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October 31, 2006

For These Lawyers, It's 'Trick or Dupe'

"Trick or treat" is the theme of the day, but for three Massachusetts lawyers recommended for discipline earlier this month, the state Board of Bar Overseers found their modus operandi to be "trick or dupe." The case is surprising both for the prominence of the lawyers and the outrageousness of their conduct.

As The Boston Globe reports, the Bar Overseers recommended the disbarment of lawyers Gary C. Crossen and Kevin P. Curry and the suspension of Richard K. Donahue. Donahue is a former chairman of the very board that voted to suspend him and a prominent member of the bar. Over the course of his career, he has been assistant to President Kennedy, president of Nike Inc. and president of the state bar. Crossen is a former assistant U.S. attorney and former state prosecutor. Curry is a former state prosecutor.

The three lawyers participated to various extents in an elaborate scheme to get information in a case from a law clerk to former state judge (and now TV judge) Maria Lopez. As Globe reporter Charles Radin recounts:

The lawyers, who all worked at various times for the losing side in the case, engaged in an elaborate scheme to get information from Lopez's law clerk, Paul Walsh, to provide information that would allow them to discredit Lopez and invalidate the judgment. ... The men first enticed Walsh with a bogus offer of a dream job, then threatened to harm his career if he did not cooperate with them.

The Bar Overseers' report, issued Oct. 16, sums up the lawyers' actions this way:

The whole point of the phony-job ruse was to 'trick or dupe' Walsh into making statements he 'otherwise would not have made.' This was because the premise of the respondents' dealings with Walsh was their expectation that he would not disclose, in violation of his obligations as a clerk, confidential communications with a judge unless he were seduced by an offer he could not refuse. Hence the dream job, the meticulous arrangements to make it seem real, the fancy hotels, the cash, the limousine service. ... When blandishments failed, Crossen and Donahue resorted to the threats to make public Walsh’s statements and the bar letter.

The board's recommendations now go to the Supreme Judicial Court for review.

October 31, 2006 | Permalink | Comments (9)

Will Punitives Go up in Smoke?

From corporate boardrooms to PI law offices, all eyes today are on the Supreme Court, which hears arguments in Philip Morris USA v. Williams on the extent to which punitive damages can punish a tobacco company for "highly reprehensible" conduct and for the effects of its conduct on non-parties. It is a case, writes Lyle Denniston at SCOTUSblog, that "pits familiar gladiators debating broad cultural questions over whether and how to make Big Tobacco pay."

At issue is a punitive damages award of $79.5 million to the Oregon widow of a Marlboro smoker. Supreme Court observers such as Denniston and Legal Times reporter Tony Mauro agree that the outcome of the case may turn on the votes of the court's newest members, Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr.

The case is significant on multiple levels. Mauro writes that it could be a watershed in tobacco litigation:

The case ... marks a major milestone in the decades-long litigation battle against big tobacco. For the first time, the justices will have before them evidence of tobacco-industry misbehavior drawn from the 35 million documents pried from company files in Minnesota’s 1990s lawsuit against the industry. Included are decades of statements from tobacco company executives, scientists, and lawyers acknowledging the dangers of smoking and strategizing ways to keep customers hooked.

NPR legal affairs correspondent Nina Totenberg says today that the case "is the ultimate test of whether the Constitution imposes significant limits on punitive damages in each and every case of misconduct." She continues:

On any scale of reprehensibility, the conduct of the tobacco industry is right up there at the top. The question in this case from Oregon is: How much freedom does a state have to assess damages in an individual case involving reprehensible conduct?

In an editorial today, the New York Times answers that question in favor of allowing state juries loose rein.

The purpose of punitive damages is, the Supreme Court has noted, 'punishing unlawful conduct and deterring its repetition.' In cases of extremely bad conduct, particularly when a defendant is large and willful, a bigger award may be necessary. In this case, $79.5 million does not strike us as unreasonable. Nor do we see any basis for holding that this jury verdict, affirmed in a thoughtful decision by Oregon’s highest court, is a denial of Philip Morris’s due process rights.

Today's oral arguments may foreshadow the eventual outcome. In the meantime, Legal Times offers a preview of each side's arguments in a set of dueling opinion pieces written by lawyers who filed amicus briefs: Too Much? Yes and Too Much? No.

October 31, 2006 | Permalink | Comments (0)

Shingle-Minded Devotion

Carolyn Elefant is hanging tight to her shingle. The founder of the blog (and my co-blogger here at Legal Blog Watch) says she could care less if some lawyers believe hanging out a shingle is out of style -- she'll take substance over form any day:

I love running MyShingle, but I'll always be a practicing lawyer, first and foremost.  And that's why I favor the solo and practice blogs that aren't form over substance or full of jargon but those that teach me, by example, how to practice law and deliver legal services to my clients better, faster and less expensively.

What's got Elefant defending her domain? It's "third wave" lawyer Chuck Newton, who writes on his blog that it's time to "give the whole shingle metaphor a rest." Says Newton:

I am just not sure that I like the term 'hanging out a shingle.' I know it is insider slang that is shouted out by the plaintiff-crips and the defendant-bloods that means going into practice for yourself. I am all for getting your 'law dog down,' but it just seems that phrase is so-o-o-o-o-o last millennium. It is almost Amish-speak.

Rather than a shingle-hanger, Newton calls himself and his ilk Third Wave lawyers. Inspired by futurist Alvin Toffler's book, "The Third Wave," Newton offers a manifesto of sorts:

We work from our homes or from cubicles or small shared offices free from the confines of standardization, centralization, concentration, synchronization and bureaucracy, which has primarily contributed to the dissatisfaction of lawyers with the practice of law.  We live, support and fight for diverse lifestyles.

So, he continues, rather than hang shingles, Third Wave lawyers should pursue the M-Theory. This is a principle of physics that somehow translates into "doing what you love, while keeping your sanity, your earnings and your clients happy."

Which brings us back to Elefant and her shingle. "Truth is," she says, "trends and coolness aren't my focus." That's why, as quoted above, she prefers legal blogs of substance over form. "Maybe that makes me awfully stodgy in a third wave world, but that's My Shingle and I plan on sticking to it."

Hmmmm. Sounds very M-Theory to me.

October 31, 2006 | Permalink | Comments (1)

For Sale: One Gallows, Slightly Used

Throughout suburbia, the Halloween-decoration competition is beginning to rival Christmas. If your yard's ghoulishness remains frighteningly lackluster, here is just the adornment you need: the gallows Chicago built in the late 19th century to hang anarchist labor organizers convicted in the Haymarket Affair and later used to hang some of the city's most infamous criminals.

Actually, it will be a bit late for this Halloween, but, as writer Kari Lydersen reports in The Washington Post, the gallows is to be sold at auction beginning Nov. 20. Last used in the 1920s, it sat dismantled in the basement of the Cook County Jail until 1977, when two history buffs put it on display in a Wild West theme park in Union, Ill. Before it was retired and replaced in 1927 by the electric chair, the gallows was used in at least 40 hangings, beginning with those of four of eight men convicted in the deaths of eight police officers during an 1886 labor rally in Haymarket Square.

Starting bid: $5,000. If no private party steps forward to purchase the gallows, perhaps the states of New Hampshire and Washington will be interested -- hanging remains legal in both.

[Via Sentencing Law and Policy.]

October 31, 2006 | Permalink | Comments (1)

October 30, 2006

No Boos for Blawg Review #81

Ghosts and goblins may abound tomorrow night on Halloween, but you'll find no "boos" for this Howell-o-ween themed Blawg Review #81.  Blawg Review #81 is hosted by none other than Denise Howell at Bag and Baggage, who offers us a huge bag of treats from around the blogosphere, with at least something to suit any taste.  If you favor employment law, check out George Lenard's nugget on Halloween in the Workplace. Or if IP strikes your fancy, there's David Berlind's article on Why IBM's patent suit against Amazon could be bad news for the entire Web.  Bloggers can gorge on these FOIA tips for bloggers added to EFF's legal blogging handbook or enjoy these Hemingway-esque examples of brevity.

October 30, 2006 | Permalink | Comments (0)

Are Legal News Reporters Wrong Half the Time?

Apparently, Supreme Court justices aren't the only ones who complain about legal reporters' accuracy. A survey of West Virginia judges reveals they believe legal reporters have an accuracy rate of only around 50 percent. That figure comes from Craig Williams post, linking to this account by West Virgina reporter Juliet Terry of her participation in a West Virginia conference for judges and journalists. Terry writes that all participants agreed that a free press is an integral component of preserving an independent judiciary. At the same time, she adds:

Reporters seldom take the time to cover the courts adequately even though media outlets of years ago fought to gain access to judicial forums. While we, the reporters, accepted that to be true, the judges needed to understand it's not always our fault. News organizations -- print, television and radio -- are spread so thinly at times that when the choice is between covering a court case or a parade, the parade often wins because it will sell more papers or provide better video for the evening broadcast. And it's not as though new reporters arrive on the job automatically versed in legal-speak -- covering the courts can be confusing and intimidating.

Craig Williams has the solution, though, for both legal reporters and members of the public who rely on their account: Read legal blogs and ask the bloggers:

Reporter Terry admits that most reporters don't have law degrees, they don't have the opportunity to talk with the judges, who are not permitted to comment on pending cases, and they're spread too thin between assignments. Where does that leave legal reporters?  Probably more in the dark than they realize, since they're not trained and can't rely on the judges.  What can a reporter do about it? Call or email legal bloggers.  There are an entire cadre of us covering cases and legal events in just about every area of the law imaginable across the 50 states and across the world.  Most, if not all of us are pleased to talk with reporters. 

So, legal bloggers -- rev up those postings to optimize your search engine listings. You want to make sure all of those reporters can find you.

October 30, 2006 | Permalink | Comments (0)

You Can Go Home Again

Maybe you can't go home again, but you can go back to your home away from home -- or rather, your law firm job.  That's the message of this article, In Tight Markets, More Firms Look to Rehire Alumni (National Law Journal, 10/27/06) which reports that large firms:

are realizing that maintaining contacts with departed lawyers through concerted alumni efforts is key to enticing top talent to return to the fold. Alumni programs, no longer simply mechanisms for referral business or for client development, now are focused, at least in part, on bringing back attorneys who leave for perceived greener pastures.

Consequently, firms are creating Web site-based alumni directories and alumni magazines or hosting casual parties or networking events to keep former firm employees in touch with the firm and vice versa.  And the efforts are even reaching women who leave firms not for other jobs, but for motherhood:  According to the article, Skadden, Arps has launched a maternity leave contact program.

Maybe the firms are onto something.  Instead of investing in programs to prevent associate attrition, why not set discontent associates free to sow their oats -- and later on, welcome them back to the fold?

October 30, 2006 | Permalink | Comments (0)

Will Blogs Improve the Image of Lawyers?

Blogs may be a relatively recent technological development, but as Justin Patten of Human Law comments here, blogs can play a rather old-fashioned function:  engaging lawyers in "an ongoing community dialogue," which, ultimately, will benefit their reputations.  Patten cites this new paper by Colin Samuels, Humanizing the Profession:  Lawyers Find Their Voices Through Blogging.  From the abstract:

Although the legal profession's public image difficulties have persisted for many years, widespread blogging by legal academics, practitioners, students, and others may offer a solution where bar association and firm advertising previously have failed.

Traditional advertising enables communication on a large scale but it is impersonal and heavy-handed; personal communication is inexpensive and effective but it can also be time-consuming and it is inherently small-scale. Blogging offers the best aspects of each -- it is scalable but remains personal and inexpensive; it offers timely information and, by caching and indexing blogged content, search engines make this information manageable and easily-retrievable on a long-term basis.

Will blogs change lawyers' image?  Tell me what you think, below.

October 30, 2006 | Permalink | Comments (1)

October 27, 2006

Gay Marriage and Slippery Slopes

This week's gay-marriage ruling from the New Jersey Supreme Court, Lewis v. Harris, brought images of slippery slopes to two of the co-conspirators at The Volokh Conspiracy. For UCLA law professor Eugene Volokh, the ruling is evidence "that the slippery slope is a real phenomenon." He recalls a 1989 Boston Globe editorial in favor of a proposed law barring sexual-orientation discrimination in credit, employment, insurance, public accomodation and housing. The bill, the editorial said, would neither legalize gay marriage nor "put Massachusetts on a 'slippery slope' toward such rights." Massachusetts, of course, became the first state to recognize gay marriage. And the New Jersey court's equal protection argument begins, Volokh notes, by citing similar non-marriage-related gay rights laws. Says Volokh:

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter ..., but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions).

University of Minnesota law professor Dale Carpenter also sees a slippery slope at play here, but his is judicial rather than legislative and starts from the unstable middle ground on which the state based its defense of traditional marriage. The state's arguments focused on heterosexual marriage as a tradition, he notes, rather than on marriage as an institution built around procreation and child rearing. In so doing, Carpenter says, "the state thus surrendered the two rationales for denying equal rights to gay couples that have been successful in other state court decisions." The state, by resting its argument on this middle ground, brought the court to the summit of the slippery slope:

The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren't there to do more or because of simple fiat. When legislatures act, they may grant 50 of the 1,000 rights of marriage now, another 25 rights next year, another 100 the year after that, and the rest whenever they get around to it, all without explaining why they've acted or failed to act. Courts have a harder time making these distinctions because judicial conventions mandate that they give reasons to support their opinions, and what principled reason could there be for giving 50 of the 1,000 rights of marriage but not another 25 or 100 or all of them? This is the slippery slope phenomenon Eugene points to. It's not so much a legislative slippery slope as it is a judicial one.

While Volokh and Carpenter see in the ruling different slippery slopes, University of Chicago law professor Geoffrey R. Stone, writing at The Huffington Post, finds in it a reminder of how far we've come:

This is what is meant by 'raising one's consciousness.' I'm old enough to remember when blacks couldn't drink from the same water fountain as whites and when a woman Supreme Court justice, an African-American secretary of state, an openly gay congressman, and a Hispanic attorney general seemed unthinkable. Today's law students will no doubt regale their children with their memory of a time when, believe it or not, gays and lesbians couldn't marry. Pretty amazing.

October 27, 2006 | Permalink | Comments (10)

Phil Beck Discusses Vioxx Defense

As noted here Monday, the tally of Vioxx-related lawsuits filed against Merck is now at 23,800 and rising. Yet Merck maintains it will continue its litigation strategy of examining each case on its own merits. Is Merck's strategy viable for the long haul? What do a recent jury win for Merck in New Orleans and the withdrawal of a case in Texas mean for the defense?

On the eve of another Vioxx trial starting Monday in New Orleans, Phillip Beck, Merck's lead defense counsel in federal court, discusses his defense of Merck as our guest on this week's legal-affairs podcast Coast to Coast. Beck, partner with the Chicago firm Bartlit Beck Herman Palenchar & Scott, is known for his earlier defense of Bayer in litigation over its cholesterol drug Baycol and his representation of George W. Bush in the 2000 presidential election case. The National Law Journal named him one of the nation's top 10 litigators in 2003. 

Listen to or download the broadcast at the Legal Talk Network.

October 27, 2006 | Permalink | Comments (0)

Schlafly Takes on the Judiciary

Phyllis Schlafly is back. In fairness, the conservative lawyer best remembered for her outspoken opposition to the Equal Rights Amendment never went away. Through her Eagle Forum, she has continued to promote her "pro-family" agenda. In her new book, The Supremacists: The Tyranny of Judges and How to Stop It, she takes on the judiciary, and particularly the Supreme Court, for "assaulting the Constitution." The book's Web site bears praise from former U.S. Attorney General Edwin Meese III and one-time Supreme Court nominee Robert H. Bork.

At SCOTUSBlog, Jason Harrow presents a two-part interview with Schlafly. In part one, Schlafly tells Harrow that President Eisenhower's nomination of Earl Waren for chief justice was "a colossal mistake." But she says that the brand of judicial activism for which Warren is known preceded his tenure as chief. In fact, she says, it started with the Dred Scott decision:

"Warren-style judicial supremacy did not start with Marbury v. Madison, which was a decision of relatively limited reach. The prime example of pre-Warren judicial supremacy was Dred Scott v. Sanford, which the liberals don't like to talk about because it is so embarrassing. That's why they like to cite Marbury."

In part two of the interview, Schlafly says that Justice O'Connor was appointed to the Supreme Court "solely because she is a woman." Asked by Harrow whether O'Connor, as the first woman on the Supreme Court, had an obligation "to work for a society that is more equitable to her gender," Schlafly dismisses the question as falsely assuming that women are disadvantaged in America. She continues:

"I don't think any Justice should be biased in favor of his or her own personal characteristics. Should a short Justice 'work for' people who are short? Should an elderly Justice 'work for' the elderly? Should a fat umpire 'work for' players who are fat? Of course not. Such an approach should disqualify Justices from their obligation to impart justice fairly to all, like an umpire."

As for her view of how Justices Roberts and Alito might shape the court, she says: "I hope the Supreme Court justices will go back to their proper role of calling the balls and strikes and not changing or rewriting our Constitution."

October 27, 2006 | Permalink | Comments (0)

New Jersey Ruling on Same-Sex Couples

As reported in articles such as this one, this week the New Jersey Supreme Court ruled that same-sex couples are constitutionally entitled to all the benefits accorded to married couples -- except marriage itself.  The court held that onlythe Legislature has the power to authorize marriage for same-sex couples.

Howard Bashman gives us a round-up of the news coverage of the New Jersey decision. And at Volokh, Dale Carpenter offers a two-part analysis, here and here, that compares the New Jersey approach to that taken in other states that have addressed the issue.

October 27, 2006 | Permalink | Comments (0)

October 26, 2006

Is the Supreme Court Picking on the Media?

Lawyers who argue before the Supreme Court expect tough questioning, perhaps even skepticism or ridicule from the justices. But journalists? According to this commentary, The Supreme Press Critics Take on the Fourth Estate by Supreme Court reporter Dahlia Lithwick (Slate, 10/24/06), Justices Scalia and Alito have been speaking out against the media, in some instances at events that are closed to the press and the public. As an example, Lithwick writes that last weekend at a conference sponsored by the National Italian-American foundation, Scalia criticized the quality of media coverage of Supreme Court cases, asserting that "The press is never going to report judicial opinions accurately." Lithwick continues:

And although, if anything, the Supreme Court press corps is hypercautious in its attention to legal detail at the expense of sensationalism, Scalia dismisses them, and their readers, because, in his view, "nobody would read it if you went into the details of the law that the court has to resolve."

Justice Samuel Alito apparently picked up on the theme, complaining about the role of the Internet in legal reporting, suggesting that the media either oversimplifies or sensationalizes decisions (I guess Alito doesn't realize that while he turns up his nose at Internet reporting, his colleagues are increasingly citing blogs in their opinions).

Lithwick also quotes Justice Roberts' recent comment that judges don't serve to educate the public about the law and the court system. And perhaps that's true. But the legitimacy of our judicial system comes from the public confidence in the system, which in turn, comes about only where the public knows what's going on. As Lithwick concludes:

Either the justices want Americans to understand and care about what they do in that big old white building, or they don't. It's too late to hope that citizens might just choose to tune out. And if the justices want Americans to be educated about the court, they should encourage the fullest reporting possible, recognizing that some of it will be good and some will be bad, but that more information is always better than less. The justices can keep taking swipes at the Internet, imaginary editorialists, and phantom tabloid reporters for making them look bad. Or they can recognize what makes them look even worse: themselves.

October 26, 2006 | Permalink | Comments (1)

$100,000 Available for Public Service Grads from UC Berkeley

You don't typically see "$100,000" and "public interest law attorneys" in the same sentence. But to some extent, that's changing, at least for law school graduates from UC Berkeley, as reported in this article, Berkeley to help lawyers in public service (10/25/06). From the article:

In an effort to make it easier for young attorneys to pursue careers in public service, the law school at the University of California, Berkeley, says it will cover up to $100,000 in student loans for graduates who embark on public interest work.  A number of law schools offer similar programs, which are intended to help students manage loan debt while they're entering careers that typically dont offer lucrative salaries.

The loan program is funded by student fees and alumni donations. Graduates must work in government or public service jobs that pay less than $58,000 per year. Previously, the law school offered up to $55,500 in loan repayment, but the amount has been nearly doubled in light of the increasing cost of law school tuition. On average, students graduate Berkeley with about $60,000 in debt.

October 26, 2006 | Permalink | Comments (0)

Four Score Years of Practicing Law

Many law firms don't stay in practice 80 years, but this 1924 Harvard Law School graduate did. As this news story reports, Walter Seward, a West Orange, N.J., resident who celebrated his 110th birthday, loved the practice of  law so much that he stuck with it for 80 years, working as a title attorney until he neared 100. He's the oldest living graduate of Harvard Law School.

October 26, 2006 | Permalink | Comments (0)

Reality Movie Participants Gain Release From Their Release

Let's say you sign a general consent form to participate in a "documentary-style film" designed to reach a young adult audience by using entertaining content and formats." Turns out, however, that your participation entails playing straight guy to comedian Sacha Baron Cohen, who's posing as a journalist from Kazakhstan, who has a knack for making even the mundane look foolish on camera and who plans to use your tape in a major movie.

Most people would wonder whether they could sue Cohen, for fraud or invasion or privacy or ... something. But as Daniel Engber discusses in this article, Borat Tricked Me! Can't I sue him or something? in Slate (10/24/06), the movie participants face an uphill fight, having signed a fairly extensive release that appears to cover all bases. Though it's difficult to feel sympathy for consenting adults who bound themselves by contract, when you read this piece about the circumstances surrounding the signing and take into account that the movie will probably generate a good deal of money, it's not hard to conclude that the movie producers took advantage.   

What do you think?

October 26, 2006 | Permalink | Comments (1)

October 25, 2006

Blog Follows Sensational Trial

On Cape Cod, the trial of Christopher McCowen in Barnstable Superior Court for the 2002 murder of former fashion writer Christa Worthington is attracting national media coverage and the cameras of Court TV. But as is becoming ever more commonly the case these days with high-profile trials, a blog is filling in the spaces between the lines of traditional media coverage. The Christopher McCowen Murder Trial Blog is the work of Eric Williams, a reporter for the Cape Cod Times. Williams, of course, provides a running recap of the official proceedings in the courtroom, but also offers glimpses of the trial's offline events, such as this post titled, Careful what you wear:

"Shortly before the end of court business for the day, Barnstable Superior Court Judge Gary Nickerson told spectators that all were welcome to observe the trial, but certain wardrobe rules would be enforced — namely, no bare midriffs for women and no Bermuda shorts for men.

"Nickerson also banned hand-holding between spectators and the making of what he called 'lovey expressions' between spectators.

"The bare midriffs and 'lovey expressions' were likely brought into court by students from Cape Cod Community College, who are observing the trial.

"The Bermuda shorts were worn by a middle age chunky guy.

"Court officers also made a young man in the balcony remove a baseball cap yesterday. "

And then there are the personal asides that remind the reader that even a seasoned reporter feels the emotional impact of covering a murder trial:

"It was the kind of afternoon in court where you just wanted to lay down on the floor and forget about murder, and think happy, meadow, butterfly thoughts."

Williams' blog supplements the Cape Cod Times' broader coverage of the trial in print and online, which includes news reports, photos and videos.

October 25, 2006 | Permalink | Comments (0)

ATLA: A Rose By Any Other Name

When the Association of Trial Lawyers of America voted in July to change its name to the American Association for Justice, I called the move ill-conceived. In an op-ed yesterday in The New York Times, Columbia Law professor John Fabian Witt says the new name is unlikely to change how Americans view the organization.

It is not the group's first name change, he notes. The organization was born in the 1940s as the National Association of Claimants' Compensation Attorneys. It renamed itself in 1960 the National Association of Claimants' Counsel of America, then in 1964 the American Trial Lawyers Association, finally adopting its current -- and soon to be former -- name in 1972.

This struggle for identity parallels the course of American politics since the 1930s, Witt argues:

"As American politics has changed, so have the trial lawyers. They began as cogs in the wheels of the New Deal’s bureaucratic machinery. They became legal entrepreneurs, identifying creative ways to produce higher awards for their clients in the courts and line their own pockets in the process. Thanks to mass torts cases arising out of things like cigarettes and asbestos, the association’s membership includes some of the wealthiest lawyers in the country. And in the past two decades, the trial lawyers have become a crucial source of financial support for the Democratic Party."

The problem, he concludes, "is that the genius of the tort system -- its capacity to marshal the entrepreneurial energies of the bar -- is also its greatest public relations liability." This means that, no matter what ATLA calls itself, "some will say that the trial lawyers are still chasing ambulances."

October 25, 2006 | Permalink | Comments (3)

Law Prof Warns of Prison Camps

Last Friday, Thomas Jefferson School of Law professor Marjorie Cohn became president of the 6,000-member National Lawyers Guild, the 70-year-old organization of left-leaning lawyers. Earlier this month, Cohn attracted the attention of bloggers such as lawyer Jeralyn Merritt at TalkLeft when she wrote that an American prison camp is in the works, courtesy of the Military Commissions Act of 2006, governing the treatment of detainees.

In its 1944 decision, Korematsu v. United States, Cohn noted, the Supreme Court upheld the legality of the internment of Japanese and Japanese-American citizens. In his dissent, Justice Robert Jackson warned that the ruling would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." With the Military Commissions Act, Cohn said, that day has come:

"It provides the basis for the President to round-up both aliens and U.S. citizens he determines have given material support to terrorists. Kellogg Brown & Root, a subsidiary of Cheney's Halliburton, is constructing a huge facility at an undisclosed location to hold tens of thousands of undesirables."

Now, you can hear Cohn's arguments in her own voice and draw your own conclusions, thanks to a new podcast produced by Law and Disorder Radio.

October 25, 2006 | Permalink | Comments (0)

Lawyer Bravely Battles Voice Recognition

Florida solo Rick Georges has found it difficult to find voice-recognition software that works for him, as he notes on his blog FutureLawyer. Recently, he set out like a brave knight of the legal roundtable to conquer the dragon of voice-recognition systems, Dragon Naturally Speaking 9. As he explains in an article published yesterday on, Can St. Georges Slay the Dragon?, his quest was a success, but not until he learned that Dragon requires much more than the minimum processing power its manufacturer, Nuance Communications, recommends.

"Then, in a burst of insight, and a renewed sense of destiny, I upgraded my arsenal. I purchased a Dell Latitude D620, a powerful machine that carried a 1.67 Gigahertz processor, with Duo Core processing. ... While it was two pounds heavier than my previous weapon, I vowed to carry it into battle, a battle that I vowed to win, or sacrifice everything."

Georges also had to learn not to expect support in his quest from Nuance:

"Sir Nuance hated the poor supplicants who came to him for help. He made them wait for hours at the cave's entrance, put them on hold for hours more, and sent dim-witted emissaries to spout cryptic messages."

But once powered up and resigned to facing the Dragon alone, without support to back him up, Georges was happy with the results:

"Dragon Naturally Speaking 9 is a competent dictation system, and is 99.5 percent accurate right out of the box. While I don't use it regularly, it is great for dictating long text, such as correspondence or rough draft pleadings. If you have a competent secretary or paralegal, it will be a real work saver for them if you dictate a rough draft, and shoot it to them over the network. Then, all they have to do is tweak it."

As for St. Georges, he continues on to fight other battles in the realm of legal technology.

October 25, 2006 | Permalink | Comments (0)

October 24, 2006

Does Google Intentionally Invite Lawsuits?

Even though Google is clearly a deep pocket, it's apparently not litigation-averse, according to this New York Times article, We're Google So Sue Us (10/23/06). From the article:

As Google has grown into the world’s most popular search engine and, arguably, the most powerful Internet company, it has become entangled in scores of lawsuits touching on a wide range of legal questions, including copyright violation, trademark infringement and its method of ranking Web sites.  Any company that is large and successful is going to attract lawsuits, and Google’s deep pockets make it an especially big target. But as it rushes to create innovative new services, Google sometimes operates in a way that almost seems to invite legal scrutiny.

Google's current lawsuits range from an action by a group of authors challenging the company's book scanning project, which includes books still under copyright; a suit by a Web site for removal from search engine results; a suit by European news agencies over Google's use of headlines and photos in GoogleNews; and of course, the legacy litigation from the YouTube acquisition, discussed here a few weeks ago.

But while litigation may deter other companies, it seems to have the reverse effect on Google, which wants to test boundaries and establish legal precedent in its favor. Plus, it's  had a good deal of success, in large part to its staff of "bright young lawyers, many of many of them technically proficient and experts in the field of intellectual property."

With all of this litigation, one burning question remains: When does Google plan to introduce a searchable database of its lawsuits?

October 24, 2006 | Permalink | Comments (3)

Getting Copyright Right

If you think that an attorney who tries to help a newspaper get its copyright right would be thanked, you'd be dead wrong. Nevetheless, that's whatDavid Giacalone, editor of the Self Help Law Express (Shlep) Blog tried to do when he noticed a "glaringly incorrect interpretation of the Fair Use exception to copyright protection at the foot of the North Country Gazette's Web site. The footer states, “This article is copyright protected and Fair Use is not applicable," a clear mistake, since as we lawyers know, individuals can't disclaim the applicability of a lawfully enacted statute. Giacalone grew alarmed that "free speech and public interest" would be adversely impacted by this information, so he took the time to offer his readers a quick primer and list of links on copyright law. 
Giacalone went a step further, however. He wrote to the Gazette, noting the mistake, only to receive threats and insults in response:

My own attempt, by email, to suggest to the offending editor the error of her ways (by quoting the statute and referring her to two resources), resulted in an angry rebuff, in which I was accused of practicing law without a license, told that my email would therefore be forwarded to the Attorney General and the paper’s lawyer (who it was implied had okayed their statement denying Fair Use rights), and threatened with hearing from said lawyer, should I take any of their materials.  I agree with this assessment of the damage the incorrect statement of the Fair Use doctrine does to the newspaper’s credibility when it analyzes other issues. 

BoingBoing picked up the story, as does Volokh who confirms Giacalone's understanding of the law (Volokh's post has generated 66 comments  so far). And no word yet from the publication that started it all.

October 24, 2006 | Permalink | Comments (0)

Allen & Overy Tackles Associate Retention

Plenty has been written on what law firms can do in order to improve their rate of associate retention, which is widespread. Now, Bruce MacEwen reports on one law firm, Allen & Overy, that is trying to do something about it. MacEwen writes:

Allen & Overy has gotten religion about this—they were widely reported to be in the 25% (or higher) annual attrition camp—and they're created a comprehensive program attempting to address the problem from all angles, but primarily from the social/career satisfaction, and the economic/financial, perspectives.

Changes to address associate retention include:

    * The firm recognizes that "the old days of the partnership laying down the terms and conditions of employment and then expecting associates to acquiesce are over."

    * Retaining key talent is the only way to maintain competitive advantage.

    * So the firm is taking a page from the way it treats its clients (or aspires to treat its clients, at any rate): "When competing in the ‘war for talent’, we would be well advised to apply the same principles we do when managing our client relationships. We need to listen. We need to understand the issues and be ready, willing and able to respond."

    * As associates have become more involved in trying to find a solution, "their appreciation of the complexity of the situation has increased. They too realise there is no quick fix that management has — for whatever reason — decided to ignore."

    * At the most summary level, the A&O initiative can be distilled into "creating a coaching culture:" Providing greater clarity about performance expectations, career paths, and better two-way communication.

MacEwen points out the the A&O initiative also includes a revamped "pay for performance" component, where associates' financial rewards are linked to the fortunes of the firm and the partners. 

MacEwen comments that A&O is off to a good start. But a start is all it is. Unless the firm follows through, the firm will likely find itself back in the high-attrition-rate penalty box.

October 24, 2006 | Permalink | Comments (0)

24 Years for Enron's Skilling: the Discussion, 24 Hours Later

Former Enron honcho Jeff Skilling's 24-year sentence was announced roughly 24 hours ago. Yet it's already sparked wide discussion on the law blogs as discussed in the round-up below. 

From this group discussion at White Collar Crime Blog, Ellen Pogdor and Peter Henning agree that Skilling's sentence (as well as World Com head Bernie Ebbers' 25-year sentence) was disproportionately large when compared with other nonviolent crime. Henning compares the sentence to those in recent lobbying scandals:

While Jeffrey Skilling receives 24 years for presiding over the collapse of Enron, former Congressman Randy (Duke) Cunningham sells his office to a string of defense contractors for a bit over $1 million and receives a sentence of 8 years. Soon-to-be former Congressman Bob Ney will likely be sentenced to less than 3 years in prison for selling out his office to lobbyists led by Jack Abramoff.   

Both Pogdor and Henning believe we're not likely to see sentences of this duration any time soon. Henning opines that with the enactment of new laws like Sarbanes-Oxley, executives won't have the ability to engage in the type of conduct that took place at Enron. And Pogdor predicts that we won't see sentences like this, because because people will eventually realize the worthlessness of issuing such draconian sentences in nonviolent white-collar cases. She contends that they don't deter future crime, since many like Skilling, who engaged in the conduct, continue to assert their innocence and thus, would not have changed their conduct.

Also in line with Pogdor and Henning is Professor Ribstein of Ideoblog, who doesn't agree that Skilling's sentence ought to be linked to investor losses:

Judge Lake may well have correctly applied the law by supposing that Skilling was tied to $80 million in investor losses. But to quote Mr. Bumble, who was told that the law supposed that his wife acted under his direction, "if the law supposes that, the law is a ass—a idiot.”

At the other end of the spectrum, some bloggers, while not supporting Skilling's sentence, note  that it's not out of line with the length of sentences typically meted out to small-fry criminals. Dan Hoffman at Concurring Opinions writes that he googled "sentenced to 24 years" and:

the results were, predictably, random.  A cop who stole drugs, a Dynergy executive (for accounting fraud, later reduced to six years), a retail level drug dealer, a woman busted (allegedly) for holding merely 2.72 g of cocaine, and the significant other of another large drug dealer, convicted for conspiracy.

Norm Pattis at Crime and Federalism also writes that Skilling was treated no differently than a common crack dealer. And Jamie Spencer of Austin Criminal Defense Blog uncovers far worse sentences:

Remember the 60 Minutes story on Leandro Andrade, who stole $153.54 worth of videotapes from Kmart? The Supreme Court upheld his two consecutive 25 to life sentences in Lockyer vs. Andrade...

But, if you find Skilling’s punishment obscenely disproportionate to the crime, ask yourself this: If we were able to combine Andrade’s lifetime of thefts, including the ones he probably never was arrested for, would the aggregate value of the victim’s losses even come close to the financial disaster that Skilling’s crimes caused?

Finally, some bloggers haven't bothered commenting on the duration of the sentence, because they maintain that Skilling should never have been convicted to begin with. Tom Kirkendall, at Houston's Clear Thinkers, who has intelligently critiqued the Enron prosecution from the start (see here  for partial link to back posts) concludes here that:

So, make no mistake about it -- Jeff Skilling was not sentenced yesterday in regard to the crime for which he was prosecuted and convicted. Rather, he was sentenced for causing Enron's failure. There is a big difference between those two crimes, and a quasi-life sentence for Skilling fails to distinguish between them.

Kirkendall's argument is probably of most interest to Dan Petrocelli, Skilling's lawyer, who briefly discussed his plans for appeal, including issues such as the judge's denial of a venue change and lack of proof that Skilling did anything wrong.

I tend to believe that Skilling will prevail at least in part on appeal; the evidence is too flimsy to withstand scrutiny, and his attorney ably preserved every conceivable error. Likely, Skilling will win a new trial and perhaps agree to a plea of six years (like Fastow and Jamie Olis). As Pogdor and Henning predict, the pendulum will swing away from these kinds of enormous sentences for corporate crime. And once all of this is resolved, again, we'll forget the plight of the petty criminals, crack dealers and video thieves who receive, and will continue to receive, sentences like these every day, which no one ever bothers to mention until a case like Skilling's comes along.

October 24, 2006 | Permalink | Comments (0)

October 23, 2006

Tallying the Vioxx Lawsuits

Merck on Friday announced the number of Vioxx-related lawsuits filed against it as of Sept. 30. "That date is crucial," writes lawyer and Fortune senior editor Roger Parloff at his new blog Legal Pad, "because it represents the second-year anniversary of the company's withdrawal of Vioxx from the market, and the vast majority of states have either one- or two-year statutes of limitations for personal injury suits."

The grand total as of Sept. 30 was 23,800 suits on behalf of 41,750 "plaintiff groups." (A group might include a victim's spouse or dependents.) In addition to those, Merck faces 275 class actions, including suits for personal injuries, consumer fraud and prescription reimbursements.

The Sept. 30 date is important for another reason, Parloff says:

"Because most of the filing is complete, Merck can realistically begin to consider moving toward a settlement strategy without worrying that its willingness to settle would entice a deluge of suits by lawyers and clients seeking quick and easy money. Though the company is still pledging to fight every one, that might be a posture it can begin relaxing."

Parloff's post drew a response from Merck's outside lawyers at Hughes Hubbard & Reed, who noted that the clock had not yet run out on Vioxx suits:

"You are correct that in most states the statute of limitatations has now run. But by our count when it comes to personal injury lawsuits, there are still 28 states with longer limits and in death cases, there are 16 more states."

No matter the tally, Merck's lawyers tell Parloff, they have no intention of relaxing the posture of their defense. To the contrary, they say, they'll continue to "look at this litigation on a case by case basis."

October 23, 2006 | Permalink | Comments (17)

Exposing a Firm's Seamier Side

Alan J. Labonte was executive director of the now-defunct Boston law firm Hutchins & Wheeler. Then, in June 1991, he was diagnosed with multiple sclerosis. Seven months later, the firm terminated him. Labonte fought back, suing the firm for handicap discrimination, and won a jury verdict of $3.5 million. Now he's telling all -- about the firm and the lawsuit -- in a new book, A Million Reasons: Why I Fought for the Rights of the Disabled, co-written with journalist Brock Brower.

In a review yesterday in The Boston Globe, Sacha Pfeiffer says the book is "great, juicy fun for the reader, opening a window onto the tricks law firms employ to pump up profits."

"[T]he book is a fascinating inside look at the complicated world of law firm economics, and its greatest appeal comes in Labonte's tales of the backstabbing, manipulating, and money-grubbing among lawyers. He names names, discloses top partners' annual compensation to the penny, and details the firm's disastrous finances."

Labonte relates, for example, how management committee members painted a gloomier-than-fact picture of the firm's finances so they could cut partners and shrink the profit-sharing pool. Elsewhere, Labonte tells how the chairman earned $880,000 in 1993 after partners pledged to limit their draw to $75,000 for the good of the firm.

Alluding to Labonte's descriptions in the book of lawyers at his former firm "sitting u there in their little glass kingdom," Pfeiffer concludes that he "leaves little doubt about how he feels about his former colleagues."

October 23, 2006 | Permalink | Comments (3)

Is Courtroom Competence Going Kaput?

The jury trial is vanishing and, with it, the courtroom competence of new generations of lawyers. So says a fascinating new Boston Bar Association report, Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon. The report is the product of a task force appointed to study the "vanishing jury trial" and its impact on the practice of law and the legal system generally. It concludes that jury-trial numbers are declining, nationally and in Massachusetts, leading to a dwindling pool of experienced trial lawyers.

"The downward shift in the number of jury trials in recent years is forcing changes in how litigation is practiced, and redefining skill-sets of the current generation of young lawyers, in ways that eventually will reshape the legal system. ... The benefit of this change in approach is that young lawyers may be more adept in the art of careful preparation; the downside is that these lawyers may lack the confidence and acumen needed to execute the sometimes unpredictable and tumultuous nature of conducting a trial."

To counter this trend, the report recommends three steps to ensure training of the next generation of trial lawyers:

  • Courts should encourage participation of inexperienced attorneys in all court proceedings. The report cites with approval a standing order in federal district court in Massachusetts that seeks to provide courtroom time for less-experienced lawyers.
  • Law firms should encourage associates to take on pro bono cases, allow them to serve externships in district attorneys' offices, sponsor or provide trial-skills training and bring them into the courtroom as second chairs.
  • Clients, particulary insurance companies, should "think more innovatively about approached to staffing" and provide "incentives for developing a deeper cadre of capable trial lawyers."

At,  Boston lawyer Lee Gesmer praises the report for its convincing evidence, But, he adds:

"While I’m as 'up' for a good old rollicking jury trial as the next guy or gal — with its enormous expense, unpredicatability, risk of jury nuliffication, ignorance or disinterest, and stress on all concerned (mostly the clients) — I’m not sure that fewer jury trials is a 'bad thing.' I would liken it to dentists bemoaning the lost opportunity to fill cavities. Darn that flouride, flossing and better hygiene!

October 23, 2006 | Permalink | Comments (4)

Socratic Method of Blawg Review

As someone who, well out of law school, still wakes up in a cold sweat worried that I have a final in the morning in a class I haven't been to in months, it is with mixed emotion that I report that Professor Kingsfield is back this week as host of Blawg Review #80. In true Socratic style, the imperious professor offers no answers, only questions. He reminds us all, "You come in here with a skull full of mush and you leave thinking like a lawyer." On this particular day, the good professor is calling exclusively on bloggers. Be prepared.

Wait, there's more. The folks who bring you Blawg Review every week this week also bring you Carnival of the Capitalists #159. As Blawg Review brings you the best of the legal blogs, CotC brings you the cream of the business blogs. It's a two-fer -- kind of like Harvard Law School and Harvard Business School all in one morning ... but a lot easier.

Uh oh, got to run. Prof. Kingsfield is looking my way.

October 23, 2006 | Permalink | Comments (0)

October 20, 2006

New Money Maker: Patent Your Practice Area!

This New York Times article, You Can't Use That Tax Idea.  It's Patented (10/20/06), reports that in the wake of a federal appellate ruling of 1998 [State Street Bank v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998), discussed here] that provides for patents for "business methods," 49 tax-strategy patents have been issued, with numerous more applications filed. And apparently, lawyers are among those filing for and invoking the patent. For example, the article reports that after an ABA conference where tax strategies were discussed, "participants got a letter warning that using one idea mentioned would be in violation of a patent."

Some lawyers, however, have have stepped up to argue against issuance (or enforcement) of tax strategy patents as a policy matter. From the article:

In an article in Legal Times this week, Paul Devinsky, John R. Fuisz and Thomas D. Sykes, three lawyers from McDermott, Will & Emery, suggested that a company might figure out a tax strategy that would save it a lot of money, and then patent it. Then the company could refuse to license the patent to its competitors, thus raising its rivals’ cost of doing business.  Tax patents, the lawyers wrote, amount to “government-issued barbed wire” to keep some taxpayers from getting equal treatment under the tax code...After all, as Mr. Devinsky and his colleagues wrote, “The successful patenting of tax strategies now limits Congress’ ability to shape economic policy through legislation, and places that power in the hands of individual patent holders.”

What's next -- patented techniques for drafting legal briefs or setting up estate plans? Will law schools have to pay licensing fees to patent holders when they teach students strategies under patents? Where's the end to all of this?

October 20, 2006 | Permalink | Comments (0)

Will 'Cheat Sheet' Help Women Find Family-Friendly Firms -- or Lead to Lawsuits?

This article, Cheat Sheet Helps Women, Moms Pick Friendly Firms (Recorder 10/20/06), reports on the creation of a "Cheat Sheet," i.e., a list of in-depth questions that women can ask to ascertain a firm's commitment to retention and advancement of women. From the article:

[The cheat sheet] focuses on areas that, historically, have been stumbling blocks for women, including mentoring, workplace flexibility and partnership advancement.

Deborah Epstein Henry, principal author of the "Cheat Sheet" and founder of Flex Time Attorneys, argues: "The goal is to really work change in the profession."

I'm assuming that the "Cheat Sheet" is intended for use after an applicant secures an offer. If not,  I would think that the "Cheat Sheet" creates an unfair "Catch 22" for law firms. If female applicants ask "Cheat Sheet" questions on an interview, a firm that does not have family-friendly policies might reject these women, determining that they're not a "fit" for the firm (just as a firm with a high billable hours requirement might reject a male applicant who asks, "What kind of billables requirements do you have? I need to have enough time for working out.") These female applicants might then turn around and sue (perhaps invoking the FRD discrimination claims I described earlier), arguing that they were unfairly denied a position because they expressed an interest in work-life balance. Or perhaps, more cynically, that is the purpose of the "Cheat Sheet" -- to set firms up for future discrimination claims.

I've always been taught that you don't raise questions about salary or workload on an interview, because if the employer doesn't like your answers (e.g., if you seem too interested in money or lazy), it won't hire you. So instead, you secure the job first and ask those details later (with the understanding that some lawyers, like Dan Hull  may not want to hear it). Moreover, employers are precluded from asking women about their personal situation during interviews. But the "Cheat Sheet" turns  job interview etiquette on its head, by encouraging women to ask the same kind of work-life questions that employers can't -- and then giving female applicants grounds to sue if they don't like the consequences of asking about work-life balance. I'm not so sure if this is the kind of "work place change" we want to see. Or is it? I'm eager to hear your comments below.

October 20, 2006 | Permalink | Comments (2)

Blogs Haven't Changed the Practice of Law? Where Have You Been?

Over at Concurring Opinions, Frank Pasquale posts here about blogger Tom Bell's skeptical view on the impact of blogs, expressed in this article from May 2006. From his opening paragraph, Bell writes:

I have nothing against blogging, as I blog myself.  I simply don't think it will change the practice of law very much.  Why not? First, because blogs seldom offer the sort of detailed and applied legal analysis that attorneys need to perform.  Second, because an ethical attorney would find it impossible to practice law via a blog.

Pasquale disagrees with Bell, from a more academic professor. Countering Bell's claim that blogs don't offer quality analysis, Pasquale points out:

As Ian Best's taxonomy of blogs (and citation tracking) shows, some courts have used blogs to help them sort through cutting edge legal topics. I also think that law student blogs (done well!) may be a good way for students to develop their interests and demonstrate their abilities.

And Pasquale also notes that lawyers are using blogs for marketing.

Pasquale has the right idea, but I don't think his critique of Bell goes far enough. As someone who has actually practiced law for 18 years, I can testify that blogs have absolutely revolutionized the practice of law. Blogs open up huge archives of information by academics and legal experts who were never previously available (certainly not for free) and in so doing are rapidly levelizing the playing field between large- and small-firm practitioners. Professors and academics often underestimate the value of information to those of us who are regular attorneys. Academics have unlimited access to Lexis, Westlaw and all kinds of other computerized date bases that enable them to stay current in their field, and as such, they take the value of free information for granted. But for practicing attorneys like myself, the free information I gain from blogging gives me a competitive edge over my large-firm competitors and enables me to serve my clients more competently and at lower cost.

More importantly, blogging is the one (and only) tool that I've come across that breaks down the entrenched stratification within our profession. Before blogging, the last time I'd ever spoken to a law professor was in law school. Now, through comments or offline correspondence, I engage in dialogue with academics. Before blogging,  I don't think that a large-firm attorney ever called me with a referral; now I generate those contacts through my professional blogs. Before blogging, I was persona non gratis within the DC Bar, with letters that I'd written with comments or suggestions simply ignored without response. But this year, as a result of my blog My Shingle, I was invited to run for and now serve on a Bar steering committee.

When we look back on the  history of our profession, I think we will regard blogging, along with the Supreme Court's ruling in Bates v. Arizona (permitting lawyer advertising) and the advent of computerized research like Lexis and Westlaw as milestones of change in our profession. Tom Bell may think that blogs are one big snooze, but that's a view that will lose in the long run and, in fact, is losing now.

October 20, 2006 | Permalink | Comments (0)

FRD Lawsuits: Coming Soon to a Workplace Near You

Michael Fox of Employers Lawyer Blog tells us about a new category of lawsuits that we anticipate: Family Responsibility Discrimination, or FRD. Fox assures employers that FRD isn't a new statute; rather, it's an acronym being promoted by the Center for Worklife Law at Hastings College of Law. Examples of FRD include cases where a pregnant employee is told to get an abortion if she wishes to remain employed, a less qualified parent without children is promoted over a more qualified parent (typically, this one hits women harder) or a male state trooper is denied leave to care for his newborn and told by his supervisor that his wife would have to be "in a coma or dead" for a man to qualify for leave as the primary caregiver.

This report by the Worklife Center offers some statistics on the latest FRD cases. Not surprisingly, 92 percent are filed by women. Moreover,  small, local businesses make up the largest component of companies sued for family caregiver discrimination. That's not surprising either, because small businesses don't have as much redundancy in the workforce and may not have as much ability as a larger company to offer flexible schedules to working parents.

George Lenard of the Employment Blawg offers some discussion of the legal theories underlying FRD litigation. He suggests that FRD suits are grounded in sex or pregnancy discrimination. But Lenard doesn't find this basis satisfying. Lenard believes:

A more promising basis for such claims would seem to be the Family and Medical Leave Act (FMLA), a statute that does specifically — and with great precision — protect employees against undue conflict between family responsibilities and work responsibilities.

Lenard concludes that the FRD line of cases are really nothing new at all -- either "good old-fashioned disparate treatment gender discrimination" or potential FMLA violations. 

October 20, 2006 | Permalink | Comments (1)

October 19, 2006

Unlicensed GC Raise Questions

An enterprising Wisconsin blog has discovered that the general counsel at at least four of the state's largest companies are not licensed to practice law there, raising questions about the bar-admission requirements of in-house lawyers everywhere. Michael Horne of the blog MilwaukeeWorld used online attorney licensing records to determine that the GC of Oshkosh Truck Corp., Briggs & Stratton Corp., Sensient Technologies Corp. and Robert W. Baird & Co. -- companies all headquartered in the state -- lack Wisconsin law licenses. It is a situation, the blog reports, that the executive director of the Wisconsin Board of Bar Examiners plans to investigate.

"The consequences for Wisconsin-based corporations whose in-house counsel might lack Wisconsin licenses could be dire," blogger Horne writes, continuing:

"With such high stakes, it is confounding that attorneys who make a career of practicing in Wisconsin are too lazy or indifferent to get a license here. This is perplexing, since the state offers relatively simple access to license for qualifying attorneys. Wisconsin applies reciprocity: out-of-state attorneys who wish to practice in Wisconsin need only satisfy the same requirements their state demands for Wisconsin lawyers who chose to practice there."

At Oshkosh Truck, for example, Horne found that GC Bryan J. Blankfield is admitted in Illinois but not Wisconsin. Of the four other attorneys in his office, one is licensed in Wisconsin, one has a suspended Wisconsin license and two are unlicensed in the state.

Horne, who is not a lawyer, acknowledges that questions surrounding multijurisdictional practice by GC remain largely unanswered. In 2001, the American Bar Association's Ethics 2000 Commission proposed amending Rule 5.5 of the Model Rules of Professional Conduct to create a "safe harbor" for in-house lawyers working in jurisdictions where they are not admitted. The recommendation was held in abeyance pending a report from the ABA's Commission on Multijurisdictional Practice. Its report contained no such safe harbor, and none exists in the current version of Rule 5.5.

October 19, 2006 | Permalink | Comments (4)

In Defense of Tort Lawyers

If Overlawyered is the yin, then The Tortellini is the yang. Whereas Overlawyered seeks to chronicle "the high cost of our legal system," this new blog seeks to debunk the notion "that the nation is awash in frivolous lawsuits." The blog is written by Stephanie Mencimer, a contributing editor of The Washington Monthly and former investigative reporter for The Washington Post and staff writer for Legal Times (a affiliate). It is intended to serve as a companion to her forthcoming book, Blocking the Courthouse Door: How the Republican Party and its Corporate Allies are Taking Away Your Right to Sue.

In an introductory post, Mencimer writes that most of what the public hears about lawsuit abuse is wrong.

"The truth, as The Tortellini will attest, is more complex. The number of personal injury filings are falling, not rising, according to sober government data, median awards are falling, and plaintiffs are taking it on the chin, in everything from medical malpractice to products liabilty lawsuits."

I agree with Evan Schaeffer, who writes at Legal Underground: "Sounds good to me. I'll keep reading."

October 19, 2006 | Permalink | Comments (1)

Stereotyping and 'The Daily Show'

Everyone understands that agreeing to appear on The Daily Show means all bets are off, says UNC Law Professor Eric Muller at his blog, Is That Legal? But, he asks, "are they off equally, or are some bets of more than others?" His reference is to the popular comedy show's interview Monday with University of Arizona Law Professor Gabriel J. (Jack) Chin. Riffing on Chin's name, interviewer Dan Bakkedahl insisted on called him Jackie Chan and offered him boards to break with his bare hands. Writes Muller:

"Jack surely knew he was running risks by talking to the Daily Show. But I doubt he imagined those risks included racial belittling. And that's what troubles me about the segment: it illustrates so clearly how OK it still is (judging, if not by the segment itself, then by the audience's laughter) to humiliate Asian Americans – even to their faces – with old stereotypes."

The interview clip is on YouTube. Watch it and decide for yourself. I suspect you'll agree with Muller.

October 19, 2006 | Permalink | Comments (5)

Pursuing the Profession's Hottest

David Lat seems dead set on proving that "hot lawyer" is no oxymoron. This is the lawyer who, in a pseudonymous and previously anonymous life as Article III Groupie at the blog Underneath Their Robes, brought us the "superhotties of the federal judiciary" and the "bodacious babes of the bench." Upon being outed as an Assistant U.S. Attorney, Lat left his day job and took to legal gossip as a living, in July launching the "legal tabloid" blog Above the Law. There he brought us first the hottest ERISA lawyer in America and now (drum roll please) the hottest law school deans.

A former gossip columnist's op-ed this week in the Los Angeles Times argues that gossip can be good for society and can even be considered legitimate journalism. He concludes, "It's a dirty job, but somebody's got to do it" That was far from the reaction at the feminist blog BlogSheroes, which pronounced Lat's latest: "Creepy indeed." As one dean who showed up on the list wrote Lat, she would "enjoy it more if the comments focused on how bright, accomplished and respected each of the women on the page are."

Lat says it is all intended "to make the law entertaining," and he promises a future contest for the hottest legal journalists.

October 19, 2006 | Permalink | Comments (0)

October 18, 2006

Making Jury Duty More Appealing

Apparently, jury duty is desperately in need of some good PR -- perhaps a snappy public service announcement on YouTube. According to this article, How to Corral Twelve Not So Angry Jurors from the Christian Science Monitor (10/17/06):

The number of people not responding to a jury summons has become so acute that it has prompted judicial groups to investigate. Outdated juror lists, rundown jury rooms that feel like jails, and  growing time pressures on Americans are mostly to blame, their research has found. Nationally, there's a 20 percent no-show rate, according to the American Judicature Society. In some cities such  as Miami, the rate is as high as 90 percent. The "no-show rate across the country is staggeringly high," says political scientist Jeffrey Abramson, author of "We the Jury: The jury system and the ideal democracy."

The article reports on some of the measures that states have been taking to make jury service less onerous, such as one-day/one-trial systems, where jurors do not have to wait on call for days to serve; renovating jury areas to make them roomier; installing business centers so that professionals can keep in touch with their colleagues while they wait; and implementing online systems so that people can request deferrals.

Andrew Cohen of the Washington Post's Bench Conference Blog has some other ideas. They include television in the waiting rooms, more advanced pre-screening work through jury questionnaires, a procedure for jurors to notify court officials of dates during which they are available for jury duty, and consequences, such as suspension of a driver's license for failure to serve.

Back when I handled court-appointed criminal work in the D.C. courts, what always surprised me was the aversion that other lawyers had to serving on a jury. I remember seeing attorneys from large firms or some of the federal agencies who were selected for juries who looked disgruntled or perturbed at having been picked. I can certainly understand why members of the public wouldn't want to be called for jury duty, particularly those who lose pay by taking off from work. But why wouldn't a lawyer want to be called for jury duty? I can't think of better CLE than that.

October 18, 2006 | Permalink | Comments (1)

Will the Electronic Age Make Expungement Extinct?

Back in the days of paper files, people in the 41 states that provide a procedure for expungement of certain criminal records could effectively wipe away a checkered past so that no one  would ever discover it. But as Adam Liptak of the New York Times reports in Expunged Criminal Records Live to Tell Tales (10/17/06), expungement may soon become a casualty of the electronic age. Liptak writes:

[E]normous commercial databases are fast undoing the societal bargain of expungement, one that used to give people who had committed minor crimes a clean slate and a fresh start[...]But real expungement is becoming significantly harder to accomplish in the electronic age. Records once held only in paper form by law enforcement agencies, courts and corrections departments are now routinely digitized and sold in bulk to the private sector. Some commercial databases now contain more than 100 million criminal records. They are updated only fitfully, and expunged records now often turn up in criminal background checks ordered by employers and landlords.

Daniel Solove at Concurring Opinions offers one solution:

I think that the solution to this problem is for states making their records available to commercial databrokers to require them to promise that they will delete records when they are expunged and will correct records that initially had errors when a correction is later made to the record. This promise can be required as a condition of granting certain kinds of access (so long as the government isn't constitutionally required to provide access to its record systems, it can require those seeking records to accept certain conditions in exchange for access). I explain why this approach is constitutional here. Unless something is done about the problem, people will lose the ability to expunge information from their records or to readily fix errors. Private companies are becoming one of the primary distributors of public records, and when they take on this role, they are often thwarting the existing balance the law establishes between privacy and open records.

I agree with Solove that there's nothing wrong with making private companies subject to conditions on distribution. These companies generate enormous amounts of revenue from harvesting the information available from court files, and with those benefits come responsibilities, including ensuring that rights or privileges that our government confers, such as the right to privacy or the ability to seek expungement, are not compromised by carelessness.

October 18, 2006 | Permalink | Comments (3)

Corporate Counsel Using Web Sites and Search Engines to Find Outside Counsel

How do corporations find new outside counsel when they don't have a personal reference? According to this recent Annual Chief Legal Officer Survey released by Altman Weil and LEXIS/Martindale Hubbell, 44.1 percent of companies rely on law firm Web sites, edging out legal directories (like Martindale Hubbell) as the most popular method for finding outside counsel. And while Google and search engines are among the less popular methods, 21 percent of companies use them to identify outside counsel. Even more interesting, 73 percent of companies surveyed reported that even when they did not have a personal reference, they could find new outside counsel within a matter of hours (Survey at 11).

What's the lesson here? Your Internet presence and findability matter to getting new business, as much or more than directories like Martindale that are on the endangered-species list. And because companies are move quickly and won't spend much time before making a decision, your first impression had better be a good one.

October 18, 2006 | Permalink | Comments (1)

October 17, 2006

Gagging the Lawyers

Yesterday in China, the government revealed that it had brought formal charges of subversion against a lawyer who spoke out against the government for persecuting religious groups.  Yesterday in Mexico, the government banned a lawyer from the country who has filed a lawsuit on behalf of Mexican victims of clergy abuse. Yesterday in Washington, our government gagged the military lawyer, Lt. Col. Colby Vokey, who alleged ongoing abuse of detainees at Guantanamo Bay. And yesterday in New York, the government ordered lawyer Lynne Stewart to prison for two years for charges that centered on her reading a press release about her client to the media.

Meanwhile, here in Massachusetts where I practice, Democratic gubernatorial candidate Deval L. Patrick has come under attack by Republicans for writing letters on behalf of a convicted rapist and defending an admitted cop killer. As noted here yesterday by Carolyn Elefant and in this Boston Globe article, Bay State lawyers have rallied to Patrick's defense. In an unusual joint op-ed in The Boston Herald, the presidents of the state's two largest bar associations wrote of the need for zealous advocacy of even the most unpopular clients. "We write not to take sides in the political process, but only to affirm that our adversary system of justice depends on the commitment of lawyers who are willing to take on those burdens," they said. "They are the essential defenders of our liberties." Citing the attacks on Patrick's defense work, the state's legal newspaper, Massachusetts Lawyers Weekly, this week made its first-ever endorsement of a political candidate.  "[Republican] finger-pointing has a flavor of McCarthyism," an editorial said, "suggesting that anyone who has spent time in the criminal-defense arena should be identified, called out and avoided."

Is the legal profession itself guilty of a double standard here? I am glad to see lawyers rally to support Patrick's legal defense of the unpopular. But where is the uproar over the gagging of lawyers by other countries? More importantly, where is the uproar over our own country's gagging of Vokey and Stewart? If Lawyers Weekly is right that this has the flavor of McCarthyism, then terrorism is the new Red Scare. We are quick to defend lawyers who defend criminals, but less sure about defending lawyers who defend terrorists.

With regard to Lynne Stewart, there are many lawyers, including among the criminal defense bar, who share the opinion expressed by Norm Pattis that Stewart crossed the line from zealous representation to breaking the law. But I am bothered by the case and agree with Kevin Jon Heller, who writes at Opinio Juris:

[The case] involves a criminal defense attorney (strike 1) who is outspoken about the need to zealously defend individuals accused of the most heinous crimes (strike 2) charged with helping a convicted terrorist plan further terrorist attacks (strike 3) in an atmosphere where the prosecution was continually allowed to discuss bin Laden despite his irrelevance to the case (strike 4). Under those circumstances, I find it very difficult to believe that the jury convicted Stewart because of the evidence, not out of fear.

In the media, Stewart has become a name forever associated with the words "radical lawyer" and "terrorist lawyer." Just look at the first sentences of today's reports in The New York Times and The Boston Globe. I read about China charging a lawyer for subversion and can't help but see parallels in the news from this country. Lawyers were right to speak out on behalf of Deval Patrick. But we should be just as quick to defend other "defenders of our liberties," whether they be Democrat, Republican or radical.

October 17, 2006 | Permalink | Comments (2)

Eating Your Own Dogfood

In the technology industry, a company that uses its own product is said to eat its own dogfood. At, Carolyn Elefant, citing a recent New York ruling invalidating a lawyer's retainer agreement, suggests it is a practice lawyers should follow as well.

The ruling, reported by Anthony Lin in the New York Law Journal, said that a retainer agreement violated public policy when it treated the lawyer more favorably than the client. The agreement would have awarded the lawyer his attorney fees in an action to collect his own fees under the agreement, but it provided no reciprocal right should the client prevail. Observes Elefant:

Virtually no attorney would advise a client to enter into a contract where one side could recover fees for collection actions but the other could not.  Yet when it comes to their own agreements with clients, these same attorneys reject the same advice that they'd give to their clients in any other circumstance, and draft provisions that favor one side - the attorney.

Concluding that this attorney should have eaten his own dogfood, Elefant asks, "Are you eating yours?"

October 17, 2006 | Permalink | Comments (4)

Law Practice and the Fear Factor

Fear is at once a primal motivator and deterrent, observes Arnie Herz at the blog legal sanity. Given this, he says, it is important to understand the fear factor in the practice of law:

[I]n most dispute scenarios and transactional matters, the parties experience fear to some degree. There’s fear of monetary or property loss. Fear of being denied rights and justice. Fear of being taking advantage of or disempowered. Fear of not being seen or heard. Then there’s the lawyers’ own fears concerning win, loss, monetary gain, reputation, recognition and billable hours. The list goes on and on. So, it’s fair and honest to say that fear is a big factor when it comes to the delivery and consumption of legal services.

Herz points to blogger Kathy Sierra's post, Reducing Fear is the Killer App, in which she writes:

He who reduces fear better than the competition can, potentially, stop competing on price, convenience, or just about anything else. Reduce my fear, and I'll be grateful forever.

These observations lead Herz to a common-sense but little considered conclusion:

[A]s lawyers looking to optimize our business, we’d do well to consider how fear is factoring in to our clients' perception of their legal issues and their legal representation.

Take Herz's advice and fear not the business that might follow.

October 17, 2006 | Permalink | Comments (0)

Family Affair at Supreme Court

Chief Justice John Roberts had just one question for the nine lawyers facing him in the Supreme Court Monday, "Nobody wanted to be a doctor?" The nine were all members of the same family and were at the Supreme Court to be admitted together to its bar. It was, as Lyle Denniston observes at SCOTUSBlog, "the largest family group admitted together since the Perla family joined the bar in 1994."

The family affair was the realization of a longtime dream for New York lawyer Donald Snyder, says an article in the Utica Observer-Dispatch. Snyder had wanted to be admitted to the Supreme Court since he passed the bar exam in 1966. When his partner did it 30 years ago, he said, "No, I want to wait and see what happens with my family."

What happened is a family of lawyers. At yesterday's ceremony with Snyder (according to Associated Press) were his wife Mary Theresa, daughter Elizabeth, daughter Graceanne Snyder and her husband Patrick Quinn, daughter Mary Snyder Radel and her husband Patrick Radel, son John and Donald's brother Gerard.

Finally, an action from the Supreme Court that everyone can agree promotes family values.

October 17, 2006 | Permalink | Comments (0)

Bloggers Win Attorney Fees

A California lawsuit seeking to unmask four anonymous bloggers has resulted in an order requiring the plaintiff to pay the bloggers' attorney fees. As the Electronic Frontier Foundation blog Deep Links reports, former rabbi Mordecai Tendler had filed suit in Santa Clara Superior Court against the "John Doe" bloggers after they wrote about allegations that he had sexually abused women he had counseled. When lawyers from EFF and Public Citizen came to the bloggers' defense, asking the court to strike the complaint as meritless, Tendler voluntarily dismissed the lawsuit.

But in a ruling issued Thursday, the court said Tendler's dismissal did not get him off the hook for the bloggers' attorney fees. "A plaintiff may not avoid liability for attorney fees and costs by voluntarily dismissing an action while a special motion to strike is pending," Judge Neal A. Cabrinha wrote.

At the Deep Links blog, EFF's Corynne McSherry sums up the case:

Lawsuits like this one are too often designed as an excuse for a court-ordered investigation into the identity of anonymous speakers. If the speakers fight back, however, the plaintiffs simply withdraw their meritless claims, content in the knowledge that at least they have made life a little more difficult for their critics by forcing them to hire attorneys to defend themselves.

October 17, 2006 | Permalink | Comments (0)

October 16, 2006

Blawg Review #79

More than a year later, Blawg Review #79 returns to Kevin Heller's Tech Law Advisor, which first hosted Blawg Review #12. Heller highlights a bunch of must-reads by law professors Volokh, Althouse and Solove -- and also links us to a post at Professor Caron's Tax Prof Blog, where he lists the Blog Juice rankings for 30 law professor blogs. Other interesting posts of note are Heather Armstrong’s Legal Publishing Tussle and David Lat's ruminations about a prosecuting lawyer caught naked while not blogging. Next week, stay tuned for a special Blawg Review/Carnival of the Capitalists edition.

October 16, 2006 | Permalink | Comments (0)

Blogger to Face Mac Attack

Back in a post from August, I wondered why more lawyers aren't using Macs, given evidence of their greater imperviousness to viruses than PCs. Though the post generated some discussion, no one came forward with quite as vociferous an attack on the Mac than has professional marketing guru Larry Bodine in this recent article, Don't Sit Under the Apple Tree (Law Technology News -- 10/16/06). Bodine writes:

I was suckered in by the hype about freedom from viruses, simplicity of computing and versatility. Instead, I bought a boat anchor that can't view Web sites properly, is not compatible with Microsoft Word and can run only dumbed-down versions of regular software.

This time, I'm buying from Hewlett-Packard Co. or Dell Inc. -- anything that runs on Windows. (I'll assume the risk of flaming batteries.) Goodbye Steve Jobs, hello Bill Gates. I'll be lucky to get half of the $4,552.71 I paid for the Mac on May 21, 2006.

Though Bodine's piece has barely hit the press, already, he reports, he's receiving an enormous reaction, including phone calls offering him assistance and "939 words of tips and ideas." But Bodine's also heard from diehard Mac fans, and he comments:

These Mac zealots are unusually defensive.  They are just realizing that they have bought orphan technology. Macs are the Betamax of the 21st Century.  And it's not just me who find Macs less appealing.  Apple holds only 4.8 percent of the U.S. market share, according to the July 2006 issue of MacWorld magazine.  In other words, 95 out of 100 computer buyers don't buy an Apple computer.  There must be a reason, yes?

Is Bodine's piece typical of a new Mac user? And in light of Bodine's article, I'll ask the question I did back and August, but a little differently -- why should lawyers use the Mac?

October 16, 2006 | Permalink | Comments (4)

Mr. 200 Million

Bobby Woo, an Atlanta lawyer, may be just your average American, but he's also Mr. Two Hundred Million. No, he's not billing $200 million a year. Rather, as this article reports, Woo, who was born in 1967, was heralded by Life magazine as the 200 millionth American -- a milestone gaining new attention as the United States  approaches the 300 million mark, which is expected to take place this coming Tuesday.

The article explains that Life magazine visited Woo in kindergarden to "keep up with the milestone child. His parents explained that he was receiving all this attention  because he was 'supposed to represent the average American.'"

Of course, turns out Woo isn't so average after all. Today, he's a partner at King & Spaulding, where his firm bio shows that he received a BA and JD degrees (with honors) from Harvard, followed by an 11th Circuit clerkship and recognition as a rising star of the Georgia Bar.  No mention, however, of his 200 million milestone.

October 16, 2006 | Permalink | Comments (0)

When Lawyers Run for Office, Is Their Choice of Clients Fair Game?

Massachusetts gubenatorial candidate Deval Patrick, a Democrat, is a laywer with a lengthy resume. Along the road to his candidacy, he picked up a law degree from Harvard, clerked for Stephen Reinhardt of the 9th Circuit, worked for the NAACP, served as assistant attorney general for civil rights during the Clinton administration and worked as executive vice president and general counsel for Coca-Cola. But wouldn't you know that Patrick has skeletons in his closet? In one case during his days at the NAACP, he represented one criminal defendant convicted of killing a police officer in a death penalty appeal (resulting in a reduction of the capital sentence to life). And in another, he supported the parole petition of a prisoner convicted for raping his neighbor. Now, as this article, Lawyers Defend Patrick's Legal Work (Boston Globe -- 10/15/06) reports, Patrick's past has come back to haunt him, as his Republican opponent Healey has assailed his choice of clients, with campaign slogans "While lawyers have a right to defend admitted cop killers, do we really want one as our governor?"

According to the Boston Globe article, Massachusetts lawyers have come to Patrick's defense -- even Republicans.  From the article:

Springfield lawyer Mark L. Hare , a lifelong Republican and vice president of the court-appointed attorneys association, said the ads convinced him to vote for Patrick.``We are appalled that the Republican candidate for governor would stoop to those kind of ads, when presumably she knows full well the role of the defense," Hare said. ``She portrays herself a criminologist, and to say there is something radically wrong with the defense bar, defending the constitutional rights of anybody, that crosses the line." He said he is not the only one who feels insulted.``It is the topic of conversation with every bar association -- the Massachusetts Bar Association, the Boston Bar Association, the Hampden County Bar Association -- everyone is talking about this unwarranted attack against the bar," Hare said.

Andrew Perlman at Legal Ethics Forum also weigh in on the question, addressing the broader issue of whether lawyers are morally accountable for the clients they choose to represent:

Although a few scholars contend that lawyers have some moral responsibility for their client selection decisions, it is hard to leap from that position to the view that the representation of a death row inmate should disqualify someone from serving as governor.  According to Healey's logic, she would have to oppose the candidacy of a lawyer who previously represented tobacco companies.  That lawyer, after all, represented a client whose product was responsible for a lot more deaths than anyone on death row.  How about the lawyers who represented Enron founder Ken Lay?  Imagine this ad: "Although lawyers have a right to defend corporate executives who engage in massive fraud that leads to the loss of billions of dollars and thousands of jobs, do you really want one as our governor?"  Please. If that commercial would be absurd, I don't see how Healey's ad is any more reasonable. 

What do you think -- are a lawyers' clients fair game in an election? And if so, how do lawyers reconcile any political aspirations they may have with our professional obligation to provide those who cannot afford legal services with access to law?

October 16, 2006 | Permalink | Comments (0)

October 13, 2006

U.K. Libel Ruling a 'Resounding Victory'

Yesterday's House of Lords ruling easing British libel law is being hailed by news organizations for bringing English journalists closer to the freedoms enjoyed by reporters in the United States. As reported by The Times of London, five law lords unanimously ruled in favor of a public-interest defense that more closely resembles the "actual malice" standard applied in U.S. libel cases involving public officials and public figures.

The law lords ruled that The Wall Street Journal Europe satisfactorily established that the article in dispute was both of public interest and written responsibly. The law lords said that judges should look at the opinion as a whole when deciding a libel case and not just at the defamatory statements standing alone. As The Times explains:

Britain’s libel laws have traditionally favored the plaintiff -- so much so, in fact, that plaintiffs often made substantial efforts to sue for libel in Britain when possible, even when a media organization is based in another county. Before Wednesday’s ruling, plaintiffs only had to prove that false statements were published, and the statements were damaging to their reputation in order to prevail.

In Washington, The Reporters Committee for Freedom of the Press called the decision "good news for American journalists who might be sued in the U.K." It quoted Stuart Karle, an attorney for Dow Jones & Co., which owns the Journal, who said that "because U.S. publications can be read on the Internet, there can now be some additional comfort that whenever your articles are read in English-speaking word, if you did a good and careful job, you’re set legally."
The Times has in-depth coverage of the ruling:

Among bloggers commenting on the ruling are:

October 13, 2006 | Permalink | Comments (14)

Judge: 'You Want a Piece of Me?'

Today's ABA Journal e-Report describes what happened during a November 2004 hearing in an Albany courtroom:

Judge William A. Carter of Albany County, N.Y., allegedly removed his glasses, threw off his robe and approached an agitated pro se defendant, saying, "You want a piece of me?"

That incident and one other led New York's 10-member Commission on Judicial Conduct to censure Carter Sept. 25. The commission's counsel had recommended the judge's removal from the bench, and two dissenting members agreed. But the commission found suspension too severe and instead censured the judge.

As the New York Law Journal first reported Oct. 4, Carter did not recall making the remark, but he did not deny it. His attorney, Mark S. Mishler (a friend and contemporary of mine at Boston College Law School way back when), told the NYLJ that the incident was an aberration. "He is a great judge, and he shows that every day by how he treats the people who appear in front of him -- defendants, victims, complainants, lawyers," Mishler said.

The second incident came four months later, when an Albany police officer complained that Carter failed to address a defendant's obscene gesture in the courtroom. Carter reportedly replied, "If you are so upset about it, why don’t you just thump the shit [out] of him outside the courthouse because I am not going to do anything about it."

These comments, the commission found, were "antithetical to a judge's obligation to be 'patient, dignified and courteous' to litigants and others and to observe and maintain appropriate standards of decorum." But the conduct was not sufficient to warrant the judge's removal from the bench, the commission concluded. Instead, it urged the state Legislature to allow suspension as a sanction.

"Were suspension available to us, we would impose it in this case to reflect the severity with which we view respondent’s conduct. Absent that alternative, we have concluded that a censure should be imposed."

Carter's lawyer Mishler told the ABA Journal: "He’s known as someone who is extremely patient and respectful to the people who appear in front of him. He just lost it that day. I’m not saying that’s an excuse. Judges shouldn’t lose their composure. But judges are human too."

October 13, 2006 | Permalink | Comments (0)

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