The literary journal, based in Bellingham, Wash., removed the piece from its website after the center complained.

Brenda Miller, editor-in-chief of the Bellingham Review, said in an email that Marzano-Lesnevich’s essay is a “wonderful piece of creative nonfiction” that the journal was proud to publish last year. Although the edition in which the essay appeared is still for sale, Miller said the Bellingham Review complied with the center’s demand to remove the piece from its website.

“We are a small journal, with a mostly volunteer staff running the journal on a shoestring, and so could not afford the time or resources to get involved in a legal process,” Miller wrote.

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§ 18 Responses to Creative Nonfiction and the Law

  • Bellingham Review might have attempted to find a free speech attorney who would take the case pro-bono. There are many lawyers in Los Angeles who would jump on the chance, and they would do it because free speech is a First Amendment right. I hope that Marzano-Lesnevic, who clearly must know the law, continues to pursue this story. It’s a GOOD story, and worth reading and telling. Marzano-Lesnevic is being bullied by people with more resources than she and the Bellingham Review have and that is a crime that deserves more attention than protecting creepy child molesters who overkill their victims.

    I am absolutely against the death penalty. But come on. Really?

    I understand the limitations of time and money it would have required to keep this essay in print. But this writer is protected under the law, and hers would have made not just an interesting case, but a very good story. And perhaps – since we’re talking about money here – a “case” such as this might have indirectly lent itself to an outpouring of monetary support for a publication worthy of it!

    Sadly as a result of this, the public is short one essay that might have impacted readers by giving the victims of these murderers a voice, while at the same time upholding an author’s right to write and a publisher the right to bring this work to readers.

  • Nels says:

    Unfortunately, neither this news article or the essay itself are enough to judge whether she broke confidentiality agreements. It’s a good essay, but I did find myself wondering how she learned certain things. If it was from news articles and interviews the lawyers had done publicly, then she’s good. If not, then I’m not a fan of using privileged information as she did. A court case may be the only way to discover how exactly she learned what. Until then, this looks like a great case to teach, discussing how the essay makes us think and feel about such delicate legal issues.

  • Bob Shea says:

    Nels makes the case. I haven’t read the essay but the possibility seems to exist that the author used information that was in fact confidential. Whether or not she knew that is interesting in itself given that she is described as being a Harvard Law School graduate. Whatever the ultimate resolution of the situation, it illustrates the ethical/moral component of writing “creative” non-fiction. The mere fact that an essay is “beautifully-written” doesn’t overshadow how the content was obtained and developed. On that basis, to call this a free speech issue or that the author is somehow being picked on (again, given her legal training) is at best naive, at worst, ignorant.

    • Bob,

      I’d slow down before calling anyone ignorant, given that you admit to not having read the essay in question. You begin your comment above by saying that “the possibility seems to exist that the author used information that was in fact confidential” and then, it seems, you slip immediately into the assumption that 1) She did, 2) She didn’t realize it despite her Harvard degree, and 3) her defenders are ignorant for not understanding this. I don’t think we’ve established whether she did or did not use information that was confidential, so I’m a bit wary of the assumptions and harsh judgements you toss around in the end of your comment.

      • Nels says:

        I have read it, and I’m still not convinced that all facts were a matter of public record. I’m not convinced they aren’t. But if she did not expect this to be questioned, then ignorant may be one of the kindest labels to use.

        In one of my classes when I taught a bunch of creative nonfiction about disease, we talked a lot about how the writers made it clear they were following confidentiality ethics while also giving us rich, evocative details. It was that kind of ethical awareness that I did not see in this essay.

  • Bob Shea says:

    You seem to have misunderstood my points which means I presented them poorly.
    As you note, I say upfront I haven’t read the essay in question. I pass no judgement on its quality or content. I noted and note again that the law suit raises the issue of the ethical/moral demands of writing “creative” non-fiction. I hope you agree there are such concerns for us writers. I expressed curiousity that a law school graduate…not a creative writing student or journalist…is the author of the controversial piece. I raised I think a legitimate question about how, with that background, the author would’nt know the difference between confidential and non-confidential information. Clearly the threat of law suit meant some legal professionals had their own judgement about that content. And finally, given that, I find those who consider this a “free speech” issue either naive or ignorant. I stand by that view which I consider not harsh but simply an observation.

    • Words can be difficult. I haven’t read the essay or the legal opinions. Right now my mind is open: Marzano-Lesnevic might have violated privacy laws, or the attorneys who are suing her may be using that claim as a smokescreen to suppress embarrassing revelations (thus free speech). Either one, or any number of grey areas in between, seems plausible.

      I suppose I still disagree with your assumption here: “Clearly the threat of law suit meant some legal professionals had their own judgement about that content.” Just because a suit is filed does not mean there are legitimate grounds. It could be a matter of opinion. It could be an ambiguous area of legal interpretation. Or as I mentioned above, it could be a smokescreen.

      The jury, as they say is still out.

  • Bob Shea says:

    We’re essentially in agreement. Where we seem to differ, if at all, is in my point about how this particular case highlights the ethical/moral questions that can be raised when writing creative non-fiction. That point is not dependent on the outcome of this particular case but relevant to any of us who are writing in this genre. It’s not simply a matter of free speech rights or wrongs but of the writer be aware of the rights of those who’s story they’re telling directly or using as part of another one.

  • Bob Shea says:

    In closing, I meant to add that as a writer, however you may choose to weigh such questions that affect your work, you should expect to deal with consequences of those choices.

  • I read the essay some time ago, so went back and read it twice more. I can’t see how or where she violated confidentiality, since the details about the murder appear to be of the sort that would be in open, public records. I suspect her old outfit did not like the exposure, especially the fact that they (unknowingly) sent an abuse victim to tell a depressed pedophile murderer that he wasn’t a bad guy. Embarrassing, yes, but tough. However, I don’t know their allegations or the supposed facts. I do know it’s an impressive essay to me as a reader.

    • Bob Shea says:

      Thanks, Richard. I regret not being able to access the essay. Will see if I can get a BR copy locally.

    • Nels says:

      I can’t see how she violated confidentiality. But I also can’t find evidence that all of these facts are a matter of public record. I, too, thought it was an impressive essay, but it also made me incredibly uneasy because I was not convinced that it was okay I learned some of the things I learned.

  • Brenda Miller says:

    Just to clarify: The essay remains in print in the Bellingham Review and is available in the print version. We stand behind that 100%. Our website posts sample pieces that rotate regularly and are not a separate publication, only a way to show people what our journal is like. Not all pieces are posted there (so that there is some incentive for readers to buy the print edition). so taking the piece down from the website was not “taking it out of print.” It would have been rotated off the site when the new issue appears. Alexandra retains the copyright to the piece and can reprint it however and wherever she likes.

    I appreciate the debate about this topic,
    Brenda Miller
    Bellingham Review

  • Nels says:

    The essay is available as a PDF on the author’s website. That’s how I found it.

  • […] the experiences of others. New journalists, especially struggle with these situations. For example, in New Orleans, a Harvard Law grad and former law clerk had her work removed from a journal […]

  • Erik L Smith says:

    I have worked for several years as a law clerk and paralegal before becoming an attorney. I never considered myself to have a right to speak freely about clients while I was in those subordinate roles. At the very least, disseminating an article about a client without showing it to the attorneys first is unprofessional and asking for trouble.

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