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August 31, 2006

Mobility of In-House Corporate Counsel

Even as in-house lawyers begin to align themselves more closely with their company's strategic business goals, they can still escape one of the disadvantages of working at a company: the noncompete agreement. Typically, companies require nonlegal employees (particularly tech staff and business professionals) who handle proprietary information to sign a noncompete agreement to protect company confidences if and when the employee moves to another job. But lawyers have never been subject to noncompetes, which are considered unethical because they impede the client's freedom to choose an attorney and restrict the attorney's ability to find subsequent employment.

Still, the issue of whether corporate counsel can be bound by noncompete agreements is a simmering issue (ABA Journal August 2006), according to Susan Hackett, general counsel of the Association of Corporate Counsel. Recently, a New Jersey ethics committee  affirmed that that neither outside nor in-house corporate counsel may be compelled to sign noncompete agreements, though corporations can require them to sign nondisclosure agreements. But even though most states continue to adopt the New Jersey approach, many corporations are now paying more attention to the issue of in-house lawyer mobility for several reasons. First, the legal profession is more transient now than ever. Says Susan Hackett:

"Everybody changes jobs these days," she says. "This is going to be a real toughie if people aren’t thinking with some level of informed guidance, and they don’t have a firmer understanding of what presents actionable conflicts as opposed to the daily norm of moving from one client to another."  Unlike law firms, which have spent years creating conflicts management systems, corporate legal departments are new to segregating new hires to avoid conflicts, Hackett says.

In addition, today's lawyers have greater corporate responsibilities, and their work is more intertwined with the business workings of a corporation.  As a result,

legal ethics expert Geoffrey C. Hazard Jr., like Hackett, predicts the profession will pay more attention to lawyer mobility and conflicts issues involving in-house lawyers. "More and more law gets practiced [in-house] at higher levels," says Hazard, a professor at the University of Pennsylvania Law School and the University of California’s Hastings College of the Law. "And so the problem of sensitivity correspondingly increases."

Professor Hazard also comments that noncompetes are superfluous since lawyers are ethically obligated to retain client confidences.

Is proprietary information held by corporations endangered by their inability to bind lawyers to noncompete agreements? Or are the ethical obligations that attorneys must abide sufficient to protect corporate clients when in house counsel depart? And is this issue more of a problem now than a decade ago? Let me hear your comments.

August 31, 2006 | Permalink | Comments (1)

Will Another Wiki Work for Patents?

A few days ago, Peter Lattman posted here about the U.S. Patent & Trademark Offices's (PTO) decision prohibiting patent examiners from using Wikipedia as an accepted source of information. If that's the case, then what are the prospects for WikiPatents, a new wiki site that my colleague Bob Ambrogi mentions over at his Lawsites Blog? Bob quotes from the statement announcing the site:

WikiPatents is a free-access web site and database containing millions of patents that allows the interested public to discuss, rate, and vote on published patents and, soon, pending patent applications. Most notably, users can add prior art references (publications that closely relate to and predate the patented technology), as well as comment and vote on the relevancy of prior art. Users can also comment and vote on patent value, licensing, technical, and other issues for each patent."

There's more about this story, as well as some history on past attempts to create similar collaborative sites that allow for public input on patents in this article (8/28/06) at CNet news.

August 31, 2006 | Permalink | Comments (2)

Law Firm Billing Fraud

Do law firms actively pressure attorneys to pad their hours? Does pressure to meet billable-hour requirements give associates incentive to exaggerate time spent on projects? Or does bill padding persist simply because lawyers are penalized for reporting it? And what's the client's role in all of this? These and other provocative questions are raised by the story discussed over at the Wall Street Journal Law Blog in a post by Ashby Jones about a recent incident of alleged billing fraud involving Holland and Knight. From the post (which references a WSJ article by Nathan Koppel):

After Matthew Farmer, a 42-year old junior partner with the firm, suspected that his own hours on a trial for home builder Pinnacle Corp. had been inflated by the partner in charge of billing, 62-year-old Edward Ryan, he blew the whistle on the firm.  The firm took no action and denies Mr. Ryan or the firm did anything wrong. “The amount billed by Holland & Knight in the litigation was reasonable and appropriate,” says L. Kinder Cannon III, the firm’s general counsel. Mr. Ryan declines to comment. Last October, Mr. Farmer took a 7% pay cut to join Cohn Baughman & Martin, a 12-lawyer firm. He says he left because he was upset that Holland & Knight wasn’t acting against Mr. Ryan.

The article quotes two experts who offered their explanations behind law firm bill padding: professor Stephen Gillers, who states that "there is a general consensus that billing fraud has increased" as law firms seek to increase profits and attract top lawyers," and professor William Ross, who opines:

Bill-padding is the perfect crime," adds William Ross, a professor at Samford University's Cumberland School of Law in Birmingham, Ala. It is seldom detected because it is almost impossible for clients to know whether "an attorney really spent three hours doing research instead of five hours," he says.

Others in the blogosphere suggest that the billable hour is to blame for unethical billing practices, because it encourages practices like "rounding up" and padding time. But though I'm no fan of the billable hour (because of its inefficiencies), I can't blame the billable hour for cheating clients; rather, it's the attorneys who abuse the practice who cause the harm. And these types of unscrupulous lawyers would cheat clients under any fee methodology.

In my view, there are two reasons that billing fraud is tolerated. First, attorneys have no incentive to report billing fraud. Matt Farmer got off easy when he criticized his firm for inflating hours -- he apparently left the firm voluntarily (though he took a pay cut to do so). A former colleague of mine wasn't so lucky: In her landmark ethics case that originated over 15 years ago, my former colleague's partners voted her out of the partnership after she complained in good faith about what she perceived as overbilling. She filed a suit for wrongful termination of the partnership agreement and won at the trial level. But the Texas Supreme Court overturned the decision, refusing to create a public policy exception to the at-will nature of a partnership for carrying out one's ethical obligations to report unethical conduct (such as overbilling). The dissent disagreed, with a quote from Huck Finn:

What's the use you learning to do right when it's troublesome to do right and ain't no trouble to do wrong, and the wages is just the same?

But the other issue with billing fraud is that in some instances, and for reasons unbeknownst to me, corporate clients don't seem to care about overcharges. In my colleague's case, the client testified that it believed that the fees charged by the firm were reasonable. And I assume that in the Holland & Knight case, the client had never taken issue with fees and the firm did not want to rock the boat by raising the matter voluntarily. In large bankruptcy cases, neither debtors nor creditors utter a peep about what appear to ordinary observers as exhorbitant legal fees.   

Why aren't corporate clients more bothered by claims of bill padding (or are they?)? Are they so satisifed with their attorneys or so enamored of the big-firm brand that they are willing to pay  fees that some lawyers have questioned as unreasonable? Is bill padding so prevalent across the board that clients simply can't tell when they've been overcharged? 

I find these issues of ethics and billing simply don't always apply themselves to bright line tests. But what's the answer? Eliminate the billable hour? Offer more protection to conscientious lawyers who come forward to complain about padded bills? Moreover, even if we want to pay more attention to making sure practices are ethical, as Professor Bainbridge  points out here, it's often difficult to distinguish the unethical from the unsavory. And before we can even address any of these questions,  we need to examine the threshhold issue: Are billing practices ever unethical when sophisticated clients, who ought to know better, don't complain?

August 31, 2006 | Permalink | Comments (11)

A Blog Above the Law

Blogger David Lat ascends out from Underneath Their Robes to a new roost at Above the Law, a
stylish legal tabloid published by Elizabeth Spiers. From today's Letter from the Editor, here's a bit of what we can expect:

Why [Above the Law]? Because many people think that lawyers are boring. And sometimes it seems that the more lawyers people know, the more likely they are to think this.  It's true that many areas of law -- and yes, many lawyers -- are painfully boring. But the legal profession can also be gossipy, wacky, frivolous, and fun. And this is where we come in. We are Above the Law, and we're here to make the law entertaining -- or get RSI tryin'.

Regular features will include practice specific hotties contest (this month it's ERISA lawyers), advice for the Lawlame and Lawyers Wedding Watch (highlights from the Sunday Times Wedding pages). I've always enjoyed David Lat's writing, so I'm eagerly anticipating this new blog. But making law entertaining? He's certainly got his job cut out for him.

August 31, 2006 | Permalink | Comments (0)

August 30, 2006

Textbook Example of Why Blogs Beat Textbooks

For the past week, Paul L. Caron's TaxProf Blog has provided a textbook example of how blogs have changed the nature of legal scholarship and current awareness. On Aug. 22, the U.S. Court of Appeals for the D.C. Circuit issued what Caron and others have called a "blockbuster" ruling. In Murphy v. Internal Revenue Service, it held that the 16th Amendment bars the government from taxing nonphysical compensatory damages as income.

Caron, tax professor at the University of Cincinnati College of Law, was on it right away, summarizing the opinion and publishing the initial thoughts of another law professor, UCLA's Steve Bank. In the week since, Caron has continued to provide in-depth coverage of the fall-out from the opinion, using his blog to pull together news reports, blog commentary and scholarly analysis. Consider these follow-up posts:

Caron has been pivotal in proving the case for blogs as legal scholarship. He is editor-in-chief of the Law Professor Blogs network and was a key organizer of this year's Bloggership conference. This week, he has shown himself to be his own best evidence.

August 30, 2006 | Permalink | Comments (1)

Lawyer's Blog Scoops Sports Media

For those of us situated northeast of New York, the New York Yankees' recent five-game sweep of the Boston Red Sox was particularly painful. As it turns out, the injury was accompanied by intrigue, only the public never knew about it until a week later, when a Boston lawyer broke the story on his blog.

The Yankees and the BoSox played a Friday doubleheader on August 18, with the second game lasting nearly five hours and the Yankees winning both, 12-4 and 14-11. They met for three more games, on Saturday, Sunday and Monday, with the Yankees winning all three, 13-5, 8-5 and 2-1.

Boston fans were feeling the pain, but they were not the only ones. On Friday, the team's designated hitter, David Ortiz, began suffering severe cramping and an irregular heartbeat. When the symptoms persisted throughout the night and into Saturday's game, Ortiz checked out of Fenway Park and into Mass. General Hospital, where he remained overnight.

Boston Globe sportswriter Dan Shaughnessy tells what happened next:

"Incredibly, Ortiz's visit to Mass. General went unreported for almost an entire week. He is one of the most famous (and largest) citizens of New England, and yet no one dropped a dime on his hospitalization until it was reported on an obscure website while the Red Sox were in California."

That "obscure website" is Carpundit, a blog written by an anonymous Boston lawyer about "cars, law and politics." On Aug. 23, he broke the news of Ortiz's hospitalization, writing:

"I heard from a credible source that Boston Red Sox slugger David Ortiz was hospitalized last weekend, during the disastrous Yankees series.  I was told he was at Mass General for a heart issue, possibly an abnormal heart rate.  I'm told the visit was ultra hush-hush and that some MGH employees were fired on the spot for intruding on Ortiz's privacy by asking for an autograph while he convalesced in the high-priced Phillips House wing."

The next day, Boston Herald sportswriter Tony Massarotti received confirmation from Ortiz of the report, which Massarotti referred to only as "an Internet report" without naming the blog. In a follow-up piece two days later, Massarotti gave credit where it was due, writing:

"Somewhat incredibly, all of this took place unbeknownst to many. It was not until Thursday, when rumor of Ortiz’ visit to Mass. General first appeared on an Internet blog ( that there was any hint of a problem."

The same day brought Shaughnessy's Boston Globe piece and reference to the obscure Web site. To that, Carpundit replied:

"Well, he's right -- this is an obscure website.  I even use a Typepad URL.  If David Ortiz brought you here looking for the latest in Boston sports news, I think that was it.  I write about cars, mostly, with a good dose of Boston, politics, and law thrown in."

Carpundit may not be a sports reporter, but he remains on the story, reporting yesterday that Ortiz was back in the hospital. As for Red Sox fans, even Mass. General may be unable to treat their pain.

August 30, 2006 | Permalink | Comments (2)

From White & Case to 'Cracked'

The rigors of working at a white-shoe law firm such as White & Case might drive some young lawyers towards the edge, but one former associate has ended up as the poster child of Cracked. No, it was not a breakdown that Monty Sarhan went through, but a rebuilding. He left law behind last year to take the helm as publisher and editor-in-chief of the 48-year-old humor magazine Cracked. Immediately, he shut it down and began a makeover, which culminated this month in the magazine's relaunch.

The 33-year-old Sarhan tells Boston Globe writer Alex Beam that humor was in his blood from an early age, sending jokes to David Letterman while still in grade school. But his parents insisted on a more traditional career, so after college he headed to Duke Law School. "Everyone who goes to law school says they're going to get out of the law," Sarhan told Beam. "I actually did."

But not before spending three years in Manhattan at White & Case. No less a source than Wikipedia provides this capsule of Sarhan's legal work:

"During his legal career, Sarhan represented clients in diverse transactions including private equity and venture capital financings, mergers and acquisitions, and numerous other transactions involving significant intellectual property assets, including the sale of a well-known US publishing business with considerable copyright assets to a major European publisher and the negotiation of a foreign joint venture for a popular online portal."

It was not the comedy career Sarhan dreamed of as a child. But Sarhan's work as lawyer to entrepreneurs soon led him away from law, according to AP writer Michael P. Regan, as he was infected by the entrepreneurial bug himself. "He decided to leave the legal profession and 'go for the brass ring' by acquiring a media company," Regan wrote.

So can a one-time white-shoe associate find success as publisher of a comedy magazine? Perhaps his law firm years were, as Washington Post writer Peter Carlson said, "no doubt, the perfect preparation for editing the new, postmodern humor magazine." Or not.

August 30, 2006 | Permalink | Comments (0)

Managing Time: A Video and a Podcast

Here are two tutorials for lawyers on how to manage time more efficiently, a video and a podcast.

First, Rick Georges at Futurelawyer points to a Google video on time management featuring a panel of experts at Massachusetts School of Law. Georges writes:

"This great video from the Massachusetts School of Law consists of a panel of experts on Time Management. They discuss time awareness, setting goals and priorities, and staying away from time thieves. ... The speakers in this excellent panel have some great ideas."

Then from the American Bar Association's Section of Litigation comes the second in its series of litigation podcasts: Time Management, presented by Francisco Ramos Jr., partner in the Miami office of Clarke Silvergate Campbell Williams & Montgomery.

August 30, 2006 | Permalink | Comments (0)

August 29, 2006

How Do You Rate the Idea of Lawyer Ratings Online?

Over at Leadership for Lawyers, Mark Beese ponders the possibility of creating an online ranking system for lawyers that would give consumers the information they need to choose an attorney. Beese elaborates:

What if the Association of Corporate Counsel and/or the American Bar Association were to create a system by which users of legal services (clients) could report on their experiences with lawyers and law firms in an honest and organized fashion, via the Internet.  IF the reporting structure were fair and monitored (which would require some resources and forethought), clients could search for attorneys and firms by criteria that are important to them.  For example:

-  A GC could search for a firm with more than 50 attorneys, in St. Louis, with a 'responsiveness' ranking of higher than 5 stars, or

-  An employer in a particular industry could search for a firm with 'understands my business" and "experience in XYZ industry".

Beese predicts that many lawyers will view his proposal as blasphemous. And Kevin O'Keefe, of LexBlog, who makes a similar proposal in this post, is also cynical:

Lawyers, legal publishers (ala Martindale-Hubbell), national & state bar associations, and state ethics boards get all hung up in the argument that the rating of lawyers is beyond the capability of average folks. We're told that only lawyers and those with an understanding of the legal industry are equipped to rate lawyers. We're told non-lawyers cannot rate lawyers because they do not know how skilled a lawyer is and what a good result may be. This is total bunk.

Like Beese and O'Keefe, I don't take issue with laypeople ranking lawyers. I'd just worry that a ranking system would disproportionately generate comments from malcontents seeking to vent about a poor result, while clients generally satisfied with their attorneys would have less motivation to weigh in. What's your opinion?

August 29, 2006 | Permalink | Comments (4)

There's a Good Chance That You May Be Fired

Attention law firm lawyers: Don't assume that because you don't plan on appearing on Donald Trump's TV show, The Apprentice, that you won't hear the words "You're fired!" As Rees Morrison warns in this post, 34 percent of 407 companies participating in an Inside Counsel Survey indicated that they  had fired, or planned to fire, one of their law firms in 2006. Still, even though a large number of companies announced their intent to fire a firm, a firm's chances of being fired really aren't all that significant. Morrison explains that each company hires around 200 law firms, and if they plan on firing just one, there's a less than 1 percent chance that it might be your firm. 

August 29, 2006 | Permalink | Comments (0)

Is $2 Million Fee for 9/11 Case Unconscionable?

Ordinarily, a one-third contingency fee agreed to by a lawyer and client is deemed presumptively reasonable. But does the presumption of reasonableness change where (a)  the recommended guidelines for fees are 5 percent, (b) the risk of nonrecovery is minimal, (c) many attorneys handled the matter on a pro bono basis and (d) the claims relate to compensation from the 9/11 fund?  Those are some of the issues raised by this story, Attorneys $2 Million 9/11 Fee Called Shocking and Unreasonable and discussed in my post over at My Shingle.

August 29, 2006 | Permalink | Comments (0)

Forbes to Guys: If You Want to Make Partner, Don't Choose a Career Woman as a Partner

The Legal Pad links to Michael Noer's recent piece posted on, How do women, careers and marriage mix?  Not well. The article generated so much controversy that Forbes removed it from the main site.

Noer's piece describes why marrying a career woman dooms men and their families to a life of misery: 

If a host of studies are to be believed, marrying these women is asking for trouble. If they quit their jobs and stay home with the kids, they will be unhappy (Journal of Marriage and Family, 2003). They will be unhappy if they make more money than you do (Social Forces, 2006). You will be unhappy if they make more money than you do (Journal of Marriage and Family, 2001). You will be more likely to fall ill (American Journal of Sociology). Even your house will be dirtier (Institute for Social Research).

Why? Well, despite the fact that the link between work, women and divorce rates is complex and controversial, much of the reasoning is based on a lot of economic theory and a bit of common sense. In classic economics, a marriage is, at least in part, an exercise in labor specialization. Traditionally, men have tended to do "market" or paid work outside the home, and women have tended to do "nonmarket" or household work, including raising children. All of the work must get done by somebody, and this pairing, regardless of who is in the home and who is outside the home, accomplishes that goal. Nobel laureate Gary S. Becker argued that when the labor specialization in a marriage decreases -- if, for example, both spouses have careers -- the overall value of the marriage is lower for both partners because less of the total needed work is getting done, making life harder for both partners and divorce more likely. And, indeed, empirical studies have concluded just that.

Other problems with marrying a career woman include the likelihood that she'll become more successful and grow disatisfied, or she'll meet someone else (though Noer admits that the same possibility exists when men work outside the home). 

The article is ludicrous,  incredibly stereotyped and even a little old-fashioned (I mean, do modern-day, educated individuals really fear that their spouses will have affairs when they work with members of the opposite sex?) Still, within the legal profession, I think that marrying a career woman (or a career man) can impact the spouse's ability to make partner. The legal profession is incredibly demanding, and where both spouses are committed to careers, something's going to suffer: either the children (if they have any) or one of the partner's chances for partnership. My theory is supported by anectodal evidence; most of the male lawyers who I know who are partners at large firms are married to spouses who don't have careers. Many of the women are stay-at-home parents, while others are former attorneys who left the law because it never made them happy or because they had children. For male lawyers, marrying a career woman may not mean an unhappy marriage as Noer suggests. But marriage to a career woman can stymie a man's chances for partnership.

August 29, 2006 | Permalink | Comments (1)

August 28, 2006

A Blogger Signs Off

With so many new bloggers signing on every day, we rarely take note of those who sign off. But with Friday's signing off by the Texas law-school blogger known as Mike at Buffalo Wings & Vodka, several did take notice.

As all law students hope to do, Mike finished. And with the end of law school, he ends his blog. Along the way, he chronicled his student years with humor and style and attracted loyal readers. Stay of Execution called Mike's sign-off "a sad day for all of us. ... [F]or a person I've never met, I have a pretty strong sense of Mike's personality.  He's in my tribe; we'd be friends if our paths crossed." And Hoosiers Ate My Brain says: "There are a variety of ways to get through law school. With this blog, we got great writing, humor, and a perspective on how many illegal chemicals are really involved."

Looking back at it, Mike writes, "there really wasn't much of anything funny about law school. But somehow we still managed to laugh. Quite a bit, I think." Sample Mike's writing for yourself, at the best of Buffalo Wings page. And we'll watch for the debut of his practicing-lawyer blog.

August 28, 2006 | Permalink | Comments (1)

Tom Cruise and Law Firm Economics

Sumner Redstone's dismissal of Tom Cruise last week has generated much discussion about "superstar economics" in Hollywood and elsewhere. While the phenomenon is common in the worlds of sports and entertainment, it is also one law firms must wrestle with, as Bruce MacEwen observes at Adam Smith, Esq. For MacEwen, the key question is not whether superstars -- be they actors, athletes or lawyers -- bring in more revenue but whether that added revenue makes the venture more profitable. He explains:

"In law firm land, the issue is what we pay laterals:  In terms of guarantees, up-front bonuses, etc.  By and large, are marquee laterals a good investment for firms, or not?  Do laterals (both individuals and practice groups) add to the recruiting firm's overall profitability, or do they tend to capture the capitalized value of their future revenue streams for themselves?  Do we have enough data to make any convincing generalizations?"

In search of an answer, MacEwen pays visits to 19th-century agrarian landowners and 21st-century pro golfers. At his journey's end, he suggests that, while firms should not expect to receive significant value from the additional revenue a superstar lawyer will bring in, the bottom line will depend on one measure: "How it is to be divided up."

August 28, 2006 | Permalink | Comments (66)

JAG Input Limited on Tribunals

As the U.S. government works to draft new rules for trials of terrorist suspects, the Bush administration is limiting the input of the lawyers who are among the best qualified to offer advice -- the members of the Judge Advocate General corps. Boston Globe reporter Charlie Savage, in his Sunday article, Military Lawyers See Limits on Trial Input, writes:

"Despite assuring Congress that career military lawyers are helping design new trials for accused terrorists, the Bush administration has limited their input on their key request, that any tribunals must give detainees the right to see the evidence against them, officials said."

The new rules became necessary in June, when the Supreme Court struck down the administration's tribunal system in Hamdan v. Rumsfeld. Now, administration and JAG lawyers disagree over whether prosecutors should be allowed to introduce secret evidence. Savage explains:

"Most military lawyers strongly oppose allowing secret evidence, arguing that such a plan would probably violate the Geneva Conventions and create a precedent for enemies of the United States to use show-trials for captured Americans. But administration lawyers maintain that classified evidence may be crucial to a case, and revealing it would compromise national security."

Even though members of Congress have urged the administration to get input from military lawyers in writing the new rules, the Justice Department is drafting them on its own, with virtually no input from the JAGs. This has angered a group of retired military lawyers, says Savage. He quotes Maj. Gen. Nolan Sklute, who retired as the Air Force's top lawyer in 1996:

"The [Justice Department] should have learned that a failure to involve the JAG community can lead to problems. If they are talking to the JAGs only about superficial matters ... that indicates that this is about form instead of substance, and nobody has learned any lessons out of this."

The Justice Department press office did not respond to Savage's requests for comment.

August 28, 2006 | Permalink | Comments (0)

Blawg Review Marks Katrina Anniversary

One year ago today, New Orleans lawyer and Ernie the Attorney blogger Ernest Svenson wrote a post to his blog titled, Massive change is coming to New Orleans. He could not have known then how right he was. After a futile four hours trying to flee New Orleans that day, he returned and found a safe place to ride out the approaching storm. From there, he wrote:

"Katrina is going to completely change the City I live in.  As I have said many times, 'I like change.'  However, this isn't what I had in mind.  So, basically I'm like everyone else who is caught offguard by massive change.  Oh well, I'll adjust."

Adjust he did, evacuating the city two days later and eventually returning to start his own law office. Throughout, his blog remained a chronicle of the many "adjustments" he went through, professionally and personally. Now on this Aug. 28, 12 months later, Svenson hosts Blawg Review #72, "apropos of the Katrina anniversary," he writes.

Most striking about this installment of Blawg Review is how normal it seems. A year after Katrina, many in New Orleans and along the Gulf Coast still struggle to rebuild. But the normalcy of Ernie's post today is a reminder that much of New Orleans has adjusted and that Ernie, for one, not only survived the tragedy but built new opportunities in its wake.

August 28, 2006 | Permalink | Comments (0)

August 25, 2006

The Billion-Pound Gorilla, er Law Firm

If you're looking for a one-billion-pound law firm, you'll need to search outside New York, Los Angeles or other urban habitats where you might expect to find it. That's because the world's first law firm to top $1 billion pounds in revenue is Clifford Chance, a "truly integrated global law firm" headquarted in London. From the article:

But Clifford Chance, by beating its US rivals to the coveted title of the first £1bn business, stands out as the world's biggest billing law firm ever with a gross turnover that is a tenth of the total figure for all the top 100 of UK law practices. "The firm generated £10.8bn in revenue, with 6,557 partners sharing £3.5bn of profit. For many the take-home pay package will be simply eye-watering," said Jim Baxter, editor of Legal Business, which compiled the tables. "We have seen the arrival of the world's first £1bn law firm, Clifford Chance, and Pinsent Mason's astonishing 71 per cent increase in profits per equity partner (the all important benchmark for law firm performance)."

So, how does Clifford Chance compare to top U.S. firms? $10.8 billion pounds is the equivalent of $20,376,078,592 (U.S. dollars, from this currency converter). According to this chart at Bruce MacEwen's blog, the top three grossing Am Law 100 firms are:  Skadden, with $1.58 billion in earnings (903 million pounds); Latham & Watkins ($1.4 billion; 800.8 million pounds -- no wonder they can afford to hire 276 summer associates); and Baker & McKenzie ($1.350 billion, $773 million pounds). And individually, U.K. lawyers are doing also doing well; just yesterday, my co-blogger, Bob Ambrogi, posted on how it's been a banner year for some U.K. Biglaw partners.

So what does this mean for U.S. law firms? Can they compete on a global level, or will the United Kingdom come to dominate the world market? Should law schools be training lawyers so that they can practice outside the United States and in other areas, so that they can expand job options overseas? Or is the recent news about Clifford Chance's billion-dollar year simply a fluke? Let me hear your comments below.

August 25, 2006 | Permalink | Comments (0)

Reebok Rules for Lawyers

Lawyers' lives are governed by rules: Rules of Evidence, Rules of Civil Procedure, Ethics Rules ... the list goes on. In fact, it seems that lawyers have grown so dependent on rules that, apparently, Reebok's former general counsel, Jack Douglass, saw the need to create Reebok Rules for Lawyers, which guides in-house counsel on how to deal with their corporate clients.

Though the Reebok Rules are almost 15 years old, Matt Dillon, Sun Microsystems' GC, reprised them recently in an early post, and yesterday, Peter Lattman of Wall Street Journal Law Blog discussed some of the Reebok Rules here. Some of Lattman's favorites:

    * 4. Return Phone Calls Promptly: One of the most important aspects of the in-house counsel/client relationship is making sure that you return phone calls promptly, and respond to memos, hallway requests and other requests for legal advice on a timely basis. Nothing is worse than a client who cannot get in touch with his or her lawyer. I know, because I am frequently the client trying to call an outside lawyer.

    * 22. Give answers: Get to the Point: Give answers. If [Reebok’s former CEO] Paul Fireman had prepared this article, he might have started with this “rule.” Nothing upsets Paul more than a detailed analysis of a problem with no answers -- for any reason -- even, or especially if, it is because it is outside your “area.” If you don’t know, find out who does. Always make a recommendation or provide requested information and be clear about it. Your client may disagree and that’s ok, but make sure you answer the question.

In general, the theme of the Reebok Rules is that in-house lawyers should act more like businesspeople: They should famliarize themself with the workings of the corporation, hone business judgment, get out and wander the halls and meet people. All good advice. Still, I wonder whether the Reebok Rules, particularly Rule 2 ("Eliminate the word no from your vocabulary") haven't become a little dated in the aftermath of the Enron fiasco. After all, Enron's outside law firm, Vinson & Elkins, just paid $30 million to settle claims that it turned a blind eye on Enron's misconduct. I agree that lawyers who advise corporate clients need to solve problems and operate proactively. But at the end of the day, lawyers -- whether in-house or outside -- have different obligations from businesspeople. If lawyers don't draw the line for business clients, who will?

August 25, 2006 | Permalink | Comments (4)

Denise Howell's New Gig

Last month, Denise Howell was one of the Web's most blogged about law bloggers, following her forced departure from her law firm. Now, she's about to become one of the most read bloggers (even more than she is now) as she embarks on her new gig, Lawgarithms at My colleague, Bob Ambrogi, reported this news earlier today, as did Kevin O'Keefe.

August 25, 2006 | Permalink | Comments (8)

August 24, 2006

Best Companies for Electronic Discovery

Are you one of those careful consumers who would not buy a car without first consulting Consumer Reports' car ratings? If so, then before you purchase electronic-discovery services or software, you would be well advised to review the 2006 Socha-Gelbmann Electronic Discovery Survey. The full 294-page survey will set you back $5,000, but overviews of the results are available at Law Technology News (free subscription required) and from Socha Consulting, where you can also download the table of contents.

You need only attend a legal trade show or scan the ads in a legal periodical to know that competition is fierce among EDD vendors. The Socha-Gelbmann survey estimated that this was a $1.3 billion market in 2005 and and will reach $3.13 billion by 2008. For lawyers, the array of vendors and services can be daunting. That makes this survey all the more valuable.

The survey ranks the top 20 electronic-discovery providers. It ranks providers using seven criteria: experience and reputation, capacity, types of services, software usage, law firm rankings, corporate rankings and revenue estimates. Based on those rankings, it found the top five services providers to be (in alphabetical, not numerical, order): Fios Inc., Kroll Ontrack Inc., LexisNexis Applied Discovery, Renew Data Corp. and ZANTAZ Inc.

The survey also ranked the top 10 electronic-discovery software providers, based on criteria similar to those used to rank service providers. In this category, the top five (alphabetically) were: Attenex Corp., Dataflight Software Inc., Electronic Evidence Discovery Inc., Guidance Software Inc. and ZANTAZ Inc.

This is the fourth year George J. Socha Jr. and Tom Gelbmann have conducted this survey. The more crowded this market becomes, the more we need this guide to the vendors.

August 24, 2006 | Permalink | Comments (2)

The U.K.'s Highest-Paid Lawyer

Well, we don't exactly know who is the U.K.'s highest-paid lawyer, but we do know that he or she is a partner with Allen & Overy and earned 1.8 million pounds -- that's $3.4 million U.S. -- in fiscal 2006.

We know this because the United Kingdom requires limited liability partnerships to file detailed accounts of their finances. Bloomberg News reporter Caroline Byrne reviewed those accounts and, in a report published this week, found that million-pound packages were paid to four unidentified U.K. and U.S. partners in London law firms. (Not all firms have converted to LLP status to avoid the filing requirement.)

While some partners are earning millions in London, others are losing millions, Byrne found. She reports that partners at London offices of three U.S. firms -- King & Spalding, O'Melveny & Myers and Pillsbury Winthrop Shaw Pittman -- are losing substantial amounts as they struggle to establish a London foothold.

Firms are not required to name names in the filings. Still, "the figures are the first detailed snapshot of the financial highs and lows of the U.K. partnerships," Byrne writes. Of the four law firms that paid top partners more than a million pounds, three are based in the United States: Dechert, Mayer Brown Rowe & Maw and DLA Piper Rudnick Gray Cary.

But other firms still struggle in London, Byrne reports:

"O'Melveny & Myers lost 3.2 million pounds in the U.K. in 2004 and 2005. Atlanta-based King & Spalding partners lost 3.14 million pounds in 2003 and 2004. Pillsbury Winthrop Shaw Pittman, based in San Francisco, lost 1 million pounds in the same period."

The report also shows a large spread in income between the top earners and salaried partners.

August 24, 2006 | Permalink | Comments (0)

Was WilmerHale a Bad Marriage?

The 2004 merger of two old-line firms -- Boston's Hale and Dorr and Washington's Wilmer, Cutler, Pickering -- was described as a merger of equals and resulted in creation of the 1,000-lawyer powerhouse known today as WilmerHale. But in the merger's aftermath, some lawyers in the firm's Boston office are offering mixed reviews of the outcome, according to reporter Barbara Rabinovitz writing in Massachusetts Lawyers Weekly.

"[Sources are] complaining that WilmerHale's Boston office has a new identity -- one that reflects a tilt toward big 'institutional' corporate clients and away from the old Hale and Dorr's 'entrepreneurial' orientation. ...

"Others warn of the gradual emergence of Wilmer as the home office of the firm and worry that Hale in Boston will be relegated to branch-office status and that its name will eventually disappear from the firm's nameplate."

William F. Lee, the firm's Boston-based co-managing partner, tells Rabinovitz these concerns are unfounded. "This was a marriage, not of necessity or convenience," he says, "this was a marriage of two firms, each at the point of their greatest strength." Others who have left the firm provide mixed reports. "The folks I talk to are happy post-merger," said one former partner. But another said that the firm now places too much emphasis "on pure productivity."

Lee counters the critics, Rabinovitz reports, by invoking the words of former Hale and Dorr partner James D. St. Clair: "Jim always said, 'You're either growing, or you're dying.'"

August 24, 2006 | Permalink | Comments (0)

Advocacy Group Sues Barney the Dinosaur

Warning: If you have children present, you may wish to excuse them before reading further.

The Electronic Frontier Foundation is suing children's TV icon Barney the purple dinosaur. It claims that the Lyons Partnership, the company that owns the Barney trademark, is violating the free speech rights of Stuart Frankel, publisher of a Barney parody site.

Since 2002, Barney's lawyers have sent Frankel a series of cease-and-desist letters to shut down his site. The lawsuit, according to EFF, "asks the court to finally resolve the matter by declaring that his parody does not infringe Barney's copyright or trademark rights." CNET's Declan McCullagh reported in October that the cease-and-desist letters complained that Frankel's site "depicts a plush Barney toy in a violent manner or position" and asked that he "remove this violent content toward Barney on your Web site."

Read all about the case and view litigation documents at the EFF's Barney page. But be sure your kids are away.

August 24, 2006 | Permalink | Comments (3)

Merck Picks Up Two Vioxx Wins

After last week's Vioxx double whammy delivered Merck & Co. two major setbacks in the courts, Ted Frank at Point of Law reports on two recent wins for the drug giant. In a trial scheduled to begin Sept. 11 in Atlantic City, Patricia Hatch -- who claimed free Vioxx samples given to her husband caused his heart attack -- decided to dismiss her case with prejudice. And in July, a Texas court dismissed Jame Miller's lawsuit after he failed to list the claim as an asset in his bankruptcy.

For anyone keeping score, Frank sums it up:

"Out of 22 cases resolved at the trial level to date, Merck has won thirteen by dismissal with prejudice, won four more at trial, and lost four at trial; a 22nd case, Humeston, was won by Merck at trial, but Judge Higbee granted a new trial (Aug. 17). (And one of the product liability jury wins still required Merck to pay a plaintiff $15 plus attorneys' fees on a consumer fraud theory.) About three hundred more cases have been dismissed without prejudice, and it's unclear how many of those plaintiffs will choose to refile within the statute of limitations."

The statute of limitations for many potential plaintiffs expires Sept. 30, Frank says, meaning "we are likely to see one last burst of filings in the next five weeks."

August 24, 2006 | Permalink | Comments (18)

August 23, 2006

Effect of Choice of Law on the Outcome in Insurance Disputes

While other bloggers are taking up lighthearted summer topics,'s Marc Mayerson tackles the knotty issue of choice of law and the implications that it has to determine the outcome of a case with this detailed post, Conflict of Laws and Insurance Disputes:  Choice of Law or Choice of Outcome? Mayerson describes the problem in this opening paragraph:

Most insurance policies are silent as to which state’s substantive law governs their terms. As a result, insurance-coverage lawyers often find ourselves deep into the world of choice of law and conflict of laws, a subject most of us sidestepped in our law-school education. Conflicts issues are (largely) untethered from the merits yet can be outcome determinative, so it is crucial to understand and focus on choice-of-law principles in complex insurance disputes, which can yield the application of different state laws within a single case to issues of contract formation, performance, and bad faith.

Mayerson's analysis then leads readers through real-world examples of differing outcomes that result from one state law versus another and how state courts determine which laws apply. Mayerson also examines different approaches to choice of law, ranging from contractual choice of law clauses, state statutes that govern choice of law or the Restatements approach, which lists factors for courts to consider in identifying the state with a more substantial interest in application of its law to the case.

If you haven't looked at choice of law questions since law school, take a look at Mayerson's piece. It's a great refresher on choice of law and a really interesting read.

August 23, 2006 | Permalink | Comments (2)

Small Clients: Love 'Em or Leave 'Em?

For someone like Seth Godin, Small Is the New Big. But for some large firms, small clients are nothing but a big waste of time. Should bigger firms cull smaller clients? That's the topic addressed in this three-way blog discussion between Ed Wesemenn, Ed Poll and Tom Collins.

Wesemann initiated the discussion with this post advising larger firms to consider firing small clients. Wesemann describes the drawbacks of small clients thusly:

By almost any standard, small clients -- either individuals or businesses -- are problematic for law firms. Being sensitive to the limited financial resources of small clients, rarely is all of the time required to perform work recorded by the working attorneys and while billing, small clients often are the most frequently written down.

After billing, small clients represent the greatest risk of bad debt write-off of all accounts receivable. Indeed when you review the accounts receivable delinquency lists of law firms, individuals and small and startup companies tend to be the largest offenders. And if a firm becomes aggressive in attempting to secure payment, small clients represent the greatest risk of a malpractice suit. In fact, the nuisance claims that law firms routinely buy-off are invariably brought by small clients. By the same token, small clients, by their sheer number present the greatest conflicts of interest.

Any firm that has attempted to trace where its entertainment expenses are going, particularly tickets to sporting events and usage of stadium loges, will quickly note the small clients are entertained with a frequency disproportionate to their revenue contribution.

Finally, small clients do little to enhance the reputation of the firm and build the skill levels of its lawyers.

Ed Poll takes his shot next, with a different view. Poll argues:

The suggestion that law firms “cull” 10% of their clients each year ... or that they “fire” their small clients ... rattles my very bones when I hear this. So long as the work being done for clients is profitable or can effectively be used as a training ground for new lawyers, there is reason to continue to retain this business.

Tom Collins makes the point that firms need to leverage off associates to increase profitability and suggests that smaller clients don't generate enough work to produce sufficient leverage. But he sees value in both Wesemann's and Poll's positions:

Ed Wesemann’s comments are likely to be good advice for law firms in a full capacity situation with a sound leverage level.  And we all know that small clients introduce conflicts that may prevent a firm from taking on large client opportunities.  However, Ed Poll’s warning is sound -- think very hard before you start firing clients.

As for me, I think you all know where a solo like myself comes down. I loved Ed Wesemann's post about how large firms should fire small clients, because it means more work for my solo colleagues and me. Plus, I can't think of better marketing material than Wesemann's post to sell small clients on the benefits of a small practice over a big firm. 

As always, we're open for your comments below.

August 23, 2006 | Permalink | Comments (3)

Outstating: The Next Phase of Offshoring?

Offshoring by law firms has grown rapidly in recent years, and lawyers in India, a major recipient of law firm work, expect the trend to continue. Bruce MacEwen offers strong evidence that the outsourcing trend is here to stay in this post, where he reports that Eversheds has announced its intent to outsource almost all of its 100-person IT staff.

It's not clear where those positions will be outsourced, but India will face competition. MacEwen writes about Orrick's famous outsourcing strategy, with a Global Operations Center in West Virginia, which "houses Orrick's core technology, finance and human resource operations, as well as document and transcript production services."

With all of this activity, MacEwen is now wondering "what other firms might be doing, or contemplating, on this score." You can help MacEwen find the answer to this by taking the time to fill out this online survey.

August 23, 2006 | Permalink | Comments (1)

Follow-Up on LSC Story: The LSC Response

In response to my recent post of August 17, 2006, on an AP Story, "Legal Service Corporation's (LSC) expenditures," one reader pointed me to LSC's Detailed Response. My post inaccurately stated that LSC did not respond (a conclusion that I based on a quote from the AP Story that:  "Barnett [President of LSC] declined to be interviewed. Strickland [head of the Board] did not return several phone messages seeking comment."). When I wrote my post on August 17, I also visited the LSC Web site (and in fact, my original post links to the LSC site), but at that time, the homepage  did not include the link to the press release. In any event, I stand corrected, and below, I'll discuss the LSC response. I also invite you to read the many comments in defense of LSC and critical of my original post.

The LSC press release offers a very detailed response to many of the extravagences identified in the AP report. LSC's defense regarding the cost of office space (which is apparently below cost for the D.C. area) and special transportation charges (necessitated, for example, by meetings scheduled at odd times) made sense.   

But I'm not sure I agree with the other explanations. For example, regarding the Board meetings, which cost $20,000 to $55,000, LSC explained that:

The LSC Board of Directors meets four times each year, once in Washington and the other three times in locations around the country where they can visit legal services programs. The Board views as significant the added value of visiting LSC programs in different parts of the country to review program operations, hear from clients, meet with bar leaders to encourage pro bono efforts and meet with members of the judiciary in support of access to justice. LSC obtains proposals from three hotels in the area recommended by the local program being visited. LSC seeks to obtain government rates for hotel services and is generally successful.

For starters, I would still be interested in hearing how many people turn out for these meetings -- and whether they could be held in the local LSC office rather than at the higher-priced hotel. When private law firms go into the field to visit a client, I don't think they pay $55,000 for the trip. Here, LSC is essentially visiting clients -- and even though the trips are undoubtedly worthwhile, I wonder whether that's a cost that could be reduced. (In addition, it's not clear from the LSC response whether it rents hotel space in D.C. The AP article says that it does; the LSC response above is vague. I'm not sure how LSC could justify paying even $20,000 for hotel meetings in D.C. when the D.C. Bar makes its meeting rooms available for a few hundred dollars, plus LSC has meeting space).

The LSC explanation makes crystal clear that LSC officials are not engaged in any type of underhanded or illegal conduct; all of their expenses are permissible by law. To draw a contrary implication from the AP article or my post would be erroneous. But the LSC press release does not address comments from lawyers like Marie Parran or Richard Taylor, who work at the clinics that LSC funds. Both commented that money spent by LSC should go to the poor rather than administrative costs. I certainly understand that many of the Republican politicians who criticize LSC have a bone to pick with many of LSC's causes and will look for any excuse to tarnish LSC's reputation. But when legal aid attorneys question LSC expenses, that's a criticism that rings true and one that LSC still has not, to my mind, adequately explained.

August 23, 2006 | Permalink | Comments (4)

August 22, 2006

The Speed-Dial List for Corporate GCs

When you are a Fortune 250 GC facing a bet-the-company legal problem, who ya gonna call? The answer, not surprisingly, is the usual suspects: Skadden Arps for mergers and acquisitions, Kirkland & Ellis for litigation.

That is the conclusion of this year's Who Represents America's Biggest Companies, the fifth annual survey in which Corporate Counsel magazine asks Fortune 250 general counsel to list their "primary" outside counsel. This year, 93 companies provided information on their top firms for corporate transactions, litigation, labor and employment, and IP.

Corporate Counsel contributing writer Tamara Loomis provides an overview:

"Our five-year look reveals at least two noteworthy trends. Skadden, propelled by the kind of loyalty shown by [one GC], has ranked as the No. 1 go-to firm for corporate transactions nearly every year. (This year it was edged out by one mention by its rival at the top, Davis Polk & Wardwell.) But it isn't the only firm that GCs love to call. Over the same five years, Chicago-based Kirkland & Ellis has captured the No. 1 spot for litigation."

And when it comes to bet-the-company cases, Loomis reports, GCs "typically say they want the massive firepower of a large firm on their side -- no matter what the expense." Read more about this year's survey (free registration required for charts):

August 22, 2006 | Permalink | Comments (0)

The Bloggers' Guide to Law School

The blogosphere never suffers for a shortage of advice. Depending on the source, it may or may not be worth what we pay for it. But when a law professor offers advice to incoming first-year law students, said students would be well advised to pay heed.

So the law school class of 2009 owes a debt of gratitude to Paul L. Caron of TaxProf Blog, who has scoured the blogosphere for the sage counsel of law professors and assembled the links in his post, Advice for the Incoming Law School Class of 2009. He has uncovered, for example, UC Hastings professor Vikram David Amar's Ten Key Principles that Will Help You Succeed and George Washington professor Orin Kerr's Advice for Entering Law Students.

As if that were not enough, Caron has gone a step further towards orienting these lawyer hopefuls, also collecting the advice of actual 1L survivors. There is Heidi Bond's Advice to law-students-to-be about stuff and famous former law student Jeremy Blachman's A Big Law School Advice Post.

With the service Caron has provided law students through this post, they might just overlook what most any law-school survivor will tell you: Taking tax is no fun at all!

August 22, 2006 | Permalink | Comments (1)

Court: Government's Got to Google

Sometimes, the federal government has got to Google. This is the conclusion of an opinion today by the U.S. Court of Appeals for the D.C. Circuit, Davis v. Department of Justice. Jonathan Adler at The Volokh Conspiracy sets the stage, explaining that the case was brought by an author who sought release under the FOIA of FBI audiotapes from a quarter-century-old Louisiana corruption investigation. He tells what happened next:

"The FBI denied the request, citing the privacy interests of the taped individuals, but was unable to determine whether the taped individuals were still alive (or over 100, in which case they would be presumed dead under FBI practice)."

The trial court dismissed the FOIA complaint, but the circuit court reversed, finding that the FBI made no "reasonable effort to ascertain" whether the individuals were still alive. The court explained:

"[O]ne has to ask why -- in the age of the Internet -- the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI’s purpose, and with entries restricted to a small fraction of even the 'prominent and noteworthy'? Why, in short, doesn’t the FBI just Google the two names? Surely, in the Internet age, a 'reasonable alternative' for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person’s death."

One also might ask why this case had to work its way to a federal appeals court before common sense could prevail over bureaucratic red tape.

August 22, 2006 | Permalink | Comments (0)

You're Innocent, but We'll Keep Your Cash

The Civil Asset Forfeiture Reform Act of 2000 was a response to horror stories of unjustified government seizures of innocent persons' cash and property. For one, the act requires the government to show a "substantial connection" between the seized property and a controlled-substance offense. Reform notwithstanding, the horror stories continue, aided -- as Mike Cernovich at Crime & Federalism contends -- by judicial activism.

As Cernovich explains, the U.S. government is $124,700 richer and a group of enterprising Mexican immigrants is that much poorer, even though the trial judge found that the government failed to prove a connection between the money and drugs. In U.S. v. $124,700, in U.S. Currency, the 8th U.S. Circuit Court of Appeals reversed the trial judge through what Cernovich sees as dubious reasoning -- saying that the trial judge made no finding as to witnesses' credibility even though he described them as "plausible and consistent."

The result, Cernovich says, was tragic. "Several poor immigrants lost their life savings even though the government could not prove that they, or their money, had any connection to drugs."

At A Stitch in Haste, KipEsquire says that the case shows that, sometimes, "the law is a ass."

"For a defendant to be penalized by the government — whether you call it 'punishment' or 'forfeiture' — for a purported criminal act, the government should, one would hope, be required to obtain a finding of criminal guilt (i.e., guilt beyond a reasonable doubt), either by guilty plea or conviction at trial."

Other bloggers who weigh in with their disapproval of the case: Hit & Run, Overlawyered and The Unrepentant Individual.

August 22, 2006 | Permalink | Comments (0)

Updates on Earlier Posts

  • And then there was the Sad Case of a Troubled Judge, our June 30 post about the former Oklahoma judge on trial for using a "male-enhancement pump" in his courtroom. Now, TalkLeft reports that the former judge was sentenced last week to four years in prison.

August 22, 2006 | Permalink | Comments (0)

August 21, 2006

ISO Lawyers: Japan Bar Required

It's hard to imagine anyone wishing for more lawyers. But apparently, that's what is happening in Japan, which has set a goal to add more lawyers (Chicago Sun Times 8/21/06). According to the article,  Japan has roughly 22,000 lawyers -- one for every 5,790 people, compared with one for every 268 in the United States. Under the old bar exam, to be scrapped in 2011, fewer than 1,500 people (roughly 3 percent of all takers) are allowed to pass every year. But that will be changing soon. From the article:

In the most sweeping reform of Japan's legal system since World War II, the doors are opening wide for a flood of new lawyers to handle cases in an increasingly litigious society.Experts say the reforms underscore a big shift in social attitudes that is forcing Japan to change its policy of keeping the number of lawyers low.''People are beginning to take more and more of their troubles to court,'' said Hideaki Kubori, a corporate lawyer. ...

Economic necessity is the driving force behind the push for more lawyers. Kubori noted that filings for personal bankruptcy have jumped more than fivefold over 10 years. Inheritance and divorce disputes are also going to court.

August 21, 2006 | Permalink | Comments (0)

Attrition in Associates Leads to Attrition in Law Firm Marketing

Interesting post from Larry Bodine about how the associate attrition problems that I blogged about last week are taking a toll on lawyer marketing efforts. Apparently, because few lawyers see themselves as making partner or don't care about partnership as a goal, they're not particularly interested in marketing. To quote Bodine, "It's impossible to market a service that you don't want to perform."

Bodine also writes about the tension between different generations of associates when it comes to marketing:

Generation X, associates aged 27 to 41, are loners who question authority, can be cynical, pessimistic, think in short time horizons and have a "prove it to me" attitude, according to author and consultant Cam Marston, of Marston Communications in Charlotte, N.C.   Add Generation Y to the mix, aged 26 or younger, who are "adultolescent" individuals who have never known hardship, yet stressed, at a young age, and may have huge goals but are clueless on execution.  They don't want to be like the people who are in charge of the firm, the Baby Boomers who have a strong work ethic, are competitive, optimistic and show success visibly with trophies and plaques.

And Baby Boomer lawyers are becoming increasingly frustrated about the younger generation's reluctance to step up to the plate and take on responsibilities that Boomers had at their age -- including marketing.

Much of Bodine's post makes sense to me. But law was also different when the Boomers started out: Back then, hard work would get lawyers a partnership and lawyers weren't required to market as much. Are Boomers' demands of the younger generation sensible? Or are they expecting younger lawyers to more than was required of Boomers when they started their career? And more broadly, is the practice of law at large firms harder today than it was 20 or 30 years ago -- and if so, why?

August 21, 2006 | Permalink | Comments (3)

How Not to Correct Appellate Error

Mike Cernovich of Crime and Federalism posts here about recent appellate error -- committed by an attorney, not the judges. Attorney Kevin Carlucci filed a notice of appeal in a criminal case and learned from the court that the notice was defective. Here's what happened next:

When the District Court notified him of a possible error, however, Carelock’s counsel acknowledged that he took no immediate action that corrected the problem. He stated that upon receiving notification of an error from the Court, he reviewed a printout copy of the notice of appeal (the one that bore Carelock’s name and information) and concluded that there was nothing wrong. At this time, Carelock’s counsel neglected to review the document that he had actually electronically filed with the District Court.

According to Cernovich, Carlucci's mistake was fairly easy to make, the equivalent of a typo. Apparently, he filed the cover sheet from another case with the court. But Carlucci didn't fix the error until 90 days later, when it was too late -- and too bad for the client, whose appeal was apparently dismissed.

Cernovich's lesson: Always listen to the clerk, before a tiny mistake causes big problems.

August 21, 2006 | Permalink | Comments (0)

Blawg Review #71

Pop quiz: Where can you find Blawg Review # 71? This week, it's at Quiz Law, a site that endeavors to provide the general public with a free and easy-to-use resource for finding understandable legal information without all the “legalese.” And Blawg Review #71 has a quiz-inspired theme, providing you with answers to a variety of scintillating questions, such as, Is it true that virgins don't make good egg donors?, Is there a right to be seen if you're posting an ad on a California billboard? or Can I start a fantasy football league without violating the law?

Finally, what grade does this week's Blawg Review rate?  An A+!

August 21, 2006 | Permalink | Comments (0)

If Macs Are This Good, Shouldn't More Lawyers Be Using Them?

Grant Griffiths of Home Office Lawyer, in a guest post debut at Future Lawyer, shares this interesting  statistic about Macintosh computers and their resistance to viruses:

By the end of 2005, there were 114,000 known viruses for PCs. In March 2006 alone, there were 850 new threats detected against Windows. Zero for Mac. While no computer connected to the Internet will ever be 100% immune from attack, Mac OS X has helped the Mac keep its clean bill of health with a superior UNIX foundation and security features that go above and beyond the norm for PCs.

If this is true, it would seem that there should be a greater push within the legal community towards Macintosh usage. I know that one of the impediments is that programs like Word Perfect, still dominant amongst lawyers, are not compatible with the Mac's Operating System. And the Mac still costs slightly more than other types of computers.

Are there are reasons why more lawyers haven't transitioned to the Mac? I'll admit that my preference for Word Perfect has kept me tethered to an MS operating system, even though my first machine in law school, back in 1987 was a Mac (it was destroyed in a flood a few years later, and I couldn't afford a new one). Or, should Apple do more to capture the lawyer market by making Macs available at low prices to law students to get them addicted to Mac (just as they are addicted to Lexis or Westlaw)?

August 21, 2006 | Permalink | Comments (10)

August 18, 2006

Bloggers Critique Wiretap Ruling

Poor President Bush. Just when he thought it was safe to monitor the phone calls and e-mails of ordinary citizens, a federal judge has to spoil his fun. Senior U.S. District Judge Anna Diggs Taylor, ruling in a case brought against the Bush administration by the American Civil Liberties Union and others, issued a 44-page opinion finding that the National Security Agency's wiretap program violates the First and Fourth Amendments to the Constitution, the separation of powers doctrine, statutory law and the Administrative Procedures Act.

Reaction from bloggers was swift and sweeping. Many thought that Judge Taylor reached the right legal outcome, but used weak or even wrong reasoning to get there. Among the comments:

  • Jack Balkin:  "Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. ... It is quite clear that the government will appeal this opinion, and because the court's opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle."
  • Glenn Greenwald: "This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law. It took real courage for Judge Diggs Taylor to issue this Opinion and Order -- it is hard to overstate how much courage it took."
  • Eugene Volokh: "[T]he real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the [Authorization for Use of Military Force], then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here."
  • Corrente:  "[D]on’t pop the champagne just yet; no triumphalism is warranted (especially since this decision has to run the gauntlet of a Federal judiciary system now headed by Scalito and Roberts)."
  • Politech:  "Now for the next question: How will we know whether the illegal spying has stopped?"
  • Overlawyered:  "While the decision contains a wealth of flowery language reminiscent of, say, a post by a libertarian blawger, it is rather weak on actual analysis. On the other hand, what little analysis it contains is spot-on accurate."
  • Marty Lederman: "Judge Taylor did not contend sufficiently with the strongest government arguments on the 'special needs' doctrine. Her decision would have been much stronger had she thoroughly explained why the program violates FISA, and why the government's Article II argument is wrong."

August 18, 2006 | Permalink | Comments (3)

A Double Whammy for Merck

Odds are several summer vacations came to an abrupt halt yesterday as Merck & Co. lawyers and executives scrambled to assess the damage from two major setbacks in Vioxx lawsuits yesterday. Reactions from lawyers suggest that, while the New Orleans jury's award of $51 million may deliver the more visible bruise, the New Jersey ruling that Merck withheld information is more likely to bring about Merck's eventual knock-out. As Christopher Seeger, lawyer for the plaintiff in the New Jersey case, explained it:

"Merck consistently said throughout the trial that you had to be on Vioxx for 18 months to be at increased risk of a heart attack, and that was false. They had data that people were having heart attacks within weeks."

Seeger was not the only Vioxx lawyer to weigh in on yesterday's news. Law Blog sought reaction from Texas plaintiffs lawyer Mark Lanier, who won a $253 million verdict against Merck last year. Here is what he replied:

"I’ve said from the beginning in a toxic tort case the company should win the first ten. That Merck has now lost four is HUGE. As trials continue and time goes on, more evidence comes to light, more depositions are taken, and Merck’s defense gets tougher and tougher. After the first ten, Merck will lose three for every four they try. This is the start of something huge for Merck."

Another legal blog, A Georgia Lawyer, asked for reaction from another plaintiffs lawyer, C. Andrew Childers. Here is his comment:

"Although both results were very important, I believe the New Jersey Order was even more significant than the New Orleans verdict.

"Judge Higbee's Order shows Merck's continuing pattern of deception and lies, not just in the labeling and marketing of Vioxx, but all the way through the trial of the Humeston case. Merck has continued, in my opinion, to lie about what it knew about the dangers of Vioxx and when it knew of such dangers."

At, Ted Frank found the verdict in New Orleans to be logically inconsistent and said that Merck will challenge it on those grounds. But, he added:

"[T]hey're likely to be disappointed: the remedy for an inconsistent verdict is to ask the jury to return to deliberations to reconcile the inconsistency before they're dismissed."

Even with yesterday's one-two punch, Merck remains even in the count. Before yesterday, it had won five trials and lost three. Yesterday's loss in New Orleans adds another to the loss column, and the overturned verdict in New Jersey removes one win, putting Merck's win/loss score at an even 4-4.

August 18, 2006 | Permalink | Comments (0)

In Tobacco Conspiracy, Lawyers Were Key

Raise your hands when you are done. I'll give you another moment to finish reading U.S. District Judge Gladys Kessler's 1,653-page opinion (1,742 pages counting appendices) and 18-page order finding that the nation's top cigarette makers violated federal racketeering laws and deceived the public about the health hazards of smoking.

Ready now? Well, in case you overlooked it, Blog 702 points out that Judge Kessler's ruling included this indictment of the complicity of lawyers in helping to deceive the public:

"Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified 'friendly' scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.

"What a sad and disquieting chapter in the history of an honorable and often courageous profession."

The ruling overall "sounds rather a lot like a parent confronting a dishonest child," says William G. Childs at TortsProf Blog. If so, the question may be whether any of the complicit lawyers will get taken to the woodshed.

August 18, 2006 | Permalink | Comments (1)

GC Under Attack Over Law License

The Virginia State Bar is investigating Richard J.M. Poulson of Smithfield Foods over his lack of bar admission, according to a report in the Virginia newspaper The Daily Press. Poulson dropped his bar membership in 2001, but a 2004 change in Virginia law requires anyone acting as a company lawyer to become a member of the bar or get a special certificate. Virginia legal ethics expert Jim McCauley, who is ethics counsel for the Virginia State Bar, told The Daily Press that the investigation could result in a letter telling Poulson to discontinue the practice of law.

Oddly, Smithfield's Web site does not identify Poulson as GC, but as "executive vice president and senior advisor to the chairman" responsible for overseeing the company's merger and acquisition activity. In fact, the site identifies no one as GC, although it does name a deputy GC. But according to another news report, Poulson is named as GC in the company's most recent 10-K report, filed June 30.

Poulson has not spoken publicly about the matter. A company spokesman told a reporter that this issue arose as part of a union campaign against Smithfield, but that the company is looking into it nonetheless. "Even though this is union motivated, we are taking the matter seriously," he said.

August 18, 2006 | Permalink | Comments (0)

August 17, 2006

Innovation in Law

If you want to learn more about innovation and law, check out Innovaction, an online journal just published by the  College of Law Practice Management. The summer 2006 issue includes an article by David Maister, a feature on Christopher Marston's Exemplar law firm and a roundtable discussion that includes Lexthink founders Matt Homann and Dennis Kennedy along with other experts. 

August 17, 2006 | Permalink | Comments (0)

Legal Services Corp. May Defend the Poor, But It Can't Defend Its Rich Lifestyle

The Legal Services Corp. (LSC), according to its Web site, funds 138 legal aid programs with 700 offices around the country. But LSC reports that, because of lack of funding, for every client that it serves, another one is turned away. 

So what's a good LSC executive to do?  Finding ways to cut funding or lure more private sector attorneys to perform pro bono sound sensible, but that's not the approach that LSC has adopted. Instead, they decided to eat, drink and be merry,  as reported in this AP news item, "Legal Aid Has Expensive Taste" (Aug. 15, 2006).

While poor clients go without lawyers and legal aid attorneys toil in bare offices with secondhand furniture, here's how LSC executives live, according to recently discovered documents:

Executives of Legal Services have given themselves with federal money from $14 "Death by Chocolate" desserts to $400 chauffeured rides to locations within cab distance of their offices. ... The government-funded corporation boasts a spacious headquarters in Washington's swank Georgetown district with views of the Potomac River and a rent significantly higher than other tenants in the same building. And board members wrote themselves a policy that doubled the amount they could claim for meals compared with their staff.

There's more:

The headquarters has multiple conference rooms and kitchen/pantry areas. Yet, the corporation's 11-member board of directors holds its meetings at hotels around the country, including Washington, at costs ranging from $20,145 to $55,125, the latter in San Juan, P.R.

The decision not to use the headquarters conference room was explained in an October 2004 memo from board chairman Strickland. He said board members, who work outside the corporation, preferred the Melrose Hotel in the same upscale neighborhood as the headquarters.

The board members sought "convenience to their rooms" and did not want to "feel confined" to headquarters for two entire days, he said. In addition, he said he was worried that the headquarters lacked privacy because "all meeting rooms at LSC have glass walls."

Bills from the Melrose, with all costs per person, included: a $59 three-entree buffet, an $18 breakfast featuring scrambled eggs with chives, a $17 breakfast including Belgian waffles, a $28 deli buffet, a $13 "high tea" service, a $12 "bagel break," a $12 "Crazy for Cookies" assortment and $14 "Death By Chocolate" desserts.

For the cost of a $50,000 LSC board meeting, a legal aid group could have hired one, maybe two attorneys who might have served several hundred clients over the course of a year. I wonder how many people were wrongfully evicted or ripped off by a sleazy contractor or mortagage lender so that LSC lawyers could dine on a breakfast buffet. At a time when even large law firms are cutting back on extravagances because of client complaints about budgets, LSC's conduct is shameless. Let's see what the ABA or the state bar grievance committees have to say about this.

August 17, 2006 | Permalink | Comments (13)

More Hot Coffee for Lawyers

At Overlawyered, there's a post by Christopher "KipEsquire" Tozzo about a recent $310,000 verdict against Starbucks for injuries caused by a hot-coffee spill that some say is reminiscent of the Stella Lieback case against McDonalds of several years back (more discussion of the McDonalds case by Overlawyered here). In the Starbucks case, an employee failed to put a sleeve on a cup of hot coffee and then pushed the scalding cup across the counter to lawyer Alice Griffin. The coffee spilled on Griffin's foot, causing second-degree burns and permanent nerve injury. The judge opined that the verdict seemed excessive, but she declined to reduce the award, much to Tozzo's apparent disappointment (Go figure, he says.).

Another Overlawyered writer, Ted Frank, offered his somewhat surprising opinion of the Starbucks case in this post. Though Frank disagreed with the verdict in the McDonalds case, for him, the Starbucks suit differs. He explains:

But this case is not the Stella Liebeck case. They both involve coffee, but that's the only similarity. Alice Griffin is not suing  Starbucks because their coffee was "too hot." She's suing Starbucks because an employee allegedly dropped a cup of coffee on her foot, causing damage. Assuming no one's lying about how the accident happened, I don't have a problem with that theory of the case: that's just basic principles of negligence and respondeat superior. My objection to the McDonald's coffee case is that McDonald's didn't cause Stella Liebeck to injure herself any more than the manufacturer of Liebeck's sweatpants did, but the plaintiffs sought to hold McDonald's liable anyway. If a McDonald's employee had been the one who spilled Liebeck's coffee, McDonald's should be liable for Liebeck's injuries. But the temperature of the coffee is irrelevant to that inquiry.

Frank also believed that the judge had no grounds for granting remittur:

$301,000 for second-degree burns on a foot strikes me as high, but it's within the realm of the law in New York. The solution, in my mind, is to change the law on non-economic damages, but that's the role of the legislature, not an individual judge.

August 17, 2006 | Permalink | Comments (0)

Lawyers Choose Government for National Security, not Job Security

Once again, government is one of the hot employers for new graduates  for security, as in "national security" rather than job security. As this article, "Young Lawyers Flock to Chertoff & Rumsfeld," NY Observer (8/17/06), reports,  "national-security work is the hot government work right now." Though a few D.C. firms have national security practices, it seems that the real excitement lies in jobs with the Department of Justice, Homeland Security and Treasury Department, which oversees issues related to terrorist financing. Another popular destination is the NYPD’s counterterrorism division, which has been hiring lawyers with Ivy League law-school degrees to serve as “civilian analysts.” At least one law student is seeking clerkships with judges in the D.C. and Eastern District of Virginia, which handle many national security issues because of close proximity to the Pentagon and Department of Defense. And, the relationship between increased national security measures and civil liberties has made national security experts desireable candidates at the ACLU and other similar organizations.

Positions prosecuting terrorism, such as those in the U.S. Attorney's Office in New York, which handled the prosecution of the first World Trade Center bombing in 1993, remain popular, but in contrast to the pre 9-11 era, these jobs are no longer the only option for students interested in national security issues. As the fight against terrorism moves from criminal prosecution to longer-term investigation and policy making, many job opportunities for national security are focused in D.C. It's great to see that so many new, qualified lawyers have found an outlet for their skills in a practice area that impacts all of our daily lives. 

August 17, 2006 | Permalink | Comments (0)

August 16, 2006

Study Slams Large-Firm Web Sites

Law firms and other professional services firms fail to apply common sense in the design of their Web sites, says an article in the current issue of Consulting Magazine. The article by Edward Hastings and Robert Buday of The Bloom Group reports on their recent study, The Effectiveness of Professional Services Websites, in which they evaluated the sites of 80 large professional services firms, including 20 law firms. They write:

"Our recent study of professional services Web sites found that most are not organized in a way that effectively introduces their firms to prospective clients -- that is, by helping a prospect to quickly determine whether the firm has the deep expertise and experience to solve his particular problem."

I'll admit that I like this report because it confirms what I have preached for years: The focus of law firm Web sites should be external, not internal; sites should speak to the interests of clients and prospects, not to the egos of partners and managers. But firms don't get it, as the article reports:

"Most of the sites we studied were organized not by the types of client problems they solved. Instead, they were organized by their office structure, list of partners, articles and books written, and sometimes client projects. And while most sites offered practice areas or service lines, their descriptions of their practices and services often left it unclear exactly what client problems they addressed."

Of the 20 law firms included in the survey, the report gave highest ranks to Wilmer Hale, White & Case and Paul Weiss. But as Rees Morrison notes at Law Department Management, even the best-ranked site achieved barely a 50 percent rating. Morrison sees benefit in the study for law department lawyers who forage large-firm sites. "The Bloom Group has done law departments a service when it evaluated 20 prominent firms based on their site’s usefulness of organization for potential clients and depth of content," he says.

The bottom line is that a little common sense can go a long way in Web design. As Hastings and Buday write in their Consulting piece, firms "must decide whether their sites are organized to please the firm’s professionals or to capture the interest of their prospects."

August 16, 2006 | Permalink | Comments (0)

Lobby Firms Report Flat Earnings

Is it the Abramoff effect? Several lobbying firms say their midyear revenues are flat or down from record earnings in 2005, The Hill reports today. Lobbyists attribute the dip in part to the Abramoff scandal, but more to a less-ambitious legislative agenda, the report says.

Still, the picture is far from bleak. Patton Boggs retained its position as the firm with the highest revenues from lobbying. It earned $17.7 million for the first half of this year, compared with $17.9 million for the first half of 2005 and $37.2 million for the entire year.

For others, the numbers are up. Barbour Griffith & Rogers reported a 15 percent increase over the first six months of last year, up to $11.3 million. Hogan & Hartson reported six-month revenue of $9.7 million compared with $8 million in 2005. Preston Gates Ellis & Rouvelas Meeds reported six-month revenues of $6.4 million, compared with $5.1 million for the same period in 2005.

Overall, declines were not steep, The Hill reports, adding:

"Some firms said lost revenues were more than made up in other areas such as strategic consulting and regulatory efforts that are not required to be reported as part of the Lobbying Disclosure Act (LDA) as the industry continues to diversify. Revenues that fall outside LDA requirements are not represented in the figures in this article."

This year's survey included one new entrant, The Ashcroft Group, founded by former Attorney General John Ashcroft, with $1.4 million in revenue.

August 16, 2006 | Permalink | Comments (0)

Fortune 500 First: GC Launches Blog

As Geoffrey G. Gussis reports at  at InhouseBlogMike Dillon, general counsel of Sun Microsystems, has become the first Fortune 500 general counsel to launch a blog, with his unveiling last week of the legal thing .... In his first post, Dillon explains his reason for the move:

My primary motivation is a question that I am frequently asked. It comes in two forms. From others in my profession, it is articulated as: "What is it like being the General Counsel of a Fortune 500 company like Sun Microsystems?" From my children it is posed as: "Daddy, what do you DO at work all day?" In the future, I'll share with you my observations on life as a GC, my views on a variety of legal issues and business trends and my thoughts about what makes this company so unique.

Dillon joins a number of Sun executives with blogs, including president Jonathan Schwartz.

August 16, 2006 | Permalink | Comments (0)

Ruling on Motion to Compel Lunch

An Arizona judge's order proves that a lawyer can sometimes have his relief and eat it too. The lawyer invited his adversary to lunch to discuss discovery and other matters pending in their Superior Court case. When the opposing lawyer turned him down, he turned to the court for relief, in the form of a "Motion to Compel Acceptance of Lunch Invitation." In a four-page order, Judge Pendleton Gaines granted the motion, concluding: "The Court has rarely seen a motion with more merit."

Judge Gaines wrote that he "searched in vain" for precedent to support the motion, but, finding none, concluded that it was within his inherent powers. Still, he found support for his ruling elsewhere in the literature:

"The writers support the concept. Conversation has been called 'the socializing instrument par excellence' (Jose Ortega y Gasset, Invertebrate Spain) and 'one of the greatest pleasures in life' (Somerset Maugham, The Moon and Sixpence). John Dryden referred to 'Sweet discourse, the banquet of the mind' (The Flower and the Leaf)."

The judge directed that during their lunch, counsel were to confer about their outstanding discovery disputes and jointly report back to the court within a week. His order, of course, included an award of costs:

"The cost of the lunch will be paid as follows: Total cost will be calculated by the amount of the bill including appetizers, salads, entrees and one non-alcoholic beverage per participant. A twenty percent (20%) tip will be added to the bill (which will include tax). Each side will pay its pro rata share according to number of participants. The Court may reapportion the cost on application for good cause or may treat it as a taxable cost under ARS § 12-331(5)."

The ruling left a good taste in the mouths of many bloggers. Perhaps blogger Allan Jenkins said it best, when he called it, "a remarkable act of judicial common sense."

August 16, 2006 | Permalink | Comments (1)

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