Legal Blog Watch

Law.com Blog Network

January 31, 2007

Supreme Court TV

Throughout the blogosphere, the buzz this week is about the four-part program The Supreme Court, which begins tonight on PBS. But if a bill filed in Congress Monday becomes law, the Supremes will become a permanent presence on our TV sets. Variety reports that Sen. Arlen Specter, R-Pa., introduced legislation that would force the Supreme Court to allow television coverage of its proceedings. In a statement, Specter said:

"The Supreme Court makes pronouncements on constitutional and federal law that have direct impacts on the rights of Americans. Those rights would be substantially enhanced by televising the oral arguments of the court so that the public can see and hear the issues presented. With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the court's decisions."

The bill (S. 1768) would allow banning of cameras in particular cases if a majority of the justices believed that cameras would violate a litigant's due process rights. Co-sponsors of the bill include Sens. Charles Grassley, R-Iowa, Richard Durbin, D-Ill., Charles Schumer, D-N.Y., Russell Feingold, D-Wis. and John Cornyn, R-Texas.

January 31, 2007 | Permalink | Comments (5)

Blogging LegalTech, Cont'd.

Where is the blogging from LegalTech New York? asks Kevin O'Keefe.

We have the supposedly leading legal tech people in the country (thousands of them) assembled in New York and not one of them acting acting like technologists attending tech conferences in other industries. Speaks volumes of where our industry is when it comes to adopting new technologies.

As for the paucity of blogging from LegalTech, O'Keefe is correct. In addition to David Snow's daily reports from the conference and Law Technology News editor Monica Bay's posts at The Common Scold, I found only a handful of posts from LawBiz Blog, Wired GC, The Estrin Report and Made4Biz IT Security News -- and only some of those were clearly from bloggers in attendance at the show.

But I disagree with O'Keefe's conclusion that this speaks poorly of the legal industry's adoption of new technologies. Although I am not at LegalTech this year, I can testify from many years of attending that the conference leaves little time for blogging. In fact, I often find that I have little time for attending many of the panels and presentations -- ostensibly the main reason for being there. Simply making one's way around the exhibit hall and speaking to the many vendors and the many people you encounter along the way easily consumes a full day. Then there are the side meetings and the networking and, yes, the cocktails and dinners.

I am not big on "liveblogging" conferences. When I am at a conference, that is not how I want to spend my time. And from what I've read from those who do blog live, it is often the case that they might do better to hold off and write a more reflective, post-conference piece, once they've had an opportunity to digest what they've seen. We have not heard from many of the legal bloggers who are in attendance at LegalTech. I suspect we will see their post-mortems once they have a chance to catch their breaths. Meanwhile, why waste time in front of a computer screen when there is so much more to take in?

January 31, 2007 | Permalink | Comments (2)

Solos' Salaries: Good News, Bad News

At MyShingle.com, Carolyn Elefant -- who does double duty as co-blogger here at Legal Blog Watch -- uncovers a salary chart showing earnings for solo practitioners and finds in it good news and bad news. The chart shows median salary for a solo recently out of law school is $50,000. The number works its way up to a peak of $110,000 for a solo who has been at it for 20 years or more. This is good news for recent law grads interested in solo practice, Elefant suggests:

First, for newbie lawyers (under 5 years out of school) who don't have the $160k large firm option, solo practice either matches or exceeds the salaries that these lawyers would earn at a small firm or working for a prosecutor or public defender.

But the leveling off of salary once solos reach the 10-year mark means that later-career solos need to make changes if they want higher income:

At that point, I think solos have a choice if they want to increase earnings: either diversify their business model to take on alternative fee or contingency cases, or outsource or hire an associate, and earn a profit off that person's work.

As for larger-firm lawyers leaving to start solo practices, Elefant says, the chart indicates they may have to take a pay cut "unless you can take one or two 'anchor clients' who can guarantee a decent baseload income." Of course, with that pay cut comes "more flexibility over your schedule and more hands on experience."

January 31, 2007 | Permalink | Comments (2)

The Legacy of Robert Drinan

Well before I ever arrived as a student at Boston College Law School, the Rev. Robert F. Drinan had left his post there as dean to run for Congress, where he served five terms in the U.S. House of Representatives as a Democrat from Massachusetts. But long after he left BC Law, his spirit remained. I cannot speak about BC today, but when I was there, it was a school with a strong sense of social justice, a commitment to diversity in the student body and support for multiple opportunities for students to gain clinical experience with lower-income clients. There was no doubt in my mind that this was, in part, the legacy of Drinan.

Drinan left Congress in 1981, after the Vatican ruled that no priest could hold a legislative position. From Congress, he went to Georgetown University Law Center, where he continued to teach until his death Sunday at the age of 86. In November, Tony Mauro interviewed Drinan for Legal Times. When Mauro asked him about his legacy, Drinan stepped modestly around the question:

"Drinan's ingrained Jesuit modesty keeps him from responding to the inevitable legacy question: How will he be remembered? Mindful of the scandals that have beset the priesthood in recent years, Drinan allows himself one self-referential moment. 'Maybe it’s been good for the church to have a priest who has brought some glory to the church.'

"But beyond that, he won’t venture a guess. 'No one,' he says, 'can be a judge in his own case.'"

While Drinan was modest about his legacy, others were more certain. At Georgetown, an official statement quoted law school Dean T. Alexander Aleinikoff:

"His life was one fully devoted to the service to others -- in the Church, in the classroom and in Congress. His passing is a terrible loss for the community, the country and the world."

And at BC Law, Dean John Garvey said:

"He has been a personal hero to me. I am constantly hearing stories from alumni who were inspired by him, who thank him for getting them into law school and starting their careers."

Sen. John F. Kerry, who was Drinan's 1970 campaign manager, said this to The Boston Globe:

"Father Drinan was a forever gentle, resilient, tenacious advocate for social justice and fundamental decency. He lived out in public life the whole cloth of Catholic teachings. In the most divisive days of Vietnam when things were coming apart, this incredible man and most unlikely of candidates showed America how a man of faith could be a man of peace."

For more on Father Drinan, read reaction from bloggers at Law Blog, Legal Profession Blog, Opinio Juris and Blue Mass Group. Boston College Magazine has a 1995 interview with Drinan and a 1989 piece exploring how Drinan brought down the notorious House UnAmerican Activities Committee.

Drinan showed us the best of what a lawyer can be. We would all do well to emulate him.

January 31, 2007 | Permalink | Comments (0)

January 30, 2007

He's Talking 'Bout a Revolution

Who would have thought that a lawyer -- and an in-house corporate counsel, at that -- could lead a revolution? If, like me, you're a skeptic, take a look at this speech by Cisco GC Mark Chandler at the Northwestern School of Law's 34th Annual Securities Regulation Institute, because 'dems fighting words.

Chandler has a couple of messages for law firms. First, he speaks directly about how technology is changing the way in-house lawyers practice, as well as implicitly about how high law firm rates are driving in-house decisions. Among other things, Cisco has created an online contract builder so that its employees around the world can create NDAs and standard contracts. And Cisco is also working on a wiki with other Fortune 500 companies to allow direct access to firms' knowledge management systems on securities regulatory compliance. Finally, Cisco "got tired of high billable hour rates from so-called global law firms," so it's selected a firm (which isn't a huge global firm, but open to new ideas) to help it address issues related to corporate secretarial matters. And while Cisco uses two large firms for M&A work and litigation, those firms operate on fixed fees.

The bottom line is that in an era where information wants to be free, corporations want access, and they don't want to pay for every minute spent to find it:

The legal industry has spent millions on IT to up speed access to information. But the only way I can get that information is through an individual billing me by the hour. My in-house team often has more sophistication than the associates who mine the knowledge management system to generate a memo. We’re just not allowed to access the information without paying for someone’s time.

The systems exist today to change the delivery of legal information to clients. But that change would challenge a model that today delivers high profits. Every big company, including Cisco, is using those systems to make our support services more effective, and to drive down the costs of providing service. Law firms are not. Clay Christensen of Harvard Business School has written, and I quote, “Large American law firms are just about the most profitable businesses in the world. Speedier information-gathering capabilities allow large law firms to increase utilization of less experienced lawyers without passing cost savings on to their customers.” So changing the service delivery model will be disruptive, and not just because associates are kept busy doing work that a machine might be able to do better. Changing that model will also cut into the effectiveness of cross-selling. From a client’s point of view, cross-selling is an effort of star partners to leverage the loyalty they have earned to drive hourly work to other parts of the firm. Today, there is little incentive for law firms to apply risk-reward logic to the amount of legal services provided. And General Counsel know that.

In the scheme of the profession, will large firms eventually become extinct and go the way of the "medieval guild system," to quote Chandler? Or are they up to these new challenges? What do you think?

January 30, 2007 | Permalink | Comments (1)

Google's Quest for a Universal Library and the Law

This month's issue of The New Yorker includes this article by Jeffrey Toobin, Google's Moon Shoot, a fascinating narrative on Google's efforts to create a universal, electronic and fully searchable library of every book ever published. The article describes the details of creating this enormous database, such as (1) the creation of customized and proprietary scanning equipment that, surprisingly, is operated by humans rather than automated, (2) the development of search engines that can be used to locate passages and other text and (3) the potential integration of advertising into the library to generate revenue from the project.

Of interest to lawyers, however, Toobin also analyzes some of the copyright issues raised by the book-scanning project, a matter on which Google has taken a somewhat novel approach:

Google asserts that its use of the copyrighted books is “transformative,” that its database turns a book into essentially a new product. “A key part of the line between what’s fair use and what’s not is transformation,” Drummond said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.” In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound “fair” to the plaintiff publishers and authors. “Traditional copyright analysis says that a transformation leads to the creation of a new and independent work, like a parody or a work of criticism,” Jane Ginsburg, a professor at Columbia Law School, said. “Copying the entire work, which is what Google is doing, does not preclude a finding of fair use, but it does fall outside the traditional paradigm.”

Currently, several lawsuits are pending regarding the copyright issue, though experts expect some kind of negotiated resolution. From Toobin's article:

The key legal question is whether the courts will allow Google to continue to scan copyrighted material without permission. But the schedule of the lawsuits may turn out to be as significant as the merits of the cases, which are before Judge John E. Sprizzo. In keeping with the stately pace of federal litigation, the depositions of witnesses are to begin sometime this year, and the parties will be allowed to file motions for summary judgment—in Google’s case, to dismiss the suits—in early 2008. Then there could be a trial. If the cases are appealed, they could linger well into the next decade.

However, most people involved in the dispute believe that a settlement is likely. “The suits that have been filed are a business negotiation that happens to be going on in the courts,” Marissa Mayer told me. “We think of it as a business negotiation that has a large legal-system component to it.” According to Pat Schroeder, the former congresswoman, who is the president of the Association of American Publishers, “This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal.”

As Toobin writes, the law may have limits in resolving these issues; it simply moves too slowly for Google's rapid pace. In Toobin's view, ultimately, "the law of the jungle", or predominance of the major players rather than the courts, will settle these issues. And whether the result that ensues represents what's best for the public or what's best for Google (or if those two interests align) remains to be seen. (Full disclosure -- my husband is now employed by Google, albeit on an entirely different project).

January 30, 2007 | Permalink | Comments (1)

Should Managing Partners Also Be Practicing Partners?

In this post, How Many Hours Does Your Managing Partner Bill, Bruce MacEwen analyzes the age-old question of whether a law firm managing partner should serve as a full-time CEO or maintain an active practice, "billing gobs of hours." As MacEwen excerpts from a Wall Street Journal article earlier last week, there are pros and cons to each approach:

Pros:
   Lawyers respect great lawyers
   Client contact keeps you current with business needs
   Sends message that law is a profession


Cons:
   Lack of focus on strategic planning
   Lack of time for communicating with colleagues
   Lack of time to recruit"

MacEwen writes that at many firms, managing partners practice or not, as they prefer. At Dewey Ballantine, the firm's head, Mort Pierce, bills 3,300 hours a year and has admitted that he lacks passion for management. Analogizing law firms to large corporations, MacEwen doubts that a CEO chair would ever admit to a dislike for management.

In addition, some lawyers may prefer to stick with billing, not because they dislike managing but because firms reward billable productivity. As MacEwen explains:

Unless there's an explicit exception for the Managing Partner, self-interest will dictate an absentee-manager approach. The calculus is not complex: Take on an often-thankless job while impairing my current earnings and, through losing track of clients, tarnish my future earnings as well? I respectfully decline.

For MacEwen, the choice for managing partners should be clear:

If you're serious about contributing the highest value you possibly can to the firm, resolve to be a single-minded driver of strategy and competitive strength in our ever-more-challenging environment.

Even though law firms call themselves partnerships, as MacEwen's discussion of the managing partner role bears out, at many firms, there's little sense of a commitment to the greater good. Thus managing partners regularly choose short-term profits over advancing the good of the firm, because they don't feel as if they have a real ownership stake or a vested interest in the firm's future. And that's a larger structural problem that firms will need to fix before the question of whether a managing partner should manage or practice can be adequately resolved.

January 30, 2007 | Permalink | Comments (1)

The Role of Wikipedia in Judicial Decisions

This article, Courts Turn to Wikipedia, Selectively (NYT, 1/29/07) reports on the increasing citation by judges to the online encyclopedia Wikipedia. From the article:

A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre -- such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of ''beverage'' that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term ''booty music'' as played during a wet T-shirt contest. More than 100 judicial rulings have relied on Wikipedia, beginning in 2004, including 13 from circuit courts of appeal, one step below the Supreme Court. (The Supreme Court thus far has never cited Wikipedia.)

The article quotes 7th Circuit Judge Richard Posner (who is listed in Wikipedia):

'Wikipedia is a terrific resource,'' said Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, in Chicago. ''Partly because it so convenient, it often has been updated recently and is very accurate.'' But, he added: ''It wouldn't be right to use it in a critical issue. If the safety of a product is at issue, you wouldn't look it up in Wikipedia.''

To me, the convenience of Wikipedia, and the ability to access it from a desktop, more than anything, explains its pervasive use. By contrast, sources like Encyclopedia Brittanica aren't widely quoted (or at least not such that I can recall) because most law libraries don't even carry encyclopedias, so a citation would require a trip to a general library.

Professor Stephen Gillers, also quoted in the article, says including Wikipedia makes opinions more understandable:

[Judges include Wikipedia cites because] you want your opinion to be readable,'' said Professor Gillers. ''You want to apply context. Judges will try to set the stage. There are background facts. You don't have to include them. They are not determinitive. But they help the reader appreciate the context.'

If Wikipedia makes judicial decisions more accessible to the general public, that feature alone makes it worth citing.

January 30, 2007 | Permalink | Comments (1)

January 29, 2007

Obama the Stellar Law Student

With U.S. Sen. Barack Obama officially exploring a run for the presidency, the news media has taken a keen interest in his law student days at Harvard Law School. Yesterday's Boston Globe carried an in-depth look at Obama the law student and his tenure as the first black president of the Harvard Law Review. Reporters Michael Levenson and Jonathan Saltzman paint a portrait of Obama as an even-handed leader and a unifying voice.

"Right from the start, when he arrived in the fall of 1988 at the age of 27, Obama seemed different. With his leather bomber jacket, tattered jeans, and pack of cigarettes, he was older and appeared less starchy than many of his fresh-faced classmates newly arrived from the Ivy League. He was also one of the small minority of black students on the campus of about 1,500 of the nation's most ambitious future lawyers, judges, and corporate executives.

"Beyond his appearance, what set him apart was his approach to argument, the lifeblood of the law school and the constant occupation of the young lawyers-in-training. While other students were determined to prove the merits of their beliefs through logic and determination, Obama preferred to listen, seek others' views, and find a middle way."

But at the Boston blog Blue Mass Group, it was an Associated Press report two days earlier that caught blogger Charley Blandy's attention. More to the point, it was this quote about Obama from famed Harvard professor Laurence Tribe, for whom Obama worked as a research assistant:

"I can't pretend that I had any idea then that he would be a serious presidential candidate -- that would have been a crazy thing for anyone to project at that stage of a career -- but he was certainly the most all-around impressive student I had seen in decades."

Given the professor and the institution, that is high praise. But blogger Blandy nevertheless wonders:

"Wow. Now, it may well be that Tribe indeed likes Obama a lot and liked him then, but his effusiveness may still be calculated post facto to help his old protégé. Maybe. And maybe Obama's really that good."

Back to that Boston Globe report, where former Harvard Law professor Derrick A. Bell Jr. advises not to underestimate the significance of Obama's election as the first black president of the Harvard Law Review. "It's almost as impressive that he was elected president of the Harvard Law Review as him being elected senator of Illinois," Bell says.

We'll check back with Bell if Obama makes it to the White House.

January 29, 2007 | Permalink | Comments (4)

A Brewing E-Discovery Battle?

At his blog Strategic Legal Technology, Ron Friedmann puts up his periscope and sees a battle brewing between e-discovery vendors and large law firms. Several large law firms are establishing EDD consulting services. This means that firms and vendors may find themselves competitors for EDD clients. Friedmann asks: Which should clients choose?

Clients should consider carefully who offers the better set of skills and experiences. BigLaw brands may offer comfort, but some vendors have hired experienced lawyers and may offer the better bundle of skills and experiences.

EDD vendors risk competing against large law firm customers. Were I on the BigLaw buy side, I would not give my EDD business to vendors competing for the same consulting dollars.

Larger firms, on the other hand, may suffer from their own caste system that keeps them from listing nonlawyer tech experts on EDD practice pages, Friedmann predicts.

This lacuna could hurt marketing: as a client, I’d want to know about who is on my team. Furthermore, the caste system takes more than just a psychic toll; it can reduce effectiveness by hampering teamwork. Inhouse counsel often buy into the caste mentality but that is balanced by greater awareness of the importance of team work.

Friedmann says he cannot predict who will win the battle of the EDD consultants. Still, he notes, "it will be interesting to watch the emerging competition."

January 29, 2007 | Permalink | Comments (0)

Podcasts Round-Up

Got a new iPod for Christmas and still looking for something to do with it? Here are some recent law-related podcasts worth a listen:

At the podcast formerly known as Coast to Coast, we have changed our name: We are now Lawyer2Lawyer. The change acknowledges our expanding audience and programming beyond the two coasts. In the latest episode, my co-host, J. Craig Williams, and I discuss companies' expanding use of outside general counsel.
Lawyer Lauren Stiller Rikleen discusses her book, Ending the Gauntlet: Removing Barriers to Women’s Success in the Law, on the latest episode of Westcast, the Thomson West podcast. (You can also hear Rikleen discuss her book on a Lawyer2Lawyer episode recorded last March, Legal Gender Gap.)
The third episode of This WEEK in LAW is up, with hosts Denise Howell, Cathy Kirkman, Ernie Svenson and John Palfrey speaking with guest Jason Calacanis about RSS and the rights of content creators.
Colete Vogele launches her podcast, Rules for the Revolution, with guest Mia Garlick, general counsel for Creative Commons, to discuss questions about licensing for podcasts.
At Check This Out!, law librarian Jim Milles provides an update on blogging and the New York lawyer advertising rules with New York legal bloggers Bill Altreuter of Outside Counsel, Nicole Black of Sui Generis and Matt Lerner of New York Civil Law Blog.

Remember, you do not need an iPod to listen to a podcast. Listen on your computer or burn the podcast to a CD and listen in your car.

January 29, 2007 | Permalink | Comments (0)

Blawg Review: Illuminati Edition

Kevin A. Thompson is showing his age. This Chicago IP attorney actually remembers the 2400-baud modem. More to the point, he remembers a seminal 1993 Internet law case in which the use of modems and bulletin-board systems on the pre-modern Internet resulted in a Secret Service bust of two sysops on a BBS operated by game publisher Steve Jackson Games. The BBS was called Illuminati, in honor of the company's popular conspiracy game of the same name. Steve Jackson Games went on to win vindication in the courts, and Kevin Thompson now invokes the memory of this case as he hosts Blawg Review #93 at his blog Cyberlaw Central. It is a world populated by the likes of the Gnomes of Zurich, the Servants of Cthulhu and the Bavarian Illuminati, so let Thompson be your guide.

January 29, 2007 | Permalink | Comments (3)

Blogging LegalTech N.Y.

I was supposed to be in New York today, taking in the sights at LegalTech New York 2007 and attending the LTN awards dinner. Various events converged to keep me away. Thanks to David Snow, however, I can enjoy the next best thing to being there. Snow, editor of Law.com Legal Technology, is blogging LegalTech. He will be updating the page with news from the show as well as sending out a daily e-mail with a wrap-up of events. That's him in the picture here -- watch for him wandering around the show. If you catch up with him, tell him Bob says hi.

January 29, 2007 | Permalink | Comments (1)

January 26, 2007

When Bad Things Happen to Attorneys' Good Clients

All of us lawyers want more civility in the litigation process. But what about when the press for civility prejudices a client? In my view, that's what happened in Peters v. Pine Meadow Ranch Home Association, the Utah case covered by this article, Sanctioned for Disrespect (ABA e-Report, 1/26/07). As the article reports, in Peters, the Utah Supreme Court refused to consider the arguments of Boyd Kimball Dyer, attorney for plaintiffs, because his briefs "included a substantial amount of material that is offensive, inappropriate and disrespectful" of the appeals court. Dyer's briefs attacked the appellate judges only, accusing them of fabricating evidence. Apparently, Dyer did not impugn or insult the opposing parties or counsel. The Utah Supreme Court struck the briefs and affirmed the appellate court's rulings against Dyer's client. And, the court assessed $17,000 in attorney fees against Dyer.

Now, I'm all for civility in court proceedings. And while it's never appropriate to insult or attack judges, doing so doesn't impair civility as much as attacks on other lawyers, witnesses or the parties themselves. But more importantly, even assuming that Dyer crossed over the civility line, why punish his clients by dismissing Dyer's briefs? Dyer could have been sanctioned for his conduct with penalties or a censure. However, clients shouldn't take the fall just because the judge doesn't like their lawyer. Lack of civility is an evil that we ought to stamp out, to be sure, but not at the cost of a greater evil: compromising a party's right to be heard.

January 26, 2007 | Permalink | Comments (1)

Should Citizenship Be a Prerequisite to Winning a Contest?

Is citizenship or other legal status a prerequisite for entering or winning a contest? That's the question that's arisen not once but twice this month in two unrelated stories.The first involves a sweepstakes run by Toys R Us, with a grand prize of a $25,000 savings bond for the first baby born in 2007 (see here for AP story). However, the company passed over Yuki Lin, a Chinese-American baby born a few seconds after midnight to nonresident parents in favor of the second-born baby, whose parents were citizens. Toys R Us claimed that its contest was only open to legal residents.

But then Albert Wang, a corporate lawyer learned about the Toys R Us decision. Wang was outraged by what he perceived as hypocrisy, in that Toys R Us wanted business from China but was not willing to award a prize to a Chinese-American citizen because of her parents' nonresident status. Wang started an e-mail campaign, which eventually lead Toys R Us to reverse its decision and award a savings bond to Yuki Lin.

Just yesterday, another similar issue arose, described in this Chicago Sun Times Story, No Green Card, No Free Car (1/25/07). There, a Spanish radio station held a raffle, but refused to award the prize of a sportscar to the winner, Maribel Alvarez. Alvarez was unable to produce a valid Social Security card, which the station claimed was necessary to allow raffle winners to claim prizes worth more than $500. Alvarez, who has been in the United States since she was seven, retained an attorney to sue the station, arguing that the contest did not require her to be a U.S. citizen or legal resident in order to win the car. The radio station responded to Alvarez's attorney by threatening to refer Alvarez to immigration authorities if she didn't drop the suit.

In an environment where dealing with illegal immigration is a hotly debated political issue, stories like these are particularly charged. But legally, what's the right analysis and result? Let me know your view.

January 26, 2007 | Permalink | Comments (4)

Law Firms' IPOs -- Coming Soon to the U.K.

Most large law firms have handled some kind of IPO work. But now, at least in the United Kingdom, a law firm might technically become the subject of an IPO, as Bruce MacEwen reports in this post:

Thanks to the Clementi Commission reforms, which will take effect next year, public investment in law firms will be legal; indeed, law firms could hypothetically take themselves through an IPO. And it's not just public investors, but partners bearing money of all types: Firms could join forces with investment advisors, management consultants, commercial real estate brokers, wealth management specialists and private bankers, etc., etc.

Already, law firms are taking calls from the large investment banks, exploring the possibility of external investment. And MacEwen predicts that even those firms that aren't "totally convinced" now will become "terribly flattered" and entirely open to proposals by next year.

I'm not familiar with the U.K.'s professional ethics rules, but here in the United States, I have difficulty figuring out how firms can accept outside investors without compromising their independent judgment or running into conflicts of interest. Not that I think that ethics rules will pose any impediment to outside investment, if it grows in popularity. Rather, we'll see a move from within large firms to change ethics rules to accommodate the type of investment activity taking place overseas. After all, why should the ethics rules stand in the way of making millions of dollars?

January 26, 2007 | Permalink | Comments (0)

The ROI of Blogging: Is Blogging Held to a Different Standard?

How should businesses and law firms recognize the "return on investment" of blogging? Should they try to analytically quantify the benefits, reducing them to dollars? Charlene Li of Forrester suggests that there's value to quantifying the ROI of blogging. And in a recent report that Li prepared, she proposes various metrics for determining the financial benefits of blogging (also described in her post) such as savings on search engine optimization or avoided cost of hiring a "buzz agent." Li defends her analytical approach, asserting:

At the core of my bleeding heart pumps the soul of a pragmatist. Sure, I buy into all of the positive, feel good reasons to have a blog. But when your manager asks why the company has a blog versus spending more time and resources on XYZ initiatives, it sure would be helpful to be able to show a spreadsheet of those blogging benefits in dollars and cents.

Kevin O'Keefe of LexBlog takes a slightly different view on the ROI of blogging. He believes that blogging brings value in that it enhances a lawyer's reputation. But he also suggests that blogging shouldn't be held to a higher, or different, analytical standard for judging ROI than traditional marketing techniques like taking clients to lunch, publishing articles and networking. O'Keefe points out that you don't measure the effectiveness of those marketing practices in dollars and cents. Rather:

You measure it by the fact that those lawyers who do these things tend to be recognized as leaders and get more work. Over the years, we've come to accept this type of reputation building, networking, and relationship building as something that is key to the marketing of a professional services firm.

So why hold blogging to a different standard?

January 26, 2007 | Permalink | Comments (1)

January 25, 2007

Voice Recognition: I'm Listening

Voice-recognition software has never been a staple of my work routine. I have always felt more eloquent with a keyboard than a microphone. So I was surprised and intrigued this week when Dennis Kennedy, a legal technologist whom I highly regard, listed his Legal Tech New Year's Resolutions and put use of speech-recognition software at the top of his list. He explained:

"I've probably dabbled in speech recognition off and on for maybe the last ten years. The experiments have had their ebbs and flows. Like many other technologies, speech recognition requires a continuing effort to engrain it as a habit. I've always gotten distracted from the experiment. So far in 2007, I've decided to use my Tablet PC as a dedicated speech recognition machine and added RAM to it. In my experience, the crucial link in the speech recognition process is microphone placement. I've gotten a new headset that will keep the mike in a relatively fixed position. Next up, starting to make a habit of creating first drafts by voice. A reasonable goal: creating all first drafts of blog posts by dictation by the end of March."

Kennedy's inspiration came, in part, from St. Louis lawyer George Lenard, who recently wrote on his blog that voice-recognition software is his favorite productivity tool. Lenard, who uses Dragon NaturallySpeaking 9, explained how it makes him more productive:

"I was never a good typist. I had difficulty learning to dictate in a manner that produced results that did not require extensive editing to suit my perfectionistic writing style. With voice recognition, I have the benefit of extremely rapid typing, combined with the ability to compose and edit on-screen as I go -- as opposed to dictating a tape, unable to efficiently review and edit until after I’ve waited for someone else to type it."

Curious, I looked around for other lawyers' thoughts on speech-recognition software. I found Brett Burney's review of NaturallySpeaking published in November at LLRX.com. Burney, the legal technology support coordinator at Thompson Hine in Cleveland, writes that voice recognition still may not be all that some lawyers imagine, but it has reached a stage of development where he can recommend it confidently. "Just understand," he adds, "that it's more of a complement to a keyboard and mouse, and not a full replacement."

After reading what these lawyers say, I suddenly find myself all ears for speech recognition.

January 25, 2007 | Permalink | Comments (2)

Rip Up Those Yellow Pages

Strongman Charles Atlas is legendary for his feat of tearing a phone book in half. Perhaps legal marketer Larry Bodine will become legendary in legal circles for tearing up the Yellow Pages. At his LawMarketing Blog, Bodine advises lawyers to "cancel that #*$%! expensive yellow pages ad" and save yourself "a small fortune." Why?

"Fewer people are reading the Yellow Pages every day. It's last century's marketing. Instead, they are using the Web to find attorneys. Take the money you save and plow it into your online presence. People now use Google to look up phone numbers, addresses and law firms. ...

"By advertising in the yellow pages, you are doing what thousands of other lawyers are doing. You are simply making yourself more like the competition, not distinguishing yourself. There's no way to break from the clutter -- there are hundreds of lawyer yellow page listings."

So flex those marketing muscles online instead of in the phone book. Perhaps you, too, will achieve amazing feats of business enhancement.

January 25, 2007 | Permalink | Comments (5)

The Top 10 Court Web Sites

For the eighth year running, the IT consulting firm Justice Served has handed out its awards for the world's Top 10 Court Web Sites. The awards rate sites based on the degree to which they enable users to conduct court business online as well as on their functionality and aesthetics. At the top of the list is the Supreme Court of Singapore, whose site includes e-filing, access to judgments, online booking of its high-tech courtroom and online booking of its Info-Tech Trolley, a mobile collection of projectors, screens, players and other technology equipment to assist lawyers using laptops and PDAs.

Other courts honored for their Web sites are:

Superior Court of California, Los Angeles County, singled out for its "all-round e-service excellence."
Federal Court of Australia, with an array of online filing, calendaring and records-access features.
Nebraska Workers' Compensation Court, for demonstrating how an administrative tribunal can "use the Web effectively to help litigants and practitioners."
Iowa Judicial Branch, for its "clean, well organized site."
U.S. District Court, District of Nevada, for its superior job of organizing its content "and providing aesthetic, functional navigation."
Connecticut Judicial Branch Law Libraries, described as "best in its class."
Superior Court of California, County of Napa, for features that include online payment of traffic citations and statewide legal forms.
District of Columbia Courts, includes accomodation for multiple languages "to better serve a culturally diverse jurisdiction."
Brevard County Clerk of the Court, Florida, for "above-average interactive choices that continue to grow."

Justice Served says that it issues the awards so that court managers may use them as benchmarks for best practices in online service delivery.

January 25, 2007 | Permalink | Comments (0)

Lawyers as Web Celebs

Riddle me this: What do a law professor at the University of Tennessee and a partner in the Minneapolis office of Faegre & Benson have in common with YouTube phenomenon lonelygirl15 and sex podcaster Violet Blue? The answer: They are all on Forbes magazine's list of The Web Celeb 25 -- "a list of the biggest, brightest and most influential people on the Internet."

As Blawg Review observes, four lawyers made the list of the top 25:

At number three on the list, Markos Moulitsas Zúniga, author of the political blog Daily Kos and a graduate of Boston University School of Law.
At number seven, Glenn Reynolds, author of the blog Instapundit and law professor at the University of Tennessee College of Law.
Ranked number 10, Michael Arrington, author of the blog TechCrunch and a 1995 graduate of Stanford Law School.
At 19 on the list, John H. Hinderaker, an editor of the political blog Power Line and partner at Faegre & Benson.

As these examples demonstrate, the road to Internet fame is paved with blog posts. Tom McPhail, a professor of media studies at the University of Missouri in St. Louis, tells Forbes that a blog will soon be a prerequisite for anyone who wants to be famous for their writing. "If you don't have a blog, you're going to be considered an outcast. You're considered to be not literate. Having a blog will likely be a prerequisite for first jobs."

January 25, 2007 | Permalink | Comments (0)

January 24, 2007

Bruce MacEwen's Post-Mortem on the Dewey-Orrick Split

Bruce MacEwen offers this lengthy post-mortem analysis of the Orrick/Dewey break-up that we posted on here three weeks ago. MacEwen first gives a great round-up of links to all the stories on the failed merger of Dewey Ballantine and Orrick, before launching into his thoughts on the events.

MacEwen suggests that there's nothing wrong with the merger not going through, given that in the corporate world, mergers are often unsuccessful and don't bring the predicted gains. As with marriage, better to call it off before the wedding rather than split up later.

MacEwen also shares his view that in the case of the Orrick/Dewey merger, the practice group leaders were never on board:

I never sensed the partnerships themselves—practice group leaders on down—were behind the deal. I sensed it was driven from the top, and the top alone. Understand: First of all, I have no inside information that this is true (and I wouldn't write about it here if I did!), but I do have this sense. Second, there is nothing wrong with initiatives being driven from the top; they almost always are (those that aren't are called insurrections). The point is that the "top" must enlist support, fully, completely, patiently, collaboratively, sincerely. Somehow that doesn't seem to have gelled in this case; more's the pity.

January 24, 2007 | Permalink | Comments (0)

Sense of Humor as an Alternative to Cease-and-Desist Letters

When it comes to cease-and-desist letters, maybe a law firm like Baker & McKenzie should follow the lead of Ginsu Yoon, counsel for the virtual-world company Second Life. As we posted here back in June, Baker & McKenzie sent a heavy-handed cease-and-desist to Boing Boing warning it against any potential unauthorized streaming and downloading of World Cup soccer matches. The cease-and-desist letter made its rounds on the Internet, earning Baker & McKenzie lots of negative PR for its overly aggressive tone.

By contrast, consider Yoon's response to a recent parody of his client's site, as reported in this article, Laywers Have Senses of Humor in Second Life (1/24/07). According to the article, Vancouver blogger Darren Barefoot invited Second Life to send a cease-and-desist letter in response to the parody that he had created. Yoon wrote:

"your invitation to submit a cease-and-desist letter is hereby rejected...."Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody," Yoon wrote. "Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception." The note even gives Barefoot a "nonexclusive, nontransferable, nonsublicenseable, revocable, limited license" to use the modified logo on T-shirts he sells.

Maybe other lawyers should consider this approach.

January 24, 2007 | Permalink | Comments (2)

The Silver Lining in the Associate Morale Problem at Sullivan & Cromwell

Over at WSJ Law Blog, Peter Lattman reports on the problem of low associate morale at Sullivan & Cromwell. Lattman writes that associate morale has gotten so bad at S&C that the firm itself took note, acknowledging the problems in a 74-page PowerPoint presentation prepared last February. Among the issues: The firm experienced a 31 percent attrition rate (compared with 19 percent for other comparable firms), and associates described a lack of connection with the firm as well as instances of mistreatment by partners.

In reading about Sullivan & Cromwell's morale problems, however, I couldn't help but think that there's a bit of a silver lining in all of this. As I described in this previous post, Sullivan & Cromwell has been sued by a gay associate, Aaron Charney, for discrimination based on sexual orientation. So what could be a better defense to Charney's claims than to argue that, "We didn't mistreat him because of his sexual orientation. We mistreat all of our associates, equally."

January 24, 2007 | Permalink | Comments (3)

January 23, 2007

Lawyers, Plain English and '24'

When I watch 24, it is never with an eye to what I might take back to my law practice. Not so Jay Shepherd, who found a lesson for lawyers in this season's very first episode, as he explains at his blog, Gruntled Employees.

In that first episode, as Shepherd recounts, National Security Advisor Karen Hayes questions White House Chief of Staff Thomas Lennox's interpretation of the president's directive. "In plain English," she says to him, "you're second-guessing the president." He shoots back: "Plain English does not allow for the nuances that my job requires, Karen."

If that response sounds familiar, it may be because we have heard it from lawyers often enough. As Shepherd writes:

Perhaps lawyers feel the same way, that plain English is inadequate for handling the "nuances" needed for legal writing. They think that legalese allows them to express themselves more precisely, as if talking about "said contract" is more precise than "this contract," or that "two (2) weeks" is more exact than "two weeks."

Those lawyers are wrong, Shepherd says. He cites Bryan Garner, who wrote in the Dictionary of Modern Legal Usage about the "myth of precision":

Traditionally, lawyers have aimed for a type of "precision" that results in cumbersome writing, with many long sentences collapsing under the weight of obscure qualifications. That "precision" is often illusory for two reasons: (a) ambiguity routinely lurks within traditional, legalistic language; and (b) when words proliferate, ambiguities tend to as well.

By contrast, 24's lead character, Jack Bauer, has no problem using plain English. As evidence, Shepherd recalls examples of Bauer's directness, such as this one: "I'm gonna need a hacksaw."

No ambiguity there. Now if Bauer could just teach lawyers how to go 24 hours without food, sleep or a bathroom break -- imagine the billables!

January 23, 2007 | Permalink | Comments (1)

Time to Reform Law School Tuition?

The law school curriculum has drawn much attention lately, with last week's Carnegie Foundation report condemning schools for failing to teach future lawyers practical skills and Harvard's recent decision to change its first-year courses. But what of law school tuitions? Should law schools rethink their tuition formulas in order to provide future lawyers more flexibility in their choice of career?

Frankly, I was shocked to read in today's New York Law Journal that a New York law firm will pay first-year associates $160,000 -- before bonus. We've seen this scramble before; once one elite firm raises the bar, the others quickly follow. Meanwhile, first-year lawyers earn $43,300 to $46,300 in government employment and $36,000 in legal services, as the National Association for Law Placement reported in September. Let's face facts: Many lawyers will never in their entire careers see an annual paycheck of $160,000.

But while there is a six-figure gulf between high- and low-end starting salaries, new lawyers all start their careers with the same tuition bill. According to the American Bar Association, many law students graduate with debt of $80,000 or more. Paying that off requires writing monthly checks of $900 for at least a decade. That is $10,800 a year. Try to budget that with an annual salary of $36,000.

Some states and law schools have sought to address this problem by creating loan repayment assistance programs. But a 2003 ABA report, Lifting the Burden: Law Student Debt as a Barrier to Public Service, concluded that the number of these programs is small and their resources are limited.

All of which suggests that law schools should be examining their tuition structures as closely as they are their curricula. Here is one modest proposal to start: Create a sliding scale that adjusts students' final tuition bill up or down based on their first-year salaries out of law school. That first-year associate with the paycheck of $160,000 plus bonus would end up owing more to his or her alma mater, while the lawyer who chooses public service would receive a nice little refund check. Preposterous? No more so than paying a newly minted lawyer $160,000.

January 23, 2007 | Permalink | Comments (6)

Blogging Libby: The 'First' That Wasn't

An old saw of journalism urges, "If your mother tells you she loves you, check it out." Last week, a "remarkable array" of journalists and bloggers apparently accepted their mothers' love without question, suggests Mark Obbie at LawBeat, when they reported the credentialing of bloggers to cover the Scooter Libby trial as a "first." The problem, says Obbie, is that it was not true. As he wrote earlier, the Houston Chronicle team covering last year's Enron trial "included multiple bloggers -- some on staff, some not, and some with seats in the court or in an overflow room for the media with closed-circuit video." In fact, part of that team was composed of lawyers.

I was among those who called this a first. I should have known better, but at least I was in good company, joining Washington Post staff writer Alan Sipress and National Public Radio's Weekend Edition, among others. The story started when Robert Cox, president of the Media Bloggers Association, wrote on his blog that the MBA had negotiated with the federal judiciary to obtain press credentials for two bloggers to cover the Libby trial. He said:

"I have been working with the folks at the federal judiciary through for over a year to create this opportunity. It has never been done before."

A week later, Cox posted photographs, announcing, "Here they are -- the first ever credentials granted to bloggers at a federal trial."

Obbie gives the benefit of the doubt to the Post's Sipress, writing:

"Maybe Sipress meant to say it's a first for bloggers unaffiliated with a mainstream media outlet to get reserved seats in the courtroom (and I don't know if even that's true, but it stands a better chance of proving true than what he wrote)."

In a comment to Obbie's post, Mary Flood, a Houston Chronicle reporter who covered the Enron trial, confirms that bloggers occupied courtroom seats there reserved for the news media. But there was confusion about how to treat other bloggers, including the blogging lawyers, she writes.

"Sometimes these other bloggers sat in reserved media seats and sometimes they sat in seats reserved for the general public. The court security officers generally let the mainstream media police the media seats since these law enforcement officers did not want to be the arbiters of how bloggers fit into the US media landscape."

In state courts, creating blogs to cover trials is becoming common. We wrote here in October about the Christopher McCowen Murder Trial Blog set up by the Cape Cod Times. Other trial blogs revealed by a quick Web search include the still-active John Healy Trial Blog from Utica, N.Y., Inside the Courtroom from The Billings Gazette in 2005, a TV reporter's 2003 blog covering an Oklahoma City murder trial, Now We're Talking covering a Florida murder trial for The Ocala Star-Banner, and Courtroom Insider from Indiana's Herald Times.

As for my mother's statements of love, she departed long ago. But you can be sure I'll double-check the rest of my family from now on.

January 23, 2007 | Permalink | Comments (0)

January 22, 2007

Court Strikes Down Calif. Sentencing Law, Holds That Sentencing Is a Jury Question

This morning, The Associated Press reported that the Supreme Court issued a 6-3 decision in Cunningham v. California, striking down California's sentencing law and affirming the sanctity of defendants' constitutional right to have their sentences determined by a jury. In the decision, Justice Ginsburg, writing for the majority, explained that Supreme Court decisions made clear that the Sixth Amendment of the Constitution requires that "any fact that exposes a defendant to a greater potential sentence must be found by the jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of evidence." The California sentencing law, however, allowed judges to find facts to determine whether a longer or shorter prison sentence was warranted.

Comments and explanation from the blogosphere are already out in force. Doug Berman of The Sentencing Blog gives a rundown on how the justices ruled: Ginsberg, Roberts, Scalio, Thomas and Souter comprised the majority, with Alito, Breyer (former Sentencing Commissioner) and Kennedy in the dissent. Writing for the dissent, Alito argued that he found no difference between the California scheme and the advisory guidelines that the Court had approved in US v. Booker. But Berman hasn't fully parsed through the decision, which he characterizes as a criminal lawyer or professor's dream (or nightmare) because the decision is so full of so many issues to think about. Lyle Denniston at SCOTUS Blog also offers a brief summary of the decision here. Look for more commentary on this decision in the coming days ...

January 22, 2007 | Permalink | Comments (0)

Follow-Up on the Case of the Lawyer Imposter

A couple of months ago, I posted on the case of Brian Valery, a paralegal who duped his law firm into thinking he was a licensed attorney. Now, according to this article fromThe New York Times (1/21/07), Valery has been disbarred -- even though, technically, he was never admitted to the Bar. However, by disbarring Valery, Connecticut authorities hoped to prevent Valery from gaining admission in other states.

According to the article, Anderson Kill lawyers blame themselves for trusting Valery's story (he had been employed as a paralegal at the firm for many years and claimed he had returned to law school and passed the bar). But in these comments to our earlier story on Valery, a former Anderson Kill attorney says that Valery's situations raised red flags that the firm missed.

As a result, Anderson Kill, his employer, continues to face consequences of Valery's fraud, including issuing refunds to clients whose matters were handled by Valery.

January 22, 2007 | Permalink | Comments (0)

January 19, 2007

Law Schools 'Should Be Ashamed'

A new report from the Carnegie Foundation for the Advancement of Teaching condemns law schools for failing to support students in developing ethical and practice skills for giving only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. The report, Educating Lawyers: Preparation for the Profession of Law, recommends:

"Legal education needs to be responsive to both the needs of our time and recent knowledge about how learning takes place; it needs to combine the elements of legal professionalism -- conceptual knowledge, skill and moral discernment -- into the capacity for judgment guided by a sense of professional responsibility. Legal education should seek to unite the two sides of legal knowledge: formal knowledge and experience of practice."

A report about the study in today's Chronicle of Higher Education summarizes it this way:

"The report concludes that the Socratic 'case dialogue' method that dominates law-school teaching does a good job of teaching students legal-reasoning skills but does little to prepare them to work with people or juggle morally complex issues."

It is a state of affairs that leads Tom Kane at The Legal Marketing Blog to say that law schools "should be very ashamed." Why should this matter so much to a legal marketer such as Kane? Because if law-school grads are unprepared to practice, they are equally unprepared to develop a practice. Kane writes:

Recent graduates are unprepared for the day-to-day realities of practicing law, including developing business. ... Additionally, these young lawyers are woefully lacking in the client relationship skills that are so vital, not only to developing business, but having a successful long-term practice.

The Carnegie Report says that some law schools are already making strides towards a better balance of theory and practice. The authors single out Gonzaga University School of Law, New York University, the City University of New York, Yale Law School and Southwestern Law School. Many others, however, have a long way to go.

January 19, 2007 | Permalink | Comments (2)

Suit Over Florida 'Lemon' Sours in Calif.

When Californian Bryan Shisler saw the online ad for a 2-year-old BMW M5, he decided to take the plunge. Sure, the car was 3,000 miles away in Miami, but the dealer's Web site said that it shipped vehicles "worldwide." So by mail and by fax, the Californian and the dealer consummated their transaction. But when the Beemer eventually arrived at Shisler's door -- guess what -- its condition was not as he expected.

Nor did he get what he expected when he sued the dealer in a California court. As Cathy Kirkman reports today at Silicon Valley Media Law, a California appeals court issued a decision holding that the Florida dealer's "worldwide" Internet advertising was not enough to give California courts jurisdiction. She explains:

The plaintiff argued that the dealer sold cars to Californians and used the Internet to advertise cars for sale that it would ship "worldwide." However the court concluded that these passive Internet advertisements along with a small number of car sales to the state were insufficient to subject the dealer to jurisdiction in California.

For Shisler's sake, we can only hope that the car runs well enough to get him to a court in Florida, a state where lemons are abundant.

January 19, 2007 | Permalink | Comments (2)

The Year's Leaders in Legal Technology

At The Common Scold, Monica Bay has the hot-off-the-presses scoop on the winners of the 2007 Law Technology News Law Firm & Law Department Awards announced today. And the winners are (drum roll please):

Most innovative use of technology in a law firm: Morrison & Foerster’s Jo Haraf, chief information officer, Oz Benamram, knowledge management counsel, and James McKenna, firmwide litigation technology manager, for their development of "an intelligent knowledge management sytem" and a "user-friendly vendor database."
Most innovative use of technology in a law dept: John Theriault, vice president, and Mary Ann Sarao, director of global security, at Pfizer Inc., for conceiving and developing a global anti-piracy system.
Most innovative use of technology in a trial: Pen Volkmann, director of graphics and video services at Holland & Hart, for using Hollywood technology to help persuade a Miami jury to award the firm's clients $110 million in damages.
Most innovative use of technology for a pro bono project: Winston & Strawn's Chip Goodman, IT director, Cheryl Garrett, senior programmer/analyst, and the entire IT department, for creating a powerful pro bono recruiting tool that dramatically increased the firm's pro bono capacity.
Champion of Technology: John J. Kruse, director of records, imaging and conflicts at Cadwalader, Wickersham & Taft, for leading the firm through many successful and innovative technology projects over the course of more than 30 years.
IT Director of the Year: Judith Flournoy, chief information officer of Loeb & Loeb, for her leadership in developing the firm’s Dynamic Document Drafting, or D3, program.

Monica has more details. Winners will be honored at a Jan. 29 dinner during New York Legal Tech.

January 19, 2007 | Permalink | Comments (0)

Law Firm Diversity: Just Do It

It was hardly an overstatement for Bruce MacEwen to title his post today, Everything You Always Wanted to Know About Diversity. In a lengthy essay, by blog standards, he does not cover everything, but he does explore in depth the question of whether more diverse firms perform better by economic standards. As he frames it: "Do diversity initiatives, in other words, have a positive ROI?"

MacEwen begins by examining the fairly grim state of diversity within the legal profession. He considers first the numbers reported by The Minority Law Journal's 2006 Diversity Scorecard and in a new report from the American Bar Association Commission on Women in the Profession, Visible Invisibility: Women of Color in Law Firms. He notes also the efforts by corporate America to pressure law firms to ratchet up their efforts to achieve meaningful diversity. He also looks at the numbers reported by Richard Sander on racial disparities in bar passage rates.

But then he turns to the economic evidence in the case for diversity. There he finds a sizable selection of "utterly compelling" literature "on diversity's beneficent impacts on creativity, innovation and agility." After highlighting key conclusions of the economic literature, MacEwen arrives at this conclusion:

Do it for your bottom line? Do it because it's the right thing? Do it for more variety and some more just plain interesting colleagues in the workplace? Pick your justification.

But Just Do It.

In those last three words, MacEwen may have summed up everything a firm needs to know about diversity.

January 19, 2007 | Permalink | Comments (0)

January 18, 2007

MySpace Sued

With so many horror stories about predators lurking on My Space, a lawsuit against it was only a matter of time. Now, as this article, My Space Hit With Online Predator Suits (SFGate.com 1/18/07), four families have sued MySpace, alleging negligence in monitoring the site and negligent misrepresentation about security. The families claim that negligence by MySpace resulted in sexual abuse of their underaged daughters by adults whom they met on the site.

According to the article, MySpace has attempted to increase educational efforts about the dangers of the site and has partnered with law enforcement. In addition, the company has placed restrictions on the ability of adults to contact younger users and developed technology to let parents monitor their children's activity. But according to this statement by Connecticut States Attorney, on behalf of 33 State Attorneys General, the software isn't adequate to protect children -- and if MySpace doesn't increase safety at the site, other options, including legal action, will be considered.

Being a lawyer, naturally, I wish there were a nice, clean legal solution to this problem. But it's not so simple, because neither law nor technology can replace parenting. And thus, I side with this opinion by Anastasia Goodstein, in her column at The Huffington Post, Why Can't Technology Replace Parenting? The conclusion (with my emphasis):

And while I understand the anger these families have over what may have happened to their daughters, I don't think a lawsuit is going to solve the underlying problem of why these girls decided it was ok to meet a guy in person they had only interacted with online. I'm not anti-filtering for younger kids and teens, just as I support parents who keep the computer in a central location for this same age group. I just believe that technology can't replace talking.

January 18, 2007 | Permalink | Comments (1)

YouTube: A Lawyer's Secret Weapon

Difficult times call for unconventional measures. And as described in this post at Legal Pad, unconventional measures, specifically a YouTube video, are what attorney William Teesdale took in a desperate, but as yet unsuccessful, effort to help his client, a Guantanomo detainee, gain his release.

Here's the description of Teesdale's Guantanamo Unclassified video, from Legal Pad:

Teesdale has released a short documentary video in which, on a beach in Guantanamo bay, he explains that hospital worker and teacher Adel Hamad has been held for years in detention and denied release even after a member of the military tribunal reviewing his case called his incarceration “unconscionable.” The video includes interviews with Hamad’s coworkers from Afghanistan, where he’d worked for a hospital supported by a charity that the CIA seems to think might have counter-American ideals.

Whether Teesdale's video is successful in gaining his client's release remains to be seen.

January 18, 2007 | Permalink | Comments (2)

Will Associate's Suit for Discrimination Based on Sexual Orientation Be Resolved in Court or the Court of Public Opinion?

Used to be that lawsuits against firms for discrimination were a hushed affair, filed and pursued under cloak of secrecy. Law firms kept suits quiet, fearing damage to their reputation that might place them at a recruiting disadvantage. At the same time, most lawyers suing their firms kept quiet as well, fearing that a complaint would label them as a whiner and end their career.

So in this context I'm not sure if the lawsuit filed against Sullivan and Cromwell by Aaron Charney, an apparently still-employed associate at firm, for discrimination based on sexual orientation is simply an unexplained aberration or a new trend towards duking out claims not just in the court but in the court of Internet-driven public opinion.

As reported in Gay Associate Sues Firm For Discrimination (NY Law Journal 1/17/07), Aaron Charney filed a pro se suit against his employer, Sullivan and Cromwell, alleging that several partners discriminated against him because he is gay. From the article:

Aaron B. Charney accuses several of the firm's top partners of discriminating against him because he is gay. He also claims the firm initiated a retaliatory campaign after he filed an internal complaint, culminating in the issuance of a fabricated performance review.

In a statement e-mailed yesterday to all Sullivan & Cromwell lawyers, chairman H. Rodgin Cohen said the firm categorically denied Mr. Charney's allegations. He said the associate had made similar claims in May 2006, at which time he engaged a lawyer to demand a multi-million-dollar payment from the firm. The firm had investigated Mr. Charney's claims then, said Mr. Cohen, and rejected the demand for payment.

But that's hardly the end of the story. Over at Above the Law, David Lat has been providing extensive coverage, including a copy of the complaint, an interview with Charney, a memo attached to Charney's complaint about allegations of the firm overbilling clients and commentary from a sympathetic S&C former summer associate. (Full coverage accessible here.)

If Charney hopes to gain public sympathy, he has -- at least as evidenced by a poll put out by Lat, which shows that 64 percent of readers side with Charney. And with disclosures about S&L billing and other alleged practices, the firm isn't looking good (though again, that's just one side of the story).

Is Charney's public lawsuit something we can expect to see more of in the future? After all, with big-law reputations what they are, firms can suffer some serious damage in the court of public opinion (recall the surge that came to the support of popular blogger Denise Howell when she announced that she'd been terminated by her firm, Reed Smith). At the same time, law firms can use public opinion to their advantage as well. A law firm sued for discrimination might argue that it terminated an associate for incompetence and circulate inferior work product to back up its claims.

By apparently resorting to what David Giacalone calls e-shaming, Aaron Charney may have opened up a huge can of worms. I admire Charney's conviction and his courage in speaking out, but at the same time, I hope for his sake (and other associates who've been treated unlawfully by law firms and are considering legal action) that all of this doesn't come back around and damage his career.

January 18, 2007 | Permalink | Comments (1)

An Element-ry Idea for a Holiday Card

Though the holiday period has already passed, it's never too soon to plan for next year. And Larry Bodine has already shared some ideas in this post about a neat holiday card idea from Massachusetts IP firm Hamilton, Brook, Smith and Reynold that is clever yet utterly element-ry. As Bodine describes, Hamilton fashioned a holiday card based on the Periodic Table of the Elements, with entries like:

* Li for litigation
* Ho for hot toddy
* Tb for Tannenbaum
* Es(q) for "that's us"
* ...and of course H for Hamilton, Br for Brook, Sm for Smith and Rn for Reynolds

Kudos to Hamilton for discovering a marketing formula worthy of a noble profession like law.

January 18, 2007 | Permalink | Comments (0)

January 17, 2007

The Urge to Undress and Unmask

As trends among lawyers go, the urge to unmask online is far less disturbing than the urge to undress in public buildings. The latter trend apparently got its start in Ohio, when a prosecutor was caught walking naked through a government office building. Now comes the Philadelphia lawyer who yesterday inexplicably decided to disrobe in a courthouse conference room -- in the presence of a 14-year-old girl, no less.

Equally inexplicable but far more preferable is the apparent trend among lawyers who blog anonymously to unmask themselves. We all know the story of David Lat's coming out. A trailblazer in telling all, he toils now, no longer in obscurity, at the legal-gossip blog Above the Law. But that was late in 2005. Other anonymous legal bloggers seemed content to stay safely behind their masks. Until recently, that is.

Maybe The Wired GC is to blame. As reported here in December, this hitherto anonymous blogger announced that he would unmask himself sometime in January. (We're waitinggg ...) Soon after, also as reported here, the anonymous editor of Blawg Review challenged readers to unmask his identity. (They failed.) Now, as that same anonymous editor reports, another unmasking is in the offing. This time, it is the anonymous author of The Greatest American Lawyer, who has launched a contest, Who's that GAL? to guess his true identity.

We welcome lawyers to remove their masks. We urge them, however, to keep their clothes on -- at least in public.

January 17, 2007 | Permalink | Comments (17)

Blogging Scooter

Jury selection began today in the perjury trial of former White House aide I. Lewis "Scooter" Libby. As CNN reports, Libby is accused of lying to investigators about his conversations with reporters regarding outed CIA officer Valerie Plame. Even before it began, the trial secured its place in legal -- and blogosphere -- history. For the first time in federal court, two coveted media seats are reserved for bloggers. Not only that but the court is providing WiFi to permit them to blog live.

As the two bloggers take up their seats as credentialed members of the news media, they can thank the Media Bloggers Association. (Disclosure: I belong to the MBA through my blog Media Law.) As MBA President Robert Cox explains, this opportunity was a long time in the making.

"I have been working with the folks at the federal judiciary through for over a year to create this opportunity. It has never been done before. Behind this may be many additional opportunities with the federal and state supreme courts so getting this one right opens up the door to many other cool things. Other institutions will surely be looking at this as well."

Cox is one of the two bloggers who will kick off coverage. Blogging honors will rotate as the trial proceeds. The MBA Web site will aggregate their posts in a single feed. Other bloggers slated to participate, according to The Washington Post, include Rory O'Connor and James Joyner.

As bloggers everywhere pat themselves on the back, CJRDaily wraps up their reactions, including that of lawyer Jeralyn Merritt, who writes at her blog TalkLeft, "This is a pretty big deal." She explains:

"It's hard to get a press pass for the actual courtroom in a high-profile case, as opposed to the overflow courtroom, where you only get to hear audio of what's going on. It's just not the same. You can't see the jurors or watch the body language of the trial participants. Even major tv networks usually only get a few seats in the courtroom, with the rest of their reporters and pundits having to be in the overflow courtroom."

One small step for bloggers ...

January 17, 2007 | Permalink | Comments (3)

'Civil Action' Star Gets SLAPPed Down

Jan R. Schlichtmann, the Massachusetts plaintiffs lawyer made famous by the book and movie A Civil Action, got a cold slap today in the form of a rebuff from the Massachusetts Supreme Judicial Court. In The Cadle Company v. Schlichtmann, the SJC struck down Schlichtmann's effort to use the state's anti-SLAPP law to dismiss a libel lawsuit against him.

Schlichtmann today lives in a waterfront home in the exclusive Massachusetts community of Prides Crossing, but the toxic tort case that brought him fame initially left him bankrupt. Cadle is a collection company that went after Schlichtmann for some of that debt. There followed years of "particularly acrimonious" litigation between Cadle and Schlichtmann, to borrow the SJC's description. Along the way, Schlichtmann begain speaking out to the media against Cadle. He also created a Web site, Truth About Cadle.

Alleging Schlichtmann published statements on the Web that were defamatory, Cadle sued him in 2005 in a Massachusetts state court. Relying on the anti-SLAPP law, Schlichtmann sought to dismiss the suit. He contended, as the SJC explains it, "that Cadle's complaint had been filed in retaliation for Schlichtmann's exercise of his right to petition the government for redress regarding Cadle's business practices." But the SJC found that Schlichtmann's publication of the statements was more a search for clients than for public redress.

"Schlichtmann published the statements on his Web site ... not as a member of the public who had been injured by these alleged practices, but as an attorney advertising his legal services. The Web site was, in essence, designed by Schlichtmann to disseminate to the public information about Cadle and, by doing so, to attract clients to his law practice."

Given this, the SJC said, Schlichtmann's motion must fail:

"[A]n attorney may not claim protection of the anti-SLAPP statute for publishing statements about an adversary at will, in hopes of shoring up his or her own position, attracting potential clients, or otherwise gaining a tactical advantage in an ongoing legal proceeding, even when that proceeding has, as here, attracted a good deal of public and governmental interest. Put more simply, aggressive lawyering of this sort is not protected petitioning activity."

January 17, 2007 | Permalink | Comments (0)

More of the Bar Comes Out Against Stimson

Since my earlier post on Assistant Deputy of Defense Secretary Cully Stimson's criticism of law firm representation of Guantanamo detainees last Friday, a number of other prominent groups have come out in support of the law firms. As reported in this article from the Boston Globe (1/16/07), 100 law school deans have signed a letter condemning Cully's suggestion that corporations should reconsider representation by large law firms representing detainees. And ABA President Karen Mathis issued this statement, that:

to impugn those who are doing this critical work -- and doing it on a volunteer basis -- is deeply offensive to members of the legal profession, and we hope to all Americans.

Finally, professor Eric Muller at Is That Legal? makes the interesting argument that Stimson's position is contrary to precedent. Muller delved into the ABA's and California Bar's position on attorney representation of Japanese internees back during World War II and discovered that these groups, as well as the federal government itself, called upon American attorneys to represent internees. Muller posts some of the original Bar documents up at his Web site -- and it's quite enlightening.

At this point, even the Pentagon has disavowed Stimson's remarks. As for me, after reading all of the commentary, I am more appreciative of the rights of the detainees' to counsel as well as the impropriety (or, at least, appearance of impropriety) of a government official making these comments.

But at the same time, there's a part of me that still wonders why the Stimson episode has drawn so much attention. Lawyers who represent clients with unpopular causes face controversy and criticism all the time -- from judges, from prosecutors and from others in the community. Defending clients, notwithstanding criticism or economic consequences, is what we lawyers do.

January 17, 2007 | Permalink | Comments (1)

January 16, 2007

A New Type of Treatise

Within the span of a few years, blogging has changed the nature of legal scholarship and law reviews. And blogging has given hundreds of consumer clients access to information on substantive law through blogs like Kansas Family Law Blog, Massachusetts Estate Planning and Elder Care or the California Personal Injury Blog. And now, move over Westlaw and Lexis and keycites and annotations, because blogs are now giving legal research a run for its money.

Consider these developments of the past few weeks. At this earlier post, we reported on FedCirc.us, run by three lawyers who organize and provide commentary on Federal Circuit decisions. Today, my co-blogger, Bob Ambrogi, posted about this blog, Maryland Court Watcher, where a group of Maryland attorneys provide synopses of "all opinions publicly available on the Internet of the Court of Appeals and Court of Special Appeals of Maryland, the U.S. District Court and Bankruptcy Court for the District of Maryland, the Maryland Tax Court, and any Circuit Court in Maryland." Finally, a number of bloggers like Matt Buchanan of Rethink IP are making note of the recent release of the 6,000-page treatise Patry on Copyright by William Patry (senior copyright counsel at Google). But as Buchanan notes, what makes the Patry release unique is the Patry Treatise Blog that Patry has started to collect comments on his treatise that other readers can access through the blog.

Are these lawyer sponsored efforts to report on the law or to generate dialogue over a treatise (themselves once considered "black letter law") the beginning of a trend towards self-publishing? And are they sustainable in the long run? What do you think?

January 16, 2007 | Permalink | Comments (1)

Blawg Review #91

Blawg Review #91 is up and running here at the Public Defender Stuff Blog, the news service of the Public Defender Network. Blawg Review #91 has a Martin Luther King day theme and an extensive scope, so be sure to check this issue out.

January 16, 2007 | Permalink | Comments (0)

CEOs Give Insight About Inside Counsel

Ever wonder what businesspeople think of their lawyers? Wired GC sheds some insight on this, when he excerpts from this New York Times interview (1/15/07) with Jonathan Schwartz, CEO of Sun. From the interview, here's Schwartz's view on legal advice:

I’ll give you my view on legal advice. Lawyers are the very core of Sun Microsystems. I mean in essence we’re a company that monetizes intellectual property. There’s a lot of lawyers involved in helping us think through open source licensing arrangements, you know, customer indemnity. These are not simple things. But at the end of the day, when folks inside of Sun come to me and say, a lawyer wouldn’t let me do X or Y or Z, my response is, well, then why don’t I move headcount under the lawyer, because who’s making the decision here — the lawyer or the businessperson? So legal advice is just that, it’s advice.

So while lawyers can add value, at the end of the day, it's the business folks who run things. And if business doesn't want to listen to the lawyers, they don't have to -- because legal advice is merely advisory. With that kind of attitude from clients, being a GC can't be easy ...

January 16, 2007 | Permalink | Comments (1)

January 12, 2007

Should Law Firm Clients Control Law Firms' Pro Bono Work?

A few weeks back, I posted about how large corporations are demanding diversity in the ranks of the law firms that serve them. While we may find that distasteful, to me, that demand is also fair, consistent with a client's freedom to choose a lawyer. But do private clients have the right to demand that their law firms drop pro bono clients with unpopular causes? And how should law firms respond when clients make these demands?

What's gotten me thinking about these issues is this editorial, Unveiled Threats (Washington Post, 1/12/07). The Post editorial harshly criticizes recent comments by Assistant Deputy Secretary of Defense Cully Stimson on large law firms' pro bono representation of Guantanamo detainees. Specifically, Stimson remarked:

Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there,' and you know what, it's shocking," he said.

Mr. Stimson proceeded to reel off the names of these firms, adding, "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

The Post editorial rebuked Stimson for his veiled threats against law firms. From the editorial:

It's shocking that [Stimson] would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking -- though perhaps not surprising -- that this is the person the administration has chosen to oversee detainee policy at Guantanamo.

But is Stimson's position entirely off base? Back in January 2006, Deroy Murdock of the National Review questioned the decision of so many large law firms to represent detainees. Somewhat like Stimson, Murdock raised the argument that because law firms are working pro bono, their Fortune 500 clients and shareholders "indirectly subsidize legal aid and comfort to suspected Islamo-fascist terrorists." But Murdock also wondered why firms would choose to represent alleged terrorists rather than, for example, families rendered homeless by Katrina.

Michael Froomkin at Discourse.net disagrees strongly with Stimson (and, presumably, Murdock as well), asserting here that Stimson's attempt to "put the economic screws on lawyers ... is just disgusting." Froomkin writes:

It's true that the list of law firms donating time to representing the victims of torture, humiliation (and a total lack of due process) at Guantanamo reads a bit like a who's who of the elite of the corporate bar. And they deserve credit for it.

And Froomkin also adds: "The first firm to cave on this issue is going to find it awfully hard to recruit elite law students, as they will have demonstrated a serious lack of moral fiber."

I agree with Froomkin that firms may have difficulty attracting top students if they stop representing detainees under pressure from clients. As I discussed here in March 2006, Ropes and Gray dropped longstanding client Catholic Charities after various gay and lesbian student groups from Harvard Law School argued that Ropes' work for the charity conflicted with other pro bono work the firm had done for gay and lesbian interest groups. Apparently, Ropes feared that student criticism might impair its recruitment efforts at Harvard.

As for me, here's where I come down on these issues. Personally, if I'd been on the law firms' pro bono committees, I wouldn't have chosen to represent detainees when there are so many far more compelling, but less sexy cases (such as defense of indigent criminal defendants accused of capital crimes at the trial level rather than up at the Supreme Court, for starters) where litigants desperately need representation. But having decided to represent detainees, law firms are obligated to follow through on their commitment, irrespective of client objections (or student objections, for that matter).

As to law firm clients, I see nothing reprehensible about them complaining about and potentially dumping a firm that chooses to represent detainees. Murdock is right on this one: Large firm fees subsidize law firm pro bono programs. One reason why firms charge the rates that they do is to cover their overhead costs, which include pro bono projects. So in my view, clients have a legitimate gripe when firms handle pro bono matters that clients don't support -- because paying clients' fees are subsidizing those cases. But there, too, clients have a remedy -- they can choose another law firm. And that's basically all that Stimson was suggesting that they do.

January 12, 2007 | Permalink | Comments (9)

iPhone, uPhone, We All Sue for iPhone

As reported in articles such as this one, Cisco has sued Apple in the U.S. District Court for the Northern District of California, alleging that Apple's use of the name "iPhone" for its new product release has infringed Cisco's registered iphone trademark. (See here for a picture of each phone.) According to the article, Cisco trademarked the term iPhone in 2000 and subsequently entered into negotiations with Apple after Apple sought permission to use the iPhone name.

The "i" vs. "i" lawsuit has generated discussion in the blogosphere on both procedural and substantive matters. For example, as Kevin O'Keefe writes here, Cisco's GC, Mark Chandler, is using his blog to disseminate Cisco's reasons for the lawsuit. O'Keefe points out that he's never seen blogs used this way before. And from Wired GC's perspective, Cisco is winning the war on the blogging front with this argument from Chandler:

If the tables were turned, do you think Apple would allow someone to blatantly infringe on their rights? How would Apple react if someone launched a product called iPod but claimed it was ok to use the name because it used a different video format? Would that be ok? We know the answer – Apple is a very aggressive enforcer of their trademark rights. And that needs to be a two-way street.

As Wired GC notes:

No response yet from new Apple GC Donald Rosenberg; he’s probably still unpacking his bags. And Apple employees don’t blog. But they certainly can innovate.

Given that Cisco has held the iPhone trademark since 2000 (something that Apple implicitly acknowledged by negotiating to obtain those rights), does that mean that Cisco's case is a slam dunk? Hardly. Leaving aside conspiracy theories that Cisco's suit is merely a plot for more publicity or a temper tantrum because Cisco simply isn't as cool as Apple, Marty Schwimmer's extensive list of defenses that Apple has suggests that Cisco will have an uphill climb. Among other things, Schwimmer explains that Apple can argue that the form of trademark that Cisco selected (a Section 8 rather than a Section 15) may not give it a presumption of continuing use and, in fact, may give Apple grounds for arguing that Cisco abandoned its trademark rights. Schwimmer also explains that given Apple's cache in the marketplace, it is unlikely that consumers will confuse Apple's iPhone with Cisco's.

Still, Cisco will have some strong arguments as well, as summarized here by Jessie Seyfer at Legal Pad. From the post:

Robert Andris, IP attorney and partner at Ropers Majeski Kohn & Bentley’s Redwood City office, thinks Apple could fail with some arguments and succeed with others.

"Apple's argument that its use of the mark iPhone would not be infringing because the two products are materially different will be a tough row to hoe. In infringement actions, judges and juries are allowed to consider the differences between the products using a mark when deciding whether there is a likelihood of confusion. But they are also allowed to consider whether the products are sold into similar markets and whether it is likely the mark holder's product line will be expanded to move into the infringer's market.

Overall, the only consensus in the blogosphere at this point is that the Cisco-Apple fight will provide much more fodder for bloggers. Stay tuned ...

January 12, 2007 | Permalink | Comments (0)

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