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March 31, 2008

If You Have to Lose a Jury Trial, This Is the Way To Do It

Akin Gump partner Michele Roberts didn't win a complete victory for her client, Sonnenschein Nath & Rosenthal in its dispute over compensation with its ex-partner Douglas Rosenthal.   But she won something possibly even more valuable -- praise for her efforts from the jury.

As today's Legal Times reports, a D.C. jury found that the Sonnenschein owed Rosenthal close to $1 million as compensation for high-value contingency cases -- such as representation of families killed in the 1988 bombing of Pan Am Flight 102 over Lockerbie -- that Rosenthal brought to the firm.  The jury's award, however, was far less than the $8.2 million that Rosenthal sought.   Moreover, the jury also awarded Sonnenschein $300,000, to compensate it for Rosenthal's interference with firm clients after his departure in 2005.

As for Roberts, she won praise from the jurors, several of whom expressed that she and her co-counsel, Bingham's James Hamilton outperformed Rosenthal's legal team.  Said one juror:

I didn’t believe Ms. Roberts as much, but she was such a brilliant litigator that I was leaning toward her direction,” said Stofferson, who works for the federal government.

Daniel Petrocelli, who unsuccessfully defended Jeff Skilling against felony fraud charges related to Enron's collapse, is another lawyer who lost but won.  As we posted previously, jurors said that they'd hire Petrocelli... if they could afford him.

If you have to lose a jury trial, winning the jury's endorsement is probably the best way to do it.

March 31, 2008 | Permalink | Comments (3)

New Jersey v. Delaware, Tofu and Bean Sprouts v. Liquified Natural Gas

What's most interesting about today's Supreme Court decision in Delaware v. New Jersey isn't the main course, i.e.whether Delaware could lawfully block a liquified natural gas (LNG) facility proposed on the New Jersey side of the Delaware River.  Instead, it's the side dish, (or snide dish) of "tofu and bean sprouts" that Justice Scalia served up in his dissent.

Delaware v. New Jersey is one of those infrequent matters where the Supreme Court is called upon to exercise its original jurisdiction to resolve disputes between states.  Here, New Jersey had approved necessary permits to authorize construction of an LNG facility on its side of the Delaware River.  Trouble is, the pier extended 1,455 feet into Delaware's claimed territory -- and Delaware denied a permit necessary to allow construction of the facility. 

To resolve the dispute, the Court examined Article VII of a 1905 Compact between New Jersey and Delaware that governed their respective usage rights.   In a majority opinion authored by Ginsburg (Stevens concurred, Breyer recused), the Court found that the Compact did not give New Jersey exclusive jurisdiction over all riparian improvements commencing on its shores. As such, Delaware had overlapping authority to regulate those portions of a structure that extended into its waters, so long as it did not impede "ordinary and usual exercises" by riparian owners in the New Jersey. The Court found that an LNG terminal "goes well beyond ordinary or usual." Thus, the Compact allowed Delaware to lawfully deny a permit for the facility.

Scalia dissented, with Alito joining.  Scalia held that the Compact gave New Jersey exclusive jurisdiction over improvements beginning in its territory, noting that Delaware could effectively deny New Jersey of any authority by voting to block the permit.  In Scalia's view, Delaware's ability to veto New Jersey's development decisions rendered Article VII of the Compact meaningless.

But for Scalia, this decision wasn't just about Delaware and New Jersey.  It was also about... bean sprouts and tofu.  Here's Scalia's "money" quote:

After all, our environmentally sensitive Court concedes that if New Jersey had approved a wharf of equivalent dimensions, to accommodate tankers of equivalent size, carrying tofu and bean sprouts, Delaware could not have interfered.

On the serious side, Scalia pointed out the economic impacts that Delaware's denial of authorization of the facility would have on New Jersey's economy and the nation's energy supply.  As such, Scalia emphasized that the Court owed New Jersey and the nation much more than casual statements that the wharf is an "extraordinary" type of facility that would justify allowing Delaware to veto it under the Compact. 

March 31, 2008 | Permalink | Comments (1)

Blawg Review #153

The only fault that I could find with this week's pirate-themed Blawg Review #153 (or Blarrg Review) is that it's simply not C (sea)-worthy. Captain George Wallace of Declarations and Exclusions gets an A for his spirited journey around the Blawgosphere, pillaging its treasures for us to enjoy.

Two interesting Blawg Review posts deserve special highlighting here.  Kevin O'Keefe of Lexblog shares some statistics on the state of the Amlaw 200 blogosphere. Of the top 200 law firms, 53 have blogs -- but what surprised me is that 24 firms, a near-majority, use Blogger as a platform, followed by 16 using Lexblog and the remainder split between other platforms. I have nothing against Blogger (indeed, I've used it for a blog in my own practice), but I'm surprised that so many large firms, which typically select high-end packages when it comes to CRM (client relations management software) or computerized legal research would opt for a budget platform when it comes to blogging. 

A second Blawg Review link that caught my eye was this post by Jordan Furlong at Law 21, asking whether law firms are gaming the system that magazines and other ratings services use to identify "best places to work."  Furlong writes that "it's this 'gaming' element of such rankings that raise what I think is going to become a problematic element of law firms' recruiting efforts down the road."

And this completes the arrrgh-duous task of reporting on this week's Blawg Review.

March 31, 2008 | Permalink | Comments (0)

Acting Like Lawyers

For lawyers who don't experience much drama or action in their day jobs, the play's the thing. As described in this article, lawyers in North Carolina's Triangle have discovered that community theater productions offer a way for them to indulge their theatrical aspirations without allowing those dreams to take center stage.  The article highlights seven lawyers with diverse practice backgrounds ranging from corporate securities work to criminal defense, who are enjoying their dual roles as lawyer-actors. 

Many of the lawyers profiled drew parallels between acting and the practice of law.  Criminal defense lawyer Seth Blum emphasizes the importance of "knowing your audience," whether the stage is in the courtroom or the theater. Benji Jones, a corporate securities lawyer reflects:

When you act, you read a text and you develop questions, and you interpret the text to answer your questions. That's the same thing you do when you're a lawyer. You have questions and you have to go analyze something.

Still, it's not likely that any of these lawyers will make a permanent career move any time soon -- for most, community theater is a purely pro bono endeavor.

March 31, 2008 | Permalink | Comments (0)

March 28, 2008

Lawyers as Litigants in Boston

Yesterday brought two appellate opinions from Boston-based courts -- one federal, one state -- in which lawyers participated not as advocates, but as litigants. One, from the state's highest court, the Supreme Judicial Court, addressed the applicability of an anti-SLAPP statute to the lawyer's attempts to recover his legal fees. The other, from the 1st U.S. Circuit Court of Appeals, involved a divorcing lawyer's attempt to keep his ex-wife from getting a stake in his retirement plans.

The SJC decision, Wenger v. Aceto, involved a case that pit the lawyer, Gregory J. Aceto, against his former client, a physician. When the client's check to Aceto bounced and the client failed to accept delivery of Aceto's formal demand for payment, the lawyer asked a local court to issue a criminal complaint against the client for larceny by check. The request was denied, but it got the attention of the client, who sued his former lawyer for malicious prosecution and abuse of process. The lawyer filed a motion to dismiss based on the state's anti-SLAPP law -- the "strategic litigation against public participation" law that is intended to protect the right to petition the courts. The SJC granted the lawyer's motion to dismiss (although it allowed the client's consumer protection claim to continue). "Although we may dislike or disfavor an attorney's choice to seek a criminal complaint against a former client in an attempt to collect payment for past services," Justice John M. Greaney wrote for the SJC, "we cannot deny any citizen the constitutional right to petition the courts to seek legal redress."

In the case decided by the 1st Circuit, Geiger v. Foley Hoag LLP Retirement Plan, Foley Hoag commercial litigator David R. Geiger went to federal court on the heels of a contentious state court divorce that assigned his ex-wife an interest in his three retirement plans. He filed suit under ERISA seeking to enjoin the plans' administrator from making the transfer to his ex-wife. She intervened and was successful in having the case dismissed. On appeal, the 1st Circuit affirmed the dismissal, concluding that Geiger, who represented himself, failed to protect his pension rights in the state court proceeding, "on the mistaken belief that the federal courts had exclusive jurisdiction."

For lawyers as litigants, that's one win, one loss.

March 28, 2008 | Permalink | Comments (1)

'Neutral' Sites as Fronts for Firms

At the Fortune blog Legal Pad, Roger Parloff points to perhaps the most recent example of what strikes me as an increasingly common and problematic trend -- PI firms setting up seemingly neutral front sites devoted to health, pharmaceutical or other issues they handle. Parloff's example is myMeso, a site about mesothelioma that, he writes, "looks like it's probably run by a nonprofit, 501(c)(3) group devoted to providing dispassionate information about the dreaded, fatal, asbestos-linked cancer." In fact, the site is operated by Alabama plaintiffs' firm Beasley Allen Crow Methvin Portis & Miles and written by employees of the firm. Parloff had to "scroll down a ways" before he found a faint, watermark-like box indicating the site was a "public awareness web site sponsored by Beasley Allen."

Since Parloff's post, the firm has modified the page so that its sponsorship is prominently identified. But this is only one example of many. Pick a disease, add dot-com, and you're likely to find yourself at a site portrayed as a victims' or consumers' resource but run by a law firm. Some are transparent, some are not. There is, and plenty of others. A variation on this theme are lawyer referral sites such as the Top Lawyers sites I wrote about here in October ('TopLawyers' Floods YouTube, Web).

A Beasley Allen partner tells Parloff he does not consider the site confusing to consumers. Ethics specialists say the site may be OK under ethics rules because it does not directly solicit clients -- and may even be protected by the First Amendment. Notably, Parloff writes, several legal-ethics experts initially saw no problem with the site, "since none realized that the site was run by a law firm until I told them."

I am all for law firms disseminating useful information to consumers. But they should be up-front about it. If a firm sets up a set to provide information, it should lay claim to it, not lay silent behind a hidden wall.

March 28, 2008 | Permalink | Comments (2)

USPTO Chief Slams Bad Patents

Dudas No less an innovator than IBM once filed a patent on a system for providing restroom reservations. Or, as Ars Technica more crassly describes it, "Big Blue wanted a patent on taking a number to use the can." According to the post, Jon Dudas, the director of the U.S. Patent and Trademark Office, in a speech yesterday at the Tech Policy Summit in Hollywood, cited that example as symptomatic of the problems facing his office.

While companies generally want patents in order to protect intellectual property, that's not the only a reason for seeking patents. Dudas noted that Wall Street loves it when companies file patents, since patent numbers can be used as an easy proxy for innovation and R&D work. The sheer number of patents can also make it easier to strike cross-licensing agreements with other companies, as it makes a given patent portfolio look broader and stronger.

While no one would argue that bad patents "promote innovation," they do often make business sense, Dudas told the summit's attendees. That is why the number of bad applications is surging and the percentage of patent approvals is dropping dramatically. But how should the surge be slowed? One proposal being floated is to raise the filing fee significantly, but Dudas believes this would be counter to the USPTO's mission to be open to all inventors. He has other ideas for stemming the surge:

Dudas wants to see the barrier to filing raised in less costly ways, such as requiring minimal searching for similar or identical previous patents, and he wants applicants to describe exactly how their invention expands the state of the art; in other words, make a strong argument that your idea is demonstrably better than what's already out there. These changes alone will 'drop out a significant portion of bad applications.'

Lurking in the background is the controversial patent reform bill still making its way through Congress. Will it pass? Dudas told his summit audience that he gives the bill a better than 50 percent chance of success during this session of Congress. Meanwhile, if you need to use the restroom while you're waiting, e-mail IBM for a number.

March 28, 2008 | Permalink | Comments (2)

Martin Takes Helm of Bingham in Boston

Martin Both The Boston Globe and Massachusetts Lawyers Weekly have the news that Ralph C. Martin II has been named managing partner of the 270-lawyer Boston office of Bingham McCutchen, putting to rest speculation that the former Boston district attorney would run for mayor of that city in 2010. Both reports also say that Martin is the first black managing partner at a large Boston law firm. "I've been joking with Ralph that I see his new job as mayor of the firm's Boston office," Bingham Chairman Jay S. Zimmerman told the Globe. "What that means is he's charged with listening to people, understanding their needs and concerns, and making sure our Boston office remains a vibrant internal community."

Martin, 55, was district attorney of Suffolk County, where Boston is located, from 1992 to 2002 -- elected to that office as a Republican. He'd been exploring a mayoral run for several months. In addition to running the Boston office, he will continue to practice law and to serve as managing principal of the firm's government relations offshoot, Bingham Consulting Group.

March 28, 2008 | Permalink | Comments (0)

God's Lawyer Pens Legal Help Book

Slbcroppedsmallerversion When a legal self-help book is promoted as coming from God's legal department, you can't ask for a higher authority. That's the pitch for the new book from "Christian lawyer" Stephen L. Bloom, The Believer's Guide to Legal Issues, due out April 1. "I've seen people, including Christian believers, getting caught up in very painful legal nightmares, damaging their relationships, making themselves miserable, all by following traditional secular legal advice and values," Bloom says. "So I've written this book to empower people to rise above the mindset of greed and revenge so prevalent in the law, to draw them instead to God's vision of lasting peace, restored relationships and true justice."

A partner at the firm of Irwin & McKnight in Carlisle, Penn., Bloom is an adjunct professor of business at Messiah College, a legal columnist for Good News Daily and the former host of a radio program, "Practical Counsel -- Christian Perspective." According to his personal Web site, he regularly speaks at churches, colleges and professional schools, and elsewhere, offering advice on how audiences can "integrate Biblical Christian values and perspectives into their real-life decisions." His new book, according to information on this site, addresses common legal issues such as real estate, wills and trusts, bankruptcy, divorce, litigation and business. His goal, he says, is to discuss these issues from a Biblical perspective:

By presenting the unique and practical Christian perspective of a lawyer informed by God’s rich array of relevant scriptural wisdom and tempered by two decades of representing and counseling real life clients on the very same kinds of legal situations its readers now face, this book will release multitudes of Christian believers from the tangled web of moral confusion and ethical compromise so often promoted and exacerbated by lawyers and the legal establishment.

Among readers' reviews of the book at, there are the good words any writer might pray for. One reviewer calls it "a page turner -- easy to read and yet powerful in applying Scripture to real life situations." No word, however, on feedback from the legal department's Chief Legal Officer.

March 28, 2008 | Permalink | Comments (6)

March 27, 2008

Firm Salaries on the Rise in India

Though given the present economy, major pay increases for associates seem unlikely here in the United States, over in India, law firms are hiking salaries -- as much as 100 percent -- to retain talent, as reported in India's Economic Times. Although current Indian law does not permit foreign firms to open offices in India, firms like Clifford Chance and Allen & Overy are hiring Indian lawyers for their foreign offices. To compete with foreign firms, large domestic Indian firms have been forced to increase pay, either through salary hikes, end-of-year bonuses or promotions. New associates earn around 12 lakh rupees per year, while senior and principal associates may earn anywhere between 35 and 80 lakhs (one "lakh" is the equivalent of 100,000 rupees, so according to this currency converter, a new associate earns the equivalent of $29,887, while a senior lawyer makes $199,252.

I wonder what all of these pay raises will mean for law firms and corporations that outsource to India?

March 27, 2008 | Permalink | Comments (8)

Partner Takes Over Her Partner's Job... Literally!

When a law firm partner leaves the firm to move in-house, the firm typically asks another partner to assume responsibility for the the departing lawyer's matters. Indeed, that's what London-based Allen & Overy did when Graham Vinter, head of the global energy projects division, left the firm to become general counsel at BG Group -- it replaced him with another project finance partner, Anne Baldock.  But there's a twist -- Vinter and Baldock weren't just law partners; they're also life partners.

As this piece in the Times Online describes, Baldock was an established name in the project finance field and also one of the most senior female lawyers among London's Magic Circle law firms.  When Baldock joined the firm (which hired her even though she showed up four days late for her job interview) in 1982, there were fewer than ten women.  But Baldock claims that she never experienced discrimination by her colleagues -- and that it was not until she worked in a secondment at Chase Manhattan, an American bank, that she was condescended to because of sex.

I'm not familiar with any situations here in the U.S. where a large firm passed the baton from one managing partner to his spouse, and indeed, I would guess that most law firms have nepotism policies that might well preclude this practice.   Still, I'm curious -- how would you feel if a managing partner's spouse were promoted at your firm? 

March 27, 2008 | Permalink | Comments (0)

Lawyer Leaves Firm and Takes the Rap

After this recent flurry of stories on involuntary law firm departures and subsequent law suits, it's refreshing to learn about one lawyer who left his firm and took the rap for it... quite literally!  According to this story in The Lantern, Ohio State University's student publication, Mekka Don left a $200,000 a year law job to pursue a career in rap music.  Born Emeka Onyejekwe, 26-year old Don attended OSU on academic scholarship, graduating in 2002.  After receiving a law degree from New York University Law School in 2006, Don, presumably like many of his classmates, went on to a high-paying job at a large firm.  Not surprisingly, Don felt trapped at his firm -- "like a cog in the machine" -- as he puts it, so he decided to leave to pursue his passion.  Today, Don spends most of his time on his rap career; he's signed with a label called Move Records and will release a mixtape entitled "Law and Order" on March 31.

Still, Don hasn't completely abandoned the law.  He works with his sister at their own small law firm to pay the bills and engages in several other legal hustles.  To learn more about Mekka Don and his transition from lawyer to rap star, take a look at this video at his blog.

March 27, 2008 | Permalink | Comments (1)

Globalization of Law Practice, In Ways We Don't Expect

For most of us, the concept of a "global law practice" conjures up images of a high-priced, international mega-firm, whose lawyers criss-cross the globe, representing corporate clients in complex business transactions.  But as this week's blawgosphere posts bears out, international considerations are now infiltrating traditionally domestic practice areas, like criminal, personal injury or family law.

Earlier this week, the Supreme Court, by a 6-3 ruling in Medellin v. Texas, held that the President does not have the authority to order states to relax their criminal procedures to obey a ruling of the International Court of Justice.  As described here at Scotus Blog, the ruling does not rule out the potential that a World Court ruling might supersede domestic law.  Rather, the Court's decision focuses on the unlawful nature of the President's attempt to effectively "make law," by binding the state court to the World Court ruling without adequate authorization from the Constitution or Congress.

Adam Liptak's New York Times article describing European courts' discomfort with the notion of punitive damages generated a good deal of discussion around the blogs.  Liptak's article describes an Italian court  that refused to enforce an Alabama judgment against an Italian company because the award included punitive damages -- a concept offensive to Italian notions of justice.  And it's not just Italy; as Liptak shows, many other European countries are uncomfortable with the idea of juries awarding punitive damages. 

New York Personal Injury Lawyer Eric Turkewitz isn't surprised by the differing approaches to punitives by European countries and the United States.  He writes:

Why the difference [in attitudes about punitives]? I think it's easy. America was founded from the time of the Revolution on limiting the power of government. The political tension between those that want larger government and those that want smaller is seen to this day, and will likely be seen so long as the republic exists. It is seen every time the issue of taxes is broached, for example, because larger government means more payments to government employees, and the money has to come from somewhere.

While I don't profess to be a scholar of European governments, I think most would agree that they are significantly more interventionist in the private lives of the people than here. You see that in nations that restrict free speech or grant universal health care, as two examples. Our notions of freedom are not always the same as elsewhere. Intervention means not only larger government with larger powers. It also means higher taxes to pay for it. So wrongdoing is handled by the government, which the people pay for...

So we could, in theory, create criminal penalties to take the place of civil wrongs, and spend much more on criminal prosecutions of those wrongs as they do elsewhere. But we have to pay for that, and money has to come from somewhere if you care about fiscal responsibility. Or we could let the private sector regulate itself by empowering people to bring the wrongdoers to court themselves, and let the private sector handle the costs. And the public, instead of paying, receives not only the benefits of stopping reckless conduct, but the financial benefits by taxing the punitive damage award.

However, Dan Markel at Prawfs Law Blawg suggests that if the United States adopted Markel's proposal of casting punitive damages as an intermediary sanction, problems with foreign enforcement might decline.  Finally, Dustin Arnette at the Tort Law Journal of Ohio points out that the domestic and foreign views on punitive damages are in flux.  Arnette notes that U.S. courts are moving to impose stricter limits on punitive damages, while some countries like Spain, Canada and Australia are not hostile to the notion of punitive damages, and have enforced American judgments for punitives in their courts.

Even family law is going global these days, as David Starks points out in this comprehensive piece, The Globalization of Family Law, from the recent issue of the GP Solo Newsletter. Starks explains how global considerations impact issues such as the drafting of a prenuptual agreement and resolving child custody disputes.

Do you know of any other unexpected practice areas where global considerations come into play?  Let us know in the comments below.

March 27, 2008 | Permalink | Comments (0)

March 26, 2008

The Poster Child for Solo Practice

For two years now, I have had the honor of sharing blogging duties here at Legal Blog Watch with Washington, D.C., lawyer Carolyn Elefant. Carolyn and I alternate days posting here and we each write our own blogs, Carolyn at MyShingle and me at LawSites and Media Law. Well before we started blogging here, I had admired Carolyn's writing about solo practice -- her own and the broader issues facing all solos. Her writing has shown her to be the solo lawyer's best advocate and best critic, all to the betterment of lawyers and clients alike. She has distilled much of this in her recently published book, "Solo by Choice: How to Be the Lawyer You Always Wanted to Be."

Carolyn's road to solo success is profiled this week by writer Debra Bruno in the Legal Times article, " Balancing Act: Carolyn Elefant Wants to Be the Voice of Solo Lawyers." "In multiple ways," Bruno writes, "she's become a poster child for solo practice." Yet, ironically, she started out her career pursuing partnership at a larger boutique. When it became clear that she and the firm were not the right fit, she sought work elsewhere before deciding to hang her own shingle. Even then, it took several years of criminal appointments and other work before settling into her  niche handling energy regulatory matters.

As she tackled the multitude of issues raised in starting and building a solo practice, Elefant joined and helped build various networks of other solos. These networks helped her and encouraged her to help others. That led to her blog and then to her book. Along the way, she has found success in law and achieved balance between her career and her family. That may be Elefant's main message, Bruno writes: "Going solo isn't just about taking control of your career. It's about taking charge of your life."

March 26, 2008 | Permalink | Comments (0)

Policing Plagiarism = Fair Use

Four high school students from Virginia and Arizona got a lesson in copyright law when a federal court in Alexandria dismissed their case against a company that archives their school papers in order to police for plagiarism. The students sued iParadigms, the company that operates Turnitin, a system used by secondary schools and colleges to evaluate the originality of students' papers. In this case, both the Virginia and Arizona school systems required the students to submit papers via Turnitin, which would evaluate them for originality and also archive them as a basis for evaluating subsequent submissions.

The archiving, the students claimed, violated their copyrights in their school papers. But U.S. District Judge Claude M. Hilton, in dismissing their claims, said the company's archiving is fair use of the papers, one that provides "a substantial public benefit" through the prevention of plagiarism and one that actually protects the students' work, "preventing others from using Plaintiffs' works as their own."

Much of the decision dealt not with fair use, but with the enforceability of the clickwrap agreement the students signed when they registered with Turnitin. At 43(B)log, Rebecca Tushnet explains how the court handled that issue:

The court enforced Turnitin’s clickwrap agreement, which stated that users agreed not to hold it responsible for any damages they suffered from using the site, even though (1) plaintiffs included statements on their submitted work that they didn’t agree to Turnitin’s terms (too late; the clickwrap said it was the sole agreement); (2) plaintiffs were infants when they submitted their papers, and thus able to disaffirm contracts (but they can’t both benefit from the contract and disavow it, and they benefited by submitting their papers -- this seems fishy to me, though I’m not an expert in this area, since most if not all contracts signed by minors will have benefited them in the past); and (3) plaintiffs claimed duress (the duress came from third parties, their schools, and Turnitin’s not responsible; anyway, plaintiffs could have gone to private school, or moved, if they objected so strongly to their schools’ plagiarism policies).

On the copyright issue, the court got it right, says William Patry at The Patry Copyright Blog:

Regardless of my extremely negative views on the school district’s policy and its farming out of its responsibilities to a private company that imposed terrible, and non-negotiable clickwrap licenses on high school students forced to agree to them on pain of failure of flunking out of school, defendant’s use was clearly fair use. The purpose for the use was solely to check for plagiarism (however defined), and could not conceivably interfere with any market for plaintiffs’ work, nor defendant in any way meaningfully copy the works.

Read the decision and decide for yourself whether the court got it right (iParadigms has posted the opinion) or read more about it at Ars Technica.

March 26, 2008 | Permalink | Comments (2)

Going In-House? Get a One-Way Ticket

News today from Corporate Counsel magazine that Robert Graham's work as an in-house lawyer at General Re Corp. could land him in jail for life should be reason enough to think twice before leaving a law firm and going in-house. But even if a move in-house is not likely to send you to the Big House, there may be more subtle career factors that you should consider before making the leap. At his blog Counsel to Counsel, Stephen Seckler points to an article by his colleague Gloria Cannon which "suggests that a ticket out of a law firm is likely to be a one way ticket -- so think long and hard before you attempt the move."

Indeed, in the article, "A View from the Other Side: My Life as an In-House Attorney," Cannon frankly addresses some of the downsides to going in-house. She had spent five years as a BigLaw associate in Los Angeles when she got an offer to join a client. It sounded like a dream job, one she readily accepted. And it was, she emphasizes, "very positive" overall. But her experience on the inside served to debunk various myths held by those on the outside, such as that in-house work promises a cushier lifestyle, more exciting work and comparable pay.

The myth Seckler points to in his blog post is the assumption that if going in-house doesn't work out, one can always retreat to private practice. Not so, says Cannon:

First, law firms will question your commitment to staying at the firm for the long term. After all, you have already indicated that your commitment level to private practice is questionable by leaving in the first place. Firms will seriously question whether you are simply returning to earn some quick money before leaving again for the next available in-house opportunity.

Second, law firms will assume that your lawyering skills have deteriorated while you have been in-house since they will assume that you have relied on outside counsel to a large extent to handle any sophisticated matters. This may not necessarily be the case, but it will be a hard assumption to overcome.

But what about that positive experience Cannon mentioned? Going in-house definitely has its benefits, she writes: no more tracking billable hours, no pressure to market, and being on the receiving end of law firm marketing largess. But before you make the leap, she urges, consider where you'll land. "Once you leave private practice, it may be extremely difficult to go back."

March 26, 2008 | Permalink | Comments (1)

March 25, 2008

Howrey Offers Suits, Harbottle Offers Sex

Above the Law's David Lat reports that Howrey may be filming some type of video of its firm.  Lat's informant notes that the Howrey set included "multiracial attorneys in suits everywhere." Meanwhile Ben Moshinsky at The reports that a London-based firm,

Harbottle and Lewis is taking a different marketing approach.  From Moshinsky's post:

One of’s switched-on news seekers obtained an email sent to a broadsheet by the firm's PR agency complete with a picture of Harbottles' strapping trainees to try to drum up some interest in the firm.  The said PR person apparently wanted to sell a story about the wonderful working conditions at Harbottles, using a healthy sprinkling of sex to spice up the offering.  "This item might make an excellent picture story to cheer up credit crunch-induced depression," went the pitch. "I think seeing a beautiful woman on the front page of the FT might well do wonders for the economy!"

Moshinsky wonders what's next -- maybe some grainy 8mm video footage?

March 25, 2008 | Permalink | Comments (2)

Animal Law Can Bring Out the Beast in Some Lawyers

As today's Chicago Tribune reports (and as we've covered previously), the practice specialization of animal law is becoming increasingly popular.  The Tribune notes that "92 of the 196 ABA approved law schools in the country now offer courses on animal law,  up from the nine that offered classes in 2000." Moreover, some top law schools, like Duke, Harvard, Stanford, Columbia and Northwestern, found that the price is right for building up their animal law program after each received $1 million from a foundation set up by Bob Barker.

Unfortunately, sometimes the appeal of an animal law case can bring out the beast in lawyers. Susan Cartier Liebel writes here about a case involving a Denver salon owner who was fined $1,000 by an animal control officer because she dyed her poodle pink, the official color to promote awareness of breast cancer. Though the owner used organic beet juice which did not harm the poodle, she apparently violated a statute that prohibits owners from dying their pets.  Recognizing the public appeal of the case, two young lawyers agreed to represent the owner pro bono and asked another law firm to come on board to help with the PR aspects of the case. The firm declined -- and the young lawyers soon discovered why: the firm had poached the case of the pink pooch, arranging to represent the salon owner themselves! All of which goes to show that there are still some lawyers who choose to practice law as if they worked in an Orwellian Animal Firm, where as we all know, pigs rule.

March 25, 2008 | Permalink | Comments (0)

Most Law Firms Not Giving a Second Thought to Second Life

A little more than a year ago, I blogged about lawyers venturing into the virtual world, Second Life, either for personal enjoyment or marketing opportunities.  Today, however, you'll find that many lawyers' infatuation with Second Life has already died, with few lawyers giving Second Life a first, let alone second chance to play a role in marketing initiatives.

Future Lawyer Rick Georges is one lawyer who's considered but declined to participate in Second Life.  He explains:

I found it difficult to use, very difficult to navigate, difficult to find property, and difficult to build in. Since it was so labor intensive, it stands to reason that serious hobbyists were the only denizens. In addition, the bandwidth and computer power necessary to support 3D online virtual worlds just doesn't fit with attorney client interaction. When the technology becomes easy to use, and virtual worlds are as easy to navigate in as the real world; then, virtual lawyering in 3D might become a reality. However, don't hold your breath.

Kevin O'Keefe of Lexblog also adds that with stagnating user numbers and rampant service interruptions, Second Life should not rank high on a law firm marketer's list of "innovative marketing or networking."

Readers, have any of you ventured out into Second Life for marketing purposes?  And what kinds of results have you experienced?  Let us know in the comment section below.

March 25, 2008 | Permalink | Comments (5)

Law Bloggers Take Both Sides of Ohio Voter Fraud Debate

Depending upon your political views, conservative radio talk show host Rush Limbaugh's Operation Chaos campaign, exhorting Republicans to switch sides and vote for Hillary Clinton in the Democratic primaries to prolong the race, is either smart strategy or smarmy politics.  But is it illegal?  That's the question that two top law bloggers, Talk Left's Jeralyn Merritt and Election Law Blog's Rick Hasen took up in this televised debate moderated by MSNBC's Dan Abrams.

Before we get to the videotape, here's a little bit of

background.  Once John McCain locked up the Republican nomination after Super Tuesday, Republicans no longer had reason to vote for him in later primaries.  So they began to consider other strategic ways to cast their votes.  Spurred by talk show hosts like Rush Limbaugh, many Republicans decided to switch parties and vote Clinton -- either to prolong her battle against Obama or because they believe that she is easier to beat than Obama in the general election.  The strategy worked; many believe that Republican turnout in Ohio and Texas helped propel Clinton to victory.

But at a cost: By switching sides to game the election, Republican voters may have run afoul of Ohio law, explains Ari Melber of The Nation. Ohio law requires citizens to genuinely support a political party to vote in its primary.  Moreover, they must sign an affidavit pledging, under penalty of falsification, an affiliation with the party and support of its principles.  Several Internet postings by, and newspaper interviews of, turncoat Republicans suggest that at least several engaged in bad faith, crossover voting. 

So what say the experts? Talk Left's Jeralyn Merritt acknowledged that in most cases, voter fraud might be tough to prove.  But Merritt noted that some voters boasted online (in blog posts and chat rooms) about changing sides to game the elections.  These cases, Merritt suggested could and should be actionable so as to deter turncoat politics in future elections.  Merritt also went so far as to suggest that Limbaugh "aided and abetted" in a crime by urging voters to switch sides to cause chaos.

Hasen disagreed as to Limbaugh's liability, saying that it's unlikely that Limbaugh was aware of Ohio's affidavit requirement.  Moreover, Hasen seemed to think that the issue in Ohio is a bit of a red herring, given that Ohio is the only state that requires voters to swear out an affidavit regarding party affiliation.  Hasen suggested that if Ohio is concerned about voters gaming the election, it could simply conduct closed primaries and prevent voters from switching sides on election day. 

From my perspective, those who seek to prosecute crossover voters should be careful what they wish for -- because at some point, they too, might want the ability to use a vote strategically.  Indeed, that's what many liberal voters did back in the 2000 race, when they orchestrated a "voter swap."  Essentially, voters who wanted to support Ralph Nader in a state, like Florida with a tight race between Bush and Gore could agree to "swap" their vote with someone in a Democratic-secure state, like Maryland.  A California federal court shut down a Web site designed to facilitate vote swapping, but the Ninth Circuit reversed, finding that the site did not offer to buy or sell votes and was protected by the First Amendment

Voting is, by its nature, political, so we should be careful about attacking those who use their votes strategically to promote a political agenda, if only because we don't know when we may want to do the same.

March 25, 2008 | Permalink | Comments (4)

March 24, 2008

What's the Deal with GAO/Thomson Deal?

Questions continue to be raised among bloggers about an agreement in which the U.S. Government Accountability Office gives publisher Thomson West exclusive rights to federal legislative histories prepared on the public's dime. Public-access proponent Carl Malamud (who we've written about here and here) was quoted March 17 on the blog Boing Boing explaining that he has been investigating the arrangement with help from the Electronic Frontier Foundation:

The law librarians at GAO have compiled complete federal legislative histories from 1915 on. These are the definitive dossiers that track a bill through the hearing process and into law. If you want to divine the intent of Congress, this is where you go.

GAO cut a contract with Thomson West to have these documents scanned. Thomson West claims they have exclusive access to these public documents and even go so far as to boast that you should purchase this exclusive 'product' from West because the GAO law librarians (public employees!) have done all the work for you!

Malamud set up a Scribd page that contains the documents he has obtained from the GAO pertaining to this agreement. This weekend, the blog Free Government Information went through the documents in some detail and posted some interesting facts. The documents show that the GAO has compiled 20,597 legislative histories covering most public laws from 1915 to 1995 and spanning the 64th to the 104th Congresses -- almost all in paper or microfiche. In recent years, the GAO sought ways to digitize these histories, to preserve their integrity and improve their searchability. It tried to do some of this in-house, then went looking for a partner, which it found in Thomson West.

These documents raise the question: Why would the GAO enter into a relationship giving a private commercial entity exclusive rights to this valuable public resource? "Wholesale privatization without a careful, public examination of other, more citizen-friendly, alternatives is not acceptable," Free Government Information asserts, while Simon Fodden at says that even if Malamud is being alarmist, the situation presents "a cautionary tale for any government agency that wants to leverage its records with the help of private enterprise." As far as I can tell, no one from either the GAO or Thomson West has responded to the concerns raised by these bloggers and others. Here is their chance. If someone from either entity wants to shed light on the arrangement, we are all ears.

March 24, 2008 | Permalink | Comments (4)

Massacring the Boston Massacre Trial

When it comes to TV trials, dramatic license trumps law license every time. No exception is the now-running HBO miniseries, John Adams. In the first of seven installments, Adams the young lawyer takes on an unpopular cause by agreeing to defend the British soldiers accused of gunning down American colonists in the Boston Massacre. At trial, his clever questioning implicates the crowd in provoking the soldiers to fire. The jury clears the soldiers and Adams is proud that he has served the cause of justice.

Good TV but not so good on the facts, J.L. Bell tells us at the blog Boston 1775. Bell, a writer who specializes in the start of the American Revolution, finds a number of discrepancies between the miniseries version of the trial and the historical record. "Some of those changes must have been dictated by the need to keep the cast and sets limited, the story short and simple," he writes. "Others reveal some misunderstandings of the eighteenth century, and then there might be unconscious ideological distortions." Among the deviations from fact he finds:

  • While the eight British soldiers and their captain are tried together in the series, the captain was actually tried separately, as necessitated by his defense that he never ordered them to fire.
  • Adams was not the sole defense counsel. He was aided by a team that included Josiah Quincy Jr., who did much of the questioning, and Robert Auchmuty, who gave part of the summation.
  • Robert Treat Paine was not the only prosecutor; part of that job was handled by Samuel Quincy, Josiah's older brother.
  • Three judges presided, not just one.
  • Several witnesses and defendants were inaccurately portrayed, as Bell explains in more detail.
  • Jonathan Sewall, the royal attorney general for Massachusetts, did not watch the trial, but was notably absent, partly because of political distaste and partly, Bell conjectures, because of biological depression.

Historian Jeremy A. Stern also blogs about the historical inaccuracies of the HBO series at the History News Network, calling the depiction of the trial "deeply flawed."

The anarchy shown in the courtroom is almost certainly inaccurate, unattested even by staunch pro-government men who branded almost any gathering an incipient riot: Massachusetts had great respect for jury trials. ... The behavior of the crowd before the shots were fired was indeed much argued over, but the daring of the troops to fire was openly and frequently mentioned, not boldly extracted from a fearful witness in a crucial 'aha!' moment.

For Bell, his "favorite" inaccuracy involves a trial scene in which the lawyers question a black witness named Andrew Holmes. Where, Bell wonders, did HBO come up with this surname, given that the character was based on a slave owned by the merchant Oliver Wendell. Perhaps, Bell suggests, the screenwriter confused the merchant Wendell with the child named after him in 1809, Oliver Wendell Holmes, who would later pass the name to his own child, Supreme Court Justice Oliver Wendell Holmes Jr.

March 24, 2008 | Permalink | Comments (1)

Law School Woes Could Win You $10K

Attention stressed-out law students: Now you can profit from your angst. Access Group, a nonprofit student loan company, is sponsoring a contest that will award $10,000 to the best law student video depicting what worries you in law school. Up all night studying? Can't find a summer job? Getting picked on by a professor? No money left to buy food? Whatever your woe, film it, upload it to YouTube, and enter it by June 15 in the One Less Worry Contest. Access Group will select 10 finalists and then open voting to the public on July 1. The recipient of the most votes by July 31 gets a $10,000 scholarship for the 2008-2009 academic year.

To enter, you must be enrolled as a law student as of Aug. 1, 2008. The 10 finalists will be selected based on creativity, humor, realism, quality and overall appeal. Videos can be no longer than four minutes. And then there's the fine print, like don't defame anyone or promote bigotry or racism. As the alleged law students in the video below caution, "Remember, this is a family show." Entries will be compiled at this YouTube page.

[Hat tip to Eagleionline.]

March 24, 2008 | Permalink | Comments (0)

Grammarians Parse the Second Amendment

In District of Columbia v. Heller, the Supreme Court is expected to interpret the meaning of the Second Amendment, which says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." When it does, John McIntyre hopes that the justices keep in mind "the understanding of English grammar prevalent among the Latinate-minded Founders."

McIntyre speaks as one learned not in law but in language. He is a copy editor at the Baltimore Sun and author of the blog You Don't Say, where he writes about writing, grammar and usage. The Second Amendment's opening phrase, he argues, is an absolute, one that governs the rest of the sentence. "The right to bear arms therefore has a direct connection to the establishment of a militia," he says.

His interpretation finds an ally in Dennis Baron, the University of Illinois linguistics professor who writes the blog The Web of Language. Baron was one of several linguistics professors who filed an amicus brief in Heller. The brief argued that the "absolute construction" of the militia clause necessarily melds to it the second clause, "the right of the people to keep and bear arms." This was the grammatical rule the framers would have understood, Baron argues, and while the Supreme Court may end up parsing the Second Amendment differently:

it risks calling down the wrath of Robert Lowth, Bishop of London, the royalist sympathizer Lindley Murray, and the rabid federalist Noah Webster, whose political opinions may have differed, but whose grammatical analysis informed the eighteenth century and the documents, like the Constitution and the Bill of Rights, that it generated.

Copy editor McIntyre concludes that, not being a lawyer, he is "unable to say whether this constitutional context grants residents of the District of Columbia a right to keep an arsenal of firearms under the bed." It will be interesting, nonetheless, "to see what the exponents on the court of Original Intent will make of all this."

March 24, 2008 | Permalink | Comments (3)

March 21, 2008

The Impact of Children on Lawyer Productivity

Having children impacts lawyer productivity in different ways depending on gender, concludes a recent investigation by the British Psychological Society, reported here. After studying the schedules and billing records of 670 lawyers in Alberta, Canada, researchers Jean Wallace and Marisa Young found that when women lawyers have children, their productivity (or at least hours worked) decreases. The decrease occurs because female lawyers with children usually juggle professional and domestic responsibilities. By contrast, male lawyers with children were found to be more productive than their childless male counterparts, which according to the study " is consistent with the dominant cultural view of men as breadwinners, such that those with greater family responsibilities put in more hours to earn more money." At the same time, male lawyers with children were more likely to have a partner who did not work and could assume responsibility for household duties.

The study also examined the impact of "family friendly" work practices on productivity. Interestingly, the researchers concluded that flexible hours negatively impacted the productivity of male staff, but not female staff. 

So which category of lawyers is most productive? That would be childless female lawyers, whose productivity exceeds that of their childless male counterparts and male and female lawyers with children. 

My biggest gripe with the study is that it uses hours as a proxy for productivity.  But as we all know, hours billed don't necessarily correlate to efficiency; indeed, longer hours may signal less productivity, not more. I'd be curious to see, for example, whether women lawyers manage to complete tasks more quickly precisely because they have less time. If that's the case (and I suspect it is), perhaps having children makes them productive, not less.

March 21, 2008 | Permalink | Comments (4)

Involuntary Departures From Law Firms on the Rise

Whether by layoff or outright termination, there's a bunch of stories in this week's news on lawyers' involuntary departures from law firms. As reported by

Above the Law, California-based Thelen Reid laid off 26 associates and 85 staff members "in response to recessionary pressures." Cuts affected lawyers at varying levels of seniority at all major offices and most practice areas.

And with the recent collapse of Bear Stearns, law firm layoffs are predicted to continue according to The New York Sun. According the article, many law firms, including Goodwin Proctor, WilmerHale and Reed Smith, have seen declines in M&A, IPO and property finance work. And while these firms do not have layoffs planned, the current "turmoil in financial markets" is "creating a fear factor" among lawyers over job security, Danice Kowalczyk, a managing director at BCG Attorney Search, told the Sun.

Perhaps the only upside of the poor economy to law firms is that generally, pink-slipped lawyers don't challenge their layoffs. Most law firms try to help laid off lawyers with job placement and severance, and filing a lawsuit would place those benefits in jeopardy. By contrast, when firms terminate or demote lawyers for noneconomic reasons, spurned associates have nothing to lose; indeed, most lawyers no longer worry about negative lawsuit publicity.

Up in Boston, a female associate, Kamee Verdrager, filed a discrimination complaint at the Massachusetts Commission Against Discrimination against her law firm, Mintz Levin.  Verdrager claims that the firm demoted her because of gender and retaliated against her when she complained about a male colleague's behavior. Among other things, Verdrager says that the firm asked her to take a reduced salary and schedule both after she told the firm that she was getting married and, again, after she notified them of her pregnancy.   Not surprisingly, the firm denied Verdrager's charges, alleging that her demotion resulted from subpar performance.  The firm justified its actions citing Verdrager's excessive time on assignments and inadequate work that necessitated fee write-offs.  The firm also claimed that Verdrager's poor performance reflected badly on the firm and made clients reluctant to work with her.

There's another suit against a law firm in New York, this one by Caroline Memnon, a former associate in the New York office of Clifford Chance, according to the New York Sun, via Above the Law. Memnon, who is suing for $75 million, claims that the firm used her as "window dressing" because of her race, fired her in retaliation for complaining about it and, finally, prevented her from securing other employment by "blacklisting her" in the legal community.  David Lat expresses some doubts about the merits, given that Memnon had previously been terminated from Sullivan and Worcester after just two months. 

March 21, 2008 | Permalink | Comments (2)

In the Ukraine, East Meets West and West Meets East

In a global economy, Eastern and Western European law firms are converging in the Ukraine, adopting different approaches to capitalize on a booming business market. One Western European firm, London-based Clifford Chance, announced plans to set up shop in the Ukraine to better position itself to attract regional business. But even as Western law firms move geographically closer to the Ukraine, Ukrainian firms are rebranding themselves in an effort to move culturally closer to Western practices.   

As this piece reports, local firms in the Ukraine are changing their image to appeal to global clients.  Among other things, law firms are simplifying their complicated Ukrainian names and using Latin letters to spell them. Andriy Hunder, director of corporate communications at an international consultancy, explains that making a law firm name "more pleasing to the ear" can help firms position themselves as a global leader. Adopting a more Western name also helps to attract local businesses, which associate a Westernized image with status and prestige. 

As Ukraine firms Westernize their image, they face competition for clients from actual Western European firms, like Clifford Chance, which hopes to extend its ability to serve global clients seeking to business in the region. Ultimately, it remains to be seen which side will prevail in this culture clash of law firms over clients:  Westernized Eastern European law firms or Western European law firms with a physical presence in Eastern Europe. 

March 21, 2008 | Permalink | Comments (0)

March 20, 2008

Attorney Has 'Scoop' on Herself

What's the expression? Any publicity is good publicity? That must explain why self-proclaimed celebrity attorney Vicki Roberts issued a press release today outing herself as actor Gary Busey's companion during his now notorious appearance at this year's Academy Awards ceremony. Just this week, Busey apologized for his behavior during the pre-awards red carpet broadcast, when he repeatedly interrupted host Ryan Seacrest and embraced a surprised Jennifer Garner.

Roberts, Busey's attorney, accompanied him that evening, but apparently was not happy with her lack of recognition, even though she is visible in the video as the "woman in the green dress." Her press release is titled, "Oscar Scoop! The Woman in the Green Dress Identified," as if we have been on the edges of our sofas ever since wondering over her identity. Her press release boasts:

Vicki Roberts was on hand to witness up close and personal the most exciting red carpet moment of the evening, which included Mr. Busey's gracious greeting of Academy Award nominee, Laura Linney (The Savages), and awkward exchange with Ryan Seacrest (American Idol) and presenter, Jennifer Garner (Juno). On the now legendary videotape, Vicki Roberts is seen exchanging greetings with Garner and is then introduced to Seacrest by Gary Busey.

Clearly, Roberts adheres to the PR school that teaches, "I don't care what the newspapers say about me as long as they spell my name right."

March 20, 2008 | Permalink | Comments (3)

Agent Orange: Gone But Not Forgotten

Here is a month-old news story that completely passed me by: Three Feb. 22 decisions from the 2nd U.S. Circuit Court of Appeals unanimously rejected claims for damages brought by U.S. veterans and Vietnamese nationals against manufacturers of the defoliant Agent Orange, used by the U.S. military in Vietnam. But the story was back in the news this week, as the lawyer who represented the Vietnamese plaintiffs, Jonathan C. Moore of New York, traveled to Vietnam to meet with Agent Orange victims and discuss the case.

Robert Loblaw at Decision of the Day provided summaries of and links to the three 2nd Circuit opinions, describing them as representing "a banner day for the defense." Opinio Juris and Mass Tort Litigation Blog also commented on the cases. Following the rulings, lawyer Moore called the outcome unjust and immoral, and he told Associated Press that he would appeal to the Supreme Court. Touring Vietnam this week, Moore told reporters that the decisions ignored the facts. "They thought we were complaining just about herbicide and not about herbicides that contain poison," he said. He reiterated that he has asked the circuit to rehear the matter and, failing that, he will appeal to the Supreme Court.

It was back in 1961 that President Kennedy authorized the use of Agent Orange in Vietnam. Nearly half a century later, lawyers and the courts continue to wrangle over the repercussions of that decision.

March 20, 2008 | Permalink | Comments (0)

Best Schools for Aspiring Law Profs

Are you an aspiring law student hoping for a career in the lucrative and rewarding field of law professorship? Then Yale Law School may be for you. According to Brian Leiter's ranking of the top producers of new law teachers, 2003-2007, Yale was first in graduates who went on to teach law, at least on a "per capita" basis that weighed the total number of placements against the typical class size. At 86, Yale sent fewer graduates into teaching jobs than did Harvard Law School with 101, but when considered in light of Yale's typical class size of 200 versus Harvard's of 550, Yale earned a per capita score of .43, much higher than second-place Harvard's .18.

Other launchpads to careers in legal scholarship include Stanford, the University of Chicago, Columbia University, New York University, Berkeley and the University of Virginia. When ranked purely by placement, without adjusting for class size, Harvard and Yale swap places as first and second, followed by Columbia (39), NYU (33), Stanford and Chicago (each 29).

To further fuel this ranking frenzy, Joe Hodnicki at Law Librarian Blog took this latest Leiter ranking of law professor placements, added in Leiter's earlier ranking of law faculties based on scholarly impact, and then lined it all up against the U.S. News & World Report 2008 rankings of the best law schools, to produce this chart: A Jury of One's Peers: Ranking Law School Reputations.

March 20, 2008 | Permalink | Comments (0)

Snyder: Underplaying the Race Card

Recent political developments, Barack Obama told us Tuesday, "reflect the complexities of race in this country that we've never really worked through -- a part of our union that we have yet to perfect." Given yesterday's 7-2 Supreme Court decision, Snyder v. Louisiana, the same can be said of our criminal justice system. More than two decades after it confronted the issue of race in jury selection in Batson v. Kentucky, the court continues to confront -- and, thankfully, correct -- such bias. As Linda Greenhouse writes today in The New York Times, while Batson was indisputably a landmark ruling, it "promised more than it has delivered." Many criminal defense lawyers, she says, "maintain that the prosecution practice of using peremptory strikes to remove black jurors remains widespread."

Writing at SCOTUSblog, Lyle Denniston describes yesterday's decision as "a straightforward application" of Batson. The court failed to address the more sensational race issue, he notes -- the prosecutor's racially charged reference to this as his "O.J. Simpson case," which Denniston says was meant to convey "that there a black man had gotten by with murder." At Sentencing Law and Policy, Douglas Berman says the most interesting aspect of the ruling may be the voting pattern, with Justice Samuel Alito writing the majority opinion and Justice Clarence Thomas writing the dissent, joined only by Justice Antonin Scalia. It was Alito's first written opinion this term, Kimberly Atkins at DC Dicta notes, adding, "The decision was not entirely surprising, given the comments from the justices during oral arguments in the case."

But the timing of the decision, coming as it did on the heels of Obama's speech, unavoidably casts it in a broader light. As Diane Marie Amann writes at Convictions, with reference to Obama's speech, "It seems proper to question the decision of the Court to leave so much unsaid." Anne Reed at Deliberations takes this point even further, describing Snyder as "one of the most conscientiously narrow decisions you'll ever read," with a result that is striking, "even if the reasoning is not." While the decision focused on one peremptory challenge, it inexplicably ignored the broader context, in which the prosecutor successfully struck every black in the venire and then made his "O.J." argument to an all-white jury. Citing Obama's speech, Reed suggests a need to confront race in jury selection more squarely. "This tension, between the ideal of nondiscrimination and the reality of race in shaping jurors' attitudes, has made lower courts struggle with Batson ever since it was decided," she writes. "Snyder may help them struggle more bravely, but they'll still struggle."

March 20, 2008 | Permalink | Comments (1)

Libby Loses D.C. Law License

Scooter_libby Via Legal Profession Blog comes news today that I. Lewis "Scooter" Libby has been disbarred. The District of Columbia Court of Appeals issued the brief order today, disbarring the former White House adviser who was convicted of perjury and obstruction of justice for his role in Plamegate. Here are the core two paragraphs of the court's four-paragraph, two-page opinion:

When a member of the Bar is convicted of an offense involving moral turpitude, disbarment is mandatory. D.C. Code § 11-2503 (a) (2001). When convictions on more than one count are involved, disbarment is mandated if any one of them involves moral turpitude. In re Lipari, 704 A.2d 851, 852 (D.C. 1997) (citation omitted). This court has held that obstruction of justice (18 U.S.C. § 1503) and perjury (18 U.S.C. § 1623) are crimes of moral turpitude per se. In re Gormley, 793 A.2d 469, 470 (D.C. 2002) (citations omitted). Since respondent was convicted of each of these offenses, as the Board concluded, disbarment is mandatory under D.C. Code § 11-2503 (a). Neither Bar Counsel nor respondent has taken exception to the Board’s Report and Recommendation.

Accordingly, it is hereby ORDERED that I. Lewis Libby, Jr. is disbarred from the practice of law in the District of Columbia, and his name shall be stricken from the roll of attorneys authorized to practice before this court.

According to Wikipedia, Libby's law license in Pennsylvania, where he was first admitted to practice in 1976, was already inactive before his federal conviction.

March 20, 2008 | Permalink | Comments (0)

March 19, 2008

DC v. Heller Roundup of Scattershot Blog Posts

Yesterday's oral argument in D.C. v. Heller, addressing the issue of whether the District of Columbia's expansive handgun ban violates the Second Amendment, provided plenty of ammunition for law bloggers to discuss.  Based on the oral argument, some are predicting that a narrow Supreme Court majority is on target to recognize an individual right to keep firearms under the Second Amendment and thus, may shoot down the D.C. ban.  Here's a bullet point summary of some of the other interesting Heller posts.

Supreme Court is gun-shy - Over at Slate, Dahlia Lithwick writes that the Supreme Court has been gun-shy in addressing the meaning of the "right to bear arms" under the Second Amendment, avoiding the question for 69 years.  Lithwick suggests that after the passage of time, perhaps it makes more sense for special interest groups to decide these matters before a legislature rather than having the court step in.  Professor Jack Balkin picks up on Lithwick's point, though he suggests that the court's result will likely mirror prevailing social attitudes that develop over time in the absence of judicial intervention.  He argues that while many might not like the ultimate outcome of Heller, the same forces that will produce the likely result (i.e., an individual right to bear arms) also produced decisions that liberals have embraced.

Gunpowder Residue - Once the smoke clears from Heller, Professor Doug Berman reminds us of the implications for felon gun possession prosecutions.  Right now, federal law categorically prohibits any person who has ever been convicted of a felony to ever possess a firearm either inside or outside the home.  Though Berman doesn't believe that a Supreme Court decision recognizing a Second Amendment right to possess firearms would invalidate the federal felon gun possession law, he does foresee that it could lead to litigation in marginal cases -- e.g. where an individual convicted of a non-serious felony might want to possess a handgun in the home.  In this kind of case, the state interest in the felony gun ban is not sufficiently compelling to trump the individual's constitutional right. 

Berman's post also indirectly responds to Scott Greenfield's question about how we can justify felon gun possession laws if handgun ownership is a fundamental right.  As Berman (and others) point out, recognition of gun possession as a fundamental right doesn't automatically invalidate gun control laws.  Instead, it merely triggers a balance between the individual's right to possess the gun and the state's right to protect public safety.

March 19, 2008 | Permalink | Comments (1)

Quickie Presidential Campaign Roundup

PresbadgeIt's been a while since our last presidential primary roundup, so here's the latest installment.

Will Heller Shoot Down McCain's Chance to Lure Conservatives? - Orin Kerr, from his perch at Slate's new legal blog, Convictions thinks that John McCain's chances of winning a strong conservative turnout may be shot now that yesterday's oral argument in D.C. v. Heller reveals at least five clear votes in favor of recognizing an individual's constitutional right to bear arms under the Second Amendment.  Kerr reasons that a Supreme Court endorsement of an individual right may lull the conservative base into believing that the court will retain its conservative bent even with the likely new appointments that a Democratic president would make.  As a result, conservatives may decide to stay home on election day. 

Cisco Supports Hillary - Mark Chandler, Cisco Systems' GC first met Hillary Clinton a little more than a year ago while dining at a D.C. restaurant with his daughter, according to the Legal Times.  Clinton came over to say hello and impressed Chandler both with her knowledge of the technology industry and her ability to put his daughter at ease.  Since then, he's been rallying support for Clinton across the country, helping to raise $13.2 million from lawyers to Obama's $11.2 million. 

Giuliani Returns to Private Practice - Rudy Giuliani didn't last very long in the presidential primaries.  Now, instead of logging long hours on the campaign trail, he's back to logging long billable hours at his former law firm, Bracewell and Giuliani, according to this Wall Street Journal update.

Obama's Speech on Race - In response to criticisms about his affiliation with the controversial and often inflammatory minister, Jeremiah Wright, Barack Obama yesterday delivered this Speech on Race.  Though Obama's speech opens with a line from the Constitution, it wasn't about the law at all, but rather how our own personal attitudes about race frustrate progress towards a united society.

March 19, 2008 | Permalink | Comments (0)

Waiver Means Harvard Public Interest-Bound Students Wave Goodbye to 3L Tuition

Public interest-bound Harvard Law students can wave goodbye to 3L tuition, with the recent announcement that Harvard Law School will waive tuition for third years who pledge to spend five years working for nonprofit organizations or the government.  While many schools, including Harvard, have loan forgiveness programs, which help students who accept public interest positions repay part of their debt, according to the New York Times, Harvard is the first school to offer a tuition waiver which will save students $40,000 outright.  The program is expected to cost the law school an average of $3 million annually -- fairly small potatoes given that the school has an endowment of $1.7 billion. 

Currently, between 9.8 and 12 percent of Harvard's graduating class go on to work for the government or nonprofits.  Most choose to accept positions at large firms and the mega-salaries that go with them.  However, the Times story does not explain whether the point of the waiver program is to encourage more grads to enter public service or simply to alleviate the financial burden for those already inclined to make that choice.

There's general support for Harvard's program in the blogosphere, but surprisingly, not much discussion otherwise (at least that I've found), except for this post by UCLA economist Matthew Kahn.  Kahn posits that the tuition waiver will have the unintended consequence of keeping the glass ceiling intact at law firms because he assumes that more women than men will accept the offer.  By the time these women complete their five years of public service, Kahn argues that it is unlikely that they can join a "fancy NYC law firm" and make partner, especially because by that time, most women will be thinking about starting a family.   Kahn concludes:

If women have a higher probability of accepting this new offer then [sic] men, and if once you pick this path you can't return to the private sector and make partner then my proof is complete that an unintended consequence of this new policy will be to reduce the number of women from HLS who get promoted to partner at the fancy NYC law firms. Other law schools are likely to imitate Harvard and so this policy could have "macro" consequences. Is it a big deal if fancy NYC law firms do not have many women partners? Some measure gender progress by whether such convergence does take place.

I disagree with Kahn, because what he's overlooked is that many times, working at a position in public service makes female lawyers far more valuable to a law firm than if they had spent the early years of their career toiling at document review.   Look no further than the example of Akin Gump partner Michele Roberts, who spent the first eight years of her career at the D.C. Public Defenders' office, where she was counsel in over 40 jury trials.  Roberts' litigation experience made her indispensable to the firm, and that in turn helped her snag a partnership.  Women lawyers would be smart to take Harvard up on its offer and put in five years at a prosecutor's or Public Defender's office or Department of Justice and spend their time in court while their peers spend their time reviewing documents.  As I see it, the Harvard waiver program will help women advance, not deter them.

Meanwhile, I'm surprised that no one has yet mentioned another unintended consequence of the Harvard waiver program:  its potential to block opportunities from graduates from lower-tier schools.  Some students who plan on entering public service make an affirmative decision to attend lower-tier schools which may give them in-state tuition rates or part or full scholarship.  But unless these students graduate at the top of their class, they probably won't stand a chance against a Harvard grad in competing for a public interest job. And to make matters worse, lower-tiered students won't have a shot at big law jobs either.

Just to be clear (before you all start flaming me), I absolutely do not believe that lower-tiered law school grads are less qualified than Ivy League grads for public interest positions.  Indeed, many are arguably more qualifed because they may have access to skills training and practice courses that are more prevalent in the curricula at lower-tiered schools.  But the current reality of our profession is that for better or worse, most lawyers blindly follow rankings and are inclined to reward credentials over competence.  As noble as the Harvard program is (not to mention a terrific marketing tool), I can't help but view it as another way of making the rich (i.e., rich in terms of potential job opportunities) richer at a time when our legal profession is already overly stratified.   

March 19, 2008 | Permalink | Comments (4)

Go East, Young Lawyer

While there are plenty of lawyers in the United States who can't find a job, 9,531 miles across the globe, Singapore faces a shortage, reports Jed Yoong in the Asia Sentinel.  Consider these statistics:

On balance, only about 75 additional lawyers have been added to Singapore’s legal system since 1999. According to the Law Society of  Singapore, some 3,401 lawyers were practicing in the island republic in 1999. By March 2006, the last year for which the Law Society maintains figures on its website, only 3,476 lawyers were practicing, a 2 percent increase despite an 11 percent rise in population to 4.4 million.  Singapore has only one lawyer per 1,136 people. By comparison, the state of California in the United States, with a population of about 38 million – a place many say is over-lawyered – has more than 200,000 lawyers, or 1 per 190 people, according to the state bar association.

Some of the factors that send young professionals running from the law include low pay, long hours and "boring stressful work."  For Singapore's Chief Justice Chan Sek Keong, the solution is obvious:   “Pay [lawyers] well,” Chan said. “Greed works most of the time, even for the large majority of people in affluent societies.”

Of course, there's another reason to avoid legal practice in Singapore: Apparently, it's impossible to win a case against the government.  According to one blogger, Gopalan Singh who blogs at Singapore

The law is being routinely and blatantly abused for political purposes...Singapore has turned into a lawless country, a country run according to the pleasure of Lee Kuan Yew; not according to law. A legal system where if you knew the identities of the litigants, you can predict the outcome of the trial with absolute accuracy. That is if Lee Kuan Yew or his family were parties to an action, the outcome of the litigation is known even before you step into court! Lee wins. Hapless opponent loses.

Surprisingly, some lawyers dislike practicing in Singapore because the legal system is too efficient!  Singapore's court system puts some of our states to shame, with all filings made by e-mail at "lightning speed." Once an action is filed, the court may assign a trial date within two days.  Sounds too good to be true, right?  Well, be careful what you wish for -- apparently, the speed puts "fantastic stress" on Singapore lawyers, who complain that "justice rushed is justice denied." How often do you hear a lawyer in the U.S. utter those words?!   

My own impression is that with the exception of complaints about corruption in the Singapore legal system, most Singapore lawyers' unhappiness stems from the same source as their U.S. colleagues:  a mismatch of expectations.  Singapore lawyers spend two to five years in school in hopes of a lucrative, stable career, only to wind up earning far less and working far more, than their counterparts in finance and business.  And it's the discovery that you didn't quite get what you bargained for that universally breeds discontent, whether you're an associate at a large firm in New York or a Singapore lawyer halfway across the world.

March 19, 2008 | Permalink | Comments (0)

March 18, 2008

Roundup: Legal News Worth Noting

March 18, 2008 | Permalink | Comments (0)

Europeans Fear U.S. Courts Over Russian

Here is wake-up call, if ever there was one: In-house counsel employed by European businesses would prefer to face a major legal dispute in Russia or China over the United States. A report yesterday in Times Online cites a survey commissioned by the international law firm Lovells of 180 in-house counsel in five European countries in which 29 percent identified the U.S. as the jurisdiction they most wanted to avoid.

The US attracted almost twice as many votes as Russia and China. Despite fears of political interference and corruption in their legal processes, both were named by just 16 per cent of in-house counsel as their most feared jurisdiction.

I had the privilege of traveling to Russia last year to meet with judges, lawyers and journalists there as part of a delegation from Massachusetts. I was highly impressed with the quality and commitment of the judges I met during the trip. That said, it is tough to ignore the fact that the Russian legal system remains dogged by allegations of corruption and political influence. Suffice to say, China's system enjoys not the most stellar reputation either, at least from our vantage point here in the U.S.

So what is it about U.S. courts that induces even greater fear in the hearts of European GC? Although they see our system as less corrupt than others, they worry that it is "filled with traps in which the inexperienced or uninformed may easily become caught." Marc Gottridge, Lovells’ U.S. managing partner, told the Times Online that these traps include the complexity of the federal system, with its "multiplicity of courts, prosecutors and regulators at state and federal levels" and the tradition of targeting corporations as well as individuals in criminal cases.

What most keeps them awake at night, they report, are visions of our nation's overeager regulators and overly aggressive prosecutors. Given that, it is likely that some European GC could have been heard to say this week, "Do svidanya, Eliot Spitzer."

March 18, 2008 | Permalink | Comments (4)

Best and Worst Tort States

Worst of the 50 states for tort costs and litigation risks is Florida, while the best is North Dakota. So says a new report from the Pacific Research Institute comparing the legal climates of all 50 states: U.S. Tort Liability Index: 2008 Report. Of state tort laws, Colorado had the best and Rhode Island the worst, the study found. Nota bene: The PRI is a think tank whose mission "is to champion freedom, opportunity, and personal responsibility ... by advancing free-market policy solutions." Considering both tort costs and tort laws and what they say about the litigation outlook for businesses, the study grouped the states into four categories:

  • Saints: Cited as states well-positioned to contain tort liability, with low tort costs and few litigation risks, were Alaska, Mississippi, Ohio, Tennessee and Utah.
  • Sinners: States likely to see rising tort costs were Alabama, Arizona, Arkansas, California, Illinois, Maryland, Massachusetts, New York, Oregon, Pennsylvania, Rhode Island, Washington, West Virginia and Wisconsin.
  • Suckers: States with weak tort laws that "foolishly" see no need for reform were Hawaii, Iowa, New Mexico, North Carolina, North Dakota and Virginia.
  • Salvageables: States with moderate to high risk but also moderate to strong laws were Colorado, Florida, Georgia, Indiana, Louisiana, Michigan, Missouri, Nevada, New Jersey, South Carolina and Texas.

So even though Florida ranks first in tort costs and risks, the report sees it as "salvageable" because of recent revisions to its tort laws that are likely to favor businesses in the future. By contrast, New York is a repeat offender as a "sinner" state because it has been slow to address its tort laws.

March 18, 2008 | Permalink | Comments (1)

Harvard Law Students Rally for Poker

I would bet Harvard law students anted a good turnout for their rally this morning outside the Massachusetts State House on Beacon Hill. What brought them out on this bright but chilly morning was Gov. Deval Patrick's gaming bill, which would authorize casino gambling in the state while explicitly criminalizing online poker. The Global Poker Strategic Thinking Society, a group formed at Harvard Law School to promote poker as an educational tool, organized today's rally together with the state chapter of the Poker Players Alliance.

The rally was timed to coincide with a legislative public hearing on the casino bill. Slated to speak at the rally was GPSTS founder, HLS Prof. Charles R. Nesson, who said in a statement issued yesterday, "I don’t think filling our expensive jail cells with poker players is what Massachusetts voters had in mind when they elected Deval Patrick." If the bill becomes law, Massachusetts residents who play online poker would face jail terms of up to two years and a maximum fine of $25,000.

Why, you ask, would faculty and students at the nation's preeminent law school be concerned with protecting the public's right to play online poker? Perhaps this statement from the GPSTS Web site explains:

The Global Poker Strategic Thinking Society views poker as an exceptional game of skill that can be used as a powerful teaching tool at all levels of academia and in secondary education. We use poker to teach strategic thinking, geopolitical analysis, risk assessment and money management. We see poker as a metaphor for skills of life, business, politics and international relations. Our goal is to create an open online curriculum centered on poker that will draw the brightest minds together, both from within and outside of the conventional university setting, to promote open education and Internet democracy.

And I thought it was all about losing my pennies. No doubt, flush from the success of their rally, the students will head straight to the hearing room, where, I'm willing to wager, there will be a full house.

March 18, 2008 | Permalink | Comments (0)

Dear Kevin O'Keefe ...

Dear Kevin,

Please accept this belated get-well wish for your illness during ABA Techshow. No, no one told me you were sick. But I could read between the lines. How else to explain your total lack of liveblogging during your attendance at the event?

After all, it was you who wrote in January 2007 after LegalTech New York that the absence of liveblogging from legal technology events "speaks volumes of where our industry is when it comes to adopting new technologies." And after last year's ABA Techshow, which you did not attend, you again criticized those who did attend for the silence of their blogs, listing several good reasons why liveblogging is important. "We can talk a good talk about being tech savvy and hip," you wrote. "But our conduct lags behind other industries big time." Soon after, you leveled the same criticism against those who attended the Legal Marketing Association annual conference, describing attendees' lack of blogging as "a missed opportunity."

As you will recall, I disagreed with you that this lack of liveblogging spoke poorly of the industry. With so much to do and see and so little time at such a conference, I argued, "Why waste time in front of a computer screen?" As you will also recall, you quickly responded, pointing out that "people on the leading edges of technology are sharing their observations and insight in real time. The result is a live discourse between not only attendees, but also by bloggers around the country."

So, knowing you were at Techshow last week, I watched your blog, Real Lawyers Have Blogs, for your posts from Chicago. But I saw not one. Yes, Rob La Gatta, the journalist you employ to write for your blog, had several posts. But surely your earlier admonitions were not meant to argue that lawyers should hire journalists to blog on their behalves. Your posts clearly argued that the people who themselves are on the leading edges of technology should share their insights directly.

I can only conclude that some illness or other malady befell you there in the Windy City and kept you from your keyboard. There seemed to be something going around, as Dennis Kennedy likewise found himself sidelined from live blogging and even my colleague here at Legal Blog Watch, Carolyn Elefant, produced but one post, citing her own suffering from "a bit of a pain." I can only thank my lucky stars that I did not attend this year, for surely I would have caught the same disease. Of course, because I know you to be a thought leader who is on the leading edge of legal technology, I wish you a speedy recovery so that you will be fully able to liveblog from the next event you attend. Until then, all the best.

Your Blogging Buddy,
- Bob

P.S. I intend this post to tease, not criticize.

March 18, 2008 | Permalink | Comments (3)

March 17, 2008

E-Shaming Johns As an Alternative to Prosecution

The Eliot Spitzer scandal may have ended today with the swearing in of David Paterson as New York's governor, but some of the questions that the incident brought to light remain.  For example, many have argued that Spitzer should not be prosecuted for soliciting a prostitute since the humiliation he's endured over disclosure of his activities serves as punishment enough. And as this article reports, many municipalities are taking a similar approach, opting to shame johns rather than prosecuting them. 
Approaches range from seizing cars of those who solicit sex, to sending "Dear john" letters to their homes to inform their families of what they've done or posting pictures of men arrested for solicitation on television.  And though the story does not discuss it, in an Internet age, communities might have the ability to e-shame johns as well.

The goal of the shaming isn't humiliation but deterrence. Presumably, the possibility of public shaming will in theory deter the conduct. But at least one city found that its public shaming program didn't result in fewer arrests -- it made the same number, but from a different segment of the community. 

March 17, 2008 | Permalink | Comments (0)

Georgetown Law Grad Says Big Law Segregation Reminiscent of Jim Crow

Georgetown Law-educated attorney Yolanda Young doesn't mince words.  In a provocative essay posted earlier today at Huffington Post, Young argues that the Jim Crow policies of separate but unequal are alive and well at the nation's top law firms. 

If anyone has the credibility to make this kind of argument, it's Young.  Her dazzling credentials include a degree from Georgetown Law School, a stint as a commentator at NPR and lecturer at Vassar.  Now, she hosts the video blog, Spade  But early in her career, Young took a position as a staff attorney at Covington and Burling to smooth out the ebbs and flows of a writer's income.   There, Young discovered that staff attorney positions helped firms like Covington meet corporate diversity requirements without ever integrating minority attorneys into the mainstream of the firm or providing them real opportunities to advance:

Blacks at Covington comprise less than 5% of the Washington office's partners and associates, but make up 30% of its staff attorneys. ... Covington began stockpiling its staff attorney ghetto with blacks and other minorities in 2005, shortly after the General Council of some of the country's largest companies joined Roderick A. Palmore, Executive Vice President, General Counsel & Secretary of Sara Lee in taking a tougher stance on law firm diversity. Signed by hundreds of General Counsel, this new "Call to Action" states they will retain firms that demonstrate a level of diversity reflective of their employees and customers and end their relationship with firms "whose performance consistently evidences a lack of meaningful interest in being diverse."  Covington has certainly diversified its firm; however, its attorneys are far from equals. The vast majority of Covington's black attorneys do no substantive work, have no control over their case assignments and no opportunity for advancement. This seems to be just the sort of structure the U.S. Equal Employment Opportunity Commission warned against in its 2003 "Diversity In Law Firms" report which stated, "In large, national law firms, the most pressing issues have probably shifted from hiring and initial access to problems concerning the terms and conditions of employment, especially promotion to partnership."

Unfortunately, lawyers risk career suicide by protesting.  Writes Young:

Since [my contract position ended], I have been resisting the impulse to question whether Covington's staff attorney policy is unfair to blacks and other minorities. It's a question no black professional wants to confront. We know the eye-rolling and impatient sighs the issue provokes. To protest, one faces reproach and career suicide. Firms know this and bank on everyone's silence.

As readers know, we've previously discussed the caste-like nature of the role of the contract attorney in the legal profession.  But Young's essay is the first I've seen to inject a racial dimension.  And at least at first glance, her argument persuades me.  What do you think, readers? Do contract lawyer positions keep minority lawyers in dead end positions?  And is the separation intentional?

March 17, 2008 | Permalink | Comments (5)

Bear Stearns Bail Out -- No Such Thing As A Free Lunch

This past weekend's bail out of Wall Street investment bank Bear Stearns proves the old aphorism that there's no such thing as a free lunch. As detailed by CNN, the Fed's agreement to buy up to $30 million in troubled Bear Stearns mortgage bonds gave JPMorgan the incentive to go forward with the Bear Stearns purchase.  In the absence of the Fed's intervention, JPMorgan was set to pass on the purchase, largely because of concerns over the risks tied to Bear Stearn's mortgage portfolio.  As a result, the deal went through Sunday night, with JPMorgan buying up Bear for $2 a share, or a 93 percent discount on its closing price Friday.

But the Fed's role in keeping the deal alive comes at a cost.  For starters, the deal has been widely criticized as a display of favoritism for business interests.  Says Kurt Eggert, a law professor at the Chapman University School of Law in a quote in the Chicago Tribune Blog:

As the Fed rides to the aid of Bear Stearns, there is a growing disconnect between the Bush Administration's willingness to help Wall Street and its willingness to aid the homeowners facing foreclosure. The subprime crisis is largely caused by excessive defaults and foreclosures, and coming up with [a] real plan to reduce foreclosures should be the first point in the agenda...Of all the investment houses, Bear Stearns was the one most deserving of going under because of the subprime crisis, both for its ownership of a subprime lender and its work packaging those loans. However, the Feds are doing more to help Bear Stearns than the borrowers facing foreclosure because of Bear Stearns actions.

But criticism is the least of the problems for the transactions.  Now, Reuters reports that Bear Stearns shareholders are considering lawsuits regarding possible legal claims over the $2 a share stock sale.   Some investors purchased stock last week following Bear CEO Alan Schwartz's televised interview that the company had $17 billion in excess cash on its balance sheets.  Now, they contend that the company was not truthful in describing its financial condition.

In response, Bear Stearns' directors have justified the firesale as preferable to filing for bankruptcy.  As Gordon Smith points out at the Conglomerate, Bear's "better off than bankruptcy" argument means that courts will apply the business judgment rule to evaluate the directors' decision to sell, effectively placing the validity of the deal beyond scrutiny.  Still, Professor Larry Ribstein notes that  the sale is not yet a done deal because "the shareholders, many of whom are Bear employees, will have the last word – they get to vote on the deal."

So stay tuned... there are plenty more developments likely to emerge.

March 17, 2008 | Permalink | Comments (0)

Pro Se Wins Murder Trial... What Are the Odds of That?

Harold Stewart is one lucky guy.  He beat murder charges in a Prince George's County, Maryland courtroom not just once, but twice.  The first time, the judge declared a mistrial after discovering that one of the jurors did not speak English well enough to understand the jury instructions.  And the second time around, Stewart won an acquittal outright as a pro se litigant.  If the outcome of Stewart's case seems unlikely... well, that's because it is.   Judge Vincent Femia, a Prince George's County judge and former prosecutor with 47 years of experience told the Washington Post, which carried the story, that he was not aware of a pro se defendant ever winning an acquittal in a serious felony his in all his years of practice.

Stewart didn't start out pro se.  Accused of beating of sleeping man with a baseball bat, Stewart was represented by a public defender at his first trial.  There, Stewart's sister testified that Stewart had come to her house shortly after the alleged attack and confessed that he thought that he might have killed someone.  But after Stewart's case went to the jury, the foreman reported to the judge that one of the jurors did not speak English well enough to understand the jury instructions.  After interviewing the juror, the judge agreed and declared a mistrial. 

Stewart's family retained David Simpson, a private lawyer to represent him at the second trial.  But after reviewing the transcript from the first trial, Simpson recommended that Stewart accept a plea bargain.  Stewart refused, so Simpson withdrew. 

At the second trial, Stewart's sister backtracked from her original testimony, explaining that Stewart had asked for help and denying that he ever expressed concern that he'd killed someone.  And Simpson also seized on a discrepancy between a witness' statement that placed the incident two hours earlier than the time that paramedics arrived at the scene.   Stewart did not call any witnesses.  The jury deliberated only an hour before arriving at the not guilty verdict.  Thus far, reporters have not been able to identify or contact jurors, so there is no further information as to why the jury reached its verdict so quickly.

In many ways, it's somewhat ironic that news of Stewart's pro se win issued today -- when other stories remind us of the utter necessity of competent and vigorous defense counsel.  At Grits for Breakfast, Scott Henson discusses Rothgery v. Gillespie County, argued today at the Supreme Court, where the Court will consider the issue of when the right to counsel attaches in the arrest process.  Petitioner Rothgery argues that he should have been assigned counsel when he went before a judge at the initial probable cause proceeding.  Rothgery contends that had he been assigned counsel from the outset, the attorney would have discovered the error in the records and he would have avoided jail time.

And at WSJ Law Blog, Dan Slater analyzes some of the discrepancies between Andrew Fastow's testimony at the Enron trial and the 420 pages of investigative notes that the government did not produce, in violation of its obligation to produce all exculpatory evidence as required by Brady v. Maryland.

In this context, Harold Stewart was lucky indeed.  Apparently, his case didn't include any Brady materials that as a pro se litigant, he would have lacked the savvy to demand.  And in contrast to Rothgery, the records in Stewart's case weren't erroneous -- and in fact (in the case of the paramedic records), helped him to win his case.  When you think about some of the prosecutorial abuses in the criminal process even where defendants are represented by counsel, the odds that Stewart could beat his charges at a pro se are very high indeed. 

March 17, 2008 | Permalink | Comments (2)

March 14, 2008

More on the Mess in Minnesota

I wrote here last month about the mess in the Minnesota AG's office, involving staff attorneys' efforts to unionize the office of Attorney General Lori Swanson. Now, one of the staff attorneys active in those efforts, Amy Lawler, has been placed on administrative leave. On Monday, Deputy Attorney General Karen Olson sent Lawler a letter notifying her of the suspension, purportedly for failing properly to follow-up on concerns she expressed about the ethics of filing lawsuits she was assigned to handle.

But in a classic case of bad timing, Lawler's suspension came on the Monday following the Friday in which she was quoted discussing the union drive in a piece that aired on Minnesota Public Radio and in an article on the online news site, -- an article that described her as one of only two staffers who would allow herself to be identified. Subsequent reports in the Star Tribune and on say the AG, through a spokesperson, denied the suspension had anything to do with Lawler's union activities or comments to the media and was for the reasons were those stated in the letter.

While we wonder whether anyone in that office has ever taken a labor law course, over at Minnesota Lawyer Blog, Minnesota Lawyer editor Mark Cohen likens the AG's excuse-giving to that line from the movie Casablanca in which Captain Louis Renault says, "I'm just writing the report now. We haven't quite decided whether he committed suicide or died trying to escape." He says Lawler, who is fresh out of Harvard Law School, is "not some sort of a political hack on a vendetta against Swanson, but an idealistic young lawyer who happens to believe in unions." Rather than get tough with the dissenters in her office, AG Swanson should try a much-different approach, Cohen suggests:

What if management actually listened to the concerns she expressed and attempted to address them? What if rather than treating Lawler as the enemy, management treated her as the friend who told it that its zipper was open? That might be a more effective way of diffusing the labor situation at the office than any sledgehammer-approach could ever be.

When I first took note of this story in February, I wrote that it seemed to get stranger every day. In that vein, these latest developments are deja vu all over again.

March 14, 2008 | Permalink | Comments (0)

ABA Techshow, the Vicarious Version

Sigh. ABA Techshow is underway in Chicago and this year I'm not there. I will try to make the best of my absence by participating vicariously through the Techshow Buzz. As Techshow Chair Tom Mighell wrote on the Techshow Blog, the newly inaugurated Buzz is intended to be a place where anyone who's interested can keep tabs on what is happening there, whether an attendee or an absentee. As Tom explains, the Buzz has:

  • An aggregated feed of blog posts authored by Techshow attendees, faculty and even exhibitors
  • A stream of photos taken at Techshow
  • A Twitter stream, with conference updates as well as personal messages from attendees and others
  • A feed, where you can find links to some of the sites mentioned during the show

Other law-bloggers are posting or promising to post from Techshow as well. Among those I've seen so far are Real Lawyers Have Blogs, Reid My Blog!, More Partner Income, Bob Kraft's P.I.S.S.D. and Dennis Kennedy. Kennedy has also set up a Techshow group on Facebook. All told, Buzz plus blogs add up to the next best alternative to being there.

March 14, 2008 | Permalink | Comments (0)

Spread Some Sunshine Next Week

Rlogovc150 In 1933, Supreme Court Justice Louis D. Brandeis wrote the time-honored words, "Sunlight is the greatest disinfectant." As the past week's events dramatically illustrated, no public official, no matter how spotless his or her record appears, should ever be immune from public scrutiny. Secrecy in government, at any level, is anathema to democracy.

I say this not to preach, but rather to preview Monday's kick-off of Sunshine Week, an annual, nationwide event designed to focus attention on the importance of open government and freedom of information. It is led by the American Society of Newspaper Editors and funded primarily by the John S. and James L. Knight Foundation of Miami, but it is not just for journalists, by any means, as the Web site explains:

Though spearheaded by journalists, Sunshine Week is about the public's right to know what its government is doing, and why. Sunshine Week seeks to enlighten and empower people to play an active role in their government at all levels, and to give them access to information that makes their lives better and their communities stronger.

Lawyers, needless to say, have significant roles to play here, not just in enforcing open-government laws, but also in reinforcing public knowledge about the need for the these laws and the public's right to government information. I know that news organizations throughout the country will be devoting coverage to open-government issues during Sunshine Week. Let me suggest that lawyers likewise hand over some time next week to this issue. As the Sunshine Week folks suggest, engage someone in a discussion -- a neighbor, a colleague or even someone in your local or state government. Consider it your small donation to keeping government disinfected.

March 14, 2008 | Permalink | Comments (0)

First Black Governor Honors the Second

With the stage set for New York Lt. Gov. David Paterson to become only the third black governor in the United States since Reconstruction, the nation's first and second black governors were at Howard University in Washington, D.C., last weekend for a special ceremony in which three prominent black lawyers received honors. As part of its Charter Day ceremonies, Howard presented an honorary doctorate of laws degree to Massachusetts Gov. Deval Patrick, the former Coca-Cola general counsel who became the nation's second black governor when he was elected in 2006. Attending the ceremony to present Patrick's honorary degree was former Virginia Gov. L. Douglas Wilder, the first black governor, a 1959 graduate of Howard's law school.

Also as part of the ceremony, Howard honored six prominent alumni, among them two graduates of the law school -- Maria M. Cabret and Ive A. Swan -- who both were named in 2006 to the newly formed Supreme Court of the U.S. Virgin Islands. Cabret, who graduated from Howard's law school in 1978, and Swan, who graduated in 1970, each were Virgin Islands trial court judges for many years before their appointments to the Supreme Court. (I knew Justice Swan from my earlier days practicing in the V.I. and met Justice Cabret during a recent visit there.)

March 14, 2008 | Permalink | Comments (0)

March 13, 2008

New Jersey's Fight to Keep Lawyer Records from Avvo: Privacy or Profit Motive?

Controversial ranking service Avvo is back in court.  But this time, Avvo isn't being sued.  Instead, Avvo  has filed a lawsuit to compel the New Jersey Supreme Court to release public records containing the names and basic information about lawyers licensed in New Jersey.  New Jersey refused to make the records available to Avvo, contending that the Open Public Records Act law does not apply to the judiciary and that as a general policy, "bar admission records are confidential." 

But is New Jersey's refusal to release the records motivated by a genuine desire to preserve lawyers' privacy?  After all, as Avvo points out, the court will release information about a lawyer's disciplinary record to callers who inquire about a particular lawyer.  Or, as I suspect, does New Jersey have a profit motive in keeping public information on lawyers to itself?

Consider this: In 2006, the New Jersey state bar launched a fee-based, online lawyer directory at its Web site.  The directory would allow consumers looking for lawyers to click on a live link directly to the firm's Web site.  The bar recognized that the fee-based listings would generate revenues for the state bar.  As New Jersey Bar spokesperson Barbara Straczynski explained in this article on, "if just 100 members sign up for links to their own sites, that's $10,000 right there."

Now, enter Avvo.  Consumers no longer need to remain dependent on a paltry state bar lawyer listing, and can instead avail themselves of a searchable database that contains robust lawyer profiles that not only include a lawyer's Web site URL, but also disciplinary history and client testimonials.  As consumers gravitate towards sites like Avvo, lawyers will no longer have any reason to pay money to list themselves on the state bar Web site, thus killing off a profit center for the bar. 

It's too bad that New Jersey is so busy "minding its "p's" -- privacy and profit -- that it's overlooking the p-word that should matter most in all of this:  the public.

March 13, 2008 | Permalink | Comments (3)

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