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January 31, 2008

Must Lawyers Still Dress for Success?

Is the way you dress still integral to success?  That's the question under discussion at the WSJ Law Blog, in response to this article in today's Wall Street Journal.  Not surprisingly, the gap is generational; many older attorneys lament the increasing casualness -- even sloppiness -- of today's associates. But associates claim that suits are uncomfortable, and even unnecessary when associates are working long hours and not visible to clients.

Perhaps several years ago, with a hot economy, associates could take more liberties with their attire.  But if the recession forces more layoffs, and a firm must choose between a professionally-dressed third year associate and a sloppy one, it's not hard to predict who will keep the job:  the one who's dressed for it.

January 31, 2008 | Permalink | Comments (5)

Law Reviews Continue to Cite Blogs

Orin Kerr reports that law reviews and other scholarly journals are citing the Volokh Conspiracy bloggers with increasing frequency.  Kerr reports that VC blog citations rose from 14 citations in 2004 to an all-time high of 69 citations in 2006, and 43 citations in 2007.  Kerr believes that the number of citations for 2007 will increase, however, as journals post their final 2007 issues to the Westlaw database. Not surprisingly, Eugene Volokh doesn't think there's anything improper about citing a blog in a law review article, and he offers some tips on how to do it correctly.

Not all blogs have matched the Volokhs' success. The Conglomerate shares that it's had 17 cites in 2007 and 20 cites in 2006, roughly the same as Volokh's numbers from 2004 and 2005.

Have any practicing lawyers been cited in scholarly blogs?  If you have, drop a comment below and let us know where.  And for those who don't have academia's benefit of unlimited Westlaw access, you might try checking Google Scholar.  It's a poor proxy for this kind of search, but the price is right.

January 31, 2008 | Permalink | Comments (0)

New Service Allows Posting of Documents to Your Web Site

One feature that I've always enjoyed about the Smoking Gun is how the site doesn't just reference documents, but embeds them like this right in the site for all the world to see.  Well, now you can achieve the same result at your own Web site or blog.  As Future Lawyer Rick Georges shares, is offering a new tool that allows users to embed documents directly into your blog or Web site. 

The possibilities for this new service are endless.  Sure, most bloggers always had the ability to upload PDF files and make them available at their site, but let's face it... how many readers actually take the time to open or download the PDF file and read through it?  Now, with docstoc, site visitors don't need to download or open a document; they can simply view it right at your site just as easily as an embedded YouTube video (though in most cases, probably not nearly as entertaining!)

At the same time, because the new docstoc service makes a document so visible, could it potentially breed copyright claims?  As discussed in this article, the issue of whether legal briefs are protected by copyright law is complex, but there are compelling arguments that they are.  By embedding a brief in a site and making it more visible, a blogger may attract more traffic and thus, gain more of a benefit from posting the brief than when it's displayed in PDF format.   As a result, the author of a brief -- particularly one that's held up for public criticism -- might be more likely to assert copyright protection than when the brief is accessible only in PDF format.  Readers or bloggers -- any thoughts on this issue? 

January 31, 2008 | Permalink | Comments (1)

Presidential Campaign Roundup

PresbadgeAs most of you know, two lawyer-contenders, John Edwards and Rudy Giuliani today dropped out of the presidential campaign, leaving two lawyers (Obama and Clinton) standing on the Democratic side, and just one, Mitt Romney, on the Republican side.  Even so, there's enough about lawyers and legal issues in the presidential campaign to provide fodder for this week's Presidential Campaign Roundup.

Do ads for "Hillary: The Movie" violate election law? - The Christian Science Monitor offers detailed coverage of the application of campaign finance rules to a political documentary, Hillary: The Movie, produced by a Washington-based conservative advocacy group. Because the Federal Elections Commission determined that the movie is an "electioneering communication," promoters must comply with campaign finance rules, which require a political disclaimer and disclosure of the film's financial backers.  The district court refused to block enforcement of the law. So now, as SCOTUS Blog reported here last week, the case is on direct appeal to the Supreme Court pursuant to a special federal campaign finance law. According to the post, the appeal raises the following issues: (1) May challengers bring “as-applied” lawsuits against requirements that sponsors of campaign ads disclose sources of money to pay for the ads, and disclose who provided the content of the ads? (2) Does federal campaign finance law even apply to this type of promotional ad for a movie about a candidate? (3) Was the District Court wrong in failing to block enforcement of those requirements while the court challenge goes on?

Candidates' position on gay-related issues - This piece from discusses LGBT (Lesbian, Gay, Bisexual, and Transgender/Transsexual) issues and trends in the presidential campaign, as well as the candidates' positions. The article notes that the candidates' positions on equal marriage rights for gay couples will be a significant issue for gays in the upcoming election. At the same time, Republican candidates inclined to support equal marriage rights face the political reality that only 41 percent of Republican voters feel the same way.  And even some of the Democratic candidates have been cautious:

Obama has said he believes the federal Defense of Marriage Act (DOMA) should be repealed, while Clinton says she would repeal only Section 3. That section of the law denies gay partners and spouses more than 1,100 federal benefits enjoyed by married heterosexual spouses. She would retain Section 2, which says states don’t have to recognize "relationships between persons of the same sex."

As for other issues, here's the summary:

On other issues: Both Democrats support the federal Employment Non-Discrimination Act (ENDA), hate crimes legislation, coverage for domestic partners under the Family and Medical Leave Act, equal treatment of gay couples under tax laws, and repeal of the military’s "Don’t Ask, Don’t Tell" policy. Obama received considerable criticism from the LGBT community in October when he refused calls to eliminate an anti-gay performer, Donnie McClurkin, from his campaign’s gospel campaign tour of South Carolina. Clinton was criticized for attempting, in response to a debate question, to rewrite history when she claimed that her husband, President Bill Clinton, had signed "Don’t Ask, Don’t Tell" into law as a "transition policy." Both Obama and Clinton were criticized last spring for initially ducking a question about whether they agreed with then-Joint Chiefs of Staff Chairman Peter Pace that homosexuality is immoral. They both eventually said they disagreed.

Is there an issue where you're particularly interested in learning where the candidates stand?  Drop us a line in the comment section and let us know.

January 31, 2008 | Permalink | Comments (0)

January 30, 2008

The Tallest Lawyer Ever?

0507000736l I love looking at old photos. When the Library of Congress last week announced its joint project with the photo-sharing site Flickr to post some 3,000 copyright-free historical photos, I started rummaging through the collection right away, looking for photos involving lawyers or courthouses or familiar places. As I noted on my LawSites blog, I was happy to come across several interesting photos, among them one purporting to show the first all-woman jury.

WisBlawg author Bonnie Shucha must be a woman after my own heart. Not only did she too head straight to Flickr to view the LOC collection, but she also went off in search of other historical collections and found that the Wisconsin Historical Society has its own online photo collection. As she describes in this post, several caught her eye, among them a 1945 photo of Wisconsin's first all-woman law firm and an 1894 photo titled simply, The Law Office. But head-and-shoulders above Shucha's other photo finds is my favorite: the eight foot tall lawyer. The 1944 photo shows Clifford Thompson, said to then be the second tallest man in the world, as he is being sworn into the state bar by Justice Elmer E. Barlow. Thompson towers over the others in the photo, who included the dean of Marquette Law School and three Marquette law students.

Curious about Thompson, I turned to Wikipedia, which says that he was born in 1904 in North Dakota, moved as a child to Scandinavia, Wis., and died in 1955. "He claimed to be 8 feet, 7 inches (2.62 m) and weigh 460 pounds (207 kg), but his actual height was about 7 feet, 5 inches (2.26 m)," the entry says. "He was known as 'The Scandinavian Giant,' 'The Wisconsin Paul Bunyan,' and 'Count Olaf'. He later enrolled in Marquette University and earned a law degree."

Another account (with another photo) has him at eight feet, six inches, and says he started his adult life as a professional giant touring with circuses including Ringling Bros., Barnum and Bailey, and then became a traveling salesman. As middle age made it more difficult for him to get around, he enrolled in law school "and obtained his law degree within two years, becoming the tallest lawyer in history." He practiced in Wisconsin, then Los Angeles and finally in Portland, Ore.

What say you readers? Does Thompson retain his title as tallest lawyer in history?

January 30, 2008 | Permalink | Comments (3)

Legal Blogger: Goodbye to All That

All good things must come to an end, and so it is with Bench Conference, Andrew Cohen's Washington Post blog about various matters legal. In a post this morning, Goodbye to All That, Cohen says that he is stepping away from blogging to focus on other work, particularly his CourtWatch column for CBS News, where he is legal editor and chief legal analyst, and his weekly horse racing column.

A 1991 graduate of Boston University law school, Cohen's blogging will best be remembered for his series of posts last year making the case for the removal of then Attorney General Alberto Gonzales. The series -- which is collected here -- has been nominated for several journalism awards. He is most proud of that series, he writes, adding that he came to understand that blogging is hard work:

Unless you are a celebrity and can write down what you had for lunch and call it a blog, It is no easy thing to write a daily weblog. As columnist Jonathan Alter once said, to truly write a blog right would take a monumental amount of time. He was right. It took a ton of time just to post my decidedly imperfect entries here almost every day. And there were many days when I wished I had more time -- or simply more energy -- to post twice or to add to an existing post. I will try harder next time.

Cohen may have found blogging difficult, but he consistently set a high standard, to my mind. Rarely did a post of his fail to inform and instruct.

January 30, 2008 | Permalink | Comments (0)

Scruggs Fallout: Tighter Rules on Lawyer Hiring

The federal indictment of prominent Mississippi trial lawyer Richard "Dickie" Scruggs on charges that he and four others tried to bribe a state judge hasn't done much for the reputation of lawyers in the Magnolia State. One offshoot of the Scruggs scandal is a bill making its way through the state legislature that would require the state to go through a public bidding process before contracting with a private law firm. An editorial this week in the Brookhaven, Miss., newspaper The Daily Leader says that's a good idea.

The sunshine bill (Senate Bill 2188) would apply primarily to state contracts with law firms where the billing is expected to exceed $500,000. It would require the attorney general, before contracting with an outside lawyer, to submit RFPs to at least three firms and to request review of any contract by a review board. Contracts would cap contingent fees at $1 million and require firms to submit detailed time and expense records. According to the editorial, the state Senate approved the measure Friday and it now goes to the House.

Supporters say the bill would increase accountability in high-profile cases such as against the tobacco industry. But Mississippi AG Jim Hood says the high-profile cases are only a small portion of his office's work and that firms that suggest particular lawsuits should get the contracts to handle them. The Daily Leader comes down on the side of the supporters, asking: "What can it hurt to have a more open selection process and a little sun shining on those who stand to gain from the legal activities?"

The bill, by the way, would authorize the contract review board to hire its own outside counsel to advise it in its work reviewing other outside counsel.

January 30, 2008 | Permalink | Comments (0)

Lawyers Do the Darndest Things

Is a full moon shining over the courthouse this week? What else might account for this spate of misbehavior within the legal profession:

January 30, 2008 | Permalink | Comments (1)

January 29, 2008

Are Cease-and-Desist Letters Subject to Copyright?

When hit with a heavy handed cease-and-desist letter, many recipients choose to fight back in court -- the court of public opinion, that is.   In what's become a common practice (which we've discussed here and here), recipients of cease-and-desist letters now routinely post them on their Web site in an effort to publicly embarrass or e-shame the sender. 

In an effort to deter public postings of cease-and-desist letters, one lawyer, John Dozier has asserted that the letters themselves are subject to copyright, and that those who post the letters violate copyright law. Dozier claims that an Idaho federal district court agrees with him in this recent decision which purports to hold that cease-and-desist letters are protected by copyright law.

Most bloggers disagree with Dozier's characterization of the case.  In this lengthy analysis, Professor Marc Randazz dissects the Idaho decision, step by step, explaining that the copyright issue was tangential to the main question of whether an anonymous defendant could quash a subpoena issued by a copyright holder.  The court found that the copyright holder had demonstrated enough of a copyright interest in a demand letter to establish a prima facie case necessary to obtain a subpoena.  In addition, the court did not address the fair use issue, which Randazza also believes would insulate a person posting a cease-and- desist letter from liability.  Randazza concludes:

In short, while this is not legal advice, I’d say that if anyone out there wants to reproduce a cease and desist letter as an act of self-defense, you should feel comfortable that the fair use defense will back you up.  And if you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.

Volokh analyzes the same issue, reaching a similar conclusion.  And while Victoria Pynchon also agrees, she cautions that those who are hit with cease-and-desist letters should, if they have the financial means, seek legal counsel on an appropriate response.

In the meantime, the controversy is generating plenty of visibility for John Dozier, who raised the claim to begin with.  In your view, does this kind of publicity -- which is generally critical of Dozier's position -- help or hurt his practice?

January 29, 2008 | Permalink | Comments (4)

Hard Times Ahead for Law Firms?

After years of exuberant growth, are law firms now headed for a downturn?  That's one of the predictions offered by legal consultancy Hildebrandt and Citi Private Bank in what they describe as their first downbeat Client Advisory since the economic slowdown of 1998. In an effort to temper the bad news, however, the Advisory concludes: 

The legal profession is extremely resilient, and the demand for legal services will undoubtedly continue to grow, albeit perhaps at a somewhat slower pace.  The growth rates that we predict for 2008 -- 6 to 8 percent for overall revenues and 3 to 5 percent for net income -- are in no means bad...It is only against the extraordinary run of the last six years in the legal market (with overall double-digit growth  on an annual basis) that these figures may seem disappointing.

The Advisory also identifies a variety of challenges that firms will face headed into 2008, including "continuing issues of low productivity, particularly within the ranks of non-equity partner lawyers."  Sounds like we may see a few more firms purging non-equity partners as Mayer Brown did last year.

The WSJ Law Blog follows up on the possibility of layoffs or demotions of partners, rather than associates.  Mass associate layoffs can prove problematic because if the economy picks up, firms are left without the ability to staff cases.  Moreover, partners cost more than associates and are often less productive.  As a result, firms are likely to become more ruthless about “weeding out those attorneys who are not performing as well as they should,” says Mr. Hildebrandt.

Prospects for firms aren't any rosier across the pond. The Times Online reports that the U.K.'s top firms are worried about the impact of a worsening global economy on business prospects.  From the article:

Just over half of managing partners surveyed by Smith & Williamson, the professional services adviser, said that they were concerned about the impact a worsening global economy will have on their business. Last year, only 17 per cent expressed the same fear.  The survey also said that profits, which have surged to record levels over the past decade, are likely to suffer this year as they come under increasing pressure from flattening revenues and increasing costs from salaries and other expenses.

So what can law firms or individual lawyers do to protect themselves from all of this doom and gloom?
Jane Genova at Law and More recommends a variety of what she terms disruptive strategies, such as blogging on narrow niche topics, getting active in political campaigns and pro bono work to gain access to new clients. 

What are your predictions for 2008?  Are the predictions as dire as they sound?  Or does the economy offer a convenient excuse for law firms to cull unproductive partners without generating the kind of negative publicity that Mayer Brown did?

January 29, 2008 | Permalink | Comments (0)

D.C. Law Firms Have Highest Per Capita Receipts

Even on the edge of recession, law firms are still doing better than most businesses, at least in Washington D.C. According to this news story, law firms in the nation's capital led the country in per capita receipts of $15,839.  The statistic is based on data from the U.S. Census Bureau's economic survey.  Check out the data and see how how your state is performing in the legal services market.

January 29, 2008 | Permalink | Comments (0)

Law Firms Using Social Networking for Training

Last week, at Lexblog, Kevin O'Keefe posted about how corporations have started incorporating social networking sites into the workplace to facilitate collaboration and link employees working at different locations.  O'Keefe encouraged law firms to experiment with social networking rather than resisting it.

Now, one firm, DLA Piper is doing just that.  According to this story, DLA Piper has announced an internal social networking site for future hires.  The portal, called "Inside the Tent," is similar to sites such as Facebook, but relies on a different platform and can only be accessed by those inside the firm.  The site is intended to make new hires feel part of the firm as soon as they accept employment, and is expected to allow for easier communication about firm activities.

There's no discussion about whether the in-house site will be used to cement relationships between lawyers in DLA Piper's many offices. But the site represents a start towards integration of social networking tools that many of the firm's larger clients most likely already use.

January 29, 2008 | Permalink | Comments (0)

January 28, 2008

Firm Under Fire for Staged 'News Report'

In a story reminiscent of the Federal Emergency Management Agency's fake news conference last October, a Connecticut law firm and its PR consultant are coming under fire for a staged "news" program airing on public-access TV. The half-hour program features two partners from Hartford's Shipman & Goodwin being interviewed about their recent $12.4 million jury win in an eminent domain case against the town of Branford. Conducting the interview is the firm's PR consultant, Duby McDowell -- and therein lies the problem.

As reported by the New Haven Advocate, McDowell is a former TV journalist who covered state politics for Connecticut's WFSB-TV Channel 3 and who continues to serve as a news analyst for the station. In the video (which you can see at this Web site the firm set up about the case), she is identified as "Duby McDowell, WFSB Political Analyst," but never as a paid PR consultant for the lawyers being interviewed. Her "co-host" in interviewing the two lawyers, Tanya Meck, is identified as a former planning and zoning chair in West Hartford, without any mention that she, too, is a paid PR consultant. The Advocate explains why this setup might not be a good idea:

"The PR video, unlike a news chat show set in an actual television studio, is not a bipartisan discussion of the issues. For one thing it has no analyst from the other side. There's no one representing the town, not an official, not an attorney.

"It is a set Shipman & Goodwin rented out for the occasion. McDowell does not tell the viewers that this show has nothing to do with WFSB-TV. She does not inform the viewing audience that Shipman & Goodwin is a client, that she is getting paid. She does not say the law firm hired her company, Duby McDowell Communications LLC, which specializes in press relations, strategic communications and media training."

Here's the kicker: The Advocate asks McDowell whether the video might lead a viewer to think she was functioning as a WFSB political analyst rather than as a paid PR person. "Yes," she replies straight out, adding after several seconds, "However, it is pretty clear during the whole video. ... We needed some sort of title for everybody, and that is what we came up with." What, in her opinion, made it clear? The video has several references to the firm's Web site about the case, which both interviewers refer to at some point as "our Web site," and the video concludes with this: "This program has been presented by Shipman and Goodwin." To me, this looks like a classic example of fake news, one that is sure to mislead at least some of the people who watch it.

January 28, 2008 | Permalink | Comments (3)

School Seeks Fees from 'Bong Hits' Plaintiff

Remember Joseph Frederick? He is the former Juneau-Douglas High School student who made a federal case out of his suspension for displaying the "Bong Hits 4 Jesus" banner during an off-campus, school-sanctioned event. His lawsuit made its way to the Supreme Court, which ruled last June in Morse v. Frederick that the suspension did not violate the First Amendment.

That was not, however, the end of the story. Frederick went back to court, this time to state court alleging that the suspension violated his rights under Alaska law. That case was dismissed by the trial court as moot and is now on appeal. Meanwhile, the school district is going after Frederick to collect $5,000 in court fees, and Frederick's lawyer is countering that the move is retaliatory. 

Frederick was ordered to pay fees of $2,000 in the two cases, now about $5,000 with interest. The school wants to depose Frederick later this week regarding his assets. But Frederick's lawyer, Doug Mertz of the Alaska Civil Liberties Union, says the former student is in China teaching English and cannot afford to come home for the deposition, let alone pay the costs. Frederick does have a Hollywood option for his story, and Mertz says that "really galls" the school district, reports the Student Press Law Center.

"Since they know that Joe is broke, they know they probably will never collect anything. So the motive is almost certainly something else, likely retaliation, harassment, or perhaps to let them get a hold of the contract Joe has with a Hollywood studio for an option on his story -- something that really galls them -- so they can try to stop the film."

The school district's attorney, David Crosby, said he would be only too willing to defer the deposition, if only Frederick would answer questions he has put to him about his assets. "If a deposition is necessary," Crosby tells SPLC, "I am willing to do it by telephone and video camera if the plaintiff bears the additional cost of doing that."

See also: Juneau School Board Tries to Recover 'Bong Hits' Court Fees.

January 28, 2008 | Permalink | Comments (0)

2L's Sleuthing Makes Man's Day

Brian C. Ascher, a second-year law student at New York University, was eager to put off the paper he had to write on climate change treaties. So when his fiancé, Erika Gunderson, came home New Year's Eve bearing a digital-age mystery, he made a snap decision to try to solve it. The mystery, as AP technology writer Brian Bergstein recounts, involved a $500 Canon digital camera she found in the back seat of a New York City taxi. The cabbie had no idea who might have left it, so Gunderson brought it home to show Ascher. They decided to try to track down the owner, but with Gunderson busy in finance for Bear Stearns Cos., the sleuthing fell to Ascher.

Ascher checked the city taxi commission, put ads on Craigslist and even contacted Canon, all to no avail. That left only the camera's pictures as clues to its owner. Half the pictures showed New York locations, including tourist attractions, and half were at Florida theme parks. As he scoured the photos, he was able to deduce names of some of the people and even that they appeared to be from Ireland. Every time he and others looked at the photos, zooming in here and there, they picked up on other clues -- a New York hotel, a Florida restaurant, even a Florida pirate-boat cruise. But every clue seemed to lead to another dead end.

With law school classes about to resume, Ascher's time was running out. Looking over the pictures yet again, he noticed something new -- an awning showing the name of a New York bar, Standings.

"Ascher found Standings' owner, who reached the bartender who had worked Dec. 30. Yes, he recalled an Irish group. Especially because one of the women was a big tipper and said she worked at another New York City bar, Playwrights. The Standings bartender called Playwrights to ask which employees had been in his bar.

"Ascher soon got an e-mail from a woman named Sarah Casey, whose sister Jeanette works at Playwrights. Suddenly everything Ascher had seen on the camera came to life."

The Caseys had hosted friends from Ireland, including one, Alan Murphy, who had traveled first to Florida and then to visit the Caseys in New York. Now living in Australia, Murphy had been devastated to have lost the camera and thrilled when he learned it had been found. Even better, it was Jan. 10, his 34th birthday, when Ascher finally tracked him down. "I was over the moon," he told AP. "Best present ever." To Ascher, he wrote, "It's good to know there are some honest people left in the world."

And good to know at least one of them is on his way to become a lawyer.

January 28, 2008 | Permalink | Comments (1)

Must AutoAdmit Case Admit Defeat?

Have the two anonymous female Yale law students who are suing the law school admissions forum AutoAdmit reached a dead end? The women claim in their lawsuit that anonymous postings on the site threatened and demeaned them and interfered with their careers. (Previous Legal Blog Watch postings here and here.) But reports yesterday at ars technica and Slashdot suggest the pair may never be able to identify the source of the attacks. The two reports follow a motion for expedited discovery the plaintiffs filed in the case last week. It details their unsuccessful efforts to identify the John Doe defendants, which include attempts to track them through Highbeam Research, Microsoft's Hotmail, ISP GoDaddy, Yale Law School and others. Ars technica sums up the results:

"But it was all to no avail. The responses fell into two categories: 1) you need a court order before we'll tell you anything, and 2) we don't keep those logs or don't keep them for that long. Lawyer Steve Mitra admitted to the court that he had struck out so far in unearthing any of the anonymous posters. He even resorted to posting several messages on 'requesting that defendants come forward for the purpose of being served with the complaint and conducting a meet and confer.' Shockingly, there were no responses."

Last week's motion seeks enforcement of subpoenas against a number of entities. But with most of the entities saying they either do not maintain log data or delete it within 90 days, the motion may be too late. "While the comments against the women might not be legally protected," ars technica says, "those who made them could find that legal liability doesn't matter once digital fingerprints have been swept up and dumped in the trash."

January 28, 2008 | Permalink | Comments (1)

Mukasey Headed to Law School

Agmukasey U.S. Attorney General Michael Mukasey is headed to Boston College Law School, not to matriculate but to orate. BC Law Dean John Garvey told students last week that Mukasey had accepted the school's invitation to speak at the school's graduation ceremony May 23. "It is a singular honor for Boston College to have the attorney general of the United States as our commencement speaker," Garvey said.

BC Law students generally share their dean's elation over the news -- or so says the BC Law student blog Eagleionline.

"Members of the Class of 2008 largely praised Garvey’s selection. 'Mukasey is an excellent choice. He has a long record of public service as a prosecutor, judge, and now the country’s Attorney General,' said Matt Prasse ‘08, who served as President of the BC Law’s Federalist Society in 2006-07. 'I am looking forward to hearing his remarks,' he continued."

OK, maybe a former Federalist Society president is not representative of the larger student body. But the blog reports that even students who were concerned about Mukasey's equivocation on the legality of waterboarding were happy with his choice. As one student commented when the Eagleionline blog first reported Mukasey's planned visit: "im sure it was just an honest mistake. i mean, waterboarding sounds like something you do when your family is vacationing down the Cape, who would have thought it was torture?"

Meanwhile, Mukasey had his first on-the-record meeting with news reporters Friday.

January 28, 2008 | Permalink | Comments (2)

January 25, 2008

Lawyer Outsourcing Continues

Over at, Bill Gratch comments on this article, "GCs Embrace Outsourced Work."  According to the article, more and more in-house lawyers are outsourcing and, more specifically, offshoring legal work, in large part because of substantial cost savings.  And offshore legal service companies such as Pangea3 are growing rapidly through venture capital investments.   Boston-based Forrester Research estimates the current value of legal work shipped overseas at $80 million, but predicts that $4 billion worth may head to India by 2015.

Scott Rickman, a GC quoted in the article, says that he's not overly concerned about risks of sending work overseas.  He suggests that many law firms focus on the risks to preserve their own profits.   But other  corporate insiders in the article disagree.  For example,  Julie Mar-Spinola, a former VP at Atmel Corp. who headed up litigation and intellectual property, expressed concern about outsourcing patent work to lawyers halfway around the world who might not understand the business or technology.

With a recession on the horizon, offshoring will likely gain even more traction in 2008 as corporations look for new ways to save money.  And even when boom times return, by then, offshoring may be so entrenched that corporations may not ever go back.

January 25, 2008 | Permalink | Comments (2)

Lawyers Drink More Wine

Not only do lawyers like to whine but they also like wine, at least according to a recent study from the United Kingdom. According to this post at, the study showed that more successful professionals drink more wine.  CEOs of large companies drink the most wine, an average of three bottles (or 23 units) a week, with lawyers, doctors and accountants not far behind at 20 units. 

If you're trying to decide what kind of wine you should drink to fill that 20-unit quota, you can even consult a lawyer for advice -- Professor Bainbridge on Wine.

January 25, 2008 | Permalink | Comments (1)

Another Presidential Roundup

PresbadgeHere's a roundup of stories about the lawyer candidates for president and the lawyers involved in the presidential campaigns.

Clinton and Obama Law Practice Billing Records Under Scrutiny
In an opinion piece at Huffington Post, Karen Russell comments on Barack Obama's and Hillary Clinton's billing records from the days when they were practicing attorneys.  According to Russell's post, Clinton has claimed that Obama represented Tony Rezko, a Chicago slum landlord. However, found that while Obama was associated with a law firm that represented community groups working with Rezko, he never worked on these matters directly.  Obama's billing records, which he disclosed, confirm that Obama's involvement amounted to five to seven billable hours of work for a nonprofit corporation involved in a partnership with Rezko.  Russell also examines Clinton's billing records, generally asserting that they reflect pervasive conflicts of interest during Mrs. Clinton's years as partner at the Rose Law Firm while her husband served as governor.  The lesson behind all of this: Those billing records may always come back to haunt you, so keep that in mind when you fill out those seemingly insignificant time sheets.

Thompson's Legal Staff Migrates to Romney
When Fred Thompson dropped out of the presidential race, his legal advisers were left without a home.  But according to the Boston Globe, many have now found new digs at the Mitt Romney campaign, which announced yesterday that it had signed up 10 members of the "Lawyers for Fred Thompson" group.  Lawyers coming aboard include Victoria Toensing, a former Reagan Justice Department official and prominent legal commentator, as well as former Bush-Cheney lawyers Lizette D. Benedi, Rachel L. Brand, Reginald Brown, Viet D. Dinh, Noel J. Francisco and Eileen J. O'Connor; former Reagan lawyers Charles J. Cooper and Joseph E. diGenova; and conservative law professor Michael R. Dimino.

One former lawyer for Thompson won't be supporting Romney, however. Volokh conspirator Orin Kerr announced that he's supporting John McCain.

January 25, 2008 | Permalink | Comments (0)

Rate Your Lawyers at Inside Counsel

As my colleague Bob Ambrogi has posted here before, there's no shortage of lawyer-ranking services.  Today, Larry Bodine blogs about another ranking scheme sponsored by Inside Counsel magazine that's going on right now:  a "rate your law firm" survey for in-house counsel.

In theory, the survey sounds like a good idea, but Bodine wonders whether users might game the results.  Though Robert Vosper, editor-in-chief of Inside Counsel, claims that only registered users who are in-house counsel can rank a firm, Bodine says that "it took [me] only 60 seconds to register and vote."  Bodine then added one of his favorite client firms to the list and gave it top rankings in all eight categories -- thus demonstrating how the system can indeed be manipulated.

What's your opinion?  Can user-based lawyer-rating systems work -- or are they always vulnerable to gamesmanship? 

January 25, 2008 | Permalink | Comments (1)

January 24, 2008

Law Prof Lured With Pricey Digs

It was just a few weeks ago that we wrote here about the miserable lot of law professors -- or more accurately about the whining of law professors proclaiming their misery. So now we learn, via The New York Times, that New York University School of Law, in order to recruit law professor Catherine M. Sharkey from Columbia's faculty to its own, shelled out $4.2 million to buy her an exclusive 4,000 square foot condominium built into one of the huge turrets of a French Renaissance château on the Upper West Side of Manhattan. "The duplex apartment has a round living and dining room with 37-foot high ceilings and Central Park views, along with three more conventional bedrooms," the Times tells us.

Lest you consider this a windfall for Sharkey, it should be noted that she and her partner shelled out $1.05 million for a 20 percent interest in the apartment -- although NYU gave them a 30-year mortgage to cover $650,000 of that. Still, it was a step up for Sharkey, who had been living in a 2,000 square foot Columbia faculty unit in an adjoining building. An NYU spokesman said that such arrangements are common, explaining that the school remains the owner of the property and the faculty member pays the school rent to occupy it. Still, NYU officials told the Times that they knew of no limits to the compensation packages and housing allowances they could offer to recruit star faculty.

So now it is time for the non-professors among us to whine about our own miserable lots.

January 24, 2008 | Permalink | Comments (2)

Gibson Dunn Wasn't Joking Around

Gibson, Dunn & Crutcher wasn't kidding when it sued joke-book editor Judy Brown and her publisher in 2006 for a series of books that used jokes by Jay Leno and other comedians without their permission. Yesterday, the firm issued an announcement that it had reached a settlement with Brown and her publisher in which they will stop selling the books and pay compensation to Leno and the other comedians who filed the suit. "This settlement sends a strong message that the intellectual property rights of comedy writers must be respected," said Gibson Dunn partner Theodore J. Boutrous, who represented the comedians and NBC Studios.

Leno, comedian Rita Rudner and NBC Studios are donating their shares of the settlement to charity. Gibson Dunn is following suit, according to the Cal Law blog Legal Pad, donating a portion of its fees as well. "If Jay and Rita were going to give their recoveries to charity, we figured we would do it too," Boutrous told Legal Pad.

For litigator Boutrous, the case was interesting for teaching him about the world of comedians and the work that goes into their jokes, he told Legal Pad. "They do it because of a passion. It's been very gratifying working with them and helping protect comedy writing." As for Brown, she issued an apology in which she recognized "that comedy is as much an art form as other types of creative expression." Which means, of course, that Gibson Dunn and its clients get the last laugh after all.

January 24, 2008 | Permalink | Comments (0)

Texas Bar Finds Justice on YouTube

Make a video, three minutes or less, capturing the promise of justice for all and post it to YouTube. That was the challenge to Texans issued by the State Bar of Texas in the first-ever bar association YouTube contest, Lone Star Stories: Texans on Justice. With the promise of $2,500 to the winning entry, 10 videos were submitted and posted to a special Texans on Justice YouTube group. This week, the winners were announced, and Texas Lawyer's Tex Parte Blog has the results:

Natalie Jordan of Dallas won the $2,500 prize in the age 18 and older category for her video, 'Texans on Justice.' Jordan, 24, graduated from the University of Texas in 2005 and is employed by Quin Mathews Films, a film company in Dallas. The Bar will present two $2,500 scholarships in the under-18 category. Brothers Raphael Chaumette, 10, and Alexandre Chaumette, 7, of Sugar Land won for their video, 'The Promise of Justice for All.' The two brothers are students at Sugar Land’s Commonwealth Elementary School. Huey Fischer, a 15-year-old sophomore at Rockport-Fulton High School, also won in the under-18 category for 'The Murder of Ima Bacon: A Tale of Justice in Texas.'

Entries were judged by Texas Supreme Court Chief Justice Wallace Jefferson, ESPN and Court TV Legal Analyst Roger Cossack, former Apprentice contestant Amanda Hill, Texas Music Office Director Casey Monahan, and Lt. Gov. David Dewhurst’s press secretary, Rich Parsons. See all the entries here.  My favorite: Like Justice for Chocolate.

January 24, 2008 | Permalink | Comments (0)

January 23, 2008

Cyberlawer Wants "Cyberlaw" All to Himself

Eric Menhart is a lawyer who heads Cyberlaw, which holds itself out as a "recognized leader" in matters such as domain name disputes, copyright and trademark.  But apparently, Menhart's work isn't as highly regarded by other Internet experts, who have lambasted him for trying to trademark the now genericized term, "Cyberlaw."

As discussed in this post by Santa Clara law professor Eric Goldman, Menhart has filed a federal trademark application (application 77341910) on the term "CyberLaw."  From Goldman's post:

Menhart claims a priority date of Feb. 22, 2007. Mysteriously, his website displays the circle-R next to the term "CyberLaw" even though it's only a pending application (the application was just filed Dec. 1, 2007).  Fortunately, I'm 100% confident that the TM Office will reject this application because the term "Cyberlaw" has become a generic description for the law of the Internet and related fields--see the Wikipedia entry on the topic.

Still, despite the unlikelihood of obtaining a trademark, Menhart has asserted his "perceived rights" against others, such as Michael Grossman, a Chicago attorney who writes the blog, Cyberblawg (note:  the link is no longer available). Goldman also questions Menhart's expertise in cyberlaw, asking "What kind of Cyberlawyer doesn't know that the term "Cyberlaw" isn't trademarkable for Cyberlaw services, *especially* not by one who claims a priority date of 2007?"

Other blogs have addressed the issue as well.  The Electronic Freedom Foundation is equally critical, asserting that "Eric Menhart may call himself a cyberlawyer, but we think he has a lot of learn about cyberlaw -- and common sense."  One enterprising commenter at Slashdot engaged in some undercover work on Menhart and came up with this unflattering information.

One thing that a "cyberlawyer" needs to evaluate, more than the legal issues governing trademark and copyright, is whether seeking to obtain or enforce a trademark, particularly in a marginal case, is worth the potential negative publicity.  (See previous posts here and here). I have to wonder how Menhart could ever capably represent the interest of his clients and protect their reputation and business interests when apparently, he can't even do so for himself.

January 23, 2008 | Permalink | Comments (2)

Women Judging Women

When we discuss gender equality at law firms, we look for all kinds of reasons why women don't advance, from the billable hour to lack of work/life balance to less-successful rainmaking skills.  But could it be that part of the blame lies with women lawyers at the top, who may judge the  up-and-coming generation of smart women too harshly?

That's one thought that came to my mind after reading this post at Ann Reed's Deliberations, about a recent study on how women are judged in male gender-typed jobs.  Whereas both men and women judge successful women harshly, women apparently do so "as a self-protective strategy against threatening upward social comparisons."   

If the study is valid, then prospects for women advancing at law firms are dimmer than I'd imagined.  Obstacles like the billable hour and work/life balance are equal opportunity offenders, because they hurt both men and women who are family-minded.  As for rainmaking, women have the ability to master these skills once they recognize their importance.  But how's a woman to overcome the latent discriminatory tendencies harbored by other women?

Do you agree with the results of this study?  In your experience, have you found that female-on-female discrimination exists in the legal profession?  And does female-on-female discrimination account for the "glass ceiling" at law firms?

On a related note, Ms. JD is doing its part to address some of these issues.  It's sponsoring an essay contest, asking participants to address questions, such as:  What do you say to a colleague who says she had to put in hard work, why shouldn't you?

January 23, 2008 | Permalink | Comments (4)

A Law Firm Changes Its Clocks

When I first saw this headline from a South African publication about a law firm changing its clocks, my first thought was whether this practice might be the legal profession's equivalent of the investment world's concept of cooking the books.  Turns out I was wrong.  In this case, changing the clocks isn't some insidious technique to account for more billable hours, but instead, one law firm's solution to work/life balance.

As this story describes, the South African law firm, Livingston Leandy implements a form of daylight savings, which enables staff to start work at 7 am and leave at 3:30 pm during December and January (summer vacation on the Southern Hemisphere).   The firm originally created the policy in 1999 to provide more leisure time for staff, though apparently, one unexpected side benefit has been increased energy savings.

If you had the flexibility to work a 7-3 schedule, would you?  And if you tend to work late hours, do you do so because that's your more productive time or it's more convenient -- or because you need to engage in "face time" to impress your superiors?

January 23, 2008 | Permalink | Comments (2)

Five Law Firms Make Fortune's List of 'Best Companies to Work For'

Even with all of the groaning about the horrors of biglaw life, five law firms made Fortune Magazine's annual list of "Best Companies to Work For."  As reports, the five featured firms are: Alston & Bird; Arnold & Porter; Bingham McCutchen; Nixon Peabody; and Perkins Coie -- the same five firms that made the list last year.  The ratings reflect not just lawyers' opinions of the firm, but the views of the entire staff. 

Although the five firms are included on the "best of" list, and rank among the top for compensation, only one -- Arnold & Porter -- cracked the top twenty overall.  Still, there's hope for lawyers who want to work at the number one company, Google:  it's currently looking to hire Corporate Counsel for Music/Digital Media.

January 23, 2008 | Permalink | Comments (2)

January 22, 2008

For Poets Pondering Law School

It is the English major's dilemma: Follow your muse and pursue an MFA or give in to your practical side and go for a law degree? No longer need you choose, thanks to the new JD/MFA joint-degree program offered by Hamline University School of Law in St. Paul., Minn. "In a sense, what Hamline has done is solve the English student's dilemma," Seth Abramson, a lawyer, poet and blogger now pursuing an MFA tells Inside Higher Ed. "You have an entire cadre of English majors in the U.S. who both love writing and want to see if they can make it as a writer -- but want to hedge their bets so they have an employable skill at the same time."

With the program set to launch next fall, its Web site says its purpose is to produce lawyers capable of exploring social and political issues through creative fiction and nonfiction writing. Enrollment will require separate applications and admissions to each program. Fewer than 10 students are expected to enroll. "Our graduates will be well positioned to serve as global leaders, thinkers, writers and, of course, members of the bench and bar," says Hamline Law Dean Jon Garon.

While Hamline is the first to offer a joint JD/MFA in creative writing, it is not the first to combine the degrees. Columbia University already has a joint JD/MFA program in theater. Still, the joining of these diverse disciplines begs the question: Does marrying them make it right? Dean Garon tells Inside Higher Ed that the joint degree offers students "a certain right-brain, left brain opportunity." But Kurt Heinzelman, director of creative writing programs at the University of Texas at Austin, sees no advantage in the combination. "It’s like that old commercial for Doublemint gum: Double your pleasure, double your fun. This sounds to me like you’re doubling your anxiety and stress." And lawyer-poet Abramson says the dual tracks could be an academic challenge: "I think anyone who goes through those programs would feel like they were in two different tracks pedagogically at once."

To my mind, the pairing makes perfect sense. As someone who has long walked the line between law and writing, I see plenty of crossover in both directions. My rough estimate is that one lawyer out of every 10 has a book or screenplay half written. I agree with Dean Garon when he said, "At the end of the day, lawyers are story-tellers. We make compelling stories for juries, we make compelling stories for courts, for legislators."

[Hat tip to Set in Style.]

January 22, 2008 | Permalink | Comments (1)

Legal Podcast Roundup

Some recent law-related podcasts worth tuning in:

No doubt I've missed some. Please feel free to mention others below.

January 22, 2008 | Permalink | Comments (0)

Portraits of Young Lawyer-Candidates

As Peter Lattman observes this morning at the Wall Street Journal's Law Blog, the mud-slinging at last night's Democratic presidential debate can be boiled down to Hillary Clinton and Barack Obama each accusing the other of having been a lawyer. Clinton, Obama charged, was once "a corporate lawyer sitting on the board of Wal-Mart." Obama, Clinton fired back, represented a "slum landlord business in inner-city Chicago." Meanwhile, off on the debate's sidelines, John Edwards somehow seemed to avoid any accusation of ever having been a lawyer.

While the barbs made for good TV, if not an informative debate, a pair of profiles in today's Boston Globe offers a more considered look at the early public-interest work of Clinton as a young lawyer and Obama just before law school. In the first, "Clinton Draws on New Bedford Lessons," reporter Marcella Bombardieri traces Clinton's path through the Massachusetts seaport city, where she went as a lawyer working for the Children's Defense Fund in 1973. In the companion piece, "A Defining Time of Advocacy," reporter Michael Kranish revisits Obama's years as a community organizer in Chicago before heading to Harvard Law School in 1988.

Clinton began her work with CDF while still a Yale law student, spending two summers there and taking an extra year in school to work at Yale-New Haven hospital studying how to deal with suspected child abuse. After graduation, she signed on with CDF in Cambridge, Mass., where her duties took her to New Bedford -- a "city in tatters," Bombardieri writes -- to help survey the dropout rate and its relation to segregation, special needs and poverty. Clinton's work with CDF was "some of the most cutting-edge legal advocacy of the time," the Globe says, but she stayed there just nine months before heading to Washington to become an aide to the congressional committee examining Richard Nixon's impeachment. Remembered one former CDF colleague: "She had a talent that I would say was a notch higher than the rest of us."

More than a decade later, a young Obama moved from New York to Chicago to work as a community organizer at the Altgeld Gardens public housing project. While his achievements there were modest, Kranish writes, they demonstrate "how he was inspired by the Rev. Martin Luther King Jr. and followed the civil rights leader's model of organizing with churches." His work there led him to believe that change would require broader solutions and that law school was his way to contribute. "He understood that change would take a much more global approach," recalled his successor in the job. "I do remember him saying at that time that the country was politically in a more conservative mode but that things operated in cycles and that a much more liberal mindset would begin to develop in the country and he wanted to be prepared to be an effective leader."

In this pair of profiles, as in last night's debate, John Edwards was left on the sidelines. For a look at his early legal career, there is always Wikipedia.

January 22, 2008 | Permalink | Comments (1)

Blawg Review Marks MLK Day

This week's Blawg Review #143 observes Martin Luther King Jr. Day, with host Public Defender Stuff rounding up blawg posts that pertain to the theme of struggle. Author "Gideon" explains his choice of theme:

Preparing for this edition of Blawg Review, I struggled to come up with a theme. A theme that would appropriately encapsulate the day, the focus of this blog and of course, incorporate the best posts of the last week. That’s when it hit me: It’s about the struggle. The struggle that those of us in this field encounter on a daily basis, whether it is from this side of the aisle or that, or from a detached, academic perspective.

Coming from a public defender, the roundup of the week's more interesting blog posts has an admittedly heavy focus on criminal defense. But Gideon includes a sampling of the broader blawgosphere buzz and ends by pulling together law blog posts about Dr. King and the day that honors his legacy.

January 22, 2008 | Permalink | Comments (0)

January 18, 2008

New Take on the 'Virtual' Law Firm

Since the early days of the Internet, we've heard about law firms going virtual. Nowadays, some lawyers are taking that to the extreme, setting up practices in the virtual world of Second Life, as Stevan Lieberman did. More commonly, though, a virtual firm represents an attempt to bring the economies of technology to the bricks-and-mortar world. That seems to be the goal of the latest firm to dub itself virtual, Pennsylvania's Delta Law Group, whose Web address is

In a profile of the firm published today in the Pittsburgh Post-Gazette, writer Joyce Gannon describes Delta as "one of a small, but emerging group of 'virtual' law firms that wants to conduct most of its business on-line," marketing itself as a lower-cost, no-frills alternative to traditional firms. The firm's Web site describes it this way: "We are not a traditional medium or large law firm with a large staff of secretaries and assistants. We do not have large files filled with paper documents. All of our files are electronic and we run a paperless firm."

Virtual though it may be in spirit, the firm lists four separate office locations in the greater Pittsburgh area and says its lawyers will meet with clients in any private location where there is wireless Internet access. As it turns out, the distinguishing factor for this virtual firm is not so much its approach to law practice as to law-practice management. The article describes the firm's co-founders, Karl Schieneman and Brian Walters, as more administrators than practitioners:

At Delta, both partners are lawyers but they mainly focus on the administrative operations of the business rather than the actual legal proceedings. For that, they rely on a network of about 20 lawyers throughout the Pittsburgh region, most of whom are specialists and solo practitioners.

'We give them neat tools and technology and allow them to focus in the areas they really want to focus in,' said Mr. Schieneman. 'We are the initial triage attorneys then we turn to a specialist.'

Among those neat tools: The firm videotapes the first meeting with the client and posts it online, along with all other documents in the case. Clients receive a password to access a protected area of the site, where they can view documents, receive court notices and send messages to their attorney. The Delta site also offers a series of podcasts about legal topics and a public discussion forum.

But Internet savvy, or even Internet access, is not required to become a Delta client, as the FAQ makes clear: "Delta Law Group is just like a typical law firm with a live lawyer who represents you.  We can work with you even if you don’t have ready access to the Internet."

January 18, 2008 | Permalink | Comments (4)

Boston Lawyer Wins for VI Judge

A Boston lawyer won a notable victory this week on behalf of a U.S. Virgin Islands judge when the U.S. District Court in St. Thomas ruled that the V.I.'s judicial discipline board is unconstitutional. The lawyer, Howard M. Cooper, is widely known for the $2.1 million libel verdict he won on behalf of Massachusetts Superior Court Judge Ernest Murphy against The Boston Herald, a verdict unanimously upheld last year by the state Supreme Judicial Court. Thanks to that case and others, Cooper and his firm, Todd & Weld, have earned a reputation in New England as the go-to lawyers for judges on the hot seat.

In the V.I. case, Superior Court Judge Leon Kendall turned to Cooper when he sought to block the V.I. Commission on Judicial Disabilities from hearing complaints about his conduct on the bench. The V.I. legislature created the commission in 1976 with authority to remove judges who commit misconduct. In the three decades since, the commission has rarely had reason to meet. Then last year, the commission received three complaints against Kendall from citizens critical of his decisions to grant low or no bail to defendants accused of violent crimes. Kendall defended his bail rulings, none of which were appealed. But with the commission ready to begin hearings on the complaints, the judge went to federal court, with Cooper arguing on his behalf that the legislature's grant of removal power to the commission violated the principle of separation of powers.

In a 42-page ruling issued Wednesday, U.S. District Chief Judge Curtis V. Gomez agreed with Kendall and entered an order blocking the commission from holding hearings. "Congress has not granted the Virgin Islands Legislature the authority to remove judges," he wrote. "Thus, the Legislature may not delegate such authority to the Commission." As for the Boston lawyer who won the case, Cooper told the Virgin Islands Daily News, "Judge Kendall is thrilled to have acted in a manner that protects the independence of the judiciary."

Read more:

January 18, 2008 | Permalink | Comments (0)

DOJ Blocks Blogger from Media List

Paul Kiel, deputy editor of the left-of-center political blog Talking Points Memo and reporter for its companion, realized one day that he had stopped receiving press-release e-mails from the U.S. Department of Justice. Having been on the DOJ's distribution list for more than a year, his immediate impulse was not to suspect ill motive, he writes this week. Still, TPM -- founded by blogger Joshua Marshall -- had won widespread recognition for its dogged legwork last year in exposing the Bush administration's partisan firings of several U.S. attorneys. And then there was that story Kiel had done enumerating false statements made by the DOJ's director of public affairs over the course of the U.S. attorney scandal. But DOJ wouldn't retaliate in so petty a manner, would it?

Curious to learn why he'd been dropped from the list, Kiel asked a research assistant to check with the DOJ's Office of Public Affairs. It took a week, but he finally got a response, in the form of a note from press assistant Jamie Hais. It said:

I appreciated your desire to be in tune with DOJ press releases, however, unfortunately I am not able to add you to our distribution list. As you may realize we have a lot of requests to be put on our media lists and we simply are not able to put everyone on the list. We do however have all our press releases on our website and update them the minute they are released so I would suggest looking there. You can also always call us with press inquiries. Thanks again for your interest.

No room on its digital list for one more e-mail address -- an address that had already been on the list. OK, that explains it. Kiel says he's asked the DOJ to elaborate on its criteria for inclusion. But journalist Dan Gillmor, writing at the Center for Citizen Media Blog, comments, "This has to be one of the more lame governmental PR decisions of the recent past." TPM's reporting on the U.S. attorney firings "is the obvious reason the Justice Department has shunned them," he says. Gillmor suggests a workaround: that a non-shunned journalist who receives the DOJ releases set up automatic forwarding to the bloggers at TPM. But that really isn't the point. What is the DOJ's policy regarding who can and cannot be on its mailing list? Who's making those decisions, and why? Inquiring minds want to know.

January 18, 2008 | Permalink | Comments (0)

January 17, 2008

The Story Behind the Xbox Class Action

Jason Gibson, the lawyer who filed a class action lawsuit against Microsoft on behalf of three Xbox Live consumers angered by connectivity issues experienced over the Christmas holidays, is now explaining the reasons for the lawsuit.  As reported in Wired, the lawsuit isn't a "get rich quick scheme" for the plaintiffs, but rather, an action to draw attention to a serious issue. However, the article notes that Microsoft has acknowledged the issues with Live and promised to compensate subscribers for outages with a free Xbox Live Arcade game. But that's not enough for Gibson, who says that the damage has already been done.  There's more information on the lawsuit at

Blogger Mark Methenitis of Law of the Game analyzes the damages and liability aspects of the Xbox class action suit.  First,  he explains that Microsoft's offer of a free live arcade game approximates the value of the service time lost as a result of connectivity issues.  In addition, Methenitis also cites the Xbox Live Terms of Use which include several stringent "no warranty" and limitation on liability clauses.   
Menthenitis concludes:

In short, the service is provided "as-is," and any damages are limited to the value of one month of service. Whether a court will allow payment in the form of, say, additional time on Xbox Live or a free game is yet to be seen, but I would imagine that, given the low per user amount involved, Microsoft's remedy would likely be adequate, especially since the outage was not 100% over the time claimed and not too terribly extensive in the grand scheme of things.  This is by no means to say the suit is doomed or without merit. There are a number of possible interpretations under which the plaintiffs could succeed, but in general, this seems similar to so many of the other suits levied against the house that Gates built: mostly for profit or for principle.

While I don't know enough about the merits of the suit to comment, I had to chuckle about Gibson's comments that the plaintiffs "aren't out to get rich."  That's most likely true -- but what about their lawyers?

January 17, 2008 | Permalink | Comments (0)

Hot Legal Jobs for 2008

Robert Half Legal, a national legal staffing agency just released its 2008 Salary Guide.  Today's press release announces the Guide and provides information that identifies the five "in-demand positions" for 2008.

Despite recent lay-offs, Robert Half remains bullish about certain positions.  The press release summarizes that competition has intensified for first-year associates from the top twenty percent of top-tier law schools, and demand is "robust" for patent attorneys.  In addition, more companies are hiring experienced lawyers for in-house positions to handle regulatory compliance, corporate and security law and commercial litigation.

Are firms still actively hiring first-years in recessionary times?  Or will they slow down so that they can avoid laying off associates down the line? 

January 17, 2008 | Permalink | Comments (0)

Young Lawyers Crusade Against Going to Law School

What's the best way to avoid dissatisfaction as a lawyer?  Don't go to law school to begin with. That's the advice of Kirsten Wolf and David Wold, two new lawyers whose respective crusades against legal education are making their rounds in the blogosphere.

Yesterday, the WSJ Law Blog interviewed Kirsten Wolf, a 32 year old Boston University Law School grad who is on a one-woman crusade to spare others from making the mistake of going to law school, as she did.  (H/T to  ABA Journal).  In her interview, Wolf explains that following several mundane, dead-end jobs, she decided to attend law school, which she believed would satisfy her intellect and also ensure her of future job security.  After graduating with a B+ average (middle of the class) from BU Law School, Wolf couldn't find a job, despite the fact that BU's promotional materials represented the average starting salary of graduates as $85,000/year.  Eventually, Wolf moved to New York and found a position in the publishing industry which she enjoys, but for the financial reality that she will likely be repaying her $87,000 in student loan debt through retirement. 

Wolf enjoys her job and believes that her law degree has value, but not for the price that she's paid.  As a warning to other students, Wolf says:

People say a law degree will always be worth something even if you don’t practice. But they don’t consider what that debt is going to look like after law school. It affects my life in every way. And the jobs that you think are going to be there won’t necessarily be there at all. Most people I know that are practicing attorneys don’t make the kind of money they think lawyers make. They’re making $40,000 a year, not $160,000. Plus, you’re going to be struggling to do something you might not even enjoy. A few people have a calling to be a lawyer, but most don’t.

Kirsten Wolf isn't the only law grad who feels this way. Last week,

Susan Cartier Liebel posted about David Wold, an angry lawyer who decided to auction his diploma on eBay, hoping to recoup his useless investment.   In his ad, Wold wrote:

Why am I selling this great item? Because it has been nothing but a curse and aggravation in my life. Going to school for this degree has been a joke, and has only brought me stress and misery. This degree has been a great invitation to work at least 60 hours a week at a place where I don't want to be for people that I don't care about. It has helped me develop great relationships with bill collectors as I can't afford the cost this great privilege has afforded me. It has limited my ability to pursue other work options as people just can't understand why someone with a law degree wouldn't want to be a lawyer.

Cartier Liebel empathizes to some extent, believing that Wold "has been sold a bill of goods about job prospects and not been provided reasonable alternatives during the course of his education which included entrepreneurship with his degree.  He came to believe, as many, that going to law school is a ticket to making money and that jobs abound."  Scott Greenfield shares some insight about his decision to start his own firm, and cautions students to think twice before going to law school.

Surprisingly, I haven't seen much discussion about this topic in the academic blogosphere.  Surely, most law professors (who generally have top credentials that would qualify them for jobs at large firms) must realize that the job prospects for lower performing students are dim.  Yet, I've not seen any law professors offer advice on whether to attend law school.

While I admire Wold's and Wolf's efforts to spread the truth about the true cost of a law degree and the realities of job prospects in the legal profession, I'm not sure that their advice will make much difference.  Ultimately, every person believes that he or she is a unique exception to conventional wisdom.  And despite grim predictions, many do go on to law school, either with high hopes of graduating at the top of the class, or that somehow, based on their determination and work ethic, they'll find a job where many others of comparable credentials failed.  For those intent on deluding themselves about post-law school realities, all the education in the world won't change their minds.

Readers, what's your view?  Would you advise graduates to go on to law school if they're not 100 percent sure that they want to be lawyers?  And if you could do it all over again, would you have gone to law school yourself?

January 17, 2008 | Permalink | Comments (27)

January 16, 2008

Of Steamy Sex and Speech in Stalls

When a legal newspaper headlines its story, "Hunter and Firm Sued over Steamy Affair," it is sure to grab attention. As Ontario's Law Times reports, a smoldering series of events led to prominent lawyer George Hunter's resignation as treasurer of The Law Society of Upper Canada and his disciplinary suspension, and they have now sparked a $1.4 million lawsuit against him and one of Canada's largest law firms, Borden Ladner Gervais.

The lawsuit was filed by "AB," an anonymous former client with whom Hunter had a two-and-a-half year affair. The law society, in disciplining Hunter for professional misconduct, found that he started the "sexual/romantic" relationship at a time when the client was "emotionally vulnerable" and after assuring her that he was having no sexual relations with his wife or anyone else. That may have been so as to his wife, but not as to the two women employed at his firm with whom he was sexually involved. One of those women, the lawsuit claims, opened an e-mail to Hunter while he was on vacation and discovered his dalliance with the other, igniting Hunter's confession of all three relationships.

Meanwhile, south of the border in Minnesota, sexual shenanigans enjoy the protection of the First Amendment to the U.S. Constitution. That, at least, is the argument raised this week by the American Civil Liberties Union on behalf of notorious toe-tapper Sen. Larry Craig (R-Idaho), as recounted by Andrew Cohen at the blog Bench Conference. In an amicus brief filed Monday in State of Minnesota v. Craig, the ACLU contends that Sen. Craig's foot-tapping and hand gestures in a bathroom stall amounted to speech protected by the First Amendment. And even if he solicited sex, it was not a crime, the ACLU says, unless police could show he was seeking to have sex in the stall and not a legal liaison elsewhere. Writes Cohen:

I don't know what's richer: that the political future of an archly conservative Republican senator is now in part dependent on an organization that has provided cheap punchlines for Republicans for a generation, or that Minnesota actually has case law that holds that sex in a public restroom bestows upon its participants some sort of privacy right.

I could not find the ACLU's amicus brief online (although you can request a copy from the court). I did find the brief that the ACLU filed in September before the case was appealed, raising the same arguments. Because the Minnesota law under which Craig was charged, the brief contends, "draws no distinction between invitations to have sex in private and invitations to have sex in public, and instead makes liability turn on whether the speech is 'offensive, obscene or abusive,' it is overbroad when applied to sexual speech."

January 16, 2008 | Permalink | Comments (1)

Blawgs: A Lawyer's First Reader

"See Tom. Tom is a lawyer. Tom has a blawg. See Tom run with blawg. See Tom get attention. See Tom get smarter. See Tom get clients."

Maybe that level of simplicity is needed to get some stuck-in-the-mud lawyers to see the appeal of blogs. Lawyers who read or write blogs will attest that their magic is no fairy tale. But a children's story could well be the way to reach lawyers who refuse to grow up about marketing and technology. That may be what motivated Wisconsin blogger Beverly Butula, law librarian at Davis & Kuelthau, to put her presentation about blawgs in the form of a children's story, Bella is Bewildered About Blogs.

Bella's story begins once upon a weekly meeting of the litigation group at a Milwaukee law firm.

Every Monday the group met to discuss current issues. One Monday, a colleague named Greg informed everyone of a recent decision that could affect the outcome of a large case the firm was handling. After the meeting, Bella asked, 'How did you hear about that case?' Greg answered, 'I saw it on a blog I monitor.'

Like another popular children's book character, Bella was curious. But as Butula portrays her, she was no chimp. She left the meeting and set out on a journey to learn all she could about blogs, concluding, "How great is this!"

Bella cannot wait to locate professional blogs and news sources. Then she will add them to her reader. She will have to take Greg out to lunch to thank him for telling her about legal Blogs.

Of course, with blogs having rescued her, Bella lived happily ever after. No word of what came of her lunch with Greg, who some in the office considered a toad.

Thanks to WisBlawg for pointing this out.

January 16, 2008 | Permalink | Comments (2)

Lawyer/Lawmaker Kicks up Controversy

Monday was Douglas Bruce's first day on the job as a state representative in Colorado. As the former lawyer stood with his new colleagues on the House floor for morning prayer, clasping a family Bible in his hand, a Rocky Mountain News photographer snapped this photo. "Don't do that again," Bruce snapped back, as he delivered a sharp kick to the photographer's bent knee, knocking the photographer off balance and tipping one of his cameras. Later, Bruce refused to apologize, saying the kick was more of a "nudge or a tap or a prod" and that he was "just trying to get him to stop disrupting the procedures, period."

Notoriety is nothing new to Bruce, an anti-tax crusader who was chosen last month by El Paso County Republicans to fill an unexpired term. Even before showing up at the Statehouse, he had come under fire for delaying his oath of office until Monday in order to take advantage of a term-limits timing loophole that would allow him to serve eight years instead of six. Rocky Mountain News editor John Temple said the photographer had every right to take the picture and called Bruce's action "outrageous." Even Bruce's fellow Republicans declined to defend him and joined in forming a special legislative committee to investigate the incident.

On Bruce's Web site, he says that he is a graduate of the University of Southern California law school who became a deputy district attorney at age 23. Later, his site says, "Bruce stopped practicing law because the law and the courts need major reforms from the outside." Before becoming a legislator, Bruce had been an El Paso county commissioner, where his hometown newspaper reports he had regular run-ins with fellow Republicans and county officials -- to the extent that the county attorney once called him a "sociopath."

Further reading:

January 16, 2008 | Permalink | Comments (0)

Judges' Guide to Keeping Secrets

No doubt, federal judges have enough to think about without having to worry about how to keep secrets from the public. Now, a new "pocket guide" simplifies secrecy for judges, lifting the veil on how to keep the lid on government secrets in the courtroom. Published by the Federal Judicial Center, the how-to handbook bears the non-nutshell title, Keeping Government Secrets: A Pocket Guide for Judges on the State-Secrets Privilege, the Classified Information Procedures Act, and Court Security Officers.

In the guide's preface, FJC Director Barbara Jacobs Rothstein explains its purpose:

Most federal judges come into contact with classified information infrequently, if at all, but when they do, they are faced with the dilemma of how to protect government secrets in the context of an otherwise public proceeding.

This pocket guide is designed to familiarize federal judges with statutes and procedures established to help public courts protect government secrets when courts are called upon to do so. The guide provides information about the Classified Information Procedures Act (CIPA), information security officers, and secure storage facilities.

I hope you will find this guide useful in meeting the challenge of protecting government secrets in a public forum.

In just 19 pages plus appendices, the guide uncovers the ABCs of classified information and state secrets and includes sections on protective orders, withholding discovery, ex parte presentations and limits on evidence at trial. While it is for the executive branch to decide what information is classified, the guide concludes, it is for the judiciary "to protect the rights of parties in civil and criminal cases while keeping government secrets."

[Hat tip to beSpacific.]

January 16, 2008 | Permalink | Comments (0)

January 15, 2008

Supreme Court Protects Third Party Advisers in Stoneridge

Today, by a 5-3 vote, the Supreme Court decided Stoneridge Investment Partners v. Scientific Atlanta, rejecting the concept of "scheme liability" that would have allowed shareholders to sue third party advisers who may have facilitated the fraudulent transactions.  The ruling should come as no surprise to Legal Blog Watch readers --  we took the pulse of the blogosphere on the likely outcome of Stoneridge following October's oral arguments, and could not find any observers who predicted a win for investors.

Tony Mauro gives a quick summary at Blog of the Legal Times.  He reports that Justice Kennedy, the swing vote, authored the decision.  Kennedy found that the investors had not relied on the third parties' actions, and further, wrote that expanding causes of action in securities litigation would damage the economy and "would allow plaintiffs with weak claims to extort settlements from innocent companies." Stevens, Souter and Ginsburg dissented, however, criticizing the majority's "mistaken hostility towards the 10(b) private cause of action."

Though Stoneridge just issued this morning, plenty of posts have already come out with thoughts  and analysis:

  1. Doug Berman of Sentencing Law and Policy wonders whether Stoneridge may have implications for sentencing, such as determinations of issues like loss that could impact sentencing in securities fraud cases.

  2. SCOTUS Blog offers a good summary of the ruling, and Howard Bashman has a roundup of news stories;

  3. Professor Bainbridge agrees with the decision, as a matter of legal doctrine and policy;

  4. Elizabeth Nowicki makes several points.  First, she disagrees that the decision is necessarily bad for investors, because it shields third party actors far removed from the fraudulent transactions.  She says at best that Stoneridge merely stands for the proposition that the farther down the "fraud chain we go, the harder it is to pull in defendants."  Nowicki also asserts that Stoneridge shows that the Court often does not understand securities law cases, and that if the case is viewed as one relating to investor reliance (or lack thereof), then based on the facts, the Court reached the wrong result. 

  5. Finally, David Lat at Above the Law suggests that  Stoneridge may be bad news for one segment of the business community:  business litigation.   Lat asks, "With transactional work drying up, is the Supreme Court's business-law revolution, cutting down on litigation against corporate America, coming at a bad time for Biglaw as a business?

If you've posted about the Stoneridge case, send us a comment with a link to your site so that we can add it to this body of commentary.


January 15, 2008 | Permalink | Comments (0)

Curbing Associate Attrition: New Ideas, but Are They Necessary in a Recession?

We've posted about the problem of associate attrition before.  Now, early in 2008, I've already come across two new ideas for stemming associate attrition.  But I wonder if they come too late, as we enter recessionary times, where at least some law firms have laid off associates.

First, the ideas for reducing attrition.  A blog post at JD Bliss reports on this proposal of the Project for Attorney Retention by which law firms would hold partners accountable for attrition. In other words, regardless of the amount of business that an individual partner generates, his or her compensation would be reduced if the partner failed to undertake certain activities to promote a flexible work environment.  Personally,  the concept sounds a little nutty because I'm not sure how it could be enforced, but apparently some firms, including Sidley Austin, have adopted the approach.

Another idea for keeping the younger generation of lawyers satisfied comes from Ari Kaplan in this recent piece in the National Law Journal.  Describing his experience waiting outside the Supreme Court to hear the arguments in the recent Guantanamo detainees' case, Kaplan argues that giving associates more opportunities to attend Supreme Court arguments would inspire them, and give them role models worth emulating.

While both pieces offer worthwhile advice on ways to improve young lawyers' career satisfaction, as we head into a recession (some, like Larry Bodine believe that we're in one already), I wonder whether we'll see much of these kinder, gentler law firm policies designed to keep associates around.  Many of these programs are an added expense to firms, either in the form of additional implementation costs or at the least, foregone billable hours.  When firms are laying off associates to stay afloat (or, for the more cynical, to preserve profits per partner), will they still care about associate happiness -- or be grateful to see associates leave voluntarily to spare themselves the negative publicity of announcing mass terminations? 

What do you think?  Will more firms commit to initiatives to guard against associate attrition in 2008, or are those policies so 2007?

January 15, 2008 | Permalink | Comments (1)

Blawg Review #142 and Blawg Review Awards

Yesterday, Susan Cartier Liebel of How to Build A Solo Practice LLC posted a masterful Blawg Review #142, in the form of a "Letter to a New Lawyer."  Not only does Cartier Liebel's letter itself offer sound advice to lawyers embarking out on their career, but many of the links connect to posts that contain their own words of advice.  Set aside at least an hour to go through all of it.

And today, the Blawg Review of the Year was announced, with Colin Samuel's Infamy or Praise grabbing top honors, with Eric Turkewitz's New York Personal Injury Blog and Ann Reed's Deliberations a close second and third, respectfully. 

January 15, 2008 | Permalink | Comments (0)

Inside Story of 'Flea'

Today, New York Personal Injury lawyer/blogger Eric Turkewitz caps off his coverage of pediatrician Robert Lindeman, aka Flea, who blogged pseudonymously about his upcoming medical malpractice lawsuit and was eventually unmasked at trial.  Turkewitz interviewed Lindeman by e-mail, and posts the exchange here.

Though Turkewitz is a personal injury attorney who specializes in plaintiffs' side malpractice cases, his interview really humanizes Flea, showing the personal and professional toll of making a mistake that results in the death of a patient.  Irrespective of whether you sue or defend doctors in malpractice cases, the Turkewitz interview is a must-read.

January 15, 2008 | Permalink | Comments (0)

January 14, 2008

Court Gags Blogging Lawyer, Maybe

Miami criminal defense lawyer David O. Markus will have to watch what he says on his Southern District of Florida blog now that a federal judge has issued a gag order that appears to extend to him. The gag order came in the case of the so-called Liberty City 7, a group accused of plotting terrorist acts in Miami, Chicago and elsewhere. In December, the first trial of the seven ended in a mistrial as to six of the defendants after jurors deadlocked on the charges against them. Jurors acquitted a seventh defendant, Lyglenson Lemorin.

In the wake of the mistrial, U.S. District Judge Joan Lenard issued a sweeping gag order prohibiting the defendants, their lawyers, prosecutors and others from speaking to the news media. With the retrial of the six remaining defendants due to start with jury selection this week, Lenard issued an order Thursday extending the gag to cover acquitted defendant Lemorin, Lemorin's lawyer Joel DeFabio and DeFabio's "agents."

Here is where blogger Markus enters the picture. Markus recently took on defense lawyer DeFabio as a client to challenge Lenard's gag order. "Because I am now one of DeFabio's agents," Markus writes on his blog, "I take it that I cannot speak about the case." He has filed a motion to clarify the scope of the order. But until that is ruled on, he says, "I don't think I will be posting about the case."

The judge's rationale for gagging Lemorin and his lawyers is that the acquitted defendant remains a witness in the case. Reporting on the order, the South Florida Sun-Sentinel checked in with First Amendment guru Floyd Abrams, who called the gag order unusual for its impact on people not involved in the case. "Judges have considerable, but not unlimited, power to limit the speech of those before them," Abrams said.

[Hat tip to How Appealing.]

January 14, 2008 | Permalink | Comments (0)

New Development in Sen. Craig Case?

Is something brewing in Sen. Larry Craig's attempt to reverse his plea of guilty to disorderly conduct in an airport men's room? In case you've forgotten, the Idaho Republican was arrested June 11 in Minnesota as part of a police sting operation. He later hired two bigwig lawyers to help him clear his name, William R. (Billy) Martin and Stanley M. Brand. Now, Minnesota Lawyer Blog reports that the Minnesota Court of Appeals on Friday entered an order authorizing the Washington, D.C.-based Martin to appear in the Minnesota court. Does this mean that Martin, who's recent well-known clients include Michael Vick and Wesley Snipes, will soon be head to the North Star State?

January 14, 2008 | Permalink | Comments (0)

Collective Advice to a New Lawyer

Easter is a ways off still, but there are Easter eggs hidden throughout today's Blawg Review #142, written by Susan Cartier Liebel at Build a Solo Practice, LLC. Liebel styles this week's roundup of law-related blogs in the form of a letter to a new lawyer. Cleverly, she incorporates blog names throughout the letter, such as in this excerpt:

You may have the Dreams of a Solo and hope to one day say to your child, 'that's My Shingle.' You  realize you will need a Startup Toolbox and have learned you will have to be your own Chief Happiness Officer. Quite often that is when you will face the most resistance from others, and the secret envy of many.

Now here's where she's hidden the Easter eggs. Unlike the typical Blawg Review format, Liebel gives you no clue about the topics of the posts she links to. She leaves it to the reader to click through to each post. As you do (if you do), you find that some of the links -- not all of them -- lead to other bloggers' own letters to new lawyers. Thus, you get not only Leibel's letter, but also letters from the likes of Carolyn Elefant, Julie Fleming-Brown, Kira Fonteneau, Anastasia Pryanikova and Chuck Newton, to reveal just a few. It is an Easter egg hunt that demonstrates why the single best piece of advice to a new lawyer may be to join the legal collective known as the blawgosphere.

January 14, 2008 | Permalink | Comments (0)

Morgan Lewis on Trial Over Advice

Did erroneous advice from Morgan Lewis & Bockius get a client in hot water for violating the U.S. trade embargo with Cuba? That is the issue in a trial that got underway Friday in the firm's home city of Philadelphia. Two brothers, Dan and Stefan Brodie, founders of Purolite Corp., allege they were criminally prosecuted for following the firm's advice that they were free to trade with Cuba. Bloomberg reports that in opening arguments Friday, a lawyer for the brothers, Marc E. Kasowitz, asserted, "Morgan Lewis's malpractice, sloppy work and their bad advice cost Purolite and the Brodies and it cost them severely." But the lawyer for Morgan Lewis, William O'Brien, countered, "The advice we gave was proper and it was correct. "They made millions of dollars. That's what this case was about."

According to a report on this case after it was filed in 2004, the lawsuit claimed that even after the U.S. Customs Service launched an investigation in 1997 into the company's trade with Cuba, a now-retired Morgan Lewis partner, Edward Dennis, continued to advise the company that it had a viable defense. Morgan Lewis was "particularly riled" by the allegations against Dennis, who retired in 2002 "after a distinguished career," reported, quoting a statement issued by the firm: "The advice given to our former client throughout our representation, the substance of which is misrepresented in the complaint, was correct in all respects. The accusations against our former partner, Ed Dennis, are particularly offensive and unfounded."

Morgan Lewis later succeeded in defeating portions of the lawsuit. In January 2005, a judge dismissed the plaintiffs' claims for legal malpractice and breach of fiduciary duties, saying they had been filed outside the statute of limitations, reported. He let the lawsuit go forward on a breach of contract claim. While Morgan Lewis had argued that the contract claim should be dismissed on public policy grounds because the brothers had pleaded guilty to federal charges, the judge disagreed, concluding "that the public interest is served where attorneys are held accountable for providing their clients with bad legal advice when those clients suffer harm as a result of that advice."

January 14, 2008 | Permalink | Comments (0)

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