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December 31, 2008

Wishes for the New Year

As we wrap up another year here at Legal Blog Watch, I would like to offer to all of our readers and friends our wishes for a happy, healthy and prosperous 2009. May your work be fulfilling, your transactions seamless and your litigation aboveboard. And if change was nipping at your heels in 2008, make it happen in 2009. Thanks for your readership and comments during 2008. See you next year.

December 31, 2008 | Permalink | Comments (1)

Survey Non-Shocker: Part-Timers Mostly Women

Just under 6 percent of U.S. attorneys work part time, but three quarters of those who do are women. That news is unlikely to startle anyone, but it is the finding of a new study compiled by the National Association for Law Placement and reported today by The National Law Journal.

According to figures compiled by the National Association for Law Placement, 5.6% of U.S. attorneys work part-time, and about 74% of them are women. That represents only a slight increase from the previous year, when 5.4% of attorneys worked part-time and 75% were women. ...

Part-time attorneys are more common among the associate ranks nationwide, with 4.9% working less than a full-time schedule. By contrast, only 3.2% of partners work part-time, according to the NALP survey. Women constitute 90% of part-time associates and nearly 70% of part-time partners. Close to 20% of staff attorneys and of counsel currently work part-time.

Lawyers remain reluctant to take advantage of part-time opportunities, suggests NALP Executive Director James Leipold, possibly because they fear it will stall their careers. Still, the number of attorneys working part-time has grown since NALP began tracking the numbers in 1994, from 2.4 percent then to this year's 5.6 percent. Over the same period, the number of law offices that say they permit part-time work has has also grown, from 86 percent then to 98 percent now.

The numbers of part-time lawyers skew geographically, the report indicates. San Francisco, San Diego and Portland, Ore., have the highest percentage of part-time partners, ranging from 6 to 7 percent, while New York is lowest at 1.9 percent.

December 31, 2008 | Permalink | Comments (0)

An Inaugural Dis-Invitation for God

Invitations will be sent out any day now for the Jan. 20 inauguration of Barack Obama as 56th president of the United States. But one who will not receive an invitation, if California lawyer Michael Newdow can help it, is God. Newdow, a physician as well as a lawyer, is lead plaintiff in a lawsuit filed in Washington, D.C., this week by atheists and atheist groups. As reported by Tony Mauro at The BLT: The Blog of Legal Times, the complaint seeks an injunction to prevent Chief Justice John Roberts Jr., in administering the oath of office to Obama, from inserting the words at the end, "so help me God."

That phrase, it turns out, is an editorial enhancement to the oath as set out in the Constitution. Mauro explains:

The oath of office that presidents take on Inauguration Day is right there in the U.S. Constitution -- at the end of Article II, Section 1. Take a look, and you will see that the oath does not include the words "so help me God" at the end, though presidents and the chief justices who swear them in have apparently added the words in every inauguration since 1933. Some historians say George Washington used the same words in the first inaugural, but others dispute that, and in any case the practice did not become common until the inaugurations of Franklin Roosevelt.

Newdow is known for his lawsuit against a California school district to remove the words "under God" from the Pledge of Allegiance. In that case, he won in the 9th Circuit, which found that the words constituted an endorsement of religion. But the Supreme Court later dismissed his suit for lack of standing.

Newdow and the other plaintiffs say in the complaint that they "have no objection at this time" if Obama chooses to add the words himself. "The president, like all other individuals, has Free Exercise rights, which might permit such an alteration." But Chief Justice Roberts, in administering the oath, has no such rights, they assert. The full text of the complaint is here.

December 31, 2008 | Permalink | Comments (0)

A Civil Liberties Icon Is Let Go

Hentoff_bio Nat Hentoff is not a lawyer. But in five decades as a columnist for The Village Voice, he has done more to uphold and advance civil liberties than an army of lawyers. Thus, it is sad to hear the news, as reported yesterday by the New York Times, that after 50 years as a columnist for the Voice, Hentoff, 83, is losing his job. Here is how the Times announced it:

The troubled Village Voice laid off three employees Tuesday, including Nat Hentoff, the prominent columnist who has worked for the paper since 1958, contributing opinionated columns about jazz, civil liberties and politics.

Hentoff's writing about legal affairs has always been at once biting and straight down the middle. In 1980, the American Bar Association honored him with its Silver Gavel Award for articles he wrote detailing abuses of civil rights and liberties at a correctional facility and mental institution in New York and for his in-depth analysis of the secrecy provisions of the Atomic Energy Act. His most recent column talks about police abuses of students in New York City public schools.

Known as much for his writing about jazz as about civil rights, Hentoff's layoff is unlikely to silence his voice. He is the author of some 30 books of nonfiction and fiction, including the 1993 book, "Free Speech for Me -- But Not for Thee: How the American Left and Right Relentlessly Censor Each Other." According to the New York Times, he will continue to write a weekly column for the United Media syndicate and contribute pieces to The Wall Street Journal. Even at age 83, he told the Times, "I've never been more productive." Still, Hentoff's layoff is unwelcome news to end the year -- news that perhaps reflects the end of an era.

December 31, 2008 | Permalink | Comments (0)

December 30, 2008

Help for Law Firms Abounds in the Blogosphere

Large law firms are facing one of their worst crises ever. As 2008 draws to a close, layoffs are at an all time high (roughly 1,760 so far) and several prominent law firms, most recently Thacher Profitt & Wood, have met their demise. Fortunately, there's an abundance of advice in the blogosphere on what firms need to do to get back on track. Here's a sampling:

Don't follow in the auto industry's footsteps: A post on The Am Law Daily includes a summary of the Leading Legal Innovation conference organized by the Southern California Innovation Project at the University of Southern California's Gould School of Law, which asked whether law firms,  by failing to innovate, might be headed down the same path as the Big 3 automakers. Though many doubted that large institutions like law firms are capable of change, one participant, Professor John Coates (formerly of Wachtell, which he left because he felt that the firm's structure and clients stymied true innovation) offered the idea that law firms might follow the example of big pharmaceutical companies that have created innovative research subsidiaries, often teaming with startup companies.

Don't stick your head in the sand or follow the crowd like the Madoff investors did: Bruce MacEwen at Adam Smith, Esq. implores firms to stop following what others are doing because it's "socially comfortable" and to prevent single dominant practice groups from driving firm strategy, because those practice groups won't be profitable forever. MacEwen draws an analogy with the Madoff situation: Those investors who failed to perform their due diligence on Madoff's investments now find themselves in a deep hole. Likewise, law firms that don't ask hard questions and think critically about their futures may find themselves similarly situated.

Get rid of the Ponzi business model: Securities lawyer Mark Astarita says that BigLaw's Ponzi-like business model of borrowing money to pay bloated associate salaries and partner draws instead of covering these costs through revenue can't work in this recessionary climate. His advice: Get rid of the Ponzi business model and focus on efficiency instead of billing hours.

Time for a new paradigm: Finally, Toby Brown of Three Geeks and a Law Blog (don't let the name turn you away -- this blog has great analysis) says it is time for a new paradigm. But the new model needs to come from firms, not from clients who "are not in a position to dictate law firms' business models." Ultimately, Salazar anticipates that firms will (and must) shift their focus from leverage to profitability which "will shine a bright light on the limitations of the billable hour."

December 30, 2008 | Permalink | Comments (1)

When Memoirs Are Fiction, Lawsuits Are a Fact

We've all heard the maxim that real life is stranger than fiction. But what happens when memoirs purportedly about someone's real life turn out to be fiction? Bring on the lawyers. 

That's what's happening in the latest chapter of the saga of Angel at the Fence, a Holocaust memoir recounting a survivor's concentration-camp romance with his wife that this past weekend was exposed as a fraud. The story has drawn extensive publicity because Oprah recently featured Angel author Henry Rosenblat on her popular television talk show. When news of the fraud came to light, Berkley Books announced that it would cancel the book's Feb. 3 release, a move which has sent those involved in the book deal as well as a subsequent sale of movie right scurrying to their lawyers to "protect their interests."

Berkley intends to seek repayment of the $50,000 advance that it paid for the book rights. That may be complicated, however. Fifteen percent of the advance went to Andrea Hurst, Rosenblatt's agent, who is currently seeking counsel on whether she's legally obligated to return that money (she emphasized, however, that she has no intention of fighting Berkley). Another chunk was paid to Susanna Margolis, who ghost-wrote the book and, presumably, intends to retain payment for work performed. Thus far, Rosenblat only received $4,000. 

And the plot thickens from there. Harrison Salomon, who purchased the film rights, believes that Berkley may have overreacted in pulling the memoir, and may have a claim for tortious interference. From the New Republic:

Sara Lynn Mandel [a partner with the Pasadena firm Mandel & Adriano] says Harris could argue that the negative reaction to Rosenblat's story following Berkley's announcement has damaged his ability to make his movie based on Rosenblat's life. "I believe there is the potential for some claims if they've damaged the ability for Harris to make the movie," she said, citing tortious interference as one possible case to pursue.

Of course, if this plot line sounds familiar, it should. Almost three years ago, James Frey's memoir, A Million Little Pieces, named as an Oprah book club recommendation, spawned a million little lawsuits by readers claiming damages for having bought a book touted as true that turned out to be fabricated.

December 30, 2008 | Permalink | Comments (1)

Bush Shoe-Thrower Gets Well-Heeled Defense

Turns out that Muntadhir al-Zaidi, an Iraqi journalist who two weeks ago threw his shoes at President Bush during his news conference with Minister Nuri al-Maliki in Baghdad, has a defense team typical of far more well-heeled defendants. According to this report from CNN, a 25-member defense team represents al-Zaidi as its sole client, culled from the more than 1,000 lawyers who volunteered to represent him. Originally, al-Zaidi's trial was due to begin on Wednesday, but his legal team obtained a postponement, and a new date is not likely to be announced for at least another two weeks.

That should give al-Zaidi's team enough time to build its defense, perhaps borrowing a line from another Dream Team: If the shoe doesn't hit, you must acquit.

December 30, 2008 | Permalink | Comments (0)

Pro Bono on the Rise in Down Times

Over at JD Bliss, Steve Imparl highlights one of the silver linings in the otherwise cloudy economy: an increase in pro bono work by lawyers. According to ALB Legal News, as a result of the economic downturn, lawyers have found themselves with time on their hands and are using it to handle pro bono matters. It's not just large firms that are reporting an uptick in pro bono work, either. Organizations that train pro bono lawyers have noticed an increase in registration for training programs. For example, in October 2008, the Association of the Bar of the City of New York held a pro bono training session and 245 guests attended the program, instead of the 80 attendees that were expected. 

Many -- myself included -- expected that pro bono work would take a hit in recessionary times. Indeed, as Esther Lardent, president of the Pro Bono Institute, told ALB Legal News, firms tended to discourage pro bono work during the 2001 recession. So what's different this time? As I see it, this recession is deeper and potentially more far reaching than the downturn of 2001. Firms and lawyers are beginning to realize that this time, many of the cuts firms are making will be permanent. As a result, lawyers recognize that they must develop new practical skills to position themselves to find other employment or perhaps even open their own firms. And nothing provides real hands-on experience and training better than pro bono work, where lawyers receive free training from pro bono organizations and have the protection of these organizations' malpractice providers. Moreover, participating in pro bono programs also gives lawyers an opportunity to network and make connections, since many prominent attorneys often sit on the boards of pro bono programs.

By the way, I see nothing wrong with lawyers using pro bono as a way to get to know other lawyers or obtain hands-on training that they can use in starting their own firms or in other jobs. So long as lawyers represent pro bono clients vigorously and capably, their motivation for helping doesn't much matter, in my view.

December 30, 2008 | Permalink | Comments (0)

December 29, 2008

Former GC: BigLaw Really Is Better

When Ron Friedmann recently derided general counsel for staying with time-worn practices in their hiring of outside counsel, even in the face of the worst economic crisis since the Depression, he heard from one former GC who said that large companies will not be abandoning their BigLaw outside counsel anytime in the foreseeable future. With her permission, Friedmann shares her surprisingly frank comments.

Sheryl Katz is now an independent legal and technology consultant. She was formerly vice president and general counsel at 101 Communications LLC, now part of 1105 Media. She has also been a partner with Graham & James, counsel to Perkins Coie and an associate at Bryan Cave and WilmerHale. With that experience under her belt, she believes that any movement towards smaller firms is nothing more than a minor trend.

If small firms that would do the same quality work for less were truly available, I would have farmed out more work to them. In some cases former law school classmates, or former attorneys at Wilmer or other firms that I knew, were available in smaller firms to help on matters. Sometimes this resulted in good quality work and lower bills. However, small firms often don’t have the depth of staff, so some matters that are not even necessarily that big can really only be handled by a bigger firm. Also, on a lot of transactions you really need your tax lawyer, corporate lawyer and banking lawyer to be at the same firm.

There are plenty of good lawyers in firms of all sizes and "great" solo practitioners, she acknowledges. "Unfortunately," she adds, "there is also a lot of mediocrity." And then there is that CYA factor heard often among GC:

Going to a large firm in a lot of cases is sort of like going to a chain restaurant. You pretty much know that the minimum you are going to get is going to be acceptable. And if the firm messes up, as General Counsel, you are covered. After all, you can always say "It may be a mess but Blank, Blank and Blank is reputed to be a great firm so don’t fault me for hiring them."

I guess we can call her chain-resturant analogy the food-poisoning theory of law department management. Better the mass-produced burger that is safe and predictable than the risk of a gourmet meal.

December 29, 2008 | Permalink | Comments (0)

Of 'Outliers,' Lawyers and Success

Outliers Am I the only person who has not yet read Malcolm Gladwell's book "Outliers"? On a recent flight, the man next to me was absorbed in it from takeoff to landing. On the subway in Boston, a woman looked up from its pages only when she heard her stop announced. Not surprising, given that the book is the number one nonfiction book on the New York Times best-sellers list. Gladwell looks at people who have achieved enormous success and concludes that their success is attributable, at least in part, to factors entirely outside their own control.

Coincidentally, two legal bloggers just finished reading the book and both posted their thoughts to their blogs yesterday. For Monica Bay at The Common Scold, the book was "a fascinating study." She explains:

Gladwell concludes that everything from when you are born (for example, Steve Jobs and Bill Gates were both born in 1955, so they were young adults at a critical time in cyber-history), and how much time you invest (it takes just about 10,000 hours to perfect any craft), and what type of social/family/cultural structure you were raised with, can sharply influence your ability to succeed.

For my Legal Blog Watch colleague Carolyn Elefant, the book drove home the importance for lawyers of the company we keep, as she writes at her blog Gladwell's premise may depress some, she acknowledges. "After all, what's the point of working hard if our fate is determined by factors beyond our control?" But the message she finds in the book is one of encouragement, that anyone can create the kind of environment that breeds success through the company we keep.

What we can do is surround ourselves with good company -- friends and colleagues and peers and mentors who support and motivate and inspire us. That's especially important in solo practice. I wonder how many talented young lawyers have been deterred from starting a practice because they encountered only naysayers along the way rather than lawyers who supported and nurtured their vision. How many lawyers fired from a job have left the law in shame, tail between their legs, feeling as if they'd failed when with the right encouragement, they could have opened their own firm and made a real difference in the lives of clients and to our entire profession.

Thanks to Bay, Elefant, the man on the plane and the woman on the subway, Gladwell has just sold at least one more copy of his book.

December 29, 2008 | Permalink | Comments (0)

Vote for Year's Best Blawg Review

Week in and week out, a string of legal bloggers take on the thankless task of editing Blawg Review, the weekly carnival of law bloggers that reflects the best buzz of the legal blogosphere as seen by each successive editor. It is all overseen by an anonymous editor who will tell us only who he is not. This week, said anonymous editor kicks off the nomination process to select the Blawg Review of the Year. Sounding very much like a lawyer through his veil of anonymity, he posts these rules governing the nomination process:

Every blog that has ever hosted Blawg Review, or is scheduled to host an upcoming issue of Blawg Review, is entitled to post its nominations of as many of the qualified issues of Blawg Review (other than one's own) as it wishes to acknowledge for consideration for recognition as Blawg Review of the Year 2008.

Such nomination posts shall be calculated as votes for Blawg Review of the Year only if the nominating blogger advises the Editor of Blawg Review by email of a link to such nominations.

After 11:59 PM, GMT, on January 31, 2009, the Editor of Blawg Review shall determine the Blawg Review of the Year that has earned the most qualified nominations recorded in posts of which the Editor has been duly notified by email before that time.

Editor reserves the right to amend these rules as may be necessary for the sake of clarity and fairness.

To facilitate the process, the editor posts links to and summaries of all 51 installments of Blawg Review from 2008. And he urges anyone posting about this on Twitter to use the hash-tag #BlawgReview2008 so that others can more easily follow the discussion.

December 29, 2008 | Permalink | Comments (0)

Martindale: AV Ratings Alive and Well

Mark Twain is credited with the quote, "The reports of my death are greatly exaggerated," although historians quibble over whether that is precisely what he said. Whether or not that is what Twain said, there is no disputing this note I received last week from John Michaels, senior communications manager at LexisNexis: "To paraphrase Mark Twain, reports of the demise of Martindale-Hubbell Peer Review Ratings are greatly exaggerated. Actually, they're flat out wrong."

Michaels' note followed a post here that asked, "Is Martindale Dropping Its AV Ratings?" That had been the buzz after Heather Milligan, director of marketing at Barger & Wolen, wrote on her blog, The Legal Watercooler, about an e-mail she received from a peer whose position as a rating specialist at Martindale-Hubbell was being eliminated. The e-mail, Milligan speculated, foretold the approaching demise of AV ratings. Various blog and Twitter posts echoed her conclusion.

Within hours of my post, I received the e-mail from Michaels, who forwarded a company statement that was also sent to the National Law Journal. The statement acknowledged elimination of the ratings specialists' positions, but said that the company remains "fully committed" to maintaining its AV ratings system:"

Martindale-Hubbell has initiated a broad and ongoing transformation of its offerings in response to client demand for more diverse, more interactive and more complete information and capabilities. Examples include the Martindale-Hubbell Connected online network for lawyers, LinkedIn integration, online video, patent activity data and more.

Another element of our transformation includes changes to our Martindale-Hubbell ratings offering which began with the launch of Client Reviews in September, the addition of Chambers rankings announced this fall, and enhanced Peer Review Ratings coming in 2009.

The statement did little to assuage one of Martindale's more vocal critics, Kevin O'Keefe, author of the blog Real Lawyers Have Blogs and CEO of LexBlog Inc. (and a former VP at Martindale). He criticized the statement as providing further evidence to support his belief that Martindale doesn't get social media. "What we've seen here is a total failure of a company that wants the legal profession to believe Martindale is a leader in client development for law firms," O'Keefe said.

December 29, 2008 | Permalink | Comments (0)

Case Continues for Alleged Lawyer Impersonator

Remember lawyer-impersonator Misty Giblin? She is the Illinois woman we told you about in June who was arrested in Joliet for allegedly trying to dupe a neighboring couple into believing she was a lawyer. Pretending to be a lawyer concentrating in divorce and family law, prosecutors claim, she offered the couple the opportunity to adopt a child who would be taken away from an unfit mother.

The couple first grew suspicious of Giblin when she would not let them keep copies of the adoption papers she had them sign. Their suspicions grew deeper when Giblin asked them for money orders in the amounts of $70, $40 and $5. Eventually, a friend pointed them to the Web site of the Illinois Department of Corrections, where they learned that Giblin was paroled from prison in 2006 where she had been serving a three-year sentence for theft and passing bad checks.

Since leaving off there, we heard nothing further about Giblin's prosecution for impersonating a lawyer until last week, when a comment to our original post said that she was due in court on Dec. 23. We checked in with prosecutors at the Will County State's Attorney's Office in Joliet and heard back from the office's director of public affairs, Charles B. Pelkie. He confirmed that Giblin -- who is being prosecuted under another name, Misty Paganessi -- was scheduled for a pretrial hearing on Dec. 23. As happens with such hearings, however, it was continued to Feb. 4.

Meanwhile, if the string of comments to our original post are to be believed, Giblin/Paganessi has been involved in other scams and had other names. A little Googling finds news reports that Paganessi had a forgery charge dropped in 2003 but was found guilty the same year of theft by deception and deception with a bad check and given dual sentences of two years imprisonment. A year earlier, she was found guilty of deception with a bad check and given two years probation. She is also listed as an Illinois coordinator for the parents' rights organization AKidsRight.Org. We'll check back in February to see what comes of the strange case of this alleged lawyer impersonator.

December 29, 2008 | Permalink | Comments (89)

December 24, 2008

Lawyer Holiday News Roundup

With so much depressing economic news, we thought we'd leave you with a roundup of uplifting holiday stories before signing off for the week. Here's a sampling:

Associates v. Partners for Charity -- Each year, partners, associates and staff at Oklahoma-based Phillips Murrah attempt to outbid each other in a competition to see who can raise the most money to help the poor during the holidays. This year, the firm collected more than $5,700 for gifts and necessities for four needy local families.

Ross Dixon gives up holiday party to fund Make-a-Wish -- This year's holiday party would have been the last for Washington D.C.-based Ross, Dixon & Bell before it becomes part of Atlanta's Troutman Sanders, with which it will merge on January 1. But the firm scrapped what would have been its 35th holiday party and instead used the funds, along with personal donations from lawyers, to help 600 kids attend a football game at the Qualcomm Stadium in San Diego, which they'd been promised through the Make-a-Wish Program.

New York Tenants get holiday respite from evictions -- The marshals who evict people from their city apartments began an unofficial two-week holiday break Monday. The annual eviction moratorium has been going on for decades, but even the marshals don't know when it was created.

It was the best of times, it was the worst of times...  -- In this WSJ Opinion piece, James Stewart, a former lawyer and American Lawyer writer, reminds us that even in these gloomy times, amazing opportunities abound:

Now we're in the midst of what many call the worst recession since World War II, something that might even qualify as a depression. I don't know what the future holds. But looking back over the years has brought me to a somewhat startling conclusion: Recessions have coincided with some of the best times of my life. Is this coincidence or causation? I'm not sure.

I don't mean to minimize the suffering that recessions bring, and that are all too evident now as evictions and unemployment soar and as charitable endowments and donations plunge. But to the extent recessions shake up the status quo and force us to examine our goals and priorities, they also offer enormous opportunities.

So this is my holiday wish for 2008: That in the midst of financial crisis and economic uncertainty, you, too, find the means to experience some of the best times, and best years, of your life.

From all of us here at Legal Blog Watch, here's to a holiday season full of silver linings. We'll see you back here on Monday.

December 24, 2008 | Permalink | Comments (0)

Law Firm Gives Clients a Little Black Book

The holiday season is a time of sharing, and the Minneapolis firm of Parsinen Kaplan Rosberg and Gotlieb (PKR+G) is sharing its attorneys' secrets with clients -- from a favorite organic catering shop to a recommended dentist. As Larry Bodine describes at his Law Marketing Blog, PKR+G's holiday gift is a "Little Black Book" that provides clients and friends of the firm with almost 300 trusted community recommendations and resources. What makes the book even more personal is that recommendations are provided in lawyers' own handwriting, with coffee stains and doodles dotting the margins. 

In this day and age, it's easy enough to find phone book information online. But what most of us crave are personal recommendations and endorsements to help us track down the best local shops and services. PKR+G's Little Black Book fills that niche (in Minneapolis, at least), making the firm itself a valuable resource for clients. 

December 24, 2008 | Permalink | Comments (0)

End of Year Brings Lumps of Coal for Law Firms

Looks like most Am Law 200 firms can expect a couple of lumps of coal this Christmas. According to The Am Law Daily, global deal volume dropped by a third in 2008 and the downward spiral is expected to continue through next year. Though hostile takeover work remains strong for now, private equity-sponsored deals tanked, down by 72 percent to an all-time low.

How will the drop in deal work affect firms' bottom lines for 2008? Clearly, 2008 won't be a banner year, but firms won't know how bad it was until they complete client fee collections. Most firms typically wait until December to collect outstanding fees, often seeking payment for work performed three or six months earlier, explains the Boston Business Journal. And because of the number of M&A deals that fell through, experts expect clients to balk at fees charged for deals that never got done. Firms may find themselves writing off a larger percentage of fees than anticipated.

December 24, 2008 | Permalink | Comments (1)

December 23, 2008

Is Martindale Dropping Its AV Ratings?

That's the talk around the water cooler this morning, The Legal Watercooler, that is. The blog's author, Heather Milligan, director of marketing at Barger & Wolen, conveys an e-mail she received from a peer whose position as a rating specialist at Martindale-Hubbell is being eliminated:

I want to let you know that I will be leaving Martindale-Hubbell at the end of the month. The Rating Specialist positions for Martindale-Hubbell have been eliminated, so that means that I will not be coming to visit you to review your firm’s ratings initiatives. I am told that some of the other people who visit your firm from Martindale or LexisNexis may add the ratings items to their meetings with you.

Reading between the lines of this message, Milligan sees the future -- or lack thereof -- of Martindale's peer-review ratings. "It appears that the Martindale-Hubbell AV Ratings System is officially dead, or, at the least, on 'dissolution watch.'" Her post has prompted eulogies from other legal bloggers, including Kevin O'Keefe and Scott Greenfield, and lots of buzz on Twitter. As of yet, however, no corpse has been sighted. One possibility is that the A/V ratings will continue under the auspices of different staff. Another is that the company will give greater play to its recently launched system of client reviews and ratings.

Update: Martindale responds: "The reports of our death have been greatly exaggerated."

December 23, 2008 | Permalink | Comments (2)

In Madoff, BigLaw Sees Christmas Future

Bernard Madoff left coal in the stockings of countless investors. But some large law firms are seeing their Christmas future in the fallout from this modern day Scrooge. So much legal work is likely to result from Madoff's bilking of billions that law firms are repackaging themselves in hopes of putting turkey on the table after all.

As Carolyn Elefant first reported here last week, Holland & Knight made Madoff a practice area unto himself, forming a Madoff Advisory Group "to assist clients with strategies concerning any losses sustained." Since then, several others have followed suit. At Securities Docket, Bruce Carton has been keeping score of the Madoff practice group launches. His tally is up to nine. In addition to Holland & Knight, there is:

No doubt, the list will continue to grow. Check back here and at Securities Docket for updates.

December 23, 2008 | Permalink | Comments (0)

Microblogging Roundup of Legal News

Legal news from all around the globe:

December 23, 2008 | Permalink | Comments (0)

Blawggie Awards: Best of Legal Blogging

In doling out his annual Blawggie Awards for the best of law-related blogging, Dennis Kennedy gives himself the slightly tongue-in-cheek recognition of having "the longest-running annual awards list for law-related blogs selected by Dennis Kennedy." Well, even taking into account awards lists selected by judges other than Dennis Kennedy, The Blawggies have earned a spot in the pantheon of legal blogging awards, given that Kennedy is a long-established and well-regarded legal technology adviser and consultant. So, even as other legal blog competitions rage on, here are the recipients of Kennedy's awards:

  1. Best Overall Law-Related Blog: SLAW
  2. The Marty Schwimmer Best Practice-Specific Legal Blog: Evan Brown's Internet Cases
  3. Best Law Practice Management Blog: Bruce MacEwen's Adam Smith, Esq.
  4. Best Legal Blog Category: Canadian Law-related Blogs
  5. Best Legal Blog Digest: Stark County Law Library Weblog
  6. Best Blawg About Legal Blawgging: Kevin O'Keefe's Real Lawyers Have Blogs
  7. Best Legal Podcast: Tie, This Week in Law and Bob Ambrogi's and Craig Williams' Lawyer2Lawyer Podcast
  8. The Sherry Fowler Best Writing on a Legal Blog Award: Chuck Newton Rides the Third Wave
  9. Best Law Professor Blog: Jim Maule's Mauled Again
  10. Best New Law-related Blog: Jordan Furlong's Law 21
  11. The DennisKennedy.Blog Best Legal Technology Blog: Rick Georges' Futurelawyer
  12. Most Important Trend in Law-related Blogging: Microblogging

Read Kennedy's full post for his explanations of his choices and for his runners-up in each category. Congratulations to all the honorees. On a personal note, as the cohost of Lawyer2Lawyer along with fellow blogger J. Craig Williams, I am grateful to Dennis for honoring us with this award for the third year running.

December 23, 2008 | Permalink | Comments (3)

December 22, 2008

Law Student's Experience a Triumph Over Racism, or Typical?

With law firms downsizing left and right and most lawyers stressed out or overworked, it's easy to forget that some people really, truly want to be lawyers. So amidst all the press about the downside of being a lawyer, I was excited to come across this story from the Wichita Eagle about Latina Alston. An impoverished, welfare- and food-stamp-dependent single mother of three out-of-wedlock children, Alston overcame seemingly impossible obstacles to earn a law degree from Washburn University School of Law. Four-months pregnant with her third child when she graduated law school in 2007, she went on to pass the bar and now works as a public defender in Sedgwick County, Kan.

Alston's story comes across as a feel good Horatio Alger tale -- and yet as of this posting it has generated 152 comments, many of them negative. At least half of the commenters criticized Alston for her remarks about the racism she faced at Washburn, where she was one of only twelve black students in the entire class:

At Washburn, the black students felt isolated, alone, except that we thought the white faculty and students were watching us, maybe waiting for us to fail," Latina said later. "So we'd pretty much made a vow that none of us were going to fail.... If I had not gotten up on my own, I think the others would have come in and dragged me out with their hands.

The article also focuses on how it was Alston's fellow black students who encouraged her to finish law school and cheered her on as she studied for -- and subsequently passed -- the bar.

For me, Alston's comments soured an otherwise uplifting story. Personally, I think the typical law school environment discourages all students equally, no matter their gender or race. Virtually every lawyer has a story of how they had at least one, if not more, arrogant Kingsfield-ian professor and put up with silly competitive antics (like stealing tests from the library or hiding books needed for an assignment) from cutthroat students willing to do anything to make law review and snag a job. But like so much else in life, all that nonsense serves as a rite of passage to get where you want to go.

Still, perhaps I'm wrong. Maybe the racism that Alston faced at her law school was far more pervasive, so much so that she felt compelled to include it as part of her story.

What do you think? Do law schools wait for black students to fail or intentionally isolate them from the student body? What was your experience?

December 22, 2008 | Permalink | Comments (1)

Sonnenschein Rescues 100 Thacher Lawyers

Looks like 150-year-old, New York-headquartered Thacher Profitt & Wood may not survive through the end of 2008. The Am Law Daily is reporting that following a breakdown in talks between Thacher and King & Spalding, predictions are swirling that Thacher may soon face dissolution.

In the meantime, Chicago-based Sonnenschein, Nath & Rosenthal extended a life raft to 100 Thacher lawyers from a variety of practice areas, including structured finance, corporate, banking, real estate and litigation. As the New York Times reports, the acquisition means that Sonnenschein will take on the $113/hour contract (capped at $500,000 total) to advise on the recent $7 billion dollar federal bailout program. As we reported earlier, at least four major law firms declined to even bid on the Treasury contract, fearing that it might trigger conflicts with existing, deeper-pocketed clients. 

Bruce MacEwen at Adam Smith, Esq. offers a slightly more uplifting take on a seemingly depressing story:

Sad as it is to see a storied firm, bombed out of the World Trade Center twice and still resilient, reach the end of its road, what really matters is not the name of a brand, but the individual lawyers and professionals. No one at Thacher died during the two WTC attacks, and none will "die" professionally today. That's why it's a good news holiday story. They are living to fight another day, and (disclosure) from personal experience and acquaintance, I can testify that they're fighters.

Will Thacher be the last casualty of 2008, or will several more firms nosedive before the year's end? And will the Thacher attorneys who weren't picked up by Sonnenschein survive? What do you think?

December 22, 2008 | Permalink | Comments (0)

Posner on Madoff

Did Bernie Madoff have the perfect Ponzi scheme? Perhaps not, because in the end, Madoff was caught.  But for a while he had a good thing going. That's  because Ponzi scheme (where returns are paid to investors out of money paid by subsequent investors, rather than profits) are notoriously difficult to detect, as Miami lawyer Edward Davis, of Astigarraga Davis, explains in this extensive interview with The Am Law Daily.

However, one prominent blogger -- 7th Circuit Judge Richard Posner -- disagrees with the conventional theory that Madoff was running a Ponzi scheme primarily because Madoff didn't con "greedy dopes" who are classic Ponzi targets, but instead, lured sophisticated investors. In this fascinating blog post, Judge Posner writes:

The strategy that has been attributed to Madoff is the opposite of that of the typical Ponzi schemer: it is to obtain investments from well-off people far more financially sophisticated than the average Ponzi victim, including genuine financial experts such as hedge fund managers and bank officials. And therefore it requires different tactics from that of the ordinary Ponzi scheme, such as offering returns only moderately above average, satisfying redemption requests promptly, turning down some would-be investors (it would be interesting to know whether there was a tendency to turn down investors who might prove nosy or suspicious), and trading on a reputation earned in a legitimate business (Madoff's business of market making). Madoff is alleged to have preyed primarily on his fellow Jews; such "affinity" frauds are common, because people are likely to be more trusting of members of their own ethnic or religious group than of outsiders and because a con man may be abler to identify and exploit the weaknesses of members of his own group than of others.

In addition to this interesting take on the Madoff scandal, Posner criticizes Christopher Cox of the SEC for blaming his subordinates for failing to apprehend Madoff earlier rather than taking responsibility himself. Ultimately, Posner also predicts that the recent failures of the financial regulatory system (beginning with Enron and Worldcom, and continuing through the banking/mortgage crisis) may lead to wholesale reorganization, with the possible abolition of the SEC. [Update - The New York Times' Dealbook also critiques Cox for lack of leadership and considers whether Obama's nominee, Mary L. Schapiro, is the right person to head the SEC].

Who would have thought that a conservative judge would have some of the most unconventional views in the blogosphere on the Madoff incident? 

December 22, 2008 | Permalink | Comments (2)

Blawg Review #191 and the Start of Year End Lists

Sunday was the first day of the Jewish Festival of Lights, so Ron Coleman of Likelihood of Confusion gives us the gift of a Chanukah-themed Blawg Review #191. And while you'll find plenty of great links wrapped inside, one of the best presents is the bluest blog post I've ever seen -- a URL-rich post from CyberTelecom Blog discussing whether it's legal to link to a Web site.

Coleman's post comes amidst a wave of end-of-year lists and "best of's." Last week, Three Geeks and a Law Blog announced the 173 "must read" blog posts of 2008 (compiled through a request on Twitter), and last night, Dennis Kennedy named the recipients of this year's Blawggies, which at five years old is the longest running annual award for blogs. This year, our own Legal Blog Watch took runner-up in the "Best Legal Blog Digest" category, for "great coverage and ... the way Bob Ambrogi and Carolyn Elefant have kept up the pace of daily posting – well-chosen items."

December 22, 2008 | Permalink | Comments (0)

December 19, 2008

Music Industry Changes Its Legal Tune

Major news for online music geeks, to quote the Wall Street Journal's Law Blog. After years of suing seemingly anyone with an MP3 file, the Recording Industry Association of America is changing its tune and writing the score for a new legal strategy, the Wall Street Journal reports today:

The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003. Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider's customers making music available online for others to take.

The ISPs would then take steps to stop the customer from any unlawful file sharing, perhaps cutting off access entirely for customers who fail to cooperate. The RIAA, meanwhile, says it is reserving its right to continue to file lawsuits against those who are heavy file sharers or who ignore repeated warnings. Will this mean a new line of work for file-sharing defense lawyer Ray Beckerman?

December 19, 2008 | Permalink | Comments (0)

Judge Reprimanded for Letters to Publisher

The Massachusetts judge who sent threatening letters to the publisher of The Boston Herald received a public reprimand yesterday from the state Supreme Judicial Court. The SJC concluded that Superior Court Judge Ernest B. Murphy violated standards of judicial ethics when he wrote two letters to Herald Publisher Patrick J. Purcell on official court letterhead demanding payment of a more than $2 million libel award. From the opinion:

It is beyond serious dispute that the letters sent by Judge Murphy do not promote public confidence in the judiciary. Judge Murphy concedes that he should not have used judicial letterhead. But more than stationery is at issue here. Although a judge is not prohibited from communications related to personal litigation, including those in pursuit of settlement, permissible communications must reflect the standards required to be followed by a judge both on and off the bench.

That the standards imposed on judges are high goes without saying. Because of the great power and responsibility judges have in passing judgment on their fellow citizens, such standards are desirable and necessary and there should be strict adherence to them. Failure on the part of even a few judges to comply with these standards serves to degrade and demean the entire judiciary and to erode public confidence in the judicial process. ... In sending the letters at issue, Judge Murphy did not meet the high standards required of judges.

Murphy sued the Herald over a series of stories in 2002 that portrayed him as insensitive to crime victims. One report alleged that he told a 14-year-old rape victim to "get over it." These stories led to a flood of hate mail and threats to his family, he said. During the Herald's appeal of the verdict, Murphy wrote to publisher Patrick Purcell demanding that the paper give him a check for $3.26 million. Murphy's letter told Purcell it would be a "BIG mistake" for him to share the letters with his lawyers.

The state's Commission on Judicial Conduct had recommended that Murphy also be required to pay a fine of $25,000. The SJC declined to order the fine, noting that Murphy had earlier agreed no longer to sit as a judge. He is required to reimburse the state for the costs of its proceedings against him. The full-text of the opinion is here: In the Matter of Ernest B. Murphy, SJC-10179 December 18, 2008. We previously wrote about Judge Murphy in August.

December 19, 2008 | Permalink | Comments (1)

A Law School's Profile, in 140 Characters

What is going on right now at the University of Chicago? Well, 3L Cleve Doty, president of the school's chapter of the Federalist Society, is organizing a last-minute poker game. Professor Tom Ginsburg is pondering the unlikelihood that President Bush would commute John Walker Lindh's sentence. 1L Becky Mosely finished her first quarter of law school and headed home to Texas. And Assistant Professor M. Todd Henderson just finished an hour of shoveling snow.

Even though I am 1,000 miles away from Chicago and anything but omniscient, I know all this thanks to the very clever mash-up, TweetChicago. A "tweet" is a post to Twitter, the microblogging platform that enables you to post updates about yourself, of 140 characters or less, from your computer or cell phone. This page tracks and collects the Twitter posts of the law school's students and faculty. Tweets are presented in a page as thought balloons coming from a picture of the Twitter-er, below which is the person's name and class or title.

As I wrote on recently, I see good reasons for lawyers to use Twitter in their practices. I like this Chicago site because it illustrates how Twitter can add vibrancy to other applications. Compare taking the pulse of the school this way to other alternatives. You could, instead, check its events calendar, where you would see that two faculty members will be speaking on Jan. 14 on a topic to be determined. (Yawn.)

As you might expect of a law school with its own Twitter mash-up, it also has its own Twitter feed: @uchicagolaw, which is another good way to keep track of goings on there. If nothing else, it beats walking around Hyde Park on a cold winter day.

December 19, 2008 | Permalink | Comments (0)

Thousands of Crazed Tweens Storm Texas Firm

This just in from our entertainment ... er, Texas division: Houston's Lanier Law Firm has survived its annual holiday party, despite a deluge of thousands of screaming, dancing preteen girls. It was not W. Mark Lanier, the firm's dapper founding partner, who attracted the tweens, but the party's big-name entertainer, teen pop star Miley Cyrus. I cannot tell from her post at Tex Parte Blog whether Brenda Sapino Jeffreys was one of the 8,600 guests who attended the bash on the grounds of Lanier's home, but she reports that the event raised a covered wagon full of school supplies and more than $250,000 for the charity Guatemala SANA.

Lanier's lips were locked on how much it cost him to have Cyrus entertain at his party. He did say she performed at a reduced fee in order to support the charity. It appears he got his money's worth, with Cyrus performing for 90 minutes -- twice the time she was booked and the longest nonstop show she has ever performed. And, yes, there were those tweens, thousands of them, Jeffreys writes, screaming and dancing on Lanier's lawn.

All good, I suppose, save for the vexing question of how Lanier outdoes himself next year. Who can top the world's biggest teen pop star? Lanier's not saying, but he did confirm that he and his wife Becky recently met with the knight fantastic of British rock and pop, Sir Elton John. The couple had dinner with John at his house. If it is to be John for next year's bash, then this year's thousands of tween dancers could be followed next year by one Tiny Dancer.

December 19, 2008 | Permalink | Comments (0)

December 18, 2008

Most Lawyers Believe Legal Industry Will Recover by 2010

The results of an American Bar Association poll of 14,307 attorneys -- more than 1.3 percent of the nation's 1.1 million lawyers -- show that 52 percent believe the recession will last through 2010, while 22 percent predict that the legal industry won't recover until 2011. And an overwhelming majority -- 78 percent -- believe that all lawyers will feel the effects of the recession, at least to some degree.

Unfortunately, instead of trying to identify new practice areas or innovative ways to thrive in a downturn, many lawyers are running scared, paralyzed by panic. In the opening paragraphs of this post at Law21, Jordan Furlong says that many lawyers are desperately trying to hang on to old, failed ways of doing business. Pathetically, many associates are keeping grunt work like deposition summaries or document review to themselves, instead of delegating it to paralegals, in a desperate effort to keep up billable hours. Of course, you can't blame them; they've learned from the best. Patrick Lamb, of In Search of Perfect Client Service, reveals that even partners are getting reacquainted with the law library and Shephardizing.

So what's a law firm to do besides sit tight until 2010? Last week, Bruce MacEwen at Adam Smith, Esq. offered some words of wisdom, suggesting lawyers take a thoughtful, reflective approach to structural dislocation, and think about what the firm's founders would have done if confronted with a similar shift in market forces. Matt Homann lays out Ten Rules for the New Economy that can also help.

As for what not to do? In my view, micromanaging lawyer activities by blocking access to Facebook (a practice about which Steve Matthews is gathering more information at Stem Legal) doesn't seem like a great idea. At worst, Facebook can provide stressed out lawyers with a way to let off steam and at best, it can help build relationships that can result in more clients. Seems like the kind of activity to encourage in down times, not prohibit.

December 18, 2008 | Permalink | Comments (2)

More Privacy for Yahoo Users

Cord Blomquist, of Technology Liberation Front, writes that Internet giant Yahoo has changed its data retention policy to anonymize user-behavior information after three months, 10 months less than the previous 13-month retention period. According to this story from the Washington Post, Yahoo's new policy responds to consumer demand for greater privacy protection, as well as pressure from regulators in both the United States and the European Union.

While you'd expect these more privacy-protective policies to continue, and perhaps even expand under the new Obama administration, Blomquist isn't sure that's the case. Even back in 1999, before heightened fears over use of the Internet by terrorist groups, Eric Holder, Obama's nominee for Attorney General, stated that in some cases privacy laws must be changed to "recognize new technological realities" and that "certain data must be retained by ISPs" for law enforcement purposes. Blomquist believes that data retention policies should be a matter for Web companies and consumers to decide, though ultimately, regulators will likely have the final say.

What's your view? How much of your privacy are you willing to give up in exchange for your ability to use Internet sites? And as a user, what kinds of rights do you have, if any, to learn the identity of anonymous commenters or bloggers who engage in defamatory comments?

December 18, 2008 | Permalink | Comments (0)

New Jersey Supreme Court Is the Hero for Super Lawyers

Sometimes, even Super Lawyers need a hero. Yesterday, the New Jersey Supreme Court came to the rescue, vacating a 2006 decision by a committee of the court that banned lawyers from advertising their inclusion on lists such as Super Lawyers or Best Lawyers in America. (The decision is available here). The court held that lawyer advertising is a form of commercial speech protected by the First Amendment and, as such, could not be subject to a blanket and overbroad ban. The court remanded the rule to the committee to consider different approaches such as disclaimer language that would strike a balance between lawyers' speech rights and the interest in protecting consumers.

So far, two bloggers have weighed in on the ruling. Larry Bodine doesn't mince words on his Law Marketing Blog, commending the court for reversing "one of the most asinine ethics rulings ever issued by the troglodyte Committee on Attorney Advertising."

Likewise, Rich Klein of Views on Reputation agrees that lawyers should have the right to advertise just like any other profession. However, he cautions lawyers about wasting money on vanity lists that "do more to increase egos rather than vastly increase revenues."

December 18, 2008 | Permalink | Comments (0)

Bernie Madoff: A Practice Area Unto Himself

Bernie Madoff is a man of superlative accomplishments, albeit negative ones. He bilked thousands of hedge fund investors in a gargantuan and unprecedented $50 billion Ponzi scheme. He repeatedly evaded review by the SEC, as detailed in this Wall Street Journal article. So persuasive were Madoff's techniques, that he managed to make all but one of the banks that invested in his fund forget basic concepts of due diligence, as Eric Turkewitz points out in a post at New York Personal Injury Attorney.

But perhaps Madoff's biggest achievement to date is that he's spawned an entire law firm practice area unto himself. That's right, you can now put "Madoff law" on the list with climate change and FDA regulatory issues as the hot new practice area for 2009. According to this press release, Holland & Knight has formed a "Madoff Advisory Group" to assist clients with strategies concerning any losses arising from their involvement with Madoff's entities.

Among other things, Holland & Knight will help with:

[A]ssessing claims against the Madoff entities, in positioning our clients to reduce the likelihood of third party claims against them, and in accessing and providing avenues for governmental relief for aggrieved parties. [In addition] the Madoff Advisory Group will help clients stay abreast of related developments, including civil and criminal litigation and legislative and regulatory actions.

Holland & Knight's idea of bringing together existing capabilities to develop a niche out of Madoff-related activities makes sense to me. And with the news still brimming with stories of foreclosures and auto maker plant shutdowns and the collapse of the Dreier law firm, perhaps the best marketing tip for 2009 is pick up a newspaper and christen a new practice area.

December 18, 2008 | Permalink | Comments (1)

December 17, 2008

Hellholes Update: AAJ Responds

After our post earlier today, "The Worst Judicial Hellholes," the American Association for Justice e-mailed me a response that called the American Tort Reform Association report "an early holiday present for its tobacco and insurance financiers." The AAJ statement said that past years' versions of the report have been "widely debunked and ridiculed." It pointed to a 2007 New York Times piece in which Adam Liptak said the report had "no apparent methodology." "This report is another reminder of how corporations use front groups like ATRA to undermine the civil justice system," said AAJ CEO Jon Haber. "ATRA’s drug, tobacco, and insurance financers spend millions on junk reports so they can continue their negligent behavior and avoid accountability."

December 17, 2008 | Permalink | Comments (0)

Crack Cases Clog Federal Courts

A new report from the U.S. Sentencing Commission says that federal courts handled more than 17,000 cases this year brought by crack cocaine offenders seeking shorter prison sentences. The cases came in the wake of retroactive amendments to the federal sentencing guidelines that reduced prison terms for crack cocaine offenses.

Nationwide, 17,168 cases were filed seeking sentence reductions and 12,119 were granted. The jurisdictions that saw the greatest number of these cases were Virginia's Eastern District with 1,113 and Florida's Middle District with 1,065. The federal circuits with the most filings were the 4th with 3,899 and the 11th with 3,314. The cases that were successful resulted in an average decrease in sentence of two years, from 137 months to 114 months. Of the cases that failed, the most common reason was that they were deemed ineligible for the reduction under the revised guidelines.

December 17, 2008 | Permalink | Comments (0)

The Worst Judicial Hellholes

In the spirit of the holiday season, the thoughtful folks at the American Tort Reform Association have delivered their annual gift to the defense lawyers and tort critics of the world. In what has become an annual tradition, ATRA has released its latest ranking of Judicial Hellholes, "America's most unfair jurisdictions in which to be sued."

After a reprieve last year, West Virginia reclaims its 2006 top spot on the list for what ATRA describes as "its near perfect storm of anti-business rulings, massive lawsuits and cozy relationships between the personal injury bar, the state attorney general and some in the judiciary." Six other jurisdictions make the list: South Florida, Cook County in Illinois, Atlantic County in New Jersey, Montgomery and Macon counties in Alabama, Los Angeles County in California and Clark County in Nevada.

ATRA also provides a "watch list" of jurisdictions that could become trouble and doles out "dishonorable mentions" to the supreme courts of Massachusetts and Missouri -- the former for a ruling about doctors' duty to warn of a drug's side effects and the latter for a ruling "that effectively invites plaintiffs from all around the country to file claims in the Show Me (Your Lawsuits) State."

For the first time this year, the report strays from its criticism of plaintiff-loving judges to include plaintiff-loving legislators. Judges, after all, must "play the cards they are dealt" by state legislatures, ATRA notes. In a section of the report titled "Tort Deform," ATRA criticizes a "more activist strategy" of lobbying by the American Association for Justice and its state counterparts to enact laws more favorable to plaintiffs. This seems odd, given the longtime activist lobbying pursued by so-called tort reformers and ATRA's own stated mission of lobbying for laws more favorable to defendants. When it comes to defining hellholes, I guess the devil is in the details.

December 17, 2008 | Permalink | Comments (2)

Fighting -- and Singing -- for Your Rights

The lawyers and staff at the Electronic Frontier Foundation work hard all year to defend civil liberties in the digital world. But who knew they could also sing? For its holiday greeting this year, the EFF produced the Twelve Days of EFF, a music video that cleverly highlights some of its accomplishments during the past year, from helping to ensure the integrity of electronic voting to busting bad software patents. Katina Bishop, EFF's associate director of development, directed the video, with help from executive director (and lawyer) Shari Steele and outreach coordinator Danny O'Brien.

Needless to say, should you like what you see and hear, you are welcome to contribute your support to EFF.

December 17, 2008 | Permalink | Comments (0)

Political Lawyers Ask, What Could Be Verse?

It is the time of year when poor Clement Moore begins rolling restlessly in his grave. The author of the 1823 poem, "A Visit from St. Nicholas," is condemned to endure a perpetual litany of adaptations and parodies of his one enduring work. The latest comes from the government affairs group at Womble Carlyle, where lawyers are predicting a Christmas Eve flurry of activity from the Federal Election Commission and felt compelled to rhyme about it.

At the Womble blog Political GPS, it is noted that the FEC has announced action on only 38 enforcement cases this year, compared to an average of 100 in previous years. There is good reason for this, the blog suggests. For the first half of the year, the Senate was deadlocked over new appointments and the FEC lacked a quorum. Without a quorum, it could not authorize any investigations or even any settlements.

The blog predicts "that a bunch of cases will come tumbling out of Santa's bag, just in time for Christmas." Many will involve routine matters, but a few will involve what election law insiders call "Christmas communications" -- notable announcements that get lost in the season's snowdrifts. To mark this annual end-of-December ritual, Political GPS offers its take on Moore's verse:

'Twas two days before Christmas at the Federal Election Commission,
When the press office issued a quiet transmission.

Whispers of cases backed up for weeks,
The docket shakes loose, with hardly a squeak.

There is more, but rather than deprive the blog of your clicks, I encourage you to read the rest here -- with due deference, of course, to the spirit of Mr. Moore, not to mention the FEC.

December 17, 2008 | Permalink | Comments (0)

Survey: Law Firms on Steady Footing

With salary freezes at Latham & Watkins, layoffs at Dechert, Drinker Biddle and Wolf Block, and who knows what else going on out there, there is this one piece of good news for the legal industry. A survey released this week by legal consulting firm Altman Weil concludes that the large majority of law firms remain sound financially and on a steady footing with their banks. "We expected to see more distress from law firms," said Altman Weil principal James D. Cotterman. "But it appears that market conditions have not yet fully hit law firm balance sheets."

The survey polled 708 law firms in November, although only 85 responded. A quarter of respondents were from firms of 250 or more lawyers, half were from firms of 100 to 249 lawyers and the rest were from smaller firms. It found:

  • Firms are taking preemptive steps to shore up their financial positions. Most are reducing operating expenses and deferring capital expenditures. Half said they were terminating staff and 38 percent reported terminating associates.
  • Collections are virtually unchanged from a year ago. The only glitch was in major markets among the largest firms, where receivables are showing a bit more gray hair.
  • Credit is unhurt. Forty percent of firms had lower interest rates than a year ago. Collateral and personal guarantees are either unchanged or not necessary. Most firms saw no decrease in the availability of credit.
  • Revenue down. Sixty-six percent of firms expect revenue drops in 2009, with half of those predicting drops of greater than 5 percent.

To the extent the survey shows softening, said Cotterman, it is more likely to be in large firms with more than 250 lawyers and in major legal markets, particularly New York, Chicago, Washington D.C., San Francisco and Los Angeles. Read a summary or download the full survey at Altman Weil.

December 17, 2008 | Permalink | Comments (0)

December 16, 2008

Follow-Up on Blagojevich Saga

The drama continues in Illinois, following last week's arrest of Governor Blagojevich on charges of soliciting bribes in connection with an attempt to sell the Senate seat vacated by President-elect Obama. For starters, Blagojevich's arrest has lead to a bit of a family feud between Illinois Speaker of the House, Michael Madigan and his daughter Lisa Madigan, Illinois Attorney General, writes Cornell Professor William Jacobson at his blog, Legal Insurrection. While daughter Lisa sought emergency intervention of the Illinois Supreme Court to strip Blagojevich of his executive powers (and thus, deprive him of the ability to name a successor to Obama's seat), dad Michael took a more measured approach by stalling impeachment proceedings. Jacobson predicts that Speaker Madigan's actions will undermine the core of AG Madigan's lawsuit, explaining that:

The fact that the legislature chose not even to convene a committee for six days reflects that the legislature does not see any emergency. A need to remove Gov. Bagojevich, yes; the sky could fall at any moment, no. If the political branch of government does not see an emergency, why should the judicial branch undertake emergency relief to resolve what essentially is a political question?

In the meantime, having evaded impeachment, at least temporarily, might Blagojevich also evade a conviction? Today's New York Times reports that Blagojevich's case may not be as strong as prosecutor Fitzgerald would have the public believe. To convict Blagojevich, the prosecution must show that he actually received something of value in exchange for the seat, and to date, there is no evidence that the governor actually received anything of value. From the article:

Most agree that it would be legal for the governor to accept a campaign contribution from someone he appointed to the Senate seat. What would create legal problems for him is if he was tape-recorded specifically offering a seat in exchange for the contribution. What would make the case even easier to prosecute is if he was recorded offering the seat in exchange for a personal favor, like cash, a job or a job for a family member. Indeed the government has claimed the wiretaps show that Mr. Blagojevich told his aides that he wanted to offer the seat in exchange for contributions and for personal favors, including jobs for himself and his wife.

But talk is not enough. Any case will ultimately turn on the strength of the tapes, and whether the governor made it clear to any of the candidates for the Senate seat that he would give it only in exchange for something of value.

December 16, 2008 | Permalink | Comments (0)

Court Papers Served by Facebook

Imagine opening your inbox on a social networking site and finding an invitation -- not to connect to an acquaintance -- but to show up in court. That may be the direction that social networking is headed, at least in the aftermath of a case out of Australia, where a judge granted lawyers permission to serve defendants with a default judgment via Facebook.

According to Computer Weekly, a judge in Australia's supreme court allowed lawyers from the Canberra-based firm Meyer Vandenberg to serve the papers via the site, after being satisfied that the profiles the lawyers had found did in fact belong to the defendants in question. The lawyers were unable to find the defendants to allow for personal service, but the defendants' Facebook profiles contained enough information to satisfy the court that it would provide a sufficient method of communicating with the defendants.

This is yet another reason for why lawyers need to understand social networking sites: Even if they don't help with finding clients, as this story shows, they can play an important part in finding defendants.

December 16, 2008 | Permalink | Comments (0)

Do the Guantanamo Detainees Have an Unfair Advantage?

Ordinarily, criminal defendants represented by pro bono or court appointed counsel find themselves at a significant disadvantage against the government. But when it comes to the Guantanamo defendants now filing for habeas corpus in United States courts, the tables are turned, with Department of Justice lawyers struggling against an army of elite law firms and law professors who represent the detainees, according to the Wall Street Journal's editorial page:

In the popular mind, the 200 or so Guantanamo detainees filing for habeas corpus in federal district courts are up against the full powers of the United States government. And they are. But practically speaking, this means that 60 or so Justice Department lawyers are handling the bulk of that legal load.

Against these 60 attorneys are arrayed some of our nation's most prestigious private firms. Last year, at a dinner at Washington's Ritz-Carlton hotel, the National Legal Aide Defender Association bestowed its "Beacon of Justice Award" on 50 law firms for their pro bono work on behalf of the detainees. These firms included WilmerHale; Jenner & Block; Sutherland, Asbill & Brennan; Paul Weiss Rifkin; Mayer Brown; Weil, Gotshal & Manges; Dechert; Pepper Hamilton; Venable; Perkins Coie; Hunton & Williams; and Fulbright Jaworski. These firms in turn are joined by law professors from Stanford, Yale and Northwestern right on down to Fordham.

The Wall Street Journal op-ed suggests that large firms and professors should offer pro bono service to Department of Justice to help level the playing field. Though the work isn't glamorous and probably would not generate human rights awards for the firms, the WSJ suggests that helping DOJ would be a service to the country.

What is it about the cause of the Guantanamo detainees that has so mobilized large firm lawyers? I understand that the detainees' plight raises significant constitutional questions, but so too do the dozens of cases involving indigent criminals arrested on false warrants or deprived of effective assistance of counsel or forced to confess. Where's their army of Biglaw attorneys?

December 16, 2008 | Permalink | Comments (2)

December 15, 2008

Supreme Court OKs Cigarette Suits

A split-down-the-middle Supreme Court today issued a ruling giving the green light to lawsuits over the labeling of light cigarettes. In Altria Group v. Good, the court said that federal law does not preempt smokers from bringing lawsuits under Maine law alleging deceptive marketing of light cigarettes as healthier. Justice Stevens wrote the opinion, joined by Justices Kennedy, Souter, Ginsburg and Breyer. Justice Thomas wrote a dissent, joined by Chief Justice Roberts and Justices Scalia and Alito.

We conclude ... that the Labeling Act does not pre-empt state-law claims like respondents’ that are predicated on the duty not to deceive. We also hold that the FTC’s various decisions with respect to statements of tar and nicotine content do not impliedly pre-empt respondents’ claim. Respondents still must prove that petitioners’ use of “light” and “lowered tar” descriptors in fact violated the state deceptive practices statute, but neither the Labeling Act’s pre-emption provision nor the FTC’s actions in this field prevent a jury from considering that claim.

More coverage from Legal Times, Bloomberg News and SCOTUSblog.

December 15, 2008 | Permalink | Comments (2)

Author of Famed Law Review Note Dies

William S. Stevens, a Pennsylvania lawyer who died last week at the age of 60, will forever be remembered for the anonymous law review note he published as a law student at the University of Pennsylvania in 1975. Published as an "Aside," "The Common Law Origins of the Infield Fly Rule" was a slightly tongue-in-cheek inquiry into whether the rule of baseball was shaped by the same influences that shaped the common law. 

The Infield Fly Rule is obviously not a core principle of baseball. Unlike the diamond itself or the concepts of "out" and "safe," the Infield Fly Rule is not necessary to the game. Without the Infield Fly Rule, baseball does not degenerate into bladderball the way the collective bargaining process degenerates into economic warfare when good faith is absent. It is a technical rule, a legislative response to actions that were previously permissible, though contrary to the spirit of the sport.

Stevens' obituary in The New York Times called the note "one of the most celebrated and imitated analyses in American legal history," and Wikipedia lists it as one of the most significant articles ever published in the University of Pennsylvania Law Review. The note quickly achieved legal fame, the Times said, in part because nothing like it had appeared before in a major law review and in part because its reasoning was so elegant and concise.

After his publication of the note and graduation from law school, Stevens went on to practice with several law firms in Philadelphia. In 1990, he became an assistant director of the American Law Institute. He retired in September but had taken a one-year post this year as acting director of the Alaska Bar Association's CLE program. In his memory, the law review this week posted his famed note to the Web.

December 15, 2008 | Permalink | Comments (1)

Law Dean Among Madoff Victims

Among the victims of Bernard L. Madoff's $50 billion Ponzi scheme was Lawrence R. Velvel, the outspoken dean of Massachusetts School of Law. Velvel, 69, told the Associated Press that he and a friend may have lost millions of dollars between them. Velvel has been a regular topic here in recent months for his role in convening a war crimes conference to plan for the prosecution of Bush administration officials.

Until Madoff's arrest last week, Velvel never questioned the prominent investor's handling of his money, he told The Boston Globe. The monthly financial statements he received were indecipherable, detailing dozens of complex, six-figure trades he couldn't understand, yet consistently showing double-digit returns. "This all looked kosher to us," Velvel said. "Far from being greedy, this was a deliberate decision to accept lower, steadier returns than what was going on in the market."

Velvel said he began investing with the firm in 1995, after a lawyer friend told him he had received steady returns from investments with Madoff. At a meeting at the firm that year, he listened intently as a Madoff executive described an investment strategy of buying large baskets of securities and then quickly selling them for a small profit. The firm would hedge losses by purchasing options to sell stocks at prearranged prices, thus protecting against sharp drops in value. Velvel said the returns, as promised, were consistent: usually 10 percent to 12 percent gains, year after year.

Velvel did not say precisely how much money he invested with Madoff, but he told the Globe: "For a person like me, it was a lot of money. I'm a law school dean, not a financier."

December 15, 2008 | Permalink | Comments (3)

Lawyer Says He Was Leak in Justice Department

Nothing like an appearance on the cover of Newsweek to bring a lawyer attention. Thomas M. Tamm is getting plenty of that today, thanks to a story by Michael Isikoff that identifies him as the hitherto anonymous source who tipped off The New York Times and led to its 2005 exposure of the Bush administration's warrantless wiretapping of U.S. citizens' phone calls and e-mails. Tamm was a lawyer in the Justice Department working in a highly classified unit handling wiretaps of suspected terrorists and spies when he stumbled upon the existence of the National Security Agency eavesdropping program. When he started asking questions, he was urged to drop it and told by official that the program was "probably illegal."

After agonizing over what to do, he ducked into a pay phone one day while at lunch and telephoned the Times. That call, Isikoff writes, "began a series of events that would engulf Washington -- and upend Tamm's life." Eighteen months later, the Times reported that President Bush had secretly authorized the NSA to intercept phone calls and e-mails of people within the United States without judicial warrants.

The story of Tamm's phone call is an untold chapter in the history of the secret wars inside the Bush administration. The New York Times won a Pulitzer Prize for its story. The two reporters who worked on it each published books. Congress, after extensive debate, last summer passed a major new law to govern the way such surveillance is conducted. But Tamm -- who was not the Times's only source, but played the key role in tipping off the paper -- has not fared so well. The FBI has pursued him relentlessly for the past two and a half years. Agents have raided his house, hauled away personal possessions and grilled his wife, a teenage daughter and a grown son. More recently, they've been questioning Tamm's friends and associates about nearly every aspect of his life. Tamm has resisted pressure to plead to a felony for divulging classified information. But he is living under a pall, never sure if or when federal agents might arrest him.

Tamm has struggled in his career as well as in his personal life, Newsweek says. He has been struggling to make a living as a lawyer, doing occasional work for a local public defender's office and handling various other matters. He is more than $30,000 in debt and recently set up a legal defense fund.)

An accompanying story sheds light on the infighting among Justice Department lawyers in the wake of the NSA program's exposure. While the resulting rebellion within Justice has been widely reported, Newsweek offers a new angle on the motives of the lawyers who opposed the program. Their concern was not the wiretapping of individuals, sources told Newsweek.

Rather, [Deputy Attorney General James] Comey and others threatened to resign because of the vast and indiscriminate collection of communications data. These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country's largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004.

The hero in this version was Jack Goldsmith, who replaced John Yoo as head of the Justice Department's Office of Legal Counsel and questioned his legal opinions justifying the systematic collection of data. This updated version helps explain why stalwart Republican lawyers would defy their president. "At the end of the day," one source told Newsweek, "the dispute was a legal one, not a policy one."

December 15, 2008 | Permalink | Comments (0)

Cyberlaw Scholar Lessig Heads East

Lessig_Icon_bigger Was it a flood of curious readers or a malicious attack that brought down Larry Lessig's blog Friday afternoon? He was hacked, he explained on Twitter, and it could not have happened at a less auspicious time. Lessig had just posted the biggest news of his already larger-than-life scholarly career: He is leaving Stanford Law School to return to Harvard Law School. (Jonathan Zittrain published a copy of Lessig's post and Harvard had its own announcement.)

The renowned cyberlaw and IP scholar taught at both Harvard and the University of Chicago Law School before joining Stanford's faculty in 2000. When he returns to Harvard next summer, he will join the faculty and become director of the university's Edmond J. Safra Foundation Center for Ethics. That role fits well with his announcement last year that he was shifting his academic focus from free culture to what he called "corruption": "To focus on the many institutions in public life that depend upon trust to succeed, but which are jeopardizing that trust through an improper dependence on money." (Think medical researchers receiving drug company money.)

Still, Lessig writes that his decision to leave Stanford involved "a complicated mix of excitement and sadness." He praised Stanford as "an extraordinary law school" with students who are "brilliant, yet balanced" and a faculty that is "brilliant, yet surprisingly humble." He was also reluctant to leave California, given the allure of San Francisco's social and political environment and the region's enormous beauty.

But in the end, it was impossible for me to be committed to the project while turning down this opportunity. It is not just the institution, nor the (partial) freedom from teaching. It is the chance to frame a large-scale project devoted to a large, important and complex problem. Once we saw it like this, my wife and I decided that returning to this old home was the right thing to do. And so in June, we will pack up the car for a cross country trek, back to Harvard.

Harvard's recruitment of Lessig is another feather in the cap for Dean Elena Kagan. As we noted here in October, the school has been in a process of "reinventing" itself as more vital and nimble, and faculty hiring has been the most visible evidence of that, with the school bringing in a wave of high-profile scholars. In Harvard's announcement Friday, Kagan called Lessig "one of the most brilliant and important legal scholars of our time."

December 15, 2008 | Permalink | Comments (2)

December 12, 2008

Harvard Law Students Fight Evictions

I know that law students in legal clinics all around the country provide critical legal services every day. But this story from The Harvard Crimson stood out for me because of the extra effort it describes by two third-year students at Harvard Law School, Nicholas J. Hartigan and David E. Haller.

It has to do with a sad byproduct of the foreclosure crisis -- renters forced out of their homes as their landlords fail to make mortgage payments. The banks that end up as owners of these homes have developed a scheme to sidestep the legal process of eviction by offering low-income tenants "cash for keys" -- payments of as much as $3,000 in exchange for agreements to vacate.

Working at the Harvard Legal Aid Bureau, Hartigan and Haller were already representing tenants in eviction cases when they began to realize fewer than half these cases make it to court. Along with Anthony B. Borich, also a third-year law student, they started a project called No One Leaves and began canvassing different Boston neighborhoods, knocking on doors of foreclosed homes and urging tenants to stay put.

It is tough but rewarding work, they say. "It’s an exhausting effort that we’re putting in, but I think everybody feels very strongly about it," Hartigan tells the Crimson. "You can legitimately change people’s lives, and take a really bad situation and do something that can really be beneficial." It is worthy of note that law students perform a valuable service by representing low-income clients who come into their legal clinics. It is even more noteworthy, perhaps, when the students leave the clinics and take their legal advice to the streets.

December 12, 2008 | Permalink | Comments (0)

Blogging About the Bill of Rights

Pardon my cynicism as I read President Bush's declaration of Monday, Dec. 15, as Bill of Rights Day. Now he remembers the Bill of Rights! The proclamation, which also made Wednesday Human Rights Day and this Human Rights Week, is republished at Blawg Review. As to that, I have no cynicism whatsoever, given that the anonymous Blawg Review editor's purpose is to encourage legal bloggers to write this week about the principles of human rights and civil liberties.

Monday's Bill of Rights Day edition of Blawg Review is being hosted by the often-irreverent civil libertarian Marc Randazza at his blog The Legal Satyricon. If you do as Ed. urges and write about these subjects, make sure you let Randazza know. Perhaps your post will make it into the annals of Bill of Rights Day. As President Bush says, "As we remember the enduring importance of our Constitution's Bill of Rights, our thoughts turn to those who have yet to secure these precious liberties." We can only assume he is referring to the detainees at Guantanamo.

December 12, 2008 | Permalink | Comments (1)

Handicapping the Blawg 100 Derby

We thought we'd head over to the track and check in on the standings as voting continues at The Blawg 100, the ABA Journal's second annual listing of the best legal blogs. As we noted here recently, the magazine's editors named their top 100 picks and now it is up to the readers to vote for their favorites in each of the categories. And, yes, we have a horse or three in this race, with this blog having been named among the best in the News category, co-writer Carolyn Elefant's blog having been honored in the Careers category, and the Lawyer2Lawyer podcast I co-host with blogger J. Craig Williams selected for the Podcast category.

Voting continues through Jan. 2, but as we round this early curve, here is the leaderboard for the various categories:

Plenty of time to register your vote, so it remains anyone's race. However, should Legal Blog Watch miraculously catapult to the top, we promise to name all of you to our cabinet.

December 12, 2008 | Permalink | Comments (0)

The Best Legal Technology Products

By way of Law Technology News editor Monica Bay's blog The Common Scold comes news of LTN's annual vendor awards for the best legal technology products, as voted by the magazine's readers. Gold, silver and bronze awards are given in each of 25 categories covering e-discovery, case management, collaboration, practice management, time and billing, trial presentation and more.

Winner of the gold award for best new product of the year is Acrobat 9 Pro Extended from Adobe Systems. Silver and bronze winners in the category are Tab3 & PracticeMaster Version 14.3 and Clearwell E-Discovery Platform, respectively. Among top winners in other categories:

  • Case management for large firms: CaseMap 7.5
  • Case management for smaller firms: ProLaw
  • Collaboration tool: Total Litigator
  • Docketing and calendar: Time Matters
  • Document management: WorkSite
  • Knowledge management: LexisNexis Total Search
  • Litigation support: Concordance 2007
  • Time and billing for large firms: Elite Billing Manager
  • Time and billing for smaller firms: Tabs3 Billing Software

In several e-discovery categories, awards went to CT Summation CaseVault, Kroll Ontrack Data Collection, Law Prediscovery 5.2 and Concordance 2007, among others. The full list of award winners is available at Law Technology News.

December 12, 2008 | Permalink | Comments (1)

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