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« August 2006 | Main | October 2006 »

September 29, 2006

Law Librarian's Guide to Witchcraft

Well, actually, it is the Girl's Guide to Witchcraft, but it is the latest book from lawyer cum law librarian cum novelist Mindy Klasky Maddrey. The book, released this week, is the story of Jane Madison, a special librarian who discovers that she's a witch. "Jane's story combines the single-girl angst of Bridget Jones's Diary with the magic of Harry Potter," Maddrey says. And librarianship, she adds, is vital to the plot. Romantic Times calls the book, "an irresistible tale of power and love, friendship and acceptance."

This is Maddrey's seventh novel. She has written a five-book fantasy series known as the Glasswright series that tell the story of Rani Trader, a merchant girl who witnesses an assassination and is accused of being the killer. The first book in the series, The Glasswrights' Apprentice, won the Barnes & Noble Maiden Voyage Award for best first speculative fiction novel in 2000. Her other book, Season of Sacrifice, is also a fantasy novel.

D.C.-based Maddrey, who writes under her maiden name Mindy Klasky, put in seven years as a trademark and copyright lawyer at Arent Fox (when it was still Arent Fox Kintner Plotkin & Kahn). She became a law librarian to give herself more time to write. She started in the library at Steptoe & Johnson, then returned to Arent Fox to work in its library for seven years. She is now at Kelley Drye Collier Shannon.

Maddrey somehow finds time to write a blog, Virtual Cocktails. As if all that were not enough, Jane Madison, the heroine of her latest novel, writes one too.

September 29, 2006 | Permalink | Comments (0)

What Ann Baskins Teaches

The blogosphere will no doubt have a field day with Ann Baskins' resignation as HP's general counsel. But what are the lessons for general counsel elsewhere? Of the commentary I've read so far, I like the common-sense analysis offered by The Wired GC:

"One emerging lesson seems to be that everything comes out in the press eventually and that has to be weighed when examining options. What is possible may not be wise. What is legal may not be right. And I know that some alleged conduct of HP is of dubious legality.

"The phrase 'the cure is worse than the disease' seems somewhat apt here."

In legal writing, we use the phrase, "emphasis added." Let's add emphasis through repetition for corporate over-reachers everywhere: "What is possible may not be wise." Had HP only had The Wired GC.

Meanwhile, let us not mourn Ms. Baskins. Legal Pad reports that her jump was eased by a particularly golden parachute.

September 29, 2006 | Permalink | Comments (0)

Ethics Searching, Simplified

Last year, Kentucky lawyer Ben Cowgill found his blog, legalethics.info, at the center of an ethical controversy. As he explained it, the problem arose over a Kentucky rule that required a lawyer to file and pay a $50 filing fee every time the content of an advertisement was modified. As Kentucky's first lawyer/blogger, Cowgill presented a problem. And when that problem came to the attention of the blogosphere, Cowgill because a virtual cause celebre. Since then -- undoubtedly, with thanks to Cowgill -- the state's Attorney Advertising Commission has adopted what Cowgill describes as "a fair and sensible approach to the regulation of law-related blogs."

That battle behind him, Cowgill has turned his attention to other things, including the launch this week of a new Web site for his solo law practice representing lawyers in legal ethics matters. It is a nice site, and you should have a look. But what makes it worth mentioning here is one unique feature -- the Legal Ethics Search Engine. It enables one to search over 10,000 pages of information and commentary about legal ethics from a variety of sources, all from a single search page. In addition to Kentucky ethics opinions, the site searches the ABA Center for Professional Responsibility, The American Legal Ethics Library at Cornell University, LegalEthics.com, Freivogel on Conflicts and the legal ethics site Hricik.com.

If you have an ethics question, try Cowgill's search engine. If you don't find the answer there, you can always try Cowgill himself.

September 29, 2006 | Permalink | Comments (1)

September 28, 2006

The One That Gotti Away

According to this New York Times article, US May Be Ready to Say Enough (9/28/06), it looks like the feds are ready to give up on Gotti. For the third time in the past year, the judge in the racketeering case of mob boss John Junior Gotti declared a mistrial after the jury sent a note saying it was deadlocked. Two previous juries were deadlocked as well, also resulting in mistrials. The jurors agreed that Gotti had been involved in the kidnapping of radio talk show host and Guardian Angels founder Curtis Sliwa, but that finding was not sufficient to convict him of racketeering. Gotti's defense attorneys took the position that Gotti severed his mob ties long ago.

Though the trial has cost the federal government millions, according to the New York Times article, repeat prosecutions nevertheless favor the government, which can draw on virtually unlimited public funds.  By contrast, many defendants, Gotti included, run low on cash after defending themselves in serial trials.

Still, it's probably a safe bet that the government will rest after this trial:

Victor Hou, the assistant United States attorney who delivered closing arguments in Mr. Gotti’s second and third trials, has been with the office since 2001. Fourth trials are extremely rare, lawyers said. “I think the conventional wisdom among defense lawyers is three strikes and you’re out,” Mr. Pomerantz said.

No wonder they say "three times the charm."

September 28, 2006 | Permalink | Comments (3)

Lawyers a-Go-Go

Today's lawyers may not be any happier than their predecessors, but they're certainly more mobile, as the recent results of the 2006 ABA Technology Survey bear out. In this article on the survey, Lawyers More Mobile but Stuck on Basics on Technology (9/27/06), Laura Ikens summarizes some of the survey's findings. Among other things, laptop use has grown universal, with 71 percent of solos reporting that they have laptops and over 90 percent of lawyers at firms of 50 attorneys or more. Likewise, virtually all attorneys have Internet access away from the office, though 19 percent still use dial-up service from home. PDAs and Smartphones are prevalent, though portable printers and scanners are not popular, nor is software that allows remote access to office computers (my guess is that the increased use of laptops means that lawyers simply carry work back and forth instead of accessing it from their office machine). And while many attorneys are using PDAs and BlackBerrys, it's typically for communcation rather than for spreadsheets, legal research or document creation.

Finally -- and not surprisingly -- the courtroom is the last place to be touched by technology. Sixty-four percent of attorneys do not use laptops in court; those who do use them for presentations, litigation support and online research.

In the past year, growth in use of mobile devices has been only incremental. 'd be interested in seeing statistics not on differences between large firm and small firm usage but, rather, generational differences. Are younger attorneys the ones who are driving the trend towards mobility? If so, I expect that within another generation or two, we can expect to see more of the profession "mobilized."

September 28, 2006 | Permalink | Comments (2)

Looking Outside for In-House Training

The typical career path for an in-house attorney involves working at Biglaw and, after a couple of years, moving in-house. But now, according to this press release, U.S. banking giant Citigroup plans to formalize this tradition, with a newly announced training venture that it's formed with megafirms like Cleary, Bingham and Paul Weiss. According to the press release, Citigroup will recruit and hire the candidates for the program from law school, then detail them to the law firms for two years of training, at law firm salaries and a $35,000 signing bonus. Upon completion of the program, the participants will be offered a vice president position at Citigroup.

Seems like a win-win situation for all parties involved. Citigroup gets its pick of the law school litter and free training from top firms. And the law firms that train the graduates ensure that they'll have an inside track to business at Citigroup when the associate returns to the bank at the end of the two-year law firm stint.

According to the article, Citigroup is rolling out a pilot version of the program for this coming summer, hoping to bring on six trainees for the global wealth managment division. And eventually, the program may be expanded to encompass Citigroup's 1,100-member legal team.

September 28, 2006 | Permalink | Comments (0)

When Your Blog Comes Back to Haunt You

Turns out that what we love about blogs -- their easy "find-a-bility" online and their informality -- may also be what may potentially bring us harm. Over at his home site, Law Sites, my colleague Bob Ambrogi links to this report from the Boston Globe on the hidden risks of blogging.

One story covered in the article involves  Boston lawyer Edward A. Prisby who was rear-ended by a Cambridge city councilor and ranted about it on his blog, Prizblog. At a subsequent hearing over whether to charge the councilor with DUI, the councilor's lawyers used Prisby's post in an effort to suggest that he had a political ax to grind.

The Prisby matter isn't the first time that a blog has been used in a legal proceeding. From the Boston Globe article:

In March, a Plymouth doctor's blog was cited as proof that he continued to harass a female patient who had secured restraining orders against him. In April, a Maine man was sued for allegedly posting defamatory blog entries in which he criticized an advertising agency's work for the state tourism office. And in a high-profile national case, Apple Computer filed a lawsuit seeking the identities of people who allegedly leaked information about new Apple products to several bloggers.

The article also speculates about the increasing use of blog postings in court:

Blogs are also being cited in a growing number of civil cases, most commonly claims alleging libel, defamation, or invasion of privacy. Unlike e-mail, which usually remains private unless it is forwarded by a recipient, blogs are public by nature unless privacy settings limit their audience. They are also easily findable by Internet search engines, in contrast to e-mails, which lawyers generally can obtain only through the discovery process.

I'm sure that some overzealous law firms and bar associations will use stories like this as further justification for banning lawyer blogs entirely. That approach would be mistaken. We lawyers don't need to stop blogging; we just need to remember to exercise a little bit of discretion when we do.

September 28, 2006 | Permalink | Comments (6)

September 27, 2006

Previewing the Supreme Court Term

The first Monday in October is just around the bend. Among Supreme Court watchers, that means their scopes are up and focused on the first full term of the Roberts Court. For the Chief Justice of the United States, the coming term is unlikely to be as harmonious as his first, says Legal Times correspondent Tony Mauro at Law.com:

Roberts’ second term as chief justice begins Oct. 2 with a slew of tough curveball cases on the docket. Contentious disputes over abortion rights, race, punitive damages, and the environment loom large, and the Court has only just begun to fill its argument calendar for the term.

The term may also prove a litmus test for the Court's other new justice, Samuel Alito Jr., who replaced centrist Sandra Day O’Connor, and for Justice Anthony Kennedy, who replaced O’Connor as the court's unofficial swing voter, Mauro says:

Nowhere will O’Connor’s departure mean more this term than in a pair of cases set for oral argument Nov. 8, Gonzales v. Carhart and Gonzales v. Planned Parenthood. At issue in both is the federal law banning "partial birth abortion," which Congress passed in the wake of the Court’s 2000 decision Stenberg v. Carhart, which struck down a similar statute in Nebraska because it failed to include an exception that would allow the procedure if needed to protect the health of the mother. The federal law also does not contain such an exception, but Congress cited medical evidence — which abortion rights supporters dispute — to conclude that the procedure is never needed to protect a woman’s health. ...

Kennedy now must grapple with a no-win dilemma that rivals the agonizing he did before Casey, which at the time produced his now-classic musing: "Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own towline."

Also on Law.com, National Law Journal Supreme Court reporter Marcia Coyle predicts that the term is likely to deliver drama early on. Even though the Court has yet to fill out its docket, she says, just the cases it has so far agreed to hear offer "plenty of potential drama and legal significance." Like Mauro, Coyle reports that the abortion cases are likely to be early tests of Roberts' consensus-building efforts, as are two key affirmative action cases, Parents Involved in Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board of Education.

Parents in both cases are challenging school integration guidelines that prevented their children from attending their school of choice because of their race or ethnicity. The Bush administration has intervened in the cases on the side of the parents, arguing that the guidelines involve "outright racial balancing" which is "patently unconstitutional."

Elsewhere, Scott Nelson at Consumer Law & Policy Blog discusses two Fair Credit Reporting Act cases the Court accepted yesterday that raise the question of whether a willful violation is established by proof of reckless disregard of the law. At Sentencing Law & Policy, Douglas Berman hopes for the Court to provide post-Booker clarification on sentencing procedures and reasonableness review.

For a more in-depth look at the 2006 term, The Cato Institute's Center for Constitutional Studies presents audio and video from its Sept. 14 full-day program, The Supreme Court: Past and Prologue. Panels of Supreme Court academics and practitioners look ahead to the new term and also discuss the state of federalism, executive power and the First Amendment.

September 27, 2006 | Permalink | Comments (0)

Law Firms and 'Enterprise RSS'

Ron Friedmann writes at Strategic Legal Technology about how law firms are using enterprisewide RSS readers to manage and simplify the delivery of information from multiple sources. He focuses on one company, Newsgator, which says that its enterprise-RSS tool is in place at multiple Am Law 200 firms.

Lawyers get their critical updates in one place – Outlook or portal – rather than as a stream of e-mail or print publications. Blackberry delivery is also an option. Newsgator and other enterprise RSS systems let lawyers customize pre-selected practice group info by adding their own "feeds" from their favorite blogs or other sources. Lawyers can also easily share updates with their colleagues, which sure beats penning names on routing slips.

A major advantage of RSS technology, says Friedmann, is that it "does something for lawyers, not to them." It also makes life easier for law firm librarians and CIOs, he says.

Firms can now monitor which sources are used and what lawyers actually read. This provides data to rationalize source selection and allows further customizing content over time. Now, lawyers who yell loudest about favorite publications won’t necessarily get their way.

With budget season at hand, Friedmann recommends, "BigLaw should be considering enterprise RSS solutions for 2007."

September 27, 2006 | Permalink | Comments (0)

Estate Planning for E-Mail

With so much of who we are nowadays stored behind passwords online -- e-mail, address books, appointment calendars and financial records -- should our estate plans provide for our passwords? That is the question writer Elinor Mills raises in a CNET News.com article, Taking Passwords to the Grave. She relates the story of William Talcott, a prominent San Francisco poet who died of cancer in June. His daughter, Julie Talcott-Fuller, asked Yahoo! for access to his online address book and e-mail so that she could notify his friends and fans. Yahoo! turned her down, citing privacy laws.

But property, not privacy, is the issue, Marc Rotenberg, executive director of the Electronic Privacy Information Center, tells Mills:

"The so-called 'Tort of Privacy' expires upon death, but property interests don't. Private e-mails are a new category. It's not immediately clear how to treat them, but it's a form of digital property."

This is why Michael W. Blacksburg, a San Francisco estate-planning lawyer, advises his clients to put all their online passwords in an estate-planning document. In fact, he even asks them what should happen after death to their electronic media, such as music in iTunes and photos in Shutterfly.

At the [non]billable hour, Matt Homann points to this article and asks, "Is anyone doing this?" I would, but I would first have to face a duanting obstacle -- remembering all my passwords.

September 27, 2006 | Permalink | Comments (0)

N.Y. Bar OKs Overseas Outsourcing

New York lawyers may ethically contract with overseas nonlawyers to perform legal support services such as legal research, document review and drafting of pleadings or legal memoranda, according to a recent ethics opinion issued by the Association of the Bar of the City of New York. In giving its seal of approval to a practice that is becoming increasingly common, the bar said that lawyers who outsource legal work must nonetheless follow strict ethical guidelines.

"A lawyer may ethically outsource legal support services overseas to a non-lawyer if the lawyer (a) rigorously supervises the non-lawyer, so as to avoid aiding the non-lawyer in the unauthorized practice of law and to ensure that the non-lawyer’s work contributes to the lawyer’s competent representation of the client; (b) preserves the client’s confidences and secrets when outsourcing; (c) under the circumstances described in this Opinion, avoids conflicts of interest when outsourcing; (d) bills for outsourcing appropriately; and (e) under the circumstances described in this Opinion, obtains the client’s informed advance consent to outsourcing."

An alert issued yesterday by Lawyeringlaw.com, a professional responsibility site maintained by the law firm Hinshaw & Culbertson, said that the opinion requires attorneys to be diligent in supervising the outsourced work.

"The committee recognized the economic advantage businesses have obtained in outsourcing work overseas. Although some jurisdictions have held that any work performed by a non-lawyer under the supervision of an attorney is not the unauthorized practice of law, the committee did not go that far. It found proper supervision to be the key consideration. Attorneys must use their professional skill to set the scope of the outsourced work and review the completed work product to ensure quality.

This means, the alert said, "Attorneys cannot allow physical distance to relax their vigilance."

September 27, 2006 | Permalink | Comments (0)

September 26, 2006

Where Are the Pro Bono Attorneys When You Need Them?

Talk about a deprivation of Sixth Amendment rights or ineffective assistance of counsel just waiting to happen. This article by New Orleans criminal defense attorney Dwight Doskey,  Trapped in the Courtroom:  As Indigent Lawyers Disappear, One Is Left (Sept. 22, 2006), describes how he has been left as the sole attorney to represent 20 defendants in capital cases in New Orleans:

This summer, changes at the public defender's office resulted in the resignation of a number of attorneys, including two of the three remaining attorneys who handled death penalty cases. Five lawyers had been handling 27 capital cases pre-Katrina, far more than allowed under any nationally approved scheme; that insufferablecaseload then devolved upon the remaining three.

Of the three remaining attorneys, one resigned because, like all the attorneys, he had been asked to devote himself to the job full-time, and he felt that he wouldn't be able to get along without the income from his private practice. Another was reassigned to non-death-penalty cases.

That left me.

I resigned as well, but money was not my reason. Though offered a salary greater than I ordinarily derive from both my public defender work and my private practice combined, I chose to quit effective Sept. 15 rather than continue to work under impossible conditions. The public defender's office was given almost two months' notice that I would not be able to try any more capital cases.

If I thought I was going to be able to walk away from those cases, I was wrong. Because the public defender's office took no steps to replace the departing attorneys, all but one of the judges ordered me to remain on the public defender's cases last week. The other attorney who quit may soon find himself in the same situation.

At the end of last week, I was the attorney on approximately 20 capital cases. It is unclear whether I will be paid at all, even though by Supreme Court standards this could be full-time employment for the next five years.

Last year, lawyers came to the rescue to help out their colleagues in the aftermath of Katrina. Let's not forget that some, like Doskey and his clients, still need assistance. This sounds like a neat pro bono projects for law firms, with potential for a jury trial and perhaps, down the line, an appeal to the U.S. Supreme Court (which plenty of law firms are avid to obtain). Any takers?

September 26, 2006 | Permalink | Comments (0)

Discovery Pays, but Sometimes, Plaintiffs Pay for Discovery

Ah, the amazing possibility of electronic discovery, which allows litigants access to every little shred of e-mail, every memo and every PDA entry ever created on the company computer. Surely, somewhere in all of those megabytes of data, a plaintiff suing for discrimination is bound to find a smoking gun. But not always, as Craig Williams of May It Please the Court describes in this post.

Williams blogs about the recent federal court decision in Claudia Quinby v. WestLB AG, No. 04 Civ. 7406, S.D. N.Y. , where the plaintiff "couldn't seem to fashion a good question to get the discovery results she wanted," even though defendants ran up nearly a quarter-million-dollar tab in an effort to respond  to plaintiff's request. Consequently, as Williams writes, since "the court found that since the results were something very much less than spectacular, the Plaintiff should bear some of the cost, and shifted some $30,000.00 to her. "

As we all know, discovery can pay. And as Quimby bears out, when discovery doesn't pay, the party seeking it (in this case the plaintiff) just might pay instead.

September 26, 2006 | Permalink | Comments (2)

Now, Fastow and Olis Have Something in Common: Six Years

It's not often that we're happy to get less than what we bargained for. But presumably, former Enron executive Andy Fastow is elated with the six-year prison sentence he received for his role in the criminal activity that brought the demise of Enron as reported in articles like this one at Forbes. After all, Fastow had originally agreed to a 10-year sentence in exchange for his cooperation with prosecutors, which he'd testified about in some detail during the Skilling-Lay trial.

The six-year sentence gives Fastow something in common with Jamie Olis, the midlevel Dynegy executive we blogged about here last week. But as Tom Kirkendall of Houston's Clear Thinkers writes, six years is about all the Fastow and Olis have in common. From this  Kirkendall post:

On one hand, Andrew Fastow --  who served up his wife as a sacrifical lamb for his embezzlement of millions from Enron that triggered one of the largest bankruptcy cases in U.S. history, who used the NatWest Three to hide his embezzlement of millions more and then turned on the U.K. bankers to save his skin, who very well may have forged Richard Causey's initials on the Global Galatic "agreement," whose bizarre testimony during the Lay-Skilling trial was largely discounted by jurors and who had a large hand in ruining the careers of four innocent Merrill Lynch executives in order to lessen his prison sentence -- is sentenced to six years in prison.

On the other hand, Jamie Olis -- who worked on a transaction to improve his company's earnings, did as he was told by his superiors, did not profit from the transaction, defended his company and himself against allegations of wrongdoing with regard to the transaction and did not trigger any type of insolvency case by his company -- is sentenced to six years in prison.

Morever, as Austin defense lawyer Jamie Spencer points out in this post, Judge Lake reduced the Olis sentence to six years expressly because the fraud involved was not meant to defraud the company or its shareholders and was not meant to enrich the defendant. Seems that under Judge Lake's standard, Fastow doesn't deserve a six-year sentence, whether he cooperated or not.

So what explains the Fastow sentence? Is it simple irrationality as Kirkendall suggests? Did a good word from Enron shareholders, now involved in class action litigation against Enron that has been aided by Fastow's continued cooperation make a difference, as noted in Peter Lattman's WSJ Law Blog post? Or is this the kind of leniency that defendants can expect in exchange for cooperation with the government and foregoing rights to a jury trial, as suggested by Ellen Pogdor at the White Collar Crime Blog? 

Maybe by the time Fastow and Olis are released from prison, we'll have figured out a way to punish and deter corporate crime while maintaining some semblance of fairness in our system of justice.

September 26, 2006 | Permalink | Comments (1)

Why Lawyers Work -- It's Not All About the Billables

Sometimes, it's hard to remember that lawyers work for anything but money, with the focus on stratospheric associate salaries, the obsession with billable hours and the general public perception of lawyers as money-grubbers. But as Arnie Herz of Legal Sanity reminds us in this post, lawyers work not just for money. Herz cites a couple of articles that discuss why we work, including this piece, Why Do We Work? by Jenner & Block lawyer Gregory Gallopoulos. Gallopoulos identifies many reasons that lawyers work, including intellectual growth, personal and institutional pride and recognition. He concludes:

Why do we work? For money, but also for sanity. We expect and need to be compensated in nonmonetary ways. Noneconomic compensation matters to top-flight lawyers -- otherwise, they would have long ago fled to investment banks. Law firms that want to recruit and retain the best (and the sanest) must compensate not only in dollars but also in psychic gratification. Accordingly, managers of elite firms need to think consciously about what lawyers are looking for beyond money.

If your legal career isn't bringing you much more than dollars, perhaps it's time you asked yourself a different question: Why am I working as a lawyer at all?

September 26, 2006 | Permalink | Comments (0)

September 25, 2006

Same-Sex Divorce Confuses Even Lawyers

Howard Bashman points to a pair of articles from the San Francisco Chronicle today on the new legal issues faced by divorcing gay couples. In The Battle Over Same-Sex Marriage, staff writer Wyatt Buchanan says that same-sex couple who break up are finding themselves in a legal morass that confuses even their lawyers.

State divorce laws conflict with federal tax laws; differences among states' laws can jeopardize child-custody agreements if one or both partners move; and some attorneys are shying away from same-sex divorces for fear of their own liability.

In a companion piece, Same-Sex Marriage Foes Say Divorces Prove Their Point, Wyatt reports that two high-profile break-ups -- Julie and Hillary Goodridge, the named plaintiffs in the Massachusetts case that legalized same-sex marriage, and Carolyn Conrad and Kathleen Peterson, the couple in the nation's first same-sex civil union -- are providing fodder for opponents of gay marriage.

"The separation of Julie and Hillary Goodridge is tragic not only for their daughter," the Rev. Lou Sheldon of the Traditional Values Coalition said in a statement released the day after the couple confirmed the separation. "But ... they have clearly shown just how little they value the institution of marriage and provide a chilling look into what our nation faces if homosexual marriage is legalized elsewhere."

One case may work its way to the Supreme Court, the article suggests. It involves a lesbian couple who entered into a Vermont civil union, had a child and then broke up. The biological mother moved to Virginia, where a court a court ruled the nonbiological mother had no custody rights. But a Vermont court has ruled she does.

September 25, 2006 | Permalink | Comments (7)

A Pod of Legal Podcasts

Apple Computer claimed Friday that use of the name "podcast" violates its trademarks. We may leave that one for Marty Schwimmer to sort out, but Friday's news has not dampened the enthusiasm of those who create or enjoy law-related podcasts. Here is a wrap-up of several recent podcasts worth your listening time:

• At Coast to Coast this week, we look at the backlash over backdating of stock options with guest Steven R. Barth, partner with Foley & Lardner in Milwaukee and chair of that firm's National Directors Institute.
• SCOTUSblog interviews NPR Supreme Court and legal-affairs correspondent Nina Totenberg.
• Boalt Hall law professor Robert C. Berring Jr. kicks off a series of legal research podcasts.
• Ernie the Attorney sings his thoughts on the anniversary of Hurricane Katrina.
• Seattle's King County Law Library unveils its inaugural podcast.
• Bill Heinze unearths an entire trove of do-it-yourself legal podcasts created by Nolo.
• The Wired GC discusses Legal Literacy for Business, with guest Hanna Hasl-Kelchner, a corporate counsel and author of The Business Guide to Legal Literacy.
• McNabb Associates discusses the release of the FBI's study of crimes committeed in 2005.
• Evan Schaeffer offers advanced deposition techniques.

So listen to your heart's content. Just don't call them podcasts.

September 25, 2006 | Permalink | Comments (0)

ODR Cyberweek Kicks Off Today

As I note at my LawSites blog, the annual, all-online and entirely free Cyberweek conference starts today, dedicated to the future of online dispute resolution and online justice. The conference is organized by the University of Massachusetts Center for Information Technology and Dispute Resolution and InternetBar.org. Here is the nutshell description:

Cyberweek consists of many different kinds of activities and opportunities, from Skypecasts to meetings in virtual worlds to Podcasts to discussion forums and more, all related to the topic of Online Dispute Resolution (ODR). Cyberweek is a free all-online conference and we invite you join us in both asynchronous and real-time events. Last year, we had several hundred participants from over forty countries and we are working to have a most ambitious program this year.

The schedule of events runs through the week. Several forum discussions begin today, including:

• A Spanish-language ODR forum, with Alberto Elisavetsky, CEO, PDVSA División Eventos Virtuales, and ADR professor at the Universidad Nacional de Tres de Febrero, Buenos Aires, Argentina.
• "ODR and Virtual Worlds," with Ethan Katsh, founder and director of the Center for Information Technology and professor of legal studies at the University of Massachusetts, Amherst.
• "ODR in the Physical World," with Dr. Orna Rabinovich-Einy, assistant professor of law, Haifa Law Faculty; Frank Fowlie, the ombudsman of the  Internet Corporation for Assigned Names and Numbers; and Benjamin Davis, professor of law at the University of Toledo College of Law and founder of the International Competition for Online Dispute Resolution.
• "Technology, Culture and ODR," with Mohamed S. Abdel Wahab, lecturer in law at Cairo University, Egypt.
• "Use of Technology and ODR in Conflict Transformation and Peacebuilding," with Sanjana Hattotuwa, content and strategic engagement consultant and founding member of Info-share.org.

On Thursday, I will participate as a panel member in an online teleconference program, "Mediation Excellence in Cyberspace," part of a three-day series of teleconferences on mediation excellence organized by John DeBruyn at CoADR Online.

September 25, 2006 | Permalink | Comments (0)

Maister Masters Blawg Review

David Maister has built a reputation as a leading international consultant on the management of professional services firms. The name of his blog sums up his approach to management: Passion, People and Principles. This week, he turns his consultant's eye to the legal blogosphere to write Blawg Review #76. Given his occupation, and the fact that he is not a lawyer, he restricts his choices of blogs to review "to the themes of work and professional life, firm management, marketing, strategy and careers." Thus, he picks up on blog posts related to such topics as competition versus collaboration, work-life balance, leadership and performance, branding, marketing and advertising.

Next week's host: Patent Baristas.

September 25, 2006 | Permalink | Comments (0)

September 22, 2006

Coudert Brothers Declares Bankruptcy

International law firm Coudert Brothers has filed a Chapter 11 bankruptcy petition in U.S. Bankruptcy Court in Manhattan, according to this news item from the WSJ Online (9/22/06). According to the article, Coudert originally announced a plan to wind down business after failing to find a suitable merger partner. 

So if Coudert was planning to wind up business anyway, why file for bankruptcy now? Apparently, Coudert has since lost two lawsuits, including a $2.5 million malpractice suit, and claims it does not have the money to pay the judgment. At a minimum, the bankruptcy will stay collection of the judgment. In addition, Coudert's former partners have put away funds that Coudert says belong to the firm.   

Coudert isn't the first major law firm to file for bankruptcy. In 2003, following the collapse of the dot-com bom, San Francisco-based firm Brobeck filed for bankruptcy, soon after Tower Snow moved his lucrative practice to Clifford Chance (apparently the right decision!). Time will tell how things will work out for those departing Coudert.

September 22, 2006 | Permalink | Comments (1)

How to Keep Your Hand on the Scales of Justice While You've Got Your Eye on Raising Your Kids

This article, Lawyers Who Take Time Off Face Tough Return (Legal Times -- September 22, 2006) reports on the new initiatives sponsored by bar associations and law schools around the country to help attorneys (primarily women) who take time off to raise their children keep connections with the law and ease their transition back into the profession. Among other things, the projects will "give nonpracticing attorneys a way to keep abreast of major legal developments and to give them opportunities for informal networking." One such program founded by attorneys from Skadden Arps is already in place in New York, and another is readying for launch in Washington, D.C.

In many ways, this kind of program -- which helps women who've left the workforce to return -- is preferable to the not-very-successful part-time plans. Part-time plans usually fail either because of "hours creep," where women wind up working longer hours for part-time pay, or because they don't provide the accommodation that they promise. After all, working a 35-hour week (light by law firm standards) doesn't allow much quality time for family.

As I've written previously, women who want to achieve work-life balance need to start planning for it in law school. But for those who haven't done so -- and choose to step out of the job market to raise families -- these types of transitional programs help make up for lost time.

September 22, 2006 | Permalink | Comments (0)

Legal Fees On the Rise -- and Why Is That a Surprise?

This News Flash from Monsters and Critics reports on something that shouldn't come as much of a surprise: Law department expenses increased by almost 8 percent in FY 2005. From the story:

The newly released 2006 Altman Weil Law Department Metrics Benchmarking Survey, published in partnership with LexisNexis Martindale-Hubbell, reports that total law department expenses in all companies surveyed averaged $914,229 per lawyer, up 7.9 percent in fiscal year 2005.  Fees paid to outside lawyers rose 5.5 percent to $602,070 per lawyer on average for all law departments nationwide.  Fees for running an in-house legal department rose to an average of $332,823 per lawyer, a 2.6-percent increase over the prior year. Lawyer compensation and benefits, the biggest internal expenditure, averaged $258,205 per lawyer.

Though the firms paying out $145,000 in salaries would like us to believe that law firm partners are absorbing the increase in associate salaries, stories like this one make clear what most of us already figured out: It's the clients who are paying the cost.

September 22, 2006 | Permalink | Comments (4)

A Future Billing Machine Is Born

David Banh just graduated from University of Virginia and probably won't continue on to law school until he completes his masters in math. But if law firms are smart, they'll initiate efforts to recruit Banh right now, because he's destined to become a veritable billing machine.   

What makes Banh so special? As this article, U-Va's One Year Wonder Teen Graduates Early (Washington Post 9/20/06), Banh whipped through college in one year, relying on a combination of 72 AP credits that he collected in high school, followed by 23 credits his first semester in college (instead of the usual 15),  a whopping 37 credits the next (he'd complained that he had too much time on his hands the first semester), with the last three, needed for a double major, completed during the summer. The article reports that after finishing up a masters in math, Banh will forego the doctorate and head to law school to become a patent attorney. So law firms, start your recruiting engines:  This guy just might bill 3,500 hours a year.

September 22, 2006 | Permalink | Comments (0)

Was Justice Served With the Resentencing of Jamie Olin?

For the past two and a half years years, Tom Kirkendall of Houston's Clear Thinkers has been offering continuing coverage of the long, tragic story of Jamie Olis, a midlevel executive at Dynegy who was sentenced by federal district Judge Sim Lake to a 24-year prison term for his involvement in a fraudulent accounting scheme. Today, following a successful appeal of  the original sentence and a remand for resentencing, Judge Lake resentenced resentenced Olis to six years with credit for the 2.5 years that Olin has already served.

Outside of Houston papers, there hasn't been extensive coverage of the Olis case, which has been overshadowed by the numerous Enron prosecutions. But there's much that distinguishes Olin's case and makes him deserving of sympathy, even by those who otherwise supported the Enron prosecutions.

Kirkendall has described the injustice of the Olis case in his previous posts. Olis was a midlevel executive who chose not to accept a plea bargain because he believed that he hadn't acted illegally. By contrast, as described here, Olis' boss (who engineered and approved the deal) received a 15-month deal in exchange for testifying against Olis, while Olis' co-worker got off with only a month in jail. Moreover, all conceded that Olis did not derive any personal gain from the transaction. And finally, the government produced no evidence of the $100 million loss that pushed Olis into a higher category under federal sentencing guidelines -- which ultimately, was the basis for the 5th Circuit's decision to vacate the sentence. 

Still, the government won't rest. Kirkendall reports that the government announced that it will appeal the six-year sentence. And others in the blogosphere, while gratified that the judge substantially reduced the sentence, aren't yet convinced that justice has been served. Here's a major question raised at White Collar Crime Prof Blog about prosecutors' enormous power to effectively punish those disproportionately more harshly for exercising their rights to a trial:

But a question that definitely needs to be considered and addressed by Congress and the courts is whether the government should have this enormous prosecutorial power to leverage individuals against each other in order to obtain evidence for a prosecution on the individual who decides not to enter a plea.  Is it within the bounds of the Constitution to punish individuals with higher sentences because they decide they want to use their constitutional right to a jury trial? Noteworthy here is that no other individuals at Dynegy were charged with criminal or civil conduct, except Gene Foster (Olis' boss) who received a sentence of 18 months and Helen Sharkey who received one month.   

And more thoughts from Doug Berman's Sentencing Blog here and here.

September 22, 2006 | Permalink | Comments (0)

September 21, 2006

The $45 Million-a-Year Lawyer Who Doesn't Even Market

All of the press about the glass ceilings for women at law firms makes it seem as if there aren't any women at all who've managed to make it to the top. So initially, it was refreshing to read this profile about Superwoman Lawyer, Amy Schulman, 45, who not only is the top grossing lawyer in DLA Piper's 3,000-lawyer practice, boasting a client portfolio worth $45 millon, but also has the ability to speed through 600 emails a day.

Given Schulman's success in building a lucrative practice, I ran a Google search in hopes of finding some gems of wisdom that might help other women succeed at firms. Instead, I found this nonsense from an interview with Schulman by Law Practice Today. Asked about her marketing, Schulman replied:

  I never think of myself as “marketing."  I don’t have a secret that I’m not sharing. My rainmaking success comes from two things: my conviction that I can be really helpful to clients and my ability to offer them a valuable service. Rainmaking sounds like you’re selling something. What you have to want is not business, but what the business represents: to help clients with something they need done and can’t do without you, or at least, not as easily. Concentrate on becoming the best lawyer you can be in your field.

Please! While, clearly, Schulman generates lots of billings from heading megacases that involve hundreds of man hours, you can't bring in the kinds of large clients that produce that type of revenue without marketing.   I sure hope Schulman is more convincing when she litigates for clients than when it comes to discussing marketing.

September 21, 2006 | Permalink | Comments (0)

Case of the Fox Guarding the Henhouse, er, Hewlett-Packard

Corporate lawyers often handle dull tasks like engaging in due diligence or reading through stacks of securities disclosures. So it must have been a nice diversion for HP senior counsel Kevin Hunsaker to play a major role in devising a scheme to dupe a reporter into revealing her sources, as reported in this latest article on the Hewlett-Packard scandal, HP CEO Allowed Sting of Reporter (Washington Post, 9/21/2006). According to the article:

Determined to ferret out the source's identity, HP senior counsel Kevin Hunsaker, who led the HP investigation ordered by Dunn, and an HP colleague in Boston created a fictitious persona, "Jacob," who would pose as a disgruntled HP "senior level executive" and cultivate Kawamoto [the reporter] by saying he was "an avid reader of your columns."

The idea, evidently, was to induce Kawamoto to open an e-mail attachment with a "tracer" in it that would allow them to see who she forwarded it to. They hoped it would pinpoint board member Keyworth as her source, according to the documents.

Trouble is, Hunsaker isn't Woodward or Bernstein or a spy or a  vigilante. As Wired's blog points out, Hunsaker was supposedly HP's Director of Corporate Ethics! The press makes much of the fact that HP's top honchos, new Chairman Mark Hurd and ousted Chairwoman Patricia Dunn, both approved the sting. But why wouldn't they when the company's top lawyer and ethics expert was so gleefully arranging it?

I'm not sure what kind of approach Hunsaker will take to defend his conduct, but I sure hope that he doesn't blame his clients. He was the lawyer -- he should have known better.

September 21, 2006 | Permalink | Comments (1)

Lettuce Litigate!

Even as investigators remain in hot pursuit of the precise spinach leaf that spawned an e-coli outbreak, lawyers are getting busy filing suit. My colleague, Bob Ambrogi, posts at his home blog, Law Sites about a recent action, linking to David Fish of  Plaintiffs' Lawyer Blog, which posts the complaint. Ambrogi also rounds up recent news articles on the lawsuits, which include as defendants Dole, Chiquita and Natural Selection Foods.

September 21, 2006 | Permalink | Comments (2)

For Children With Special Needs, Pro Se May Be the Only Way

SCOTUS Blog reports here that the Solicitor General has thrown its support behind a petition for certiorari seeking reversal of a the 6th Circuit's decision in Winkelman v. City of Parma, barring parents of a disabled child from enforcing their child's rights under the Individuals with Disabilities Education Act (IDEA) unless represented by an attorney. In Winkelman, the 6th Circuit dismissed an IDEA case brought by parents on their child's behalf, directing them to locate counsel to represent them. And in a related case, the Ohio Bar brought a suit for unauthorized practice of law against a dad who succeeded in winning thousands of dollars in educational services for his son in an IDEA action against a school board.

Several groups have filed amicus briefs in support of the Winkelman's petition. But to date, the ABA (which professes an interest in improving the legal system for the public) has remained silent. Though in theory, children would be better served if represented by attorneys rather than their parent, many families already burdened by added costs necessitated by children with special needs can't afford an attorney. And unfortunately, the fact of the matter is that it's far easier to find first rate pro bono counsel if you're an enemy combatant in Guantanamo Bay than a child with special needs. The ABA and bar associations should be supporting parents' rights to represent their children, and if they won't, then they ought to come up with a way that children can find pro bono or low-cost attorneys. 

Here's hoping that the Supreme Court accepts the Winkelmans' case for review and, when it does, that the ABA jumps in on the right side of the merits.

September 21, 2006 | Permalink | Comments (5)

September 20, 2006

Survey: Legal Bloggers Mostly Male

The legal blogosphere is an overwhelmingly white-male world, more so than the blogosphere at large, according to a new survey of diversity among bloggers. Three quarters of legal bloggers are male, and 94 percent are white, the survey finds.

Blogger Simon Owens undertook the survey after he read a Newsweek column in which Steven Levy asked, "Does the blogosphere have a diversity problem?" Owens decided to find out. He e-mailed a four-question survey to 1,000 bloggers asking them to identify their races and genders and the niche of their blogs.

The results suggest that the legal blogosphere is less diverse than the blogosphere as a whole. Women make up 31 percent of all bloggers, but only 26 percent of law bloggers. And while 73 percent of all bloggers classify themselves as white, 94 percent of law bloggers do.

The results are far from scientific, as Owens readily admits. He does not say how many bloggers responded to his survey, only that he waited until he had received back "a representative sample from each niche." His survey would suggest, for example, that there are no legal bloggers who are Black or Asian, even though the reality is otherwise.

Still, I suspect Owens' numbers are in the ballpark. Legal bloggers have not been shy about criticizing the profession for its lack of diversity. Perhaps we need to examine our online legal world more closely. If the perspective of the legal blogosphere is overwhelmingly white and male, then its view of the world is distorted.

September 20, 2006 | Permalink | Comments (8)

Sites for Sore Clients

I wrote here earlier this month about the Irish site, RateYourSolicitor.com, that encourages consumers to rate members of the legal profession. There, it was alleged that disgruntled lawyers may be among the site's anonymous posters. Since then, because of pending legal action, the RateYourSolicitor domain name has been suspended, although the site can still be reached at http://207.210.96.145.

Today, reporter Sacha Pfeiffer has an article in The Boston Globe about professional-rating sites on this side of the pond, including one for lawyers, LawyerRatingz.com, where the front page features a screen-filling photo of three particularly smug and smarmy specimens. Pfeiffer writes that one Massachusetts lawyer was unaware of this comment about him on the site: "I would recommend a cadaver over this guy!!!" The top rating given another Bay State lawyer appeared to have come from his daughter, who remarked on the site, "He's a cool dad too!"

As the allegations in Ireland illustrated, anonymity is fuel behind these sites and also the source of the furor. Pfeiffer's piece quotes Suffok University Law professor Michael Rustad, who says:

"Too many of these ratings sites are basically forums for blowing off steam, and they're not random samples of how this professor or lawyer or doctor is really doing. And because they're anonymous there's no way to ensure that a professor or lawyer or doctor or one of his minions aren't doing the postings themselves."

In July, legal blogger Diane Levin borrowed from Othello to emphasize the danger to a lawyer's "good name."

Since the raters do not identify themselves, attorneys have no way to shield themselves from or refute false accusations of unethical or illegal conduct. The ratings are there for all the world to see (and search engines to find). ...

What is unfortunate, too, is that while a forum like this may have limited usefulness for allowing dissatisfied clients to let off some steam, it does nothing constructive to address genuine issues that can and do arise between attorneys and their clients.

How, if at all, should a lawyer respond to a comment on such a site? How, if at all, should the profession respond to this phenomenon?

September 20, 2006 | Permalink | Comments (1)

In-House Spending Up, Survey Says

A survey released today concludes that the cost to operate an in-house law department jumped significantly in 2005. Total law department expenses rose 7.9 percent, to an average cost per lawyer of $914,229. The internal costs of operating a law department rose by 2.6 percent, to an average cost per lawyer of $332,823.

The annual Law Department Metrics Benchmarking Survey is conducted by the legal consulting firm Altman Weil in conjunction with LexisNexis Martindale-Hubbell. The full survey is available in digital and print versions starting at a cost of $475. A summary of the survey's findings is also available.

Despite rising costs, the survey found, only a quarter of law departments formally evaluate their outside counsel. For those that do, "cost" ranks as an evaluation factor below "results" and "knowledge/expertise."

The bottom line would seem to be that there are no great suprises here. In-house counsel take the safe route in their outside hiring, meaning large firms with established reputations. The lawyers at those firms keep pushing up their rates, and law departments keep paying the toll.

September 20, 2006 | Permalink | Comments (0)

U.K. Blogger Releases Two E-Books

Nick Holmes, author of the U.K. blog binary law, together with legal technology consultant Delia Venables, has just published two books on technology and Web tools for lawyers. He provides this summary:

Changing Practice for Barristers has five chapters on Changing Technologies, Changing Practice Management, Marketing Online, Providing Legal Resources Online and Changing Libraries. Each chapter includes two articles by experts in their fields.

Web Tools for Lawyers is authored by me and provides guidance on web services that will help lawyers promote their practices and get the most from the web. Although these services are of general application, specific examples and guidance are given for the legal sector wherever appropriate.

The two books continue a series of e-books Holmes and Venables started last year with their two-part tome, Whither the Legal Web? The two also wrote the 1999 Butterworths book Researching the Legal Web. The e-books, which are in PDF format and cost £40 each, qualify for five continuing professional development credits.

Legal blogger Justin Patten provided the authors with guidance on blogging using Typepad. He writes on his blog, "I have read the e-books and they represent a very good value and are a great way to build up your CPD points." Another legal blogger, John Bolch of the blog Family Lore, provided input on the use of Blogger.

September 20, 2006 | Permalink | Comments (1)

September 19, 2006

How Bob Dylan Shapes the Law

Does it ever seem that the answer to a legal problem is blowin' in the wind? Have you ever wondered how many roads you must walk down before you can call yourself a lawyer? Do you believe that Ruben Carter was falsely tried?

If so, you are not alone. An Oklahoma law professor's research on the use of song lyrics in legal writing found that the popular artist whose lyrics are most often cited in legal journals and judicial opinions is Bob Dylan, followed in rank by The Beatles, Bruce Springsteen, Paul Simon, Woody Guthrie, Rolling Stones, Grateful Dead, Simon & Garfunkel, Joni Mitchell and R.E.M.

The professor, Alex B. Long of Oklahoma City University School of Law, recently published his findings in an article, [Insert Song Lyrics Here]: The Uses and Misues of Popular Music Lyrics in Legal Writing. He writes that one Dylan lyric, "You don't need a weatherman to know which way the wind blows," has virtually become boilerplate in California appellate decisions discussing the need for expert testimony.

But one striking feature of the top-10 list, Long writes, is the absence of artists of color and the inclusion of just one woman. One portent of a shift in this trend is the increasing tendency of courts to cite hip-hop lyrics, he says. As an example, he offers a 2005 decision in which the 7th U.S. Circuit Court of Appeals was compelled to explain the difference between a "hoe" and a "ho." In so doing, it referenced the lyrics of rapper Ludacris, "You doin' ho activities with ho tendencies."

You will find an abundance of folk lyrics cited in legal writing, but not as many drawn from country or alternative music, Long says. Something else you'll find in abundance is the metaphor, sometimes mangled, sometimes not. There is the 5th Circuit case in which a man carrying cocaine on a bus was confronted with a drug-sniffing dog. Wrote the court:

[He] was thus forced to ask himself what The Clash famously asked two decades ago: "Should I stay or should I go now?"

And then there is this somewhat mangled example from an unpublished federal district court opinion:

The Beatles once sang about the long and winding road. This 1992 case has definitely walked down it, but at the ned of the day, the plaintiffs and their counsel were singing the Pink Floyd anthem "Another Brick in the Wall" after consistently banging their collective heads against a popular procedural wall -- Northern District of Illinois Local Rule 12 governing the briefing and submission of summary judgment motions.

Long concludes his review of lyrics in law with this advice:

There are most definitely risks in trying to work popular music lyrics into legal writing, but occasionally the attempt pays off in the form of more interesting and persuasive writing. So, be careful, but keep on rockin’ in the free world.

[Via The Volokh Conspiracy.]

September 19, 2006 | Permalink | Comments (3)

The Lawyers Behind Lonelygirl

Last week's outing of lonelygirl15 quickly became the stuff of Internet legend. Rumors were already circulating that this YouTube favorite was a hoax when a reporter and his son broke the news on SiliconValleyWatcher that the supposed 16-year-old girl recording confessional videos in her bedroom was actually a 20-something actress named Jessica Rose. The next day, reporters Virginia Heffernan and Tom Zeller Jr. confirmed the story in The New York Times. To gauge the resulting uproar, you need only look to Google News.

Less well known is that father-and-son lawyers played key roles in this Internet melodrama, one in the creation of lonelygirl15 and the other in her outing. The son, Gregory L. Goodfried, a 2005 law school graduate and an associate with the Los Angeles firm Mitchell Silberberg & Knupp, was one of the video's three co-creators, all described by news reports as aspiring filmmakers. His two creative partners, Miles Beckett and Mesh Flinders, reportedly met at a party earlier this year and then joined with Goodfried to script and film the series of short videos.

When Goodfried got his father involved, the scheme began to unravel, not because of the father but because of sharp-eyed Internet sleuths. In August, Kenneth Goodfried, a lawyer in Encino, filed an application to trademark "Lonelygirl15." An astute fan picked up on the filing, and the news swept the Internet. From there, it was only a matter of time before fans uncovered the true identities of lonelygirl15 and her creators.

September 19, 2006 | Permalink | Comments (1)

Studying Law in Virtual 3-D

A new law school opened last week, although it has no bricks-and-mortar campus, charges no tuition and is open to anyone. Called The State of Play Academy, its classes take place in a multiuser virtual environment (MUVE), where students and teachers adopt avatars and meet on the campus of the University of There. This virtual academy has a very real dean, Lauren Gelman, associate director of the Stanford Law School Center for Internet and Society. As a matter of fact, you can attend one of Gelman's classes this week. Today and Thursday at 5:30 Pacific time, she is teaching Blogging and Liability, covering the statutory and First Amendment protections applicable to bloggers.

Other lecturers at the academy so far are Temple Law professor David Post and Colin Rule, a leading expert in online dispute resolution. The State of Play Academy is sponsored by New York Law School and is an outgrowth of the State of Play conference. Keep track of academy news at its blog.

The State of Play Academy is not alone in legal education's move towards MUVE. Harvard Law School this semester launched Law in the Court of Public Opinion, a live course for Harvard Law students that is also offered to the public in a MUVE format through Harvard Extension School. The course covers creation and delivery of persuasive argument via new media. It is taught by Harvard Law professor Charles Nesson, his daughter Rebecca Nesson and Gene Koo. Unfortunately, the MUVE course is full, but videos of the course are being posted online free for anyone to view, and photos of both the virtual class and the live one are available through flickr.

To enter the State of Play Academy's virtual world, you will need to download the software platform from There.com. A $10 upgrade version adds voice and audio. The academy's site provides more information. Harvard's program uses Second Life. Written instructions and a video tutorial on installing the software and creating your avatar are here.
 

September 19, 2006 | Permalink | Comments (2)

Where's Ben Cowgill? We Got Him

Upon reading Eugene Volokh's thoughts on whether New York's proposed advertising rules will make blogging too burdensome for lawyers, the anonymous editor at Blawg Review is prompted to ask, "Where's Ben Cowgill?", alluding to the author of the blog Ben Cowgill on Legal Ethics. Cowgill, the editor notes, played a central role in helping Kentucky's legal advertising commission arrive at a sensible policy on lawyer blogging.

I don't have the answer to New York's problems, but I do know where Cowgill is. He is our guest on this week's legal-affairs podcast Coast to Coast, where he and fellow Kentucky lawyer Steven M. Frederick discuss the ethical implications of lawyer advertising in the wake of the Kentucky crash of Comair Flight 5191. Also on the program is Motley Rice partner Robert T. Haefele discussing ongoing litigation arising out of 9/11.

September 19, 2006 | Permalink | Comments (0)

September 18, 2006

In Real Life, Book Smarts Serve Street Smarts

Remember the third season of Donald Trump's television series, The Apprentice, which pitted "book smarts" (college grads) against "street smarts" (high school grads) for the job of Trump's apprentice? In the final episode, "book smarts" prevailed.

But in contrast to reality TV, real life produces different results. According to this article, Any College Will Do: Nation's Top CEOs Find Path to Corner Office Starts at State University, WSJ,
9/18/06:

Most CEOs of the biggest corporations didn't attend Ivy League or other highly selective colleges. They went to state universities, big and small, or to less-known private colleges.

The article posits that:

One reason more Ivy League alumni aren't CEOs may be that many have traditionally chosen careers in investment banks and at big law firms, where they could earn big sums quickly and wouldn't have to start in entry-level management jobs.

A lot of people who earn degrees from tier-one universities and business schools aren't willing to start at the bottom of a huge company" and spend years scaling layers of management and hoping to reach the top, says Richard Tedlow, a business historian at Harvard Business School.

And of course, there are some founders of high-tech companies who never completed college, like Bill Gates, Michael Dell and Steve Jobs, all of whom are college drop-outs.

The irony here is that law firms  place so much clout on credentials like college and law school ranking, law review and class rank, vying to hire the best and the brightest of the top-tier law grads, only to have them report to a boss who went to the state university. And what's more, apparently the better credentials don't even help lawyers serve their "pedestrian" clients any better; 70 percent of corporate clients are disatisfied with their attorneys.

September 18, 2006 | Permalink | Comments (0)

What About a For-Profit Pro Bono Corporation?

Reading about yet another set of same old, same old pro bono  programs (the one-day clinics, the Street Law seminars and counsel to nonprofits) this time sponsored by corporate law departments (Law.com, 9/18/06), I got to wondering whether there isn't a more effective way for private corporations and law firms to meet the needs of the poor. Not surprisingly, to find truly innovative solutions, I had to reach outside the legal profession to find a potential model: a for-profit charity to meet underserved legal population along the lines of the one recently created by Google  (NY Times, 9/13/06) for philanthropic endeavors such as the development of an ultra-fuel-efficient car. (For more information on the legalities and tax issues related to for-profit charities, visit the source for the Google story, University of Chicago Law Professors Blog. ) According to the NY Times article on Google's choice of a for-profit charity:

Google’s founders, Larry Page and Sergey Brin, believe for-profit status will greatly increase their philanthropy’s range and flexibility. It could, for example, form a company to sell the converted cars, finance that company in partnership with venture capitalists, and even hire a lobbyist to pressure Congress to pass legislation granting a tax credit to consumers who buy the cars.

Could large law firms and corporations mimic Google's plan? Perhaps they could set up for-profit charities that could develop sophisticated but user-friendly tools to allow clients who can't pay for lawyers to handle cases pro se. Or these firms could develop these tools and provide them at low cost to small firms to allow them to  represent small clients more efficiently and at less cost. Perhaps there's even some way that these firms could set up a huge legal clinic, where clients could go for cheap advice but would pay midlevel rates. I realize that as a service, law is different from designing a product like a fuel-efficient car. But maybe if lawyers have a profit motive to go after the population of clients who can't pay for lawyers and find a way to serve them and make money, we'll reach the goal of access to justice more quickly.

September 18, 2006 | Permalink | Comments (2)

Bloggers Keep On Blogging Out Against N.Y.'s Proposed Advertising Rules

Back in June, my colleague Bob Ambrogi first covered news of New York's proposed advertising gag rules. Among other things, the proposed rules would classify most attorney blogs as "advertising," thereby subjecting attorneys to the prior restraint rule that requires submission of all changes to ads prior to publication. As a practical matter, requiring advance approval for blog posts defeats the very point of the blog, which is its ability to deliver current information almost instantaneously. (Of course, the thought of a staffer reviewing the hundreds of blog posts likely to be submitted daily is kind of amusing; that thought alone ought to suffice to quash the proposal).

In any event, the controversy over the New York rules hasn't abated. As with every other irrational action that hits the blogosphere, criticism of the proposed rule has picked up momentum in recent months, culminating with the extension of the comment period from Sept. 15 to Nov. 15. Here's a round-up of the recent round of criticism:

Volokh points us to Gregory Beck of Public Citizen, who evaluates how the rules will affect bloggers (Volokh doesn't see the rules as intending to suppress blogging, but rather, that they're the product of overbroad language);

Ben Cowgill returns from summer break to share how he helped the Kentucky Bar bring reason to similar rules that would have stifled bloggers;

Kevin O'Keefe at Lex Blog endorses Gregory Beck's post and reminds us that lawyers still  have First Amendment rights; and

Nicole Black at Sui Generis links to attorney Joshua Stein's commentary on the proposed changes to the lawyer advertising rules in New York and offers her own criticisms on the issue.

On one of my listservs, a colleague posted that perhaps the best way to educate others and defeat the proposed New York advertising rules would be to start a blog in opposition. Any takers? And are bloggers overreacting? Could the New York Bar be so out of touch with modern technology that it would actually adopt this proposal?

September 18, 2006 | Permalink | Comments (11)

Blawg Review #75

Daniel Solove of Concurring Opinions plays host for this week's diamond-themed Blawg Review #75, an apt motif since this review is a true gem. Solove leads us around the blogosphere, from Bruce MacEwen's discussion of a proposed Dewey-Orrick merger (which is even covered in the mainstream press, in this New York Times article) to a couple of brawls (some harsh words from Feminist Law Professors Blogger Ann Bartow for Ann Althouse and a debate between Gordon Smith and Professor Bainbridge) to advice for job seekers and recommendation providers here,  here and here about what makes for an effective letter of recommendation for a judicial clerkship and more advice on defending an RIAA lawsuit from a Slashdot Q&A with question-and-answer session with recording industry opponents Ty Rogers and Ray Beckerman, the attorneys who maintain the Recording Industry v. The People blog.

Next week's Blawg Review comes to David Maister's blog.

September 18, 2006 | Permalink | Comments (0)

September 15, 2006

There but for the Grace of Nancy

The most despised lawyer in America this week may also be the most beloved. It all depends whom you ask.

That lawyer, of course, is CNN's Nancy Grace. Shortly after Grace interviewed Melinda Duckett about the disappearance of her 2-year-old son -- pounding her desk and demanding to know the mother's whereabouts when the boy disappeared -- Duckett killed herself. Grace told Good Morning America today that she takes no responsibility for the suicide. "If anything, I would suggest that guilt made Melinda Duckett commit suicide," she told reporter Chris Cuomo.

Among many commentators, however, the incident has provoked ire. San Francisco Chronicle columnist C.W. Nevius wrote today that Grace's show "reaches a new depth of sleaze." Lawyer Irwin R. Kramer says that Grace appears to be unaware that her job description has changed since she left the prosecutor's office:

She is no longer a prosecutor. But you wouldn't know it from the self-righteous and nasty demeanor she presents to guests of her talk show, or the quick manner in which she passes judgment on anyone accused or even suspected of committing a crime.

Stephen Bainbridge accuses Grace of ducking responsibility. "I find it telling that the witch queen of personal responsibility declines to take responsibility for the consequences of her own acts," he writes. Norm Pattis describes Grace as "a burnt out lawyer who couldn't cut it in the courtroom anymore" who "bottled up her rage and sold it to network television."

But as Andrew Cohen observes at Bench Conference, if there are those who hate Nancy Grace, there are also plenty who love her. Describing feedback he received from an earlier post about Grace, he said many went even further than he in castigating her, "but there were several others of you who wrote to support Grace and her brand of television-as-therapy shtick." One he quotes, "Debbie," wrote:

"Nancy Grace is the voice for the victim. She does grill people on her show. However, those people agree to go on her show knowing that might take place. In the case of Melinda Duckett she was a mother who refused to take a lie detector test and cooperate with the police. Nancy Grace was doing her job for the victim. She was grilling this uncooperative mother of the victim to get answers to help find this little boy. She did not drive this mother to commit suicide. The guilt is what led the mother to take her own life. I applaud Nancy Grace and I hope she will continue to be that voice for the victim."

Whether Grace is the nation's most hated lawyer or most adored, she may well be its most powerful, says Irwin Kramer:

[H]er words generate more attention than those of a Supreme Court justice.  For Nancy presides over a much more powerful court, passing judgment in the court of public opinion.

There is, however, one check on Grace's power, Kramer suggests -- our TV remote controls.

September 15, 2006 | Permalink | Comments (5)

Law in a Podcast Nutshell

Law professors at San Diego's California Western School of Law are taking their expertise from the classroom to the iPod. They have launched Law in 10, a weekly podcast providing legal analysis on current news topics, all in 10 minutes or less.

The podcasts generally include two segments, each featuring a different legal expert and topic of interest. Since the podcast's launch Aug. 24, programs have looked at evidence issues in the JonBenet Ramsey case, generation gaps in the legal workplace, legal aspects of polygamy and the legality of the president's military commissions, among other topics.

While other law schools have used podcasts for lectures and speaker events, says David Bowers, assistant dean for external affairs at the law school, he believes California Western is the first to offer a weekly news program. He adds:

"Our purpose in launching this effort is to introduce our faculty members to 'Gen iPod,' the 19-24 year old college student with an interest in legal issues. We believe others will develop an interest as well."

September 15, 2006 | Permalink | Comments (0)

Same-Day Supreme Court Transcripts

At I/P Updates, Bill Heinze reports news of a great leap forward for the Supreme Court's Web site. Beginning in October, the court will provide transcripts of oral arguments on its Web site the same day the case is argued. Until now, it took two weeks for the transcripts to appear online. Bill explains how it will work:

Transcripts can be located by clicking on the "Oral Arguments" prompt on the home page of the Court's Web site and selecting "Argument Transcripts." Transcripts will be listed by case name and the date of oral argument and are permanently archived beginning with the 2000 Term on the Court's Web site. Transcripts prior to the 2000 Term are maintained in the Court's Library.

Legal Times writer Tony Mauro says this news is more significant than it might at first appear:

The announcement may seem like a small step that falls well short of opening the Court to television or radio broadcasting. But at an institution that still hands out quill pens to lawyers who argue before it, the change is significant. And access advocates hope it signals a new climate of openness under new Chief Justice John Roberts Jr.

The court's official announcement is here.

September 15, 2006 | Permalink | Comments (0)

At Last, a National Small-Firm Confab

If the legal blogosphere seems a bit quieter Oct. 19 and 20, it may be because so many legal bloggers will be in Milwaukee to attend the first-ever National Solo and Small Firm Conference. Co-chaired by two bloggers, Jim Calloway and Ross Kodner, the conference is sponsored by the American Bar Association's General Practice, Solo & Small Firm Division and will run concurrent with the division's fall meeting. You need not be an ABA member to attend.

Ross Kodner provides conference details and an event schedule. He writes:

With three educational tracks over a day and a half, and a stellar national faculty, this is an event no solo/small firm lawyer (and their staff!) or general practitioner in any size firm should miss.

Jim Calloway draws on his experience organizing the annual Solo and Small Firm Conference of the Oklahoma Bar Association to suggest that a conference such as this "is a great opportunity" for small-firm lawyers "to enjoy CLE targeted to their needs." Not to mention, he adds, the potential for networking and referrals.

September 15, 2006 | Permalink | Comments (0)

September 14, 2006

What's a GC to Do?

Blogging on the recent corporate scandals involving GC Ann Baskins at Hewlard-Packard (see this multi-part coverage at Alexander Simpson's Corporate Securities Law Blog) and the ouster of Bristol Myers' GC, Peter Henning concludes that "it can be mighty tough to be a general counsel these days." And Henning's article does not even touch on the backdating of stock options matter that's been discussed for the past few months and raises questions about whether GCs and outside counsel should have flagged potential legal problems associated with companies' failure to disclose backdating.

Yes, these scandals are putting some corporate counsel on the hot seat, but the scandals also raise the question, "Where were the lawyers?" That's  a topic that's not been covered thus far. This article in today's Washington Post, Silicon Valley's Golden Past Tarnished, quotes one defense attorney who suggests that many of the Silicon Valley companies now in trouble "lacked in-house accounting and legal expertise." But these days, these same companies are served by blue-chip firms and experienced in-house counsel. Shouldn't that lead to a reduction in corporate scandal?

Are today's newest corporate scandals caused by added complexity of laws governing corporations and the increased criminalization of corporate conduct? Or has the legal profession grown so competitive that lawyers will banish the word no from their vocabularies to retain their corporate clients? And are GCs hiring outside counsel with "brand recognition," without engaging in due diligence to determine whether those outside lawyers best serve the corporate client.

We can agree with Henning's conclusion that times are tough for GCs today. The more interesting issue is whether the GCs themselves are to blame.

September 14, 2006 | Permalink | Comments (0)

On Money and Happiness

I think most of us in the legal profession realize that money does not necessarily buy happiness. If it did, we wouldn't have associates earning $135k+ dropping like flies from law firms. Still, where can a lawyer go to find happiness? That's the topic that Arnie Herz addresses at Legal Sanity. Among other things, you can "find something that sets you on fire, that gives you passion and joy," (advice of Christiane Amanpour), or you can take a happiness self-assessment to figure out what makes you happy. And you can even spend money to make you happy, according to Gretchen Rubin, so long as you spend it the right way.

September 14, 2006 | Permalink | Comments (0)

The Guru and the Servant

Are you a guru or a servant -- and is that the right dichotomy for distinguishing between different types of lawyers? That's the question that Nathan Burke of Law Firm Blogging throws out for discussion in this post. Burke observes:

In today’s legal marketing, I often see the same split in perception/projection. There are Gurus and Servants. The Gurus are attorneys and firms that are known by name and reputation. They often charge high rates, and clients come to them. They are at an advantage in that they can pick and choose who to represent. The Servants are the attorneys and firms that focus only on client service. These firms take the opposite approach in that they go looking for clients. They convince clients that they are competent and will focus on the needs and wants of the client. In this case, the client is the expert, they attorney is just doing the legal work.

I’m drawing no value judgement here; I’m not saying one is better than the other. Sure, everyone would love to be a Guru, but one does not become a Guru by just charging a lot of money and living atop a hill. But Gurus would do well to take on some of the Servant’s commitment to service.

With so much dissatisfaction with lawyers, you might think it makes sense to be a servant rather than a guru. But I don't agree. Being a servant helps you keep clients, but developing a reputation as a guru is what gets them in the door. Lawyers need to cultivate both skills to succeed.

September 14, 2006 | Permalink | Comments (3)

Offshore Vs. Onshore

I closed this previous post on contract lawyering with a question on whether large firms will stick with the now prevalent "contract attorney" model or follow the lead of corporations like Dupont, which are offshoring document review to Asia. Ron Friedmann at Prism Legal takes a stab at this question here, suggesting that rather than debate the offshore vs. onshore question endlessly, firms should undertake a comparative cost analysis:

Which is better - onshore or offshore review?  The choice is purely an empirical question, meaning a decision driven by hard data: the cost to review each document, adjusted for accuracy. You can argue over how best to measure cost and accuracy, but it’s hard to see how else to decide. (I assume that ethical issues, if any, of going offshore can be resolved. I also leave for another day whether software is not an even better approach than lawyers, onshore or off.)

So the rational general counsel should ask firms for statistically reliable cost and accuracy measures. Firms not already tracking these are probably not effectively managing the review process.

Is  the choice between offshore and onshore a matter of cost, as Friedmann suggests? As Wired GC notes here, if Dupont's experience is any indication, the potential savings from outsourcing are significant, allowing Dupont to cut up to $6 million from its $200 million legal budget. 

But is cost the only factor that law firms should consider in choosing between outsourcing at home or offshoring? Do firms located in the United States make a better impression if they "buy American?" Or conversely, does offshoring show that a firm is more committed to global-centricity, which could help it attract more overseas clients? And does morale at law firms suffer when they hire contract lawyers from within the United States and create a two-tier system of attorneys? Let us know what you think.

September 14, 2006 | Permalink | Comments (3)

September 13, 2006

A 'Consumer Reports' of the Bench

What Consumer Reports does for appliances and Zagat does for restaurants, a Web site launched last week aims to do for judges. The site, Judicial Reports, offers in-depth profiles of New York state's 328 Supreme Court judges. Eventually, it will add New York's federal judges and, if there is demand, judges in other states. Each profile draws on information available in public records together with independent research, analysis and reporting. Thus, a profile includes a judge's biography and vital statistics, but also the judge's reversal record, judicial conduct report and financial and campaign-finance disclosures. Included in a judge's biographical profile are comments from lawyers who have direct experience appearing before the judge.

Intrigued? Well, there is one condition to obtaining this information, and that is payment. Access to the site's judicial reports requires an annual subscription. For a firm of 50 or more lawyers, $4,800 buys 12 reports plus The Blue Book of New York City Judges, a digest of the site's research focused on trial judges in the city. For firms of 25 to 49 lawyers, the price is $3,600, and below 25 it is $3,000. You need pay nothing to access the front page of Judicial Reports, which features weekly, magazine-style articles reporting on the administration of justice in New York together with daily reviews of legal news. Other free features include The Reversal Report, a weekly review of notable reversals, and The Moral Compass, an advice column on judicial ethics.

Judicial Reports is operated by the Institute for Judicial Studies, a company directed by Dirk Olin, former national editor of The American Lawyer. Journalists and lawyers make up its staff. The site's research, says Olin, is similar to that any litigator would perform upon assignment to a judge, only in greater depth and with more analysis than the lawyer alone could do. 

September 13, 2006 | Permalink | Comments (0)

A Lawyer Game for Mobile Phones

Call me naive, but I have somehow managed to miss the phenomenon known as Phoenix Wright, Ace Attorney. Mr. Wright is not a real attorney, but a virtual one, who lives within a game designed for the Nintendo DS. He is, says his developer Capcom, "a defense lawyer with a keen sense for discerning fact from truth." Writer Redmond Carolipio awards him even higher praise, saying he "has achieved cult classic status in the gamer community." Heck, he even has not one, but two MySpace blogs, although it appears he has little free time to maintain them.

Wright made his debut in October 2005, but recently has garnered much Internet buzz for three impending releases. First is the anticipated early 2007 release of the second Phoenix Wright game. In this one, an announcement says, players take on the role of Wright, "who must prove his client's innocence against the toughtest of odds and most ruthless of adversaries."

"Players must exercise their legal prowess as they collect evidence, examine witnesses, analyze testimonies and seek the truth to ensure that justice prevails."

The aforementioned Carolipio writes that the game "infuses manga-style wackiness into the buttoned-down world of criminal defense, turning every cross examination into a battle of good versus evil."

Then there is the forthcoming release any day now of two music CDs with music from the game rearranged in orchestral form. The first reportedly will go on sale here Sept. 30, but if you are not able to read Japanese, ordering it could prove a challenge.

And now the really big news, revealed Monday and reported by CNET News.com: You will soon be able to assume Attorney Wright's persona using your mobile phone. Verizon Wireless and Cingular are expected to offer the game by the end of the year, with Sprint and T-Mobile to get in on the action early in 2007.

Think of it -- with Phoenix Wright on your mobile phone, you will be able to pretend to fight for justice even as you slog through the more mundane work of real-life law practice.

September 13, 2006 | Permalink | Comments (1)

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