Dan Slater, the former lead author of the Wall Street Journal's Law Blog, has a controversial new column at the New York Times Deal Book in which he ponders whether all of the BigLaw layoffs just might be a good thing after all. Slater writes:
The legal media, in its rush to side with the fallen, has often cast the layoff wave as the result of endemic firm mismanagement finally coming home to roost. Perhaps. But make no mistake: These layoffs, which in many cases have been paired with salary freezes or cuts and significant reductions in law school recruiting, are the best thing to happen to the legal industry in years. Call it a blessing amid recession.
So how have law firm layoffs brought benefits in disguise? Slater counts the ways. First, firms have been forced to jettison at least some of the more wasteful practices associated with the billable hour, such as the "staffing up" of a matter to increase billings. Slater writes that "the economy for Wall Street legal services is no longer willing or able to support unnecessarily huge armies of six-figure paperweights."
As for the young lawyers who've now been fired, Slater notes that they weren't really all that happy before. Slater reminds us of the soul-crushing nature of 3,000-hour years of drudgery and characterizes the layoffs as a needed kick-in-the-pants to liberate lawyers from work that they hated.
Needless to say, Slater is taking a beating in the story's comment section. Many of the commenters express sympathy for the laid-off lawyers, noting that they're being sacrificed so that law firms can preserve their profits. Other commenters, such as this one, aren't keen on Slater's Pollyanna-ish approach:
The premise of this article is disgusting and condescending. As a laid
off attorney with fewer than 6 months of legal experience (and just a
year out of law school), I'd hardly characterize my situation, and
those of the tens of thousands of attorneys like me, as positive in any
way. I have enormous debt and face an incredibly saturated and
competitive legal market as I apply for jobs that simply do not exist.
Maybe in your abstracted world where your concept of the legal
“industry” is based on bromides about law firm economics and anecdotes
from your buddies in the legal industry these layoffs are good, but in
the real world, real people like myself are suffering. You should be
ashamed of yourself for writing this article. Even if it does arouse
the debate that you clearly intended.
Slater is probably right that the cuts in the legal industry will prove to be a blessing to some of those lawyers five, six or seven years out of law school, still toiling at jobs they couldn't stand because of inertia. But as the commenter above makes clear, it's a different story for the new graduates who have never had the chance to grow bored or disillusioned with their jobs. In my view, they're the group unfairly absorbing the brunt of this mess.
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Posted by Carolyn Elefant on July 2, 2009 at 11:56 AM | Permalink
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Last week, I wrote about some of the potential medical malpractice issues that Michael Jackson's death might raise. This week, the legal issues associated with Jackson's recently released will are driving the discussion.
The New York Times summarizes the provisions of Jackson's five-page will, dated July 7, 2002. The document gives the estate to the Michael Jackson Family Trust Fund and names his mother, Katherine Jackson, as legal guardian of his children, with Diana Ross serving as backup if Jackson's mother predeceased him.
Though Jackson provided for his children, he also stated that he “intentionally omitted to provide for” Deborah Jean Rowe Jackson, the mother of his two oldest children. The will also granted John Branca, an entertainment lawyer, and John McClain, a music executive and longtime friend, full power over Jackson's financial matters.
So what are some of the potential will disputes so far? For starters, Jackson's mother originally stated that Jackson died without a will, so the NYT predicts that there may be a subsequent proceeding to determine whether Jackson revoked the 2002 document. In addition, other wills are likely to materialize in the coming weeks. There's also a dispute brewing over whether Jackson's mother or McClain and Branca ought to have any control over, or rights to, memorabilia.
At least one law blogger, Candice Aiston of the Oregon Estate Planning Blog, expresses relief that Jackson's will provides for his children. She notes that there is a will and it names guardians and pours everything into a trust for the children. David Shulman of South Florida Estate Planning Law blog concurs, writing that:
I’m actually impressed. It seems that as irresponsible of a person as he was, he might have actually done this correctly. CF Anna Nicole Smith.
Shulman discusses other aspects of the will in this post. He notes that Branca, McClain and Barry Seigel will serve as co-trustees of the Michael Jackson Family trust and co-executors of the will. Shulman explains that this means:
[T]hey will be able to more easily manage the transfer of the assets not already in the trust to the trust. Not to mention that there are fees that they can be paid for serving as both co-executor and co-trustees. While these fees are not normally that large, in an estate of this magnitude and complexity they could certainly go into the millions of dollars.
Of course there's one piece of information that hasn't yet been discussed: Which attorney (or law firm) drafted Jackson's will?
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Posted by Carolyn Elefant on July 2, 2009 at 11:21 AM | Permalink
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Let's say that you're a divorce attorney and your client brings you damning e-mails that will help her case. Before you decide to use those e-mails at trial, you'd better make sure that they weren't procured through the use of illegal spyware. Otherwise, as Sharon Nelson of Ride the Lightning cautions, you might find yourself the subject of a $2 million lawsuit like the lawyers at Chattanooga, Tenn., firm Berke, Berke & Berke (a firm name that has nothing to do with this guy).
According to Chattanoogan.com, Farrell Hayes is suing the Berke firm (and the individual name partners) for $2 million in a Tennessee circuit court for alleged use of e-mail spyware. Hayes claims that his soon-to-be ex-wife installed eBlaster software on his computer in order to intercept his communications. The software directed Mr. Hayes' e-mail to his former sister-in-law, and she passed them on to his wife. Hayes claims that the interception of the e-mails violated federal and state laws.
The Chattanoogan story says that Berke is being sued for attempts to use this ill-gotten evidence. This kind of theory implies that the Berke had a duty to inquire how his client had procured her husband's e-mails, and I'm not sure that's the case. Of course, if Berke instructed clients to install spyware to unlawfully obtain evidence, that's as bad as if the attorneys installed the spyware themselves. If that's the case, then the $2 million is the least of the Berke firm's problems; as Nelson points out, the firm's lawyers will face serious ethics charges as well.
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Posted by Carolyn Elefant on July 2, 2009 at 10:32 AM | Permalink
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Seems that University of California Hastings College of Law graduate Robert Bowman is in a bit of a catch-22, courtesy of the New York State bar. As The New York Times reports, Bowman owes roughly $400,000 in student loans. But Bowman doesn't stand a chance of ever repaying those loans now that he's been denied admission to the New York bar, because five appellate judges viewed Bowman's hefty debt and inability to repay it as evidence of a "lack of general character and fitness requisite for an attorney."
To be fair, the judges were more concerned with the fact that Bowman hadn't made any payments on his debt since 2000, when he graduated law school, rather than the size of the amount owed. But Bowman has had a difficult time along the way. He paid for college (he needed 10 years to graduate, for medical reasons), law school and a masters of law program in London through loans -- 32 in all. He then took the bar four times before he managed to pass. In the meantime, he experienced medical problems and duly sought deferrals from his lenders, who either failed to record his requests or improperly denied them.
In his bar application, Bowman stated that he intended to make good on his debt once he began working as a lawyer. The bar admissions committee recommended Bowman's entry to the bar, finding his persistence admirable.
In a related story from Texas this April, The National Law Journal reports on the case of a Houston solo attorney who lost his law license over $67,000 in unpaid student debt. But he had the opportunity to practice for several years and try to make some payments before being punished for his failure to make a dent in the debt. Bowman is $400,000 in the hole in part for a law degree that he'll never be able to use, at least in the state of New York. That doesn't seem fair: As the Times story points out, "New York's courts have overlooked misconduct like lawyers' solicitation of minors for sex, efforts to deceive judges and possession of cocaine. Those instances have led merely to temporary suspensions from practice." But what do you think?
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Posted by Carolyn Elefant on July 2, 2009 at 08:37 AM | Permalink
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Two years ago, I made an attempt here to identify the first legal blogger ever. After examining the archives of some of the longest-running legal bloggers I knew of, I concluded it was Walter Olson, who launched his blog, Overlawyered, on July 1, 1999.
No one ever came along to claim an earlier birth, so Overlawyered retains the title.
Today marks Overlawyered's 10th birthday.That is a full decade of chronicling the abuses and excesses of the litigation system, of commentary that is consistently cutting and wry. I may not always agree with Walter Olson, but I sure as heck always read him.
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Posted by Robert J. Ambrogi on July 1, 2009 at 04:01 PM | Permalink
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Everyone's doing it -- wrapping up the Supreme Court term, that is. In the New York Times, Adam Liptak says it was a good year for Chief Justice John G. Roberts Jr., who emerged as a canny strategist, thanks in part to the swing vote of Justice Anthony M. Kennedy swinging to the right when it mattered. In the Washington Post, Robert Barnes calls the just-concluded term "the year of living on the verge, one that avoided blockbuster decisions but continued the court's steady move to the right. In the Wall Street Journal, Jess Bravin says the term's most important case may be the campaign-finance case the court decided not to decide, at least not this term.
But in The National Law Journal, Marcia Coyle focuses on a less-heralded aspect of the term -- a "stunning 0-for-5 outcome" for environmentalists. The defeats left both the environmental and business communities wondering where the court is heading in this increasingly important area of law, she writes.
For environmentalists, the defeats were particularly painful because their interests had prevailed in the courts below in all five cases. The justices granted review at the behest of business, even when the solicitor general of the United States recommended denying review. "They were all victories below for environmentalists, so you wonder if the Court is making some strategic choices in the cases it picks," said Jonathan Cannon, director of the environmental and land use program at the University of Virginia School of Law.
None of the five rulings were landmarks, Coyle says, but "all raised bread-and-butter environmental issues, some with potentially huge implications for the ability of environmentalists and the government to enforce the nation's major environmental laws."
Notably, Coyle suggests one reason for this term's anti-environmentalist shut-out was the business sector's use of expert Supreme Court advocates instead of "the usual retinue of environmental legal experts." Said one environmentalist to Coyle: "We can't be letting the line litigators litigate cases before the Supreme Court. This has become a practice where you need repeat players before the Court."
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Posted by Robert J. Ambrogi on July 1, 2009 at 03:30 PM | Permalink
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Fears that a down economy would mean a downturn in pro bono work by the nation's largest law firms appear to be unfounded. To the contrary, the annual Pro Bono Report from The American Lawyer finds that the nation's 200 highest grossing firms devoted more hours to pro bono this year than ever before. Nearly half the lawyers at these firms committed at least 20 hours to pro bono and, on average, these lawyers spent more than 60 hours on pro bono matters.
History would suggest this uptick in pro bono is an anomaly. American Lawyer reporter David Bario writes that in past periods of economic upheaval -- both in recessions and booms -- firms have cut back on pro bono. This time, however, firms show no signs of easing up on their good deeds.
This is welcome news, but news that begs for an explanation. Bario offers this:
Pro bono specialists at firms, nonprofits, and academia point to several factors. The institutionalization of pro bono at both firms and nonprofits has continued, spurred in part by the Pro Bono Institute's Law Firm Pro Bono Challenge and by our A-List rankings. A younger generation of lawyers at top firms expect pro bono work to be a central part of their careers. And the cataclysms of 9/11 and Katrina and upheavals over Guantánamo and the environment brought new lawyers into the pro bono ranks.
Who's to complain? Meanwhile, this year's Pro Bono Report includes the first-ever Am Law Pro Bono 100, an in-depth look at the pro bono work of the top pro bono firms that ranks them and then tells the story of one particular cause each firm worked on in 2008. To rank the firms, The American Lawyer scored them half on the average pro bono hours per lawyer and half on the percentage of lawyers who perform more than 20 hours of pro bono.
At the head of the list is Jenner & Block, followed in the top five by Latham & Watkins, Arnold & Porter, Dechert and Hughes Hubbard. Full coverage of the Pro Bono Report and the Pro Bono 100 includes reports on some of the noteworthy matters firms handled along with complete rankings and a description of the methodology used in compiling them.
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Posted by Robert J. Ambrogi on July 1, 2009 at 03:14 PM | Permalink
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Two major legal publishers announced initiatives this week to help laid-off lawyers keep their heads above water and make the transition to new jobs. Coincidentally or not, both West and LexisNexis announced their initiatives on the same day.
West's initiative is a two-pronged effort built around two new Web sites. The first prong is Between Cases, a new site intended to serve as an online resource for displaced legal associates seeking employment and networking opportunities. The site includes job search tools, legal education offerings from West LegalEdCenter, information and resources for setting up a private practice, and special offers from Westlaw and other West services.
Between Cases also offers free resources for displaced attorneys who want to use their transitional time to perform pro bono work. To that end, the second prong of West's initiative is something it calls Do Justice. In cooperation with the Pro Bono Institute, West is contributing over $12 million in free Westlaw access to law firms to support pro bono work they do. Read more about both of West's initiatives at the Thomson Reuters blog Legal Current and in this news release.
LexisNexis is calling its initiative Lend a Hand. It is offered to U.S. attorneys who recently worked for a law firm with more than 50 attorneys and who are currently unemployed. The program offers free marketing services, networking opportunities and employment resources. These include:
These freebies from Lexis will last for six months. To get them, you need to qualify, as described above, and sign up by the end of August.
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Posted by Robert J. Ambrogi on July 1, 2009 at 02:36 PM | Permalink
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Yoko Ono has won her legal fight to claim ownership of 10 hours of rare, black-and-white footage of John Lennon videotaped at the couple's London estate in 1970. In federal court in Boston, U.S. District Judge Rya W. Zobel has ruled that Ono was the rightful copyright owner of the footage.
I could not find a copy of Judge Zobel's ruling on the court's Web site, but based on reports from the Associated Press and The Boston Globe, the yearlong copyright fight was initiated by a Lawrence, Mass., company, World Wide Video LLC, which claimed it bought the copyright to the video in 2000 from Anthony Cox, Ono's husband before she married Lennon. Cox shot the video of Lennon and his family in February 1970, before The Beatles broke up. From the Globe:
Shot in cinema verité style, the footage captures Lennon at age 29 and in one of the most creative periods of his life. Lennon had recently written "Instant Karma" and is seen practicing the song "Remember." He is also seen smoking marijuana, talking about how he kicked a heroin habit, and joking about spiking Richard Nixon’s tea with LSD, according to those who have seen the footage.
World Wide used the video to produce a two-hour documentary, "3 Days in the Life." But in 2007, Ono obtained a court order blocking a screening of the documentary. World Wide sued Ono in March 2008, accusing her of copyright infringement and of wrongfully interfering with its personal property. Ono countersued, saying she had purchased all rights to the videotapes in 2002 from an intermediary.
Earlier, Zobel dismissed World Wide's claim against Ono. Then last week, the judge ruled on Ono's counterclaim, issuing a declaratory judgment that she owned exclusive rights to the footage. It was a victory not only for Ono, but also for her attorney, Bingham McCutchen partner Jonathan M. Albano.
[Photo: Lennon in 1969 from Wikimedia Commons.]
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Posted by Robert J. Ambrogi on July 1, 2009 at 02:31 PM | Permalink
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Sure, the newspaper industry is in trouble. But not even old-guard media companies have proposed as extreme a remedy as what Judge Richard Posner recommends. In a recent blog post, Posner proposed barring online links to copyrighted materials without the consent of the copyright owners as a way to help revive the failing newspaper business.
Not surprisingly, Posner's proposal has drawn criticism from bloggers, as well as conventional media outlets. Dan Froomkin, of Discourse.net, asks: If links are banned, why not footnotes? (That should give lawyers pause!) Erick Schonfeld at The Washington Post deemed the scheme "misguided," asserting that the Web works via free and unregulated linking. Moreover, linking to a newspaper post is not all that different from engaging in conversations, Schonfeld points out. He continues:
Much of what Posner wants to outlaw is public discourse. Why is it okay for people to talk about the day's news in a bar or barber shop, but not online? People should be able to discuss the day's news on the Web without fear of violating copyright law. The natural way people discuss things on the Web is by quoting and linking to the source. (Except maybe Posner, he doesn't seem to link to much of anything in his blog posts).
David Donoghue, of Chicago IP Litigation, makes the point that newspapers in fact benefit from added links to their stories. And while Donoghue acknowledges the existence of "free-riding" aggregators that do nothing more than point to links, Donoghue argues that newspapers are free riders in a way, getting the benefit of links in the form of traffic from visitors who otherwise would not view the site.
Donoghue also emphasizes that even without a consent policy in place for linking, copyright holders have significant protection. He points out that direct copying of stories is prohibited. Moreover, Congress could choose to revisit copyright laws if it deems that additional protection is necessary.
I can't even imagine how I could possibly write Legal Blog Watch if I needed to obtain consent every time I linked to a news article. Even if requiring consent for online links would help newspapers -- and I doubt this is true -- the tradeoff would the death of blogging.
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Posted by Carolyn Elefant on June 30, 2009 at 03:29 PM | Permalink
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