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May 16, 2008
Two More Law Firms Shorten Their Names
The firms formerly known as Sutherland, Asbill & Brennan and Pillsbury, Winthrop Shaw Pittman have re-branded themselves with shorter names, reports the Fulton County Daily Report, via Blog of the Legal Times. Not only have the firms truncated their names to Sutherland and Pillsbury, respectively, but they've also renovated their Web sites, giving them a cleaner more updated look to match their sleeker names.
Shortening names isn't new. Many other firms -- including Skadden, Orrick and Bingham -- now use shortened versions of their names on their Web sites and marketing materials, even though they've kept the longer version as their legal name.
May 16, 2008 | Permalink
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LA U.S. Attorney Indicts Missouri Woman for Role in MySpace Suicide
The U.S. Attorneys' Office in Los Angeles indicted Missouri woman Lori Drew for her alleged role in perpetrating a hoax on MySpace that lead to a thirteen year old neighbor's suicide, reports Law.com. Drew created a fake MySpace account and used it to impersonate a sixteen year old boy named Josh Evans to befriend, then humiliate Megan Meier, a rival of Drew's daughter. Ultimately, Meier hanged herself after Drew-as-Evans sent her a note saying that the world would be better off without her.
In a case of first impression, Drew was charged with violating a federal law that prohibits unauthorized access to protected computers to obtain information to inflict emotional distress -- a law that has never before been applied to a social networking case. State authorities declined to prosecute Drew after concluding that no state criminal statutes outlawed her conduct.
Notwithstanding the sympathetic nature of the facts here, two prominent law bloggers take the position that the indictment should not -- and ultimately will not -- stick. At Volokh, Orin Kerr argues that the courts should dismiss the indictment, explaining that it effectively prosecutes her for what amounts to a violation of the MySpace Terms of Service:
The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS). Here's the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn't comply with these terms, the theory goes, so she was criminally trespassing onto MySpace's computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).
Kerr suggests that the government won't be able to prove its case. Because it's a criminal case, the government must show that Drew intentionally violated the TOS, which Kerr predicts will be difficult because it's likely that Drew, like most users, never read them. In addition, Kerr argues that while Drew did intend to harass Meier, she didn't intend to take confidential information, which is another element of the statute.
For Jeralynn Merritt, the Drew indictment is nothing more than overreaching by the federal government. She argues that the federal charging document represents a growing trend towards the federalization of local crime:
Should a federal prosecutor in Los Angeles be entrusted with the power to punish a local incident that occurred in a different state? We should not applaud the "novel" or "groundbreaking" interpretation of a statute that clearly was not meant to apply to harassing messages sent through bogus MySpace accounts.
Kerr's and Merritt's arguments convince me. But they also make me realize that going forward, states should enact criminal laws to prevent and deter this kind of conduct. Otherwise, I anticipate that victims of harassment perpetrated by social networking sites will sue to hold them accountable for failure to protect site users or guard against fraudulent use. I'd much rather see conduct like Drew's criminalized so that the perpetrator is held responsible rather than shifting the blame to the Web site owners, and forcing all of the rest of us users to bear the cost for their misconduct.
May 16, 2008 | Permalink
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Lawyers Rank 17th on List of Best and Worst Paying Jobs
Forbes Magazine just released the latest list that should capture the attention of rankings-obsessed lawyers -- "The Best and Worst Paying Jobs List." With an average salary of $118,280, lawyers place 17th, below most medical specialists, CEOs and airline pilots. Still, lawyers can take heart -- not only do their earnings surpass dishwashers, bus boys and salon workers -- but they also make more than Berkshire Hathaway CEO Warren Buffet, who pays himself a miserly $100,000 a year.
So does a career in medicine make more sense from a financial perspective than law? Not necessarily. The Forbes story explores some of the reasons not to become a doctor, including anticipated cuts in Medicaid reimbursements to doctors over the coming years and the cost of malpractice insurance.
In addition, tuition costs for medical school are higher than ever, with most medical students graduating with a median debt of $135,000. And lucrative specialties like dermatology or anesthesiology (the top paying position on the Forbes list) require extra years of training, which means that most doctors won't start earning money and paying down debt until their mid-30s. By contrast, new law grads, at least those who matriculate to Biglaw, earn six figure salaries for on-the-job training. So why do large firm lawyers complain so much, when at least at the outset, they're doing far better than new doctors?
Even with the stress of malpractice actions and reduced insurance payments looming, it's always been my impression that doctors felt more satisfied in their careers than lawyers -- even though both law and medicine are service professions with a focus on helping others. Do you agree that doctors more content than lawyers -- and if so why?
May 16, 2008 | Permalink
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May 15, 2008
Twittering From the Courtroom
"There's a new kind of journalism coming from a Kansas courtroom this week," writes Anne Reed at her blog Deliberations. She calls it "Twitter journalism." Whereas blogging a trial already seems old-hat, Wichita Eagle reporter and multimedia producer Ron Sylvester is reporting a capital murder trial through a series of Twitter posts -- each capped at 140 characters.
As he explains at the Society of Professional Journalists blog Technolo-J, his "tweeting" of this trial evolved from his experiment last year live blogging an earlier trial, e-mailing his posts to the newsroom, where other staffers would post them online. But the workflow lagged, and he found himself filing faster than the staff had time to post. So this time, he decided to try Twitter as an experiment, thinking to himself, "Who would notice?" As it turned out, plenty of people noticed. "I didn't expect the reaction," he writes. "This is important to me, because they are local people, looking for local news. They're not readers or viewers or audience anymore -- in this world of social networking, they're my friends."
Back at Deliberations, Anne Reed sees this as another way in which Twitter is finding its way into the legal world. "Ron Sylvester is reporting jury selection with a fresh and direct style you don't often see," she says, "except on Twitter."
May 15, 2008 | Permalink
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WIPO Elects Next Director General
In a hard-fought election decided by a one-vote margin, the World Intellectual Property Organization elected Australian lawyer Francis Gurry to be its next director general. Gurry has worked for WIPO in Geneva, Switzerland, since 1985, most recently as deputy director general in charge of patents. Before assuming that role in 2003, he was assistant director general and legal counsel. In the mid-1990s, he founded the WIPO Arbitration and Mediation Center and remained its director up to the time of the election.
The election was hard-fought, reports Intellectual Property Watch, with 15 candidates originally in the running after it became clear that the current director general would be pressured out over lack of confidence in his leadership. "But in the end, Gurry, considered a favourite as one of the most senior officials in the organisation who had nevertheless crafted a reputation for relative independence from the existing administration, prevailed."
After the vote, Gurry told WIPO members, "I want to assure the membership that as of conclusion of this process my mind will be set on all members. I’m very much aware of the diversity of the organization."
More about Gurry here in his resume.
May 15, 2008 | Permalink
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Not All Quiet on the John Yoo Front
My, how the blogosphere buzz over John Yoo has quieted. Just a month ago, I posted here about the debate among legal and academic bloggers over whether the co-author of Bush Administration memoranda condoning torture should be allowed to retain his professorship at the University of California's Boalt Hall School of Law. Now, there is hardly a murmur about his tenure. But not all is quiet on the John Yoo front, with two noteworthy developments this week.
First, Yoo himself speaks out once again on the issue of presidential power, asserting that the central purpose of executive power is "to respond quickly and decisively to unforeseen crises and emergencies in foreign affairs." Sounds familiar, only he is referring in this case not to President Bush, but to President Thomas Jefferson. In a Boston University Law Review article, Jefferson and Executive Power, Yoo argues that Jefferson was "a bundle of contradictions," perhaps nowhere more so than in his views on executive power. Nonetheless, Yoo contends, "Jefferson's success as Chief Executive is closely intertwined with his broad conception of presidential power." He concludes by contrasting Jefferson with his successor, James Madison, whose narrow view of presidential power, Yoo says, was his downfall.
Elsewhere, the National Lawyers Guild, which last month led the charge for Boalt to dismiss Yoo, this week issued a statement calling on Congress to appoint a special prosecutor to investigate and prosecute Yoo and others for their roles in condoning torture. Along with the statement, the NLG published a white paper setting out the legal and factual arguments for prosecuting the memo writers under international and U.S. law. NLG President Marjorie Cohn recently testified on Capitol Hill that Yoo and others were "part of a common plan to violate U.S. and international laws outlawing torture."
May 15, 2008 | Permalink
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Study Debunks Med-Mal Crisis
Massachusetts has the fourth-highest median malpractice settlement payments in the nation. It only follows that Massachusetts doctors should pay the fourth-highest insurance premiums. Right? Turns out, Bay State physicians actually saw their inflation-adjusted malpractice premiums drop between 1990 and 2005. This is the finding of a newly released study conducted by researchers at Suffolk University Law School in Boston. Published this week in the May/June issue of the journal Health Affairs, the study "raises serious questions about claims that Massachusetts doctors are facing a medical malpractice premium crisis that threatens the viability of medical practice in the Bay State," say its authors. From the announcement:
Suffolk University Law School researchers Marc Rodwin and colleagues analyzed malpractice premiums from 1975 to 2005 using data from the state-regulated mutual insurer known as ProMutual Group. In 2005, inflation-adjusted malpractice premiums were $17,810 for the coverage level and policy type that physicians most frequently purchased, compared with $17,907 in 1990. Despite premium increases since 1995 or 2000 for all physicians, premiums were still lower in 2005 than 1990, when they reached a 30-year peak. Mean premiums increased only in three specialties comprising 4 percent of physicians: obstetrics, neurology and orthopedists performing spinal surgery.
Even in high-risk specialties, where insurers charge surcharges, the situation is not as dire as so-called tort reformers would suggest. In OB-GYN, for example, nearly one third of physicians paid lower premiums in 2005 than in 1990, the study found.
In The Boston Globe, the president of the Massachusetts Medical Society countered the study with this confounding statement: "The issue of the malpractice crisis is not purely a premium-based issue, although we certainly have documented the high cost of liability insurance is a major factor in [physicians'] perspective on the practice environment. I think to some degree looking at malpractice premiums ... may provide an unfair picture of what is really going on."
What I think he said is this: If the insurance argument isn't going to work anymore to deflect those nasty tort lawyers, we'll think of something else.
May 15, 2008 | Permalink
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May 14, 2008
Are Tort Reformers Going After the Wrong Target?
New York personal injury lawyer Eric Turkewitz takes a critical look at a lawsuit by numbers kingpin-cum-Rikers Island inmate Raymond Marquez, alleging that the New York City Department of Corrections' indoor smoking policy caused Marquez's bladder cancer. Despite the fact that Marquez had smoked for thirty years before quitting around the mid-1970s, his lawsuit attributed his cancer to the second hand smoke that he endured between 1998 and 2001 while awaiting trial at Rikers Island for a crime for which he was subsequently acquitted. On Friday, a jury returned a verdict in favor of the City.
Turkewitz comments:
When I first heard about the litigation, it sounded like a dog, and I don't know any reputable personal injury firm that would have taken it. And as it turns out, the suit was brought by the plaintiff's son, who happens to be a local attorney.
Because most reputable lawyers would have -- and indeed did -- decline this case, Turkewitz argues that it's unfair for the City to make the case a poster child for "ridiculous lawsuits" as it has done in recent press releases.
Turkewitz makes an interesting point. Some of the most notable examples of litigation-gone-wild -- such as Roy Pearson's $65 million pants suit against the dry cleaners or the $54 million suit against Best Buy for losing a woman's computer in the repair shop -- were brought by pro se litigants (though Pearson is a lawyer). In many pro se cases, or cases where a plaintiff is represented by a friend or a relative, it's often because most sensible plaintiffs' lawyers turned the cases down. For that reason, is it fair to use cases that no lawyer would have taken anyway as an example of what's broken in the tort system or as a basis for criticizing trial lawyers?
May 14, 2008 | Permalink
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Vista Won't See the Light of Day at Most Law Firms
It's been about two years since Microsoft launched Vista, a Windows-based operating system that has been so poorly received that even Wikipedia devoted an entire entry to "Criticism of Windows Vista." Because of its many problems, Vista is being bypassed by many large corporations, reports Rick Georges at Future Lawyer.
As for law firms, this is one case where their complacency in adopting new technology plays to their advantage. Georges writes that "until someone makes [law firms] adopt it, Vista will not likely see the insides of a majority of law firm computers." Thus, most law firms will be spared the headaches that other users have experienced with Vista.
May 14, 2008 | Permalink
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Web Users Would Support Code of Conduct
Though blogging, Web 2.0 applications, and user-generated content sites represent the still-wild, untamed frontier of the Internet, most users would not resist efforts to settle the laws of this territory. According to a story in the Guardian, nearly half of Internet users would support a voluntary code of conduct for bloggers and online commentators, according to a survey by DLA Piper. The survey revealed that currently, roughly 75 percent of Web users who have posted comments on blogs and news sites had no understanding of laws governing libel, defamation or intellectual property that might potentially apply to their conduct on the Web.
At the same time, while 46 percent of Web users were receptive to a voluntary code of conduct, users' current actions suggest otherwise. At present, only one third of Web users surveyed actually read the legal liabilities in the terms of conditions of Web sites that they use. And 14 percent have had content removed from a site due to violation of applicable terms and conditions. Bottom line: While Web users may say they want a code of conduct, in practice, few obey the rules in place now.
Do you support a code of conduct for Web users? And if so, what features would it include?
(H/T to ABA Journal.)
May 14, 2008 | Permalink
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May 13, 2008
Ropes & Gray CMO Leaves Firm
The Boston Business Journal is reporting that Jim Durham, the chief marketing officer at Ropes & Gray in Boston, left the firm. Durham was well known nationally as a law firm consultant based near Boston before he joined the firm in 2004. According to the BBJ, Victoria Arnold is serving as interim CMO until the firm names a replacement.
When Durham joined the firm, Larry Bodine wrote at his Law Marketing Blog that Durham had surprised many by his decision to go in-house. When Bodine asked him why he did it, he replied, "After eight years of working with hundreds of firms (and staying in hundreds of hotels), it is a chance for me to work closer to home. Most importantly, though, it is a chance for me to work with some of the finest lawyers in the world at an amazing law firm."
May 13, 2008 | Permalink
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From Music to Law and Back Again
I don't know what's in the water at Boston's Meehan, Boyle, Black & Bogdanow, but I do know I want to get me some. On lawyering alone, this eight-lawyer PI firm is nationally known for a string of million-dollar verdicts and settlements. As to bar involvement, one need look no further than firm founder Leo V. Boyle, who as president of the American Association of Justice at the time of the Sept. 11 attacks (when it was still ATLA) was instrumental in bringing about the federal Victim Compensation Fund and in creating Trial Lawyers Care, a national organization of volunteer attorneys created to help victims' families. And then there are the lawyers' lives outside of law. Partner Michael Bogdanow, for example, has long had a successful parallel career as a painter and sculptor.
Now the firm can claim a recording artist among its ranks. Karen R. Ristuben, who is of counsel to the firm, recently released Too Much, her debut CD as a jazz singer. This is no mere vanity pressing -- the CD was produced by Mason Daring, the lawyer-turned-musician who has scored all of John Sayles's films (he was an entertainment lawyer when Sayles asked him to score Return of the Secaucus Seven), was recorded on a sub-label of Rounder Records, and features a who's who of backup musicians.
For Ristuben, it was a circuitous route that took her from music to art to law then back to art and finally again to music, as this recent profile of her relates. She started out playing the guitar, then went to art school and then to law school. After representing plaintiffs in med-mal cases for several years, she felt a pull to do something else. That led her to the decision to scale back at the firm and return to school to study art and then to become an art teacher in a high school. From there, she began studying guitar again, an instrument she had not played in decades, and then started voice lessons. Music led her to working and performing with Daring and ultimately to her new release.
The CD features a number of old-time jazz standards, such as "Stars Fell on Alabama," "I'll Be Seeing You" and "Cry Me A River." According to the profile of Ristuben, a Boston-area public-radio host said her interpretations bring to mind the voices of Julie London and Peggy Lee. He is close to the mark, I can attest; she lives not far from me and I've heard her perform live. You can judge for yourself by ordering Ristuben's CD from her Web site.
And, yes, she continues to practice law part-time. It's got to be something in the water.
May 13, 2008 | Permalink
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The Lateral That Got Away
Recruiting law students is like shooting fish in a barrel, suggests headhunter Stacy Humphries, a principal in the Houston office of MS Legal Search. But when it comes to luring in those more trophy-worthy laterals, few firms know how to land the catch. "Too often, poor communication, bureaucratic processes, disorganization and misinformation thwart even the best firms' efforts," she writes this week in The National Law Journal. To help firms reel in the prized lateral, Humphries offers 10 anecdotes illustrating what not to do, all drawn from real life. Like Harry Highbiller, for instance, someone we've all met at some point:
Harry Highbiller's secretary informs him that Lee Lateral is waiting to see him in the lobby. Harry, always conscious of his billable hours and wanting to look important, keeps working away for another 30 minutes before asking his secretary to bring Lee into his office. Throughout the interview, Harry keeps his eyes on his computer in case he receives an important e-mail. At one point, Harry even pulls out his keyboard drawer and begins composing an e-mail message. Harry keeps the conversation focused on his own accomplishments rather than telling Lee about the firm or trying to get to know Lee. Harry does ask Lee a couple of questions about his current firm's clients and recent partner attrition, but those questions only make Lee more uncomfortable.
The "convince us why we should hire you" approach is fine for law students, but it simply will not work with laterals, Humphries writes. "When it comes to lateral recruiting, firms should consider themselves sellers in a buyer's market -- any misstep or misinformation along the way could mean the difference between getting and losing many potential hires." As for the law students out there, jump right in the barrel -- the water's fine.
May 13, 2008 | Permalink
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When the Legislator is a Lobbyist
Legislators and lobbyists are often accused of getting too close, but usually they are not close enough to share the same skin. Not so in Maryland, where several state lawmakers also hold down positions as congressional lobbyists on Capitol Hill, according to a report this week in the Baltimore Sun. Take Heather R. Mizeur, for example. A Democratic member of the Maryland House of Delegates representing Montgomery County, she was also employed until recently as a government affairs adviser in the Washington, D.C., office of the law firm Kirkpatrick & Lockhart Preston Gates Ellis. In her role as legislator, she helped push through a bill to establish a new fund supporting the emerging field of nanobiotechnology. In so doing, says the Sun, "she also succeeded in securing a potential funding source for companies she had registered to represent on Capitol Hill." Mizeur says she did nothing wrong and that she received clearance from the state legislature's ethics counsel to sponsor and vote on the legislation.
The Sun reports that the state legislature includes several lawmakers who are also federal lobbyists -- and whose work in Annapolis sometimes intersects with the clients they represent in Congress. "At least four other Maryland lawmakers are registered as lobbyists in Congress: Del. Sheila E. Hixson, chairwoman of the Ways and Means Committee and a lobbyist on manufacturing and defense issues; Del. Maggie L. McIntosh, chairwoman of the Environmental Matters Committee and who is registered to lobby in Washington for the Johns Hopkins University; Del. Gerron S. Levi, a lobbyist for the AFL-CIO; and Sen. Jim Rosapepe, who is a federal lobbyist for states on issues of tax fairness." Of those four, only Levi is a lawyer, a 1994 graduate of Howard University School of Law.
William G. Somerville, the General Assembly's ethics counsel, tells the Sun that nearly all members of Maryland's part-time legislature will have some appearance of a conflict of interest because of the need to supplement their incomes with outside employment. "He says the state's ethics rules are designed to provide disclosure and encourage lawmakers to participate in areas where they are knowledgeable, so that a farmer can participate in debates about agriculture and a doctor on health care issues, for example."
Still, something about legislators and lobbyists sharing one skin feels a little like the wolf who dressed up as a sheep.
May 13, 2008 | Permalink
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May 12, 2008
Can Flextime Create Work-Life Balance if Lawyers Aren't Comfortable Using It?
In theory, benefits like extended maternity leave, part-time options and telecommuting are the hallmarks of a robust and effective law firm work-life balance initiative. But as it turns out, in practice, less than half of eligible attorneys feel comfortable availing themselves of these options, at least according to the results of this survey jointly sponsored by Above the Law and Lateral Link. Of the 1 ,669 respondents, only 45 percent of women and 18 percent of men said they would feel comfortable asking to go part-time after having a child, while 39 percent of women and 25 percent of men would feel comfortable asking for an extended unpaid leave. Finally, roughly one third of respondents of either gender said they would feel comfortable asking to telecommute after having a child. At the same time, most lawyers -- two third of men and 59 percent of women -- did feel comfortable leaving the office at 6 p.m. to be home with children and then continue to work remotely.
My guess is that lawyers are comfortable with leaving earlier because they could do so on an ad hoc basis, rather than through a formal law firm program. Thus, they would not suffer the same stigma that they might if the firm were required to make a special accommodation, as it would with initiatives like telecommuting or part time work.
It seems that even in these supposedly more enlightened times, the "parent track" doesn't run parallel to the partnership track. As Ellen Ostrow suggests in this piece, unintentional biases still remain within the workplace -- and that for retention programs to succeed, firms must develop mechanisms for preventing biases from influencing judgments and behavior. (H/T to Women Lawyers Back on Track.)
May 12, 2008 | Permalink
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Blawg Review #159
Blawg Review #159 is up at The Whistleblower Law Blog, sponsored by the law firm of LaBovick and LaBovick. Blawg Review #159 includes interesting picks such as the greatest pro defense decisions from the Drug and Device Law Blog and this update from Lowering the Bar on a brewing copyright battle between the state of Oregon and some of the legal Web sites that publish its statutes online for free. And if links like these aren't enough incentive to draw you to Blawg Review #159, perhaps you'll be enticed by the opportunity to reacquaint yourself with some of your favorite nursery rhymes which are interspersed throughout.
May 12, 2008 | Permalink
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Bike Couriers Riding Off Into the Sunset
First, it was the typewriter. And now, another former sine qua non of law firm practice -- the bike courier -- faces endangered species status in this Internet-enabled paperless era.
The Providence Journal reports on how e-filing is impacting the bike courier business in Rhode Island and nationwide. Back in 1999, the state had about 480 couriers and messengers, but that number dropped to 400 -- down nearly 20 percent -- by 2006. The state's trend aligns with national statistics from the U.S. Department of Labor, which show a decline in couriers and messengers from 134,370 in 1999 to 105,070 in 2006.
Not surprisingly, Walter J. Marshall, the Boston-based regional economist for the Bureau of Labor Statistics, attributes the decline to the emergence of electronic communication and e-filing. In Rhode Island, both U.S. Bankruptcy Court and federal district court have been using e-filing for the past few years. Even the Secretary of State's office began accepting corporations' annual reports electronically in August 2007, and is now considering extending the electronic filing program to nonprofits and limited liability companies. Indeed, thus far, the state courts remain the only hold-outs, though they are expected to implement e-filing by 2011.
In the meantime, courier services, which rely heavily on court filings and law firm business, are coping with the changes. One company, Dash Delivery, lost 30 percent of its business when the Bankruptcy Court went electronic and another 25 percent when the federal district court went online. The company continues to deliver important documents, as well as charging documents in criminal cases and initial complaints, which are still filed in paper form. And it is diversifying, now delivering blood samples and medical files for hospitals.
Do you or your law firm still rely on messenger services and bike couriers? Will there always be a need for messenger services -- or will we see their ranks continue to decline?
May 12, 2008 | Permalink
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May 11, 2008
Sports Law Is a Tough Game to Enter
Transitioning from a conventional law practice to work as a sports agent can be a tough game for lawyers, as discussed in this Fulton County Daily Report story profiling several Atlanta lawyers who attempted to make the play. For one lawyer, Bondurant, Mixson & Elmore partner Von DuBose, a gamble on Michigan State University defensive end Ervin Baldwin paid off. After months traveling across the country to watch Baldwin practice and play, and counsel him on handling media interviews, the Chicago Bears drafted Baldwin, allowing DuBose to continue to build his sports agent business. On the other hand, personal injury and criminal defense lawyer Mawuli Davis, who focused his efforts on representing basketball players, never found an opportunity to represent a player in a major league deal. Without a client to build on or the funding needed to pursue clients, Davis "decided to cut his losses and stick to traditional legal work."
Given that the sports agency business demands high up-front costs to lure clients, one might think that the field would be dominated by deep-pocked, mega law firms. But the truth is that very few agents work for the Am Law 200:
"Being an agent doesn't work with big firm economics," said Brandon Witkow [a sports agent lawyer]. Big firms bill by the hour, but the vast majority of sports agents receive a percentage of their clients' salaries, Witkow said. Also, a big firm lawyer working as an agent can't bill for the countless hours he'll spend doing tasks that are standard agent fare. "You incur a lot of time as an agent preparing pitch packets for clients, traveling to meet team general managers and to summer camps," Witkow said. "Those are costs that can't be directly passed on to the client."
A few large firms, including Bryan Cave, Dow Lohnes, Stinson Morrison Hecker and Williams & Connolly have a sports agent practice. And some firms, such as Covington & Burling or Proskauer Rose have sports law practices, representing the leagues or teams rather than acting as agents for individual players. Indeed, by representing individual players, these firms would conflict themselves out of their ability to represent the big corporate entities that can afford large firm rates. As a result, despite the initial start up costs, the sports-agent field continues to remain dominated by small shops or solo practices.
May 11, 2008 | Permalink
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May 09, 2008
Was Troll Tracker a Journalist?
The now infamous case of the anonymous blogger known as Patent Troll Tracker and the lawyer who offered a reward to unmask him is an object lesson in the potential perils and pitfalls of legal blogging. As we all know, the blogger unmasked himself, revealing that he is Rick Frenkel, a lawyer at Cisco. But that was hardly the end of this blogosphere soap opera. First, two Texas lawyers sued Frenkel and Cisco for defamation, a suit that remains pending. Then, lawyers at the firm Niro, Scavone, Haller & Niro -- the firm founded by the lawyer who offered the reward in the first place, Raymond P. Niro -- sought to depose Frenkel in connection with their suspicion that he was in cahoots with the firm Fish & Richardson in its lawsuit against its former partner and now Niro client Scott Harris.
A Gordian knot, to be sure. But IP Law & Business reporter Joe Mullin is shedding some light on the situation through his blog The Prior Art, where he has obtained various pleadings from the federal court in San Jose, Calif., relating to the Niro firm's efforts to depose Frenkel. He has three posts so far based on the documents, with another promised for later today:
- Part One: Scott Harris' lawyers drop Troll Tracker deposition demand.
- Part Two: Patent Troll Tracker speaks—and vows to return.
- Part Three: Is the Patent Troll Tracker a reporter?
This last one is particularly interesting. It details Frenkel's efforts to invoke the protection of California's journalist shield law, contending that he is a "non-party lawyer-journalist" and the deposition would require him to testify "regarding confidential sources and unpublished information." Forcing him to testify, Frenkel writes in court papers, "would result in a serious detriment to Frenkel’s future ability to gather and disseminate news." Niro's response, Mullin writes, "sizzles and jumps through Frenkel's various sins, calling him unqualified, unethical, threatening, a corporate stooge for Cisco, a writer of devilish anagrams and haikus, and most importantly, not a reporter."
Then Mullin weighs in with his own opinion, which is that Frenkel's blogging most decidedly did qualify him to be considered a reporter:
It's a good question how far the reporter's privilege should be extended; not everyone with a domain name can be allowed to evade a civil subpoena. But I don't think Frenkel's blog was even a close call. There's no doubt in my mind that Frenkel was reporting the news, and will continue to be if and when he re-starts his blog; more than anything, he was my competitor.
I have to agree with Mullin's take on the blogger-as-journalist question. Meanwhile, I recommend that you keep an eye on Mullin's blog for further developments regarding the Patent Troll Tracker.
May 9, 2008 | Permalink
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Two Podcasts: Am Law 100 and E-Discovery
The Am Law 100 is out, The American Lawyer magazine's annual ranking of the nation's highest-grossing law
firms. All tolled, they brought in a record $64.5 billion and marked their best five-year run ever. So what do the numbers mean and what can they tell us about the future economic health of the legal industry? This week on the legal-affairs podcast Lawyer2Lawyer, we discuss the survey with two guests who are well-acquainted with its findings: Aric Press, the magazine's editor-in-chief, and Bruce MacEwen, consultant to law firms on strategic and economic issues and author of the blog Adam Smith, Esq. You can get more details about the show and listen to or download it from this page.
Elsewhere on the podcast front, Monica Bay,
editor-in-chief of Law Technology News, talks about e-discovery with her guest, Tom O'Connor, director of the
Legal Electronic Document
Institute. They focus on the question of how best to manage electronic documents and make the leap from hard-copy Bates numbering to digital equivalents. O'Connor tells Bay that it is time for lawyers to rethink how they process and review electronic documents. He and Bay also discuss this month's Louisiana Bar Solo and Small Firm Technology Conference in New Orleans, which they both attended. Listen to or read more about this podcast at the Legal Talk Network.
May 9, 2008 | Permalink
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A Case Study in Crisis PR
I just finished reading, Stop the Presses: The Crisis and Litigation PR Desk Reference, by Richard S. Levick and Larry Smith of Levick Strategic Communications. Drawing on a mix of experience and common sense, the authors provide practical advice for businesses and law firms facing media challenges to their reputations or brands. So the issue of crisis PR was very much in my mind when I picked up yesterday's Boston Globe and read that a former Bingham McCutchen associate, Michelle Moor, was claiming the firm failed to promptly investigate her allegation that she had been drugged at a firm holiday party, that another female associate had been drugged and raped a year earlier by a Bingham employee, and that a Bingham employee remarked at a firm dinner that he enjoyed giving women date-rape drugs and having sex with them. The story was also reported by Massachusetts Lawyers Weekly and on Law.com.
Needless to say, this was a made-for-the-blogosphere story, where it was soon picked up by the Wall St. Journal's Law Blog, which called it a "strange and frightening little tale from Boston," by Above the Law, which asked, "At what kind of firm dinner does an attorney feel comfortable talking about taking advantage of passed-out women?" and by the ABA Journal news blog, under the headline, "Lawyers Drugged at Bingham Events, Ex-Associate says." Here at Legal Blog Watch, my colleague Carolyn Elefant also picked up on it, questioning whether Bingham acted on the former associate's complaint as it would have advised a client to do.
Here was a PR crisis if ever there was one. So what would Levick and Smith advise? Not to put words in their mouths, but as the story unfolded, a few points from their book seemed salient:
- Don't explain, narrate. "Explanations sound like excuses," they write. "Instead, leaders describe the steps they've taken, and the steps they're going to take to solve the problem."
- Go beyond what is expected. "If consumers are waiting for an apology, leaders go further and provide a full-blown bill of rights. If regulators want information, leaders provide more than what the law requires."
- "Have an alternative story to tell: positive, equally impressive, equally important."
Before I go any further, in the interest of full disclosure I have to say that Bingham's PR director, Claire Papanastasiou, is a former colleague and a long-time friend. I have not discussed this story with her and have no idea what role she played other than the formal statement she issued.
That said, Bingham's handling of the situation seemed to be a textbook example of crisis PR done right. First it issued a statement, published on Above the Law, which made three key points: 1. that it took the complaint "extremely seriously," 2. that it acted "diligently, responsibly and fairly" in investigating the complaint, and 3. that it "went beyond what is expected," as the Levick book counsels, and had developed and was providing its staff with personal-safety training. Later, the firm's general counsel, William Southard, sent an e-mail to the entire staff that provided more details about the firm's investigation and response. Among the key points here: the firm wanted to investigate the matter immediately but held off at Michelle Moor's request, the eventual investigation was unable to determine the drug's source, the firm had initiated personal-safety training for all lawyers and staff, the other associate alleged to have been drugged had contacted the firm and indicated that was "fundamentally inaccurate," and the firm had investigated and terminated the employee whom Moor alleged had made inappropriate comments over dinner.
Southard's e-mail was "internal" and we can only guess at whether he thought it would be leaked to a blogger such as Above the Law's David Lat. But we do know that a day that started with Lat referring to the "worst holiday office party ever" ended with him writing that there are two sides to every story and that Bingham seemed to have "handled this difficult situation with sensitivity." Bingham took control of the story, presented an equally (if not more) important alternative story, and showed that its response went beyond expectations through a serious investigation, termination of one employee and institution of firm-wide training. Levick and Smith, I suspect, would approve.
May 9, 2008 | Permalink
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May 08, 2008
Will India Open Its Borders to Foreign Law Firms?
We've posted previously on the huge market for legal process outsourcing providers in India as well as on firms trying to position themselves for business opportunities should India open its borders to foreign firms.
Along this same theme, last week's issue of The Economist carried a detailed story about the Indian legal market. (H/T Blog of the American Constitutional Society.)
As we've noted previously, India does not permit foreign firms to open offices within the country. Though the prohibition has been in place for nearly fifty years, back in the 1990s, Ashurst, a British firm, Chadbourne & Parke and White & Case apparently perceived some ambiguity because they went ahead and opened offices in India. The Indian lawyers sued and last week, India's High Court judges were due to hear argument on how the rule should be interpreted.
So why don't Indian lawyers want foreign firms playing on their turf? Quite simply, they fear the competition -- a fear that seems well-founded, given existing regulations that apply to Indian firms. As the Economist article describes:
Strict rules have stymied growth while other firms around the world have been able to develop into global organisations. Indian firms are not allowed to have more than 20 partners, cannot advertise their services via websites, and cannot even give someone a business card unless it has been specifically requested. The big global firms, with their vast resources and long experience of international transactions, make fearsome opponents....Litigators, who make up the majority of lawyers in India, are concerned for other reasons. They occupy an important position in Indian society as the guardians of democracy and are associated with independence from the old British Empire.
In the meantime, global firms aren't just waiting around for the doors to open. Many are heading to Indian law colleges to pick the cream of the crop. Firms will employ these Indian graduates at their existing offices overseas, with the hopes of sending them home to run India-based offshoots if and when the legal market opens up.
May 8, 2008 | Permalink
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Sex, Drugs and Lawsuits at Boston Law Firm
This story about an associate who claims that her law firm failed to investigate her complaint that she had been drugged at a firm holiday party, and that another associate had been drugged and raped, seems like a plot out of a TV show like Boston Legal -- but unfortunately, it's not.
According to the article, yesterday, the associate, Michelle Moor, filed a discrimination complaint at the Massachusetts Commission Against Discrimination, asserting that the firm did not take her allegations seriously. The complaint describes that Moor had two glasses of wine at the firm holiday party. Later, feeling ill, she went to an emergency room, where a blood test revealed she had ingested Tegretol, an antiseizure medication that can cause memory loss when mixed with alcohol. When Moor later told a more senior associate about the incident, the other associate confided that she had been raped by a Bingham employee the year before and reported the incident to the police. She did not, however, tell the firm, for fear of not being promoted. Subsequently, Moor reported both incidents to the firm's human resources officer, who said that the firm would investigate. Later, Moor overhead a discussion where a Bingham employee revealed that he enjoyed having sex with women who were unconscious and that he knew where to get date-rape drugs. Moor brought this information to the human resources office as well. Eventually, Moor left the firm over concerns for her safety -- and thereafter, the firm issued a notice to employees about the drugging incident.
If Bingham were representing a company where an employee reported the type of conduct that Moor did, I'm certain that they'd advise their client to undertake a full investigation of the incident, collect statements and take remedial action if necessary. Likewise, I'm guessing that Paul Hastings would have advised its clients not to act so insensitively in terminating a potentially protected employee. Why don't law firms take the same advice that they'd render to their clients?
May 8, 2008 | Permalink
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Changing of the Blog-Guard
OK, so maybe it's not as big a deal as changing of the guard at Buckingham Palace, but these days, changing of the guard, i.e., the creator or writer, of a popular law blog is significant enough to warrant a press release. At least, that's what labor and employment law firm Ford Harrison did to announce the departure of Julie Elgar, a firm attorney and editor of the firm's popular legal blog, That's What She Said which is based on the hit NBC show, The Office. Elgar, who is leaving the firm to go in-house at a corporation, will be replaced by Troy Foster, a partner in the Phoenix office who has previously served as a guest-blogger for the site.
The transition at That's What She Said reminds us that bloggers, particularly those at popular sites, need to keep in mind an exit strategy. If you or your firm stopped blogging, what would happen to the site? Could you replace the original creator, or would that damage the personality of the blog?
May 8, 2008 | Permalink
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More Non-Equity Partners = Lower PPP
When The American Lawyer released its Am Law 100 report last week, many noticed a correlation between increased PPP (profits per partner) on the one hand and the decline in the number of equity partners and growth in the category of non-equity partners on the other. This correlation might lead some to assume that law firms with a higher percentage of non-equity partners will have larger PPP's, because there are fewer partners taking a piece of the profit pie.
But as Bruce MacEwen convincingly argues, the truth is that firms with a larger percentage of non-equity partners have lower PPPs overall. The reason? As MacEwen describes:
As it turns out, what comes with introducing a non-equity tier is a subtly changed dynamic in the incentive set facing your talent. Firms with a single-tier partnership attract the true Type A's: Those of us who have never finished anywhere but at the top of a class and have no intention of starting to do otherwise. But the two-tier firms hold out a veiled alternative: If you keep your nose clean and work (reasonably but not insanely) hard, you might find yourself taking home (say) $400,000 per year, adjusted for inflation, for the duration. And you won't have to kill yourself in either billable hours or business generation.
As MacEwen explains further, non-equity partners cost the most and are also less productive than either partners or associates.
Sure, there are reasons to establish non-equity partnership tracks -- perhaps to hold on to specific individuals or to facilitate work-life balance. But increasing revenues and boosting profitability isn't one of them.
May 8, 2008 | Permalink
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May 07, 2008
Law Prof's E-mail is Campaign Issue
Robert M. Bastress, a professor at West Virginia University College of Law, is campaigning for a seat on the West Virginia Supreme Court. In March, he denied accusations that he was using university resources in his campaign, which state law forbids him from doing. So the West Virginia Record filed an FOIA request and obtained his law school e-mail. The newspaper found that, in fact, Bastress had used his e-mail account to conduct campaign business and to solicit support for his campaign, but only to a limited degree.
In his defense, Bastress told the Charleston Daily Mail that he did not initiate any of the messages and was only responding to messages he received. "I hit 'reply.' It was an unthinking response." If anything, he says, the e-mails show he is not using his law school office as a campaign headquarters. And if turnabout is fair play, Bastress is now calling on his opponent, incumbent Justice Spike Maynard, to release his own e-mails to the media. The Associated Press has filed a lawsuit seeking to obtain Maynard's e-mails.
May 7, 2008 | Permalink
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Depression Among Lawyers: Chicken or Egg?
Lawyer depression is one of those topics that seems to reappear on a regular basis here at Legal Blog Watch, and the latest sighting comes by way of an article this month in the California Bar Journal, "Depression Takes a Heavy Toll on Lawyers." Consider this excerpt:
According to a Johns Hopkins University study, lawyers suffer the highest rate of depression among workers in 104 occupations. A University of Washington study found that 19 percent of lawyers suffered depression compared to 3 percent to 9 percent in the general population. And a University of Arizona study of law students found that they suffer eight to 15 times the anxiety, hostility and depression of the general population.
Richard Carlton, deputy director of the State Bar of California's Lawyer Assistance Program, sees those numbers and says, "There's something about the practice of law that attracts a certain personality that is prone to experiencing these problems." But is it the chicken or the egg? Is it that law attracts people who are prone to depression or that those who choose law find themselves depressed by their work? As the California LAP's director, Janis Thibault, puts it, "I've never seen such a lonely profession -- the inability to connect with other people at a deep level because there's so much of an adversarial relationship."
Tim Willison, a licensed clinical therapist who works with the California bar, says that lawyers typically come to him in their 40s and 50s because the pressures they face have reached the boiling point. "It's cumulative," he says, "there's a creeping paralysis." How could anybody, he wonders, be happy in such a demanding, high-pressure job? His observations would seem to lend support to the theory that law tends to be a depressing job, as opposed to lawyers tending towards depression.
Therapy, of course, is part of the answer for lawyers suffering from depression. But the article suggests that another route out from under depression might be for the lawyer to refocus on personal and interpersonal matters -- on personal growth, close relationships, helping others and improving their communities. Those who do that, research shows, tend to be happier and more satisfied with their lives.
Your thoughts? Why are lawyers more depressed than others? What, if anything, can they do about it?
May 7, 2008 | Permalink
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RIAA Lead Lawyer Named to Bench
Richard L. Gabriel, the Denver lawyer who has led the recording industry's litigation battles against file sharing and music downloading, will soon be singing a different song. Colorado Gov. Bill Ritter appointed Gabriel this week to a newly created seat on the Colorado Court of Appeals, effective July 1. A partner with the law firm Holme Roberts & Owen, Gabriel has been national lead counsel for the Recording Industry Association of America in its lawsuits to put an end to what it contends is illegal music distribution. He has personally appeared as lead counsel in most of the best known of these cases, including the only one that has gone to trial.
Not surprisingly, the peer-to-peer fans at p2pnet are not happy about the news, not because they'll miss going up against him, but because they question his ability to be impartial. The p2pnet post on his appointment describes him as an "attack lawyer" who RIAA used "to terrorize scores of innocent American men, women and even children." Another person not likely to be thrilled about the appointment: Gabriel's frequent adversary, Ray Beckerman, author of the blog Recording Industry vs. The People.
Gabriel is a 1987 graduate of the University of Pennsylvania law school and received his bachelor's degree from Yale University in 1984. After law school, he was a law clerk to U.S. District Judge Frederick Motz in Maryland and was city prosecutor for Lafayette, Colo., before joining his current firm in 1990. The appointment to the bench is for a provisional two-year term, after which it will be for Colorado voters to decide whether to retain him. He will earn a salary of $124,092.
We interviewed Gabriel in November 2007 for our Lawyer2Lawyer podcast. You can hear that interview from this page.
May 7, 2008 | Permalink
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May 06, 2008
Blawg Review #158
If you haven't seen it already, Blawg Review #158 is up and running at the Mommy Blawg, with a theme of "Midwives and the Law" in honor of International Midwives' Day. Along these lines, Blawg Review #158 reports on the birth of a law section for Guy Kawasaki's baby, Alltop, a web-based aggregator for blogs that doesn't require an RSS reader. And there's also this apt post by Anne Reed of Deliberations, about whether a judge is required to strike his own mother from the jury. (Answer: he's not, at least not in Wisconsin.)
Be sure to check out these posts as well as all of the others covered in Blawg Review #158.
May 6, 2008 | Permalink
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Can a Practitioner Run a Law School?
Last week, University of Miami Law Professor Michael Froomkin blogged that having a law practitioner serve as a law school dean sounds like a better idea than it is. Among other things, Froomkin wrote that practitioners lack the academic credentials to command the respect of serious law scholars and don't have the administrative or management skills unique to running an academic institution.
Well, apparently, the Paul M. Herbert Law Center of Louisiana State University didn't get the message that practitioners may not be well suited to run a law school. Ninth months ago, the school hired former Gibson Dunn partner, Jack Weiss, who's profiled here, as its law school chancellor. According to the profile, Weiss' early days were rough:
He ruffled some feathers among faculty members who thought Weiss lacked sufficient academic credentials to lead the law school, coming as he did from a law practice environment rather than a law education environment. He also ran afoul of some faculty members by going against a recommendation to grant tenure to a [now former] law center professor, Alberto Zuppi.
Weiss has worked to gain the respect of academics, and he's implementing programs to increase diversity and provide more scholarships for students.
Can practicing lawyers head law schools -- and should law schools seek them out? Send your comments below.
May 6, 2008 | Permalink
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Can Law Firms Silence Terminated Associates?
In the Internet Age, everyone lives in a fishbowl -- and law firms are no exception. As I've posted previously, it used to be that terminated or otherwise aggrieved associates would slip gently into the night, fearing that a highly-publicized lawsuit or outcry against the firm could kill their careers. These days, however, associates realize that firms suffer adverse publicity when word of a termination hits high-traffic sites like Above the Law -- and that they can use the threat of disclosure as leverage to negotiate better terms of departure.
So what's a law firm to do? Some firms have proposed mandatory arbitration clauses, which may shield the gory details of a dispute from the spotlight. In contrast to a judicial proceeding, an arbitration does not have a public docket.
Now it seems that other law firms are proposing "non-disparagement clauses" to prevent disgruntled, terminated employees from speaking ill of the firm after they're handed their walking papers. As David Lat reports at Above the Law, Paul Hastings tried the non-disparagement approach after terminating an associate shortly after she suffered a miscarriage. Lat published the associate's vent in full (apparently, the firm downgraded her performance review shortly before axing her) as well as the non-disparagement agreement.
Generally speaking, non-disparagement agreements are enforceable, says Frank Pasquale at Concurring Opinions. Even so, they won't work, where, as in the Paul Hastings case, the employee refuses to sign. Here's what the associate had to say:
As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months' pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don't need much help from me in damaging your reputation.
As for me, call me old-fashioned, but what ever happened to the practice of not burning bridges or keeping open possibilities with a former employer -- even where lawyers depart under less-than-ideal circumstances? (The exception of course is where a firm has acted unlawfully; in these situations, a lawsuit may be necessary to punish the firm and deter similar conduct in the future). At the end of the day, lawyers shouldn't need a non-disparagement clause to prevent them from bad-mouthing a former employer. They should realize that in most cases, it's in their best interest.
Do you agree?
May 6, 2008 | Permalink
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Lawyers Atwitter About Twitter
What's the newest social networking-cum-marketing tool that has lawyers all atwitter? It's Twitter, of course, which is best described as a hybrid between blogging and a Web-based IM (instant messaging) system where users respond to the common question, "What are you doing now?"
For most power-Twitter users, the answer is rarely "I'm hanging around in my bathrobe" or "Getting a facial." Instead of just "twitter-ing their thumbs," you'll find that most expert Twitter-ers are exchanging tips about interesting marketing ideas they've come across or blog posts or books they've just read. For that reason, Twitter can serve as a useful marketing tool for lawyers (and as a legal lifeline for those in need of a lawyer), as Steve Matthews writes in this post, Lawyer Marketing With Twitter. Matthews lists some of the lawyers already on Twitter (you can find me here) and offers some tips on using the site. Matthew suggests that you begin by checking out the "following" lists of people you know on Twitter to find others to follow; use @ symbols followed by the user name to respond to individual messages; and above all, "smile and act like you're having fun."
May 6, 2008 | Permalink
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May 05, 2008
Microsoft GC: Face Time Beats Blogging
Brad Smith, senior VP and general counsel of Microsoft Corp., talks about corporate blogging in the latest issue of InsideCounsel magazine. Along the way, he intriguingly raises the question of whether a corporate legal department should have a public blog, but then avoids offering an answer. Smith writes:
New technologies create external opportunities as well. Increasingly, legal statements come from companies not in the form of a traditional press release, but as less formal blog postings. These communications are in their infancy and raise new questions. In a media- and Internet-dominated age, does it make sense for a legal department to have an external blog? What does it make sense to say? How often should the legal department say something?
Good questions, but he follows them only by saying, "A decade from now these questions may well seem like old hat." Fortunately, Rees Morrison steps up to the challenge at his blog Law Department Management, answering that, as a blogger, he would be all for it, "but as a consultant on legal department management, I think I would counsel a would-be pioneer department to let that idea lapse."
As for Smith, he writes that Microsoft has more than 1,500 employees who blog and that companies should understand that "every employee is a potential blogger." This means that every company should have a policy on blogs, as does Microsoft, "to help employees apply existing standards on confidentiality and business conduct in this new online environment." That said, Smith believes no company should overlook the value of face-to-face conversations. "Technology is giving us new tools that can make us more effective," Smith writes. "But we shouldn’t forget that some of the best communications require no technology at all. They simply require that we get up from our computers."
May 5, 2008 | Permalink
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Dann's Days Numbered as Ohio AG
When Marc Dann announced his candidacy for Ohio attorney general in 2005, he vowed to be an AG in the mold of Eliot Spitzer. That promise has proven more prescient than he could have known, as he faces pressure to step down over sexual infidelity and mismanagement. On Friday, Dann admitted to having had an extramarital affair with a subordinate, just hours after the release of an internal-investigation report detailing lewdness, profanity and sexual harassment in the AG's office under his watch. The only question now is whether Dann will follow in Spitzer's footsteps and resign quickly, or stick with his assertion Friday that he would not.
In a news conference Friday, Dann conceded, "I have not conducted myself in a way that is
consistent with my values as a husband, a father and my responsibilities as attorney general." But he said he would stay on and "work tirelessly to regain the public's trust." He'd have to work at a superhuman pace. Over the weekend, editorials in four major Ohio newspapers called for Dann to resign, as did the state Republican deputy chairman Kevin DeWine, who said Dann had turned the AG's office into a "raunchy frat pad." In an editorial Sunday, the Cleveland Plain-Dealer said that Dann has turned the AG's office "into a laughingstock," and it called on him to do what is best for the state, not what is best for himself. "Marc Dann has disgraced himself far more than he seems to realize. He has fallen so far, so fast, that it's impossible to see how he can recover, personally, politically or professionally," the editorial said. "That's why he needs to go." Also on Sunday, an editorial in The Columbus Dispatch said that the AG "must be able to provide leadership, command respect and exercise strong judgment. Marc Dann has failed miserably in all three and is not fit to serve." The Cincinnati Enquirer on Saturday urged him to step down, calling him "a disgrace" whose "hypocrisy is breathtaking. Meanwhile, Ohio Gov. Ted Strickland and Ohio Democratic Party Chairman Chris
Redfern have both called for an independent investigation of the AG's
office.
As if this was not all sufficiently bizarre, Dann, during his press conference Friday, admitted that he was surprised he ever won election as AG in the first place, adding, "I was not as well prepared for the office as I
should have been." Given how the on-the-job training has gone so far, Dann really should consider another line of work.
May 5, 2008 | Permalink
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Legal News Roundup: Edicion de Cinco de Mayo
May 5, 2008 | Permalink
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The Power of Legal Blogging
Will legal bloggers soon find themselves hounded by paparazzi? According to "The Search for Intelligent Life in the Blogosphere," an article in this month's California Lawyer magazine, Southern California legal blogger J. Craig Williams was all the way Down Under at a restaurant in Sydney when a complete stranger called out to him, "I know you. You write that blog!" Williams, whose blog is part of the Law.com blog network (and with whom I co-host the podcast Lawyer2Lawyer), told the magazine he was stunned. "I thought to myself, 'I'm this little guy from Newport Beach traveling halfway around the world, and somebody knows me!'"
The story, as the article concludes, illustrates the power of blogging. But despite that power, many California lawyers "are still scratching their heads about blogs," writes author Jeanette Borzo. (They are not alone, as Carolyn Elefant noted in a post here Friday.) As long-time legal blogger Denise Howell puts it, "People haven't figured out how to reduce the noise-to-signal ratio. It has become somewhat overwhelming." Still, blogging success stories abound, says Borzo in this article dubbed a "survival guide to legal blogs":
It worked for Kristie D. Prinz. When her former firm, Pennie & Edmonds, closed its doors in 2003, the young intellectual property attorney decided it was time to launch her own firm (The Prinz Law Office in Los Gatos). That meant establishing a name and getting known quickly among potential clients as an expert.
Prinz, then 31, set up a blog straight away. And soon, prospective clients began mentioning that they had seen her California Biotech Law Blog. Two years later, she had a steady stream of media attention. 'Having a blog on relevant issues helps establish you as an expert to potential clients,' Prinz says. 'And if you're building your practice, that's exactly what you're looking to do.'
Sure, blogging also has "an underbelly," Borzo writes. For one, blogging carries the potential of getting caught up in virtual fisticuffs, leading to public black eyes and legal entanglements. Still, blog producer Kevin O'Keefe tells Borzo that he predicts the number of legal blogs will continue to grow, one day becoming as common among lawyers as e-mail addresses and Web sites. If that happens, early adopters such as J. Craig Williams won't seem quite so conspicuous -- freeing the paparazzi for other pursuits.
May 5, 2008 | Permalink
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May 02, 2008
Fifth Circuit Gives Thumbs Down to Firm's Request for Top Dollar Rates for Travel
Can a law firm charge its full hourly rate for travel time in a bankruptcy matter? Only if it can show that everyone else is doing the same, says the Fifth Circuit in Caplin & Drysdale Chartered v. Babcock & Wilcox et. al. (H/T to WSJ Law Blog).
The fee dispute originated when Caplin & Drysdale submitted a request for legal fees to the Eastern District of Louisiana for work performed on a Chapter 11 bankruptcy proceeding involving Babcock & Wilcox. The bankruptcy court disallowed $135,685.80 of the requested fees, ruling that Caplin & Drysdale was only entitled to 50 percent of its full hourly rate for travel time not spent working.
Caplin & Drysdale appealed, arguing that it had submitted undisputed evidence to the bankruptcy court showing that its usual custom and practice was to bill clients full hourly rates for non-working travel time. However, like the lower court, the Fifth Circuit found that Caplin & Drysdale did not submit any specific evidence showing that other law firms shared this billing practice. Thus, the firm failed to meet the statutory requirement of proving that compensation is based on "customary compensation charged by comparably skilled practitioners" in other cases.
My guess is that most law firms do in fact charge full freight for travel time. So at least in future cases, Caplin & Drysdale can probably find the support that it needs to recover its entire fee.
Do you think that law firms should charge full fees for travel time? And how far does travel time extend -- is it just time in the car, or time spent sleeping in the hotel and eating meals? Send your comments below.
May 2, 2008 | Permalink
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How to Guard Your Laptop From a Suspicionless Search
Now that the Ninth Circuit has given border patrol agents the go-ahead to conduct suspicionless searches of travelers' laptops or other digital devices when they enter the country, lawyers need to figure out ways to safeguard confidential and privileged information from an agent's scrutiny. Jennifer Granick of the Electronic Freedom Foundation offers these tips to protect yourself (and your clients' data) from suspicionless searches while traveling.
First, Granick suggests that you encrypt your hard drive, which at the very least will make it "prohibitively expensive to access confidential information." But Granick adds that encryption is an imperfect solution, because border patrol agents may attempt to force travelers to enter their passwords so they can continue their search. And while Granick argues that agents cannot force you to decrypt your data or turn over a password, that won't stop them from detaining you or even preventing you from entering the country.
A second option that many law firms and corporations now implement is providing employees with a forensically clean laptop loaded only with the data necessary for a particular trip. However, this approach does not work where trade secrets or client information are the reason for the trip. Alternatively, lawyers can bring a clean laptop and access the information they need over the Internet once they've arrived at their destination. Of course, here, the Foreign Intelligence Surveillance Act (FISA) now allows surveillance of people located outside the United States without a warrant -- which means that your e-mail could be intercepted. Thus, it's important to encrypt online transfers of confidential data.
Lawyers can face liability for disclosure of confidential client data, even if inadvertent or, in the case of a border search, through no fault of the lawyer. Clients harmed by the disclosure can sue for malpractice or violation of the duty of confidentiality. And there's always the chance that they might pursue an ethics complaint as well. The bottom line is that even though the Constitution doesn't protect citizens from searches of confidential information at the border, as lawyers, we must guarantee that protection, nonetheless.
May 2, 2008 | Permalink
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Purina Marks Its Territory
Pet food giant Purina is like a dog that won't give up its bone -- or in this case, its chow. Three years ago, Purina sent a cease-and-desist letter to Chow, Baby!, a Baltimore area pet supply shop and Web site owned by Robin McDonald, asserting that its use of the "Chow, Baby!" name was likely to cause confusion with Purina's CHOW trademarks and would dilute the distinctive quality of those marks. McDonald's lawyer advised her that it would cost thousands of dollars to fight for the name and that she might lose anyway. As a result, McDonald took down the Web site. But she retained the name, Chow, Baby! for her local store, figuring that Purina wouldn't find out about it.
Now, McDonald is ready to re-launch an Internet presence. But this time, McDonald decided to steer clear of a dogfight with Purina, and instead, changed her company's name to "Howl, Baby," subsequently shortened to Howl.
Would it really have cost McDonald "thousands of dollars" to tussle with Purina, or was her lawyer barking up the wrong tree when he dispensed that advice? Seems to me that the term "chow" is fairly generic. According to the dictionary, "chow" is defined as food, a meaning that dates back to 1860. So I don't see any paws-ability to Purina's claim. Moreover, if McDonald had ignited an Internet campaign to e-shame Purina, as some of these recipients of cease-and-desist letters have done, I'm certain that Purina would have retreated like a dog with its tail between its legs.