Legal Blog Watch

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May 31, 2007

Can Congress Mandate Court Cameras?

We recently mentioned the Michigan Law Review's symposium on the risks and benefits of cameras in the courts. Commenting on the symposium in a post Monday at SCOTUSBlog, University of Minnesota law professor David Stras questioned whether Congress has the constitutional authority to force the Supreme Court to allow cameras. He wrote:

"[T]he Supreme Court stated as early as United States v. Hudson and Goodwin (the famous case that articulated the doctrine of legality in criminal law) that certain powers inhere in a court. The most recognizable of these powers are contempt, administration of the bar, and docket management. There are others, but a dominant theme emerges: the Court must be able to, in the words of Hudson, '[e]nforce the observance of order.'"

It would not be a "huge stretch" for the court to say that regulation of cameras within its walls "falls within that 'core' of judicial power that is not defeasible by statute," Stras wrote.

Now Lyle Denniston, also writing at SCOTUSBlog, finds further support for the proposition "that inter-branch modesty remains a virtue -- that is, there is a public good in avoiding meddling in another branch's inner workings." That support comes from a case that considers the issue in mirror image. Ruling this week in Public Citizen v. U.S. District Court, the U.S. Circuit Court of Appeals for the D.C. Circuit found, in essence, that the federal courts should not interfere with "the internal governance of Congress." At issue was whether a bill, once attested as enrolled by the leaders of both the House and the Senate, could be challenged because of clerk's error had the House vote on a slightly different version than the Senate. Relying on Supreme Court precedent from 1892, the D.C. Circuit said no.

In the circuit court's language about the need for the judiciary to abstain from questioning procedures adopted by Congress, Denniston sees parallels to the current Senate campaign to mandate cameras in the courts. "It is absolutely clear that the Justices ... have concluded that the question of televising oral arguments is decidedly a matter of 'the inner workings' of the Court," Denniston writes. But whether Sen. Arlen Specter, the ranking member of the Judiciary Committee, would defer to that judgment "is another question." In the end, Denniston says, the debate may turn not on constitutional authority but on "civic manners."

May 31, 2007 | Permalink | Comments (0)

For Med-Mal Doc, Blogging Proves Bad Medicine

It sure sounded like a prescription for trouble. Now the doctor who blogged his own med-mal trial may be wishing he'd taken a cure other than blogging.

As we earlier reported here and here, a pediatrician who identified himself only as Flea had started his blog in 2006. His original intent was to discuss issues facing pediatricians, and he won recognition as the Best New Medical Blog of 2006. But as a med-mal lawsuit against him moved closer to trial, Dr. Flea began blogging about it. He described the feeling of first being served with the complaint and reported on his own deposition. When the trial finally got underway, he continued to blog, relaying his impressions of the plaintiffs lawyer (whom he nicknamed "Carissa Lunt"), describing his "dress rehearsal," and accusing jurors of dozing off. It was a big risk for a defendant to take, legal blogger Eric Turkewitz wrote at the time at his New York Personal Injury Law Blog.

Flea's actual courtroom unmasking is described today in The Boston Globe by reporter Jonathan Saltzman as a "Perry Mason moment." Yet the drama was transparent to the jurors and most others in the courtroom. As plaintiffs attorney Elizabeth N. Mulvey, a well-known and highly regarded Massachusetts trial lawyer, questioned pediatrician Robert P. Lindeman in Suffolk Superior Court in Boston regarding the death of a 12-year-old patient, she "startled him" with the question, Was he Flea? Yes, he admitted.

That was all the jurors heard of it, but that was enough, apparently. The next morning, the Globe's Saltzman reports, the doctor "agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed." While Mulvey's question to "Flea" may have been lost on jurors, another Boston med-mal lawyer, Andrew C. Meyer Jr., told the Globe that it "telegraphed that she was ready to share Lindeman's blog -- containing his unvarnished views of lawyers, jurors and the legal process -- with the jury."

As for plaintiffs lawyer "Clarissa Lunt," she told reporter Saltzman that she found Flea's blog -- which has now been taken down -- "controversial yet intellectually stimulating."

May 31, 2007 | Permalink | Comments (0)

Bloggers, Buzzes and Outer Space

In the constellation of legal bloggers, one of the brightest stars is Instapundit.com, aka University of Tennessee law professor Glenn Reynolds. So perhaps it was fitting that Reynolds recently shared lunch with another space traveler, astronaut Buzz Aldrin. Another space-loving Buzz, Jesse "Buzz" Londin, writing at her blog Space Law Probe, finds irony in the meeting, commenting, "Some folks remain convinced ever-cool Buzz Aldrin went all the way to the moon to get away from lawyers." Londin notes perhaps another ironic sci-fi connection: that Reynolds (based on this photo) is now poised "to sire a race of immortal robot lawyers." Proof, once again, that in the blogosphere, the buzz ties everything together.

May 31, 2007 | Permalink | Comments (1)

Canadian Lawsuits Put Blogging on Trial

On April 30, University of Ottawa law professor Michael Geist wrote a commentary in The Toronto Star in which he discussed two recent defamation lawsuits that he said "have the potential to reshape free speech on the Internet in Canada." Geist's commentary explained:

"The suits pit Wayne Crookes, a B.C.-based businessman, against a who's who of the Internet, including Yahoo!, MySpace and Wikipedia. Those companies are accused of defaming Crookes not by virtue of anything they have said, but rather by permitting their users to post or link to articles that are allegedly defamatory."

Now, Crookes, the plaintiff in those two cases, has sued Geist, and the lawsuit is based at least in part on Geist's mere linking to sites that Crookes alleges to have defamed him -- specifically, OpenPolitics.ca and p2pnet.net. In fairness to Crookes, who owns a British Columbia title-search business, his complaint against Geist includes allegations beyond simple linking. Crookes contends, for instance, that Geist refused his request to remove a defamatory comment from his own site. (Geist says here that he did take it down.)

Leave it to others to sort out these allegations. But what troubles many about Crookes's lawsuits, as Geist himself described it, is this:

"The common link with all of these targets is that none are directly responsible for alleged defamation. Rather, the Crookes lawsuits maintain that Internet intermediaries should be held equally responsible for such content."

As Crookes' own complaint puts it, Geist became a publisher of libel "by advertising, promoting, and driving internet traffic to the P2pnet.net website through his articles ..., by hyperlinking with P2PNet.net, and by refusing to remove the hyperlink when requested." Such allegations, Geist wrote of these lawsuits before he became a party, "cast the net of liability far wider than just the initial posters" of the allegedly defamatory material.

"Indeed, the lawsuits seek to hold accountable sites and services that host the articles, feature comments about the articles, include hyperlinks to the articles, fail to actively monitor their content to ensure that allegedly defamatory articles are not reposted after being removed, and even those that implement the domain name registrations of sites that host the articles."

U.S. courts, Geist notes, have repeatedly denied attempts to hold intermediaries liable for content posted by third parties on the grounds that the Communications Decency Act provides them immunity. Canada should enact a similar law, he urges, "since the consequences for defamatory speech should rest with those directly responsible, not mere by-standers with deep pockets."

May 31, 2007 | Permalink | Comments (2)

Assessing Attorney Fees When Biglaw Works Pro Bono: Part II

Two weeks ago, I posted about a fee award of nearly $1 million to Skadden for work performed pro bono on behalf of a group of restaurant workers under the Fair Labor Standards Act to recover tips unlawfully withheld by their employer. Though the court discounted Skadden's ordinary market fees and the firm voluntarily wrote off 4,000 hours of time, I still questioned the size of the fee because the rates allowed exceeded those prescribed by the Laffey Matrix, the tool commonly applied by federal courts in reimbursable fee cases. And I also pondered what's appropriate reimbursement in pro bono cases, where clients have no financial incentive to settle because they're not paying the bill.

Well, apparently, I'm in good company, because the 2nd Circuit is grappling with these questions also. Several weeks ago, in Arbor Hill v. County of Albany, the 2nd Circuit affirmed a lower court decision, awarding Gibson Dunn fees at a rate of $210 per hour, the maximum permitted in the Northern District of New York, even though Gibson's New York office is located in the pricier Southern District. The 2nd Circuit explained that a higher rate, i.e., above $210 an hour, was not justified under applicable factors, including the rate that a reasonable client would pay. The court held that a reasonable client would not pay top dollar for services in this type of case, knowing that it could obtain the service pro bono where lawyers might be willing to use the case to promote their "reputational or social goals." And as I construed the court's decision, it reasoned that the lower rate would not necessarily penalize the firm attorneys, who are motivated to take pro bono cases, not only for fees but also for "considerable non-monetary returns — in experience, reputation, or achievement of the attorneys’ own interests and agendas."

To me, the 2nd Circuit's ruling is eminently reasonable. It strikes a balance between properly compensating a law firm for attorneys fees associated with pro bono work while not unduly penalizing the defendants who happened to be on the receiving end of a plaintiff with a Biglaw firm working gratis. But many others in the blogosphere are critical of the decision, arguing that it will deter firms from handling pro bono cases or prevent civil rights lawyers from recovering fees in these cases.

For example, the Brennan Center (which is challenging the 2nd Circuit decision) argues that the ruling places pro bono work in jeopardy in this press release. But given that large law firms don't keep legal fees from pro bono cases and routinely donate fees to legal aid groups, how would a lower fee deter firms from taking these cases? Given that large law firms donate fees, the 2nd Circuit's decision could reduce the amount of money donated to legal aid groups -- but that's not the concern that they expressed in the press release. Moreover, why should a captive defendant be forced to pay top dollar simply because it had the misfortune of winding up against a large firm with unlimited resources?

Other lawyers are concerned about the potential consequences to solo and small firms. For example, over at the Defending People Blog, Mark Bennett argues that doing the right thing could cost you in the 2nd Circuit. Bennett argues that an attorney's motives in taking a case should not be relevant to determining whether fees are reasonable and potentially penalizes lawyers who take cases because they believe in them. He asserts:

Whether the attorney had an interest in achieving the ends of the litigation should certainly be considered by a court determining what a reasonable paying client would pay. Whether the lawyer is in accord with the client, such that the lawyer's societal goals match the client's goals, also should be considered. So should the fact that the lawyer is willing to bet her own money on the case, so that she doesn't get paid if the client doesn't recover. But the Second Circuit has it backwards: all of these are reasons that reasonable clients, spending their own money, rationally decide to pay lawyers more rather than less. Every day rational clients choose lawyers who are true believers over lawyers who are cynics; every day rational clients with no money sign contracts promising to pay lawyers huge fees if and only if the lawyers can recover money for the clients' injuries.

Solo champion Susan Cartier Liebel takes the argument a step farther, with the post Second Circuit Strikes a Blow to the Good Hearted Solo or Small Firm. She writes:

In this terrible decision we learn that if you take on a pro bono matter and are victorious, meaning the loser pays your fees, it doesn't matter the fees you submit based upon the work you've done. It becomes a question of what is the fair market value of your fees.

Though Bennett and Cartier Liebel are right to be concerned, because the court's decision is not expressly limited to large firms, at the same time, the court's ruling is also beneficial to solos and small firms who represent small clients. First, imagine if a small firm were defending a client who's represented by a pro bono, large firm. Your client might not be able to afford to pay you enough to go up against a large firm working for free and could potentially be on the hook for legal fees typically charged to large clients. And I don't see a court penalizing a solo or small-firm attorney with a properly executed fee agreement with a client that provides either for a portion of the proceeds received or statutory attorneys fees (indeed, that's what my civil rights retainer agreements cover). The problem here was that Gibson Dunn took the case pro bono, and as such, its fee agreement may not have provided for compensation by the plaintiff -- which is why the court alluded to nonmonetary benefits.

In addition, a solo's fee likely would have been more reasonable (at least under the rates of the particular district) and, thus, would not have been subject to challenge. According to Bennett's post, Gibson charged $107,000 for an appeal with six pages of substantive argument. In my own practice, I've charged between $20,000 and $30,000 for full 50-page appeals at the D.C. Circuit and come out way ahead. In short, this case would never have come up had a solo represented the firm, because the fees would have been more reasonable from the get-go.

I know that we lawyers are offended when courts question our fees. And I'll be the first to admit that it galls me when courts quibble with fees of this size and for this type of case while routinely granting fee requests to large firms in bankruptcy cases of $50 or $90 million without batting an eye. But at the same time, when you get right down to it, we return to the question that I posed in my post of several weeks ago: Should a defendant be forced to pay for a Cadillac, Biglaw defense because a plaintiff was lucky enough to find pro bono representation?

May 31, 2007 | Permalink | Comments (2)

May 30, 2007

Supreme Court Rules That to Challenge Pay, You'd Better Act Right Away

The lesson from yesterday's 5-4 Supreme Court decision in Ledbetter v. Goodyear can be summarized in a simple rhyme: If you want to challenge discriminatory pay, you'd better act right away; otherwise, your employer will be shouting, "Hooray!" From this post at SCOTUS Blog, here's the scoop on Ledbetter. Petitioner Lily Ledbetter worked at Goodyear Tire Co. for 19 years. At the end of her career, her salary was significantly lower than that of her male counterparts because over the years, she was denied various pay raises that were available to men. Consequently, Ledbetter filed an EEOC claim alleging sex discrimination with relation to pay and prevailed at the lower court level. The 11th Circuit reversed on appeal, arguing that the bulk of her claim reached back to salary decisions made years earlier, well outside of the 180-day limit for raising claims of discriminatory employment practices under Title VII of the Civil Rights Act. The Supreme Court affirmed the 11th Circuit, finding that Ledbetter's claim was time-barred. Writing for the majority of five justices, Justice Alito reasoned that the prohibited discriminatory act occurred at the time that the salary decisions were made, and not at the time years later when the cumulative impacts were realized.

Justice Ginsburg, writing for the dissent (which included Breyer, Stevens and Souter), disagreed and read her dissent from the bench. Ginsburg analogized discriminatory pay cases to hostile environment cases, where the impacts build up over time, and may not be realized for many months or years. And Ginsburg threw the ball back to Congress, urging its assistance in expanding the Court's "cramped" view of the statutory deadlines in Title VII.

So that's the view from the high court bench, but what about the views from that other important panel, the blogosphere? Naturally, they're mixed about the opinion as well:

At Workplace Blog, Paul Secunda reflects that Justice Ginsburg has the better of the argument, because individual pay decisions by themselves may not have obvious discriminatory intent until a pattern is established, which takes time. As a result, the Court's decision:

leads to an absurd situation where employees either must bring pay claims prematurely when there is not enough evidence that there has been unlawful pay discrimination or wait to a later time when there exists more substantial evidence of pay discrimination and be barred from bringing such claims by the statute of limitations (as in Ledbetter).

Ross Runkel of Employment Law Memo likes Secunda's analysis, but believes nonetheless that the Supreme Court got it right. Runkel writes:

I jump off Paul's wagon when he says pay discrimination decisions are more like hostile environment claims than they are like a discrete act such as a termination or demotion. Quoting Paul: "As with hostile work environment sexual harassment claims, individual pay decisions by themselves do not have the obvious discriminatory intent that discrete acts such as terminations or failures to promote do." Not so. In the Ledbetter case, a pay decision was made once a year, and then implemented via paychecks. One single decision. In a hostile environment case, the claim by its very nature involves a cumulation of several events that have to be added together before the environment is sufficiently hostile for a claim to arise.

Finally, from Howard Bashman, you can find your usual round up of news articles covering the Ledbetter decision.

As for me, this case seems to be an example of bad facts making bad law. Nineteen years is an awfully long time to wait to challenge even a series of pay decisions -- and Alito and the majority apparently do not believe that employers should face unlimited liability for past salary decisions that may reach back many years, or even decades.

May 30, 2007 | Permalink | Comments (0)

Everything You Wanted to Know About Owning a Law Firm, but Were Afraid to Ask

Though forward-looking Bruce MacEwen has been pondering the potential of publicly owned law firms for nearly two years, the issue barely merited a blip on the collective radar of the legal blogsphere until an Australian law firm, Slater & Gordon, made legal history by becoming the first firm in the world to list on the stock exchange. But how would a public law firm work in the United States, where ethics codes require lawyers to exercise independent judgment and prohibit nonlawyers from owning an interest in law firms? And why should investors risk putting money in firms when the partners can leave, and take their clients to another firm? Larry Ribstein responds to these and other questions in this article for American.com, titled "Want to Own a Law Firm?"

Ribstein hits the question about whether publicly owned law firms will potentially compromise lawyers' professional duties to act in clients' best interest, right out of the box, saying that firms have already crossed that line. Ribstein contends that law firms are businesses -- and they are beholden to the financial interests of equity partners rather than outside investors, as would be the case if the firm was public. Ribstein writes:

Shouldn’t lawyers keep themselves apart as a profession, maintaining the conceit that they work for client betterment rather than directly for themselves? I think law firms have crossed that line already. One benefit of law firms being publicly traded is that this would make it harder for lawyers and law firms to deny that they really are businesses. Instead of driving out the last vestige of professionalism, going public will clarify professionalism’s role in the business of law practice. S & G’s prospectus says that their “duty to the Court will prevail over all other duties; and the duty to the client will prevail over the Company’s other corporate responsibilities and duty to shareholders.” In other words, shareholders are their last priority. But surely they would want long-term profit maximization. By contrast, law firm consultant Bruce MacEwen wonders whether the interests of non-lawyer shareholders are likely to be “more powerful or motivating than the [existing] profit-maximizing desires of full equity partners in a private firm, who collectively distribute 100% of the spoils at year-end… If the problem, in other words, is the collision between ‘professionalism’ and ‘profitability,’ I suggest Slater & Gordon has just ameliorated, not exacerbated, it.”

Ribstein also addresses the question of whether investors will "buy a firm whose assets can walk." After all, because ethics codes prohibit noncompete agreements for lawyers (except in limited circumstances), a firm partner can always leave with a bunch of clients. To this concern, Ribstein answers:

Similar thoughts must be running through the minds of investors thinking about buying into Steve Schwarzman & Co.’s Blackstone or, for that matter, any firm whose value depends on a high-profile leader. Slater & Gordon builds in some protection by restricting share sales of the main owners for five years after the offer, giving them a strong incentive to stay. More importantly, the point of the S & G offer, and presumably of any law firm offer, is to help build a stable brand that exists independently of the individuals in the firm.

Of course, there are other ethics rules that stand in the way of U.S. firms going public. As Ribstein points out, U.S. ethics rules prohibit nonlawyer owners of firms. But he suggests that if these deals are economically viable, "how long before lawyers change the rules?" And Ribstein also writes that lawyers may be able to offer nonlawyer investors noncontrolling interests to experiment with the idea of a publicly held firm, without changing ethics rules.

There are still plenty of questions that I have when it comes to a publicly held firm. Will confidentiality issues be treated similarly to proprietary business information and insulated from access by shareholders? Or will shareholders be able to demand that a firm reveal its legal strategy in particular matters -- which would compromise the confidentiality of attorney work product and strategy?

How about conflict of interest? Let's say that Company A wants to fend off a takeover by Company B, but the shareholders of the firm are part owners of Company B and would prefer a takeover to bolster the value of Company B stock? Would the law firm change its strategy to accommodate shareholders? Slater & Gordon says that its duties to its client trump those to shareholders, but I wonder how that would play out in reality.

And relatedly, what about potential malpractice liability? Many recent malpractice claims have arisen out of alleged conflict of interest, such as this case I blogged about a year ago. If a firm achieves a poor result due to competing shareholders' interests, will it be liable for malpractice? What if a client initially agrees to waive conflicts but changes its mind down the line? Will the firm spurn the client (after all, it probably won't be able to dump shareholders with competing interests)?

The bottom line with all of this, of course, is how clients feel about all of this? Will clients (as Ribstein suggests tongue in cheek) decide to simply stop complaining about fees and simply buy a chunk of their lawyers' firm to "roll in the gravy?" Or will they wonder whether they're paying high fees because the legal service is worth it, or simply to make shareholders rich?

May 30, 2007 | Permalink | Comments (1)

Legal Blog Watch Blogger Featured in ABA Journal

What can professional coaching do for you? Many of us lawyers, either for reasons of time or money, are reluctant to explore the answer to that question. So ABA Journal has done the work for us by hiring coaches for three different lawyers and summarizing the results in this article, "Coach Me" (ABA Journal June 2007).

The article describes the coaching process from goal assessment to implementation and action and in doing so, gives lawyers some idea of how coaching works. And, for the Blog Watch audience, the article is worth a read for another reason: It features Law.com affiliate blogger Arnie Herz of Legal Sanity.

May 30, 2007 | Permalink | Comments (0)

May 29, 2007

Blawg Review Honors Memorial Day

For the Memorial Day edition of its weekly review of legal blogs, Blawg Review enlists California motorcycle lawyer Norman Gregory Fernandez, who presents Blawg Review #110 at his Biker Law Blog. Whatever you think of our current wars in Iraq and Afghanistan, Fernandez writes, "I ask that you set aside your political views, and honor those brave soldiers, who have given their lives in the service of this great nation." With that thought in mind, Fernandez offers a collection of links to posts about Memorial Day from lawyers and nonlawyers.

May 29, 2007 | Permalink | Comments (0)

Lawyering Is Hell

Civil War Gen. William Tecumseh Sherman is believed to have said, "War is hell." If so, the practice of law must also be hell, because lawyering is war. Or so suggest two recent news items.

First comes today's release of the aptly titled book Litigation is War, written by Frederick L. Whitmer, a senior litigation partner in the New York office of Thelen Reid Brown Raysman & Steiner, and published by West Legalworks. Drawing on the 19th-century military strategy treatise On War by Carl von Clausewitz, Whitmer explores how lawyers can use classic military strategy in the courtroom. He explains:

"The whole idea here is to think about litigation as an enterprise in which you are trying –- as Clausewitz says about war -– to impose your will on the enemy. Litigation involves the exercise of force through judicial compulsion, to impose your will on your adversary. And, if you’re a defendant, of course, to resist the other side’s will being imposed on you."

In the book, Whitmer advocates following three of Clausewitz's war principles:

Be as strong as possible at determinative points.
Always pick the right time and place to fight.
Never divide your forces by separating the credibility of the argument from its substance.

At the same time, he urges lawyers to avoid the three most common military mistakes:

Failure to learn.
Failure to adapt.
Failure to anticipate.

Which brings us to the second news item, wherein two Ohio lawyers may be wishing they'd had Whitmer's book before they became involved in a skirmish of their own last year. Business Week reports (via Law Blog) on a lawsuit filed May 7 in which Ohio lawyer John Masters says he was assaulted by his opposing counsel, Stephen Sferra, during labor negotiations between a bakery and its workers. As Business Week reports:

"Sferra allegedly choked and punched Masters and knocked him to the floor of a hotel conference room as the two sides argued over pension provisions. In August, Sferra pleaded no contest to charges of disorderly conduct."

If true, then Sferra obviously was unaware of Whitmer's caution to pick the right time and place to fight, and Masters clearly failed, as Whitmer cautions, to anticipate his opponent's next move. Then again, the parties ended up agreeing on a new labor contract less than a month later, so perhaps rather than an imposition of one side's will on the other, there was, after the dust settled, a meeting of the minds. And isn't compromise always preferable to war?

To listen to a podcast in which Whitmer discusses his book and his "Litigation War Colleges," follow this link.

May 29, 2007 | Permalink | Comments (1)

Blogs = Compliance Nightmare

A new survey of "blogging employees" paints a picture of loose lips collectively so severe that they could sink a corporate ship. The survey finds that more than a third of employees who blog are posting information about their employers, workplaces or colleagues. More to the point, of employees with blogs, 39 percent said that they had posted workplace details that could be potentially sensitive or damaging.

The survey was conducted for the U.K. human resources firm Croner (a division of Wolters Kluwer) by the research company YouGov. Croner concludes that the results indicate that employees who blog may be endangering their jobs. But in an age of strict rules governing corporate compliance, disclosures and record keeping, it may be companies that face the greater danger. As Croner consultant Gillian Dowling put it:

"The blog could also be evidence of other conduct issues or reveal workplace discrimination or bullying. Confidential secrets could be disclosed including financial information or new product development, or whistleblowing all of which could have a negative impact on the business."

If nothing else, the survey demonstrates the need for companies to have policies in place governing workplace blogging in the same way that they do for corporate e-mail and other communications. Another way companies can minimize risk, Croner suggests, is to set up a corporate blog "to tap into the bloggers’ creative energy and enthusiasm."

May 29, 2007 | Permalink | Comments (1)

Biglaw Plods Towards Mastodon's Fate

When the general counsel of a major corporation says that the current model of the large law firm is heading towards extinction, ears perk up throughout the legal industry. That is precisely what happened after Sun Microsystems GC Mike Dillon wrote on his blog last week that Biglaw is going The Way of the Mastodon. His thesis is that large law firms exist primarily as aggregators of specialized legal expertise -- by combining multiple legal disciplines, firms can provide "one stop shopping" for their clients. That used to make sense, in the days before the Internet when it was inefficient for a company to hunt down all the specialized legal talent it might need. But with the Internet, the model is changed, Dillon says.

"It is getting increasingly easier to move the aggregation function in-house. To find an attorney in a specialized area, I don't need to turn to a large law firm. Instead, I send out an email to my network of other in-house attorneys or within professional associations like the ACC and get referrals. Not only that, but I get true 'customer feedback' that is more objective than what I would get from a firm. There is now a proliferation of materials available on the web – judicial opinions, legal commentary and press articles that also provide information about attorneys."

Sun, for example, now uses a boutique for its employment matters. They get excellent results and are cost effective, Dillon says, continuing:

"My point is that the epoch of the current law firm model - which derives its profitability from growing scale and raising hourly rates - will soon be over. The firms that will survive and thrive are those that recognize this change and focus on how to maintain margins by focusing on efficiency. In the future, I'll describe some the things we are doing in this area, but I'll point out that we recently selected a small number of law firms to support us as 'preferred partners' during the next fiscal year. We believe that these firms 'get it' and are receptive to looking at new ways to drive down their (and our) cost structure. Hopefully, more firms will embrace this change. If they don't, I fear they will go the way of the Mastodon."

As one might expect, Dillon's post has drawn attention. At In Search of Perfect Client Service, Patrick J. Lamb says the post is a "must read." At The Legal Marketing Blog, Tom Kane says the message Dillon conveys is that "small firms and solos have hope of seriously competing with larger law firms thanks to the Internet." In fact, says Kane, blogs play an important role:

"Along comes the 'ole' World Wide Web, and now companies can find really smart, qualified, specialized lawyers in small firms who are just as good and are much more cost effective. How do they know that they are really smart and qualified? Simple, GCs are reading their blogs."

And "Third Wave" solo Chuck Newton says that Dillon's post shows that the fat lady is ready to sing the swan song of larger firms:

"As they joke about opera, it is not over until the fat lady sings. Well, maybe the fat lady has not sung the fate of Big Law yet, but she is warming up. She is clearing her voice. She is running through the scales."

So next time you're looking for a large-firm lawyer, check the local tar pits. When you need specialized legal expertise, check the blogosphere.

May 29, 2007 | Permalink | Comments (7)

May 25, 2007

State Courts Favor Defendants on Appeal

Via TortsProf Blog comes word of a new study of outcomes in state court civil appeals. Authors Theodore Eisenberg and Michael Heise of Cornell University Law School conclude that two findings dominate: first, appeals courts are more likely to disrupt jury verdicts than bench decisions, and second, trial defendants fare better than plaintiffs on appeal.

These outcomes, on their face, are not so startling, given that prior studies of federal civil appeals have reached the same conclusion. But the authors find that the reversal rate in favor of defendants and against juries is much higher in state courts.

"[W]e find that state court appellate reversal rates for jury trials and appeals by defendants exceed the reversal rates for bench trials and appeals by plaintiffs. The reversal rate for trials appealed by plaintiffs is 21.5% compared to 41.5% for trial outcomes appealed by defendants. The reversal rate for jury trials is 33.7% compared to 27.5% for judge trials."

The authors say that the study, "Plaintiphobia in State Court? An Empirical Study of State Court Trials on Appeal," provides "the first statistical models of the appeals process for a comprehensive set of state court civil trials." It draws on data from 46 large counties consisting of 8,038 trials and 549 concluded appeals.

May 25, 2007 | Permalink | Comments (1)

Legal Scholars Topic Du Jour: Menstruation

[Correction: Midway through this post, I misidentified Ann Althouse as the author of this post at Feminist Law Professors when it was actually Ann Bartow. My apologies to both and my thanks to Ann Althouse for pointing out my error.]

It all started, as best as I can tell, with a post by University of Wisconsin law professor Ann Althouse, Stemming the Red Tide, in which she noted the FDA's approval of a birth-control pill that stops menstruation. UCLA School of Law professor Eugene Volokh picked up on Althouse's post, taking issue with one commenter who contended that it is not "right to sidestep" something that is "part of being a woman." Countered Volokh: "Why on earth should we want to accept natural but painful or unpleasant things?"

Volokh's remark elicited a comment from a male med student who equated menstruation for women with the types of "shared experiences" from which "humanity derives meaning." This commenter asserted: "Deleting one of the most universal and central of all female experiences can subtract perceived meaning from people's lives." To that, Volokh responded that, yes, humanity can derive meaning from some shared experiences, but others -- hangnails, nearsightedness and tooth decay, for example -- we can get by just fine without. Menstruation, Volokh conjectured, falls in this second group. But, acknowledging no firsthand experience, he issued an invitation:

"[L]et's hear from some people who actually menstruate, and have been pregnant. When you menstruate, do you feel that you're part of the 'in crowd'? ... Do you feel you derive meaning from the fact that you share menstruation as an experience with other women?"

With me so far? I hope so, because we're just getting started.

Althouse -- the one whose post started this ball rolling -- took Volokh's invitation as ludicrous. Writing at Feminist Law Professors, she promised to send Volokh a Judy Blume book describing a teen's first menstruation.

"Then, when he seems to have grasped the thirteen year old perspective, in a decade or so, I’m going to send him a package of Always and a bottle of Pamprin, and urge him to enroll in an introductory course in Women’s Studies. ... Eventually, I will put him in a dress, heels and make-up and force him to ride the subways in Chicago. There will be video, I promise."

Feministing.com chimed in with equal ire, describing Volokh's post as condescending and patronizing. Belle Lettre at least gave Volokh the benefit of bona fides.

For his part, Volokh labeled Bartow's response as patronizing. He wrote:

"What sort of feminism is it that faults people for asking actual women about their experiences, and for trying to start a public conversation in which women's opinions are actively solicited, on the grounds that the questioner should instead have gone to the library or taken up the time of his colleagues?"

Meanwhile, some women bloggers took Volokh's invitation seriously and offered answers. At Conglomerate, for instance, Christine Hurt equated pregnancy and childbirth for women to "sports for men, or Dungeons and Dragons." And, back over in the male camp, one commentator called Volokh's invitation "an entirely reasonable response."

Having now read this exchange between these two noted legal scholars, my conclusion is this: Law professors have way too much time on their hands.

May 25, 2007 | Permalink | Comments (3)

Cameras in the Court: Roll 'em -- Or Not

I've never bought the arguments against televising Supreme Court proceedings. Cameras enhance public understanding and confidence, and the justices and litigants will quickly forget they are there. But with legislation pending in Congress that would require the court to televise its proceedings, the topic takes on renewed urgency. For this reason, a symposium published this week, discussed at the blog Concurring Opinions, is well worth reading.

Published by the Michigan Law Review's online journal First Impressions, the symposium features a diverse group of authors exploring the implications of the prospective legislation and the potential risks and benefits of televising the court’s proceedings. The contributors:

U.S. 6th Circuit Court of Appeals Judge Boyce F. Martin Jr. contends that cameras in the court would help educate Americans about how their government works and heighten awareness of important legal issues.
University of Michigan Law Professor Christina B. Whitman argues that cameras would mislead viewers by providing only randomly useful insights about the court.
Legal Times Supreme Court correspondent Tony Mauro argues that Sen. Specter is taking the wrong approach in the way he is promoting the bill.
C-SPAN Corporate Vice President and General Counsel Bruce D. Collins describes C-SPAN’s past efforts to televise Supreme Court proceedings and clarifies how if given the opportunity, C-SPAN would approach televising the court.
Appellate litigator Kenneth N. Flaxman provides a practitioner's perspective, explaining why televising Supreme Court proceedings would make his job as arguing counsel easier.
Fairleigh Dickinson University Professor Bruce Peabody assesses whether Sen. Specter’s legislation would breach constitutional etiquette.
University of Michigan law student Scott C. Wilcox proposes a compromise: to forestall congressional action, the justices should voluntarily introduce archival video recording.

To download a PDF of the entire symposium, click here.

May 25, 2007 | Permalink | Comments (1)

Marketers' Favorite Marketing Books

Which books do the nation's top legal marketers consider to be the best on marketing, sales and strategy? Marketing consultant Amy Campbell put that question to a "select group" of law firm marketers and marketing consultants. While their responses named many different books, two authors' names came up again and again: Malcolm Gladwell for his business books The Tipping Point and Blink, and David Maister for The Trusted Advisor (co-authored with Charles Green and Robert Galford) and Managing the Professional Service Firm.

Based on her admittedly "quick-and-dirty" survey, here are Campbell's top 10 books picked by legal marketers:

The Tipping Point and Blink, Malcolm Gladwell.
The Trusted Advisor and Managing The Professional Service Firm, David H. Maister.
The Woman Lawyer’s Rainmaking Game: How to Build a Successful Law Practice, Silvia L. Coulter.
Selling the Invisible: A Field Guide to Modern Marketing, Harry Beckwith.
How to Win Friends & Influence People, Dale Carnegie.
Legal Business Development: A Step by Step Guide, Jim Hassett.
SPIN Selling, Neil Rackham.
Client at the Core: Marketing and Managing Today's Professional Services Firm, August Aquila and Bruce W. Marcus.
Move the Sale Forward: Increase Your Sales Through Human Connections, John Klymshyn.
Law Firm Associate Guide to Personal Marketing and Selling Skills, Beth Cuzzone and Catherine MacDonagh.

That last one must be good; it made the top-10 list even though it will not be published until June. So read and prosper.

May 25, 2007 | Permalink | Comments (2)

May 24, 2007

Flash: Law School to 'Frontload' Ethics

Earlier this year, the Carnegie Foundation for the Advancement of Teaching condemned law schools for failing to support students in developing ethical and practice skills and for giving only casual attention to teaching students how to use legal thinking. At least one school took the news seriously. As Indiana University School of Law professor William Henderson reports at the blog Empirical Legal Studies, Indiana is revising its first-year curriculum to add a four-credit course on the legal profession. He writes:

"[D]rawing upon carefully edited ethnographies and empirical studies, the course will provide students with a systematic overview of various practice settings. Obviously, workplace structure and incentives vary widely between large law firms, plaintiffs' lawyers, mill practice, prosecutors, public interest lawyers, etc. If students have a better theoretical and factual understanding of the modern legal marketplace, they can better understand the subtle factors that push lawyers to cross ethical lines -- and the serious consequences that can follow."

By "frontloading" legal ethics in this way, Henderson says, the school hopes to address the issue flagged by Carnegie and others "that legal education tends to marginalize ethics, morality, and personal and professional values."

May 24, 2007 | Permalink | Comments (1)

Ordinary Law, Extraordinary Stories

If you've gone through a divorce or served on a jury, you have a story to tell about the American legal system, believes lawyer Tracey Broderick. To demonstrate her point, Broderick has launched a blog, In this Case, to chronicle these stories. Broderick explains:

"These stories show when the law does and doesn’t work; how it angers and inspires us. They describe the law and what it means to us all living our modern lives here in our country. This blog brings these stories together so we can hear each other."

Broderick writes that some of the stories are sent to her, and others are drawn from her interviews with people who prefer to talk live. If you have a story to tell, let Broderick know.

[Hat tip to Diane Levin at Online Guide to Mediation.]

May 24, 2007 | Permalink | Comments (0)

Law Prof Network Hits the Big Five-O

It was Sept. 24, 2004, when University of Cincinnati law professor Paul L. Caron, flush with the success of the 100,000th visitor to his TaxProf Blog, announced that he was in the process of creating a Law Professor Blogs Network. At that point, the network consisted of Caron's blog and Douglas Berman's Sentencing Law & Policy Blog. A week later, Caron announced the addition of LaborProf Blog (now Workplace Prof Blog), and the network was on a roll. The goal, Caron explained, was to pull together a network of "leading scholars and teachers who are committed to providing the web destination for law professors in their fields."

This month, Caron and company launched five more law professor blogs, bringing the total (by my count) to the nice round number of 50. The newest five members are:

Administrative Law Prof Blog, edited by Drury Stevenson of South Texas College of Law and Cynthia Quinn of the William S. Richardson School of Law at the University of Hawai’i.
Civil Procedure Prof Blog, edited by W. Jeremy Counseller and Rory Ryan, both of Baylor Law School.
International Environmental Law Prof Blog, edited by William Burns of Santa Clara University School of Law and Richard Caddell of the University of Wales.
M & A Law Prof Blog, edited by Steven M. Davidoff of Wayne State Law School.
Poverty Law Prof Blog, edited by Ezra Rosser of Washington College of Law and Lowell Kent Hull of Notre Dame Law School.

Congratulations to Caron, Joe Hodnicki, the network's chief of operations, and all the professors who participate and make the network such a valuable resource.

May 24, 2007 | Permalink | Comments (0)

May 23, 2007

Current and Historical Blawg Rankings

What is the measure of a blawg? Well, one is metrics, and the folks at Justia are using metrics derived from their blawg and podcast search tools to rank the most popular law blogs currently and historically. As Justia CEO Tim Stanley announces here, Justia has added historical snapshots of the most popular blawgs on a monthly basis dating back to its launch of BlawgSearch in October 2006. For each month, Justia lists the 200 most popular blawgs overall, as well as the top 20 blawgs in various categories. Justia ranks blawgs based on the number of visits or podcast plays the blawg receives from the BlawgSearch.com and Blawgs.FM sites. Stanley says that protections are in place to guard against rankings click fraud. He explains:

"There are different weights depending on where the clicks occur, but basically if people see your blawg on BlawgSearch and decide to visit your Blawg, your blawg is ranked higher."

The rankings reveal the most consistently popular blog to be Above the Law, which is at or near the top of the list nearly every day, Stanley says.

May 23, 2007 | Permalink | Comments (0)

Pushback on Rising Lawyer Fees

Have legal fees and associate salaries reached the tipping point where client pushback will force fees (and potentially salaries) back down? If the postings from this past week in the blogosphere are any indication, I'd say that law firms may need to make some modifications to their pricing structure if they want to keep clients happy.

This post from the WSJ Law Blog cites an April survey by legal consulting group Altman Weil that found that GCs aren't too happy about associate salary increases -- which will put more pressure on associates to bill hours to justify the increases. According to the posts, some in-house counsel are restricting firms from using first- and second-year associates on client matters. And other firms have already insulated themselves from the fee increase by using smaller, lower-cost firms.

Next, there's this article, Ex BigLaw Associate, Now Fortune 500 GC Calls Pay Surge Ridiculous (NY Lawyer 5/23/07), which profiles John Chou, GC of Amerisource. Chou criticizes associate salaries as "ridiculous" and notes that his company has started looking for other representation because of fee increases by its existing firms.

Finally, Larry Bodine writes here that large and small firms are abandoning the billable-hour method to attract new business. And as clients grow increasingly disatisfied with increasing rates, perhaps firms will turn to alternative billing to retain existing clients.

May 23, 2007 | Permalink | Comments (0)

Bootlegging Wireless Access

Orin Kerr serves up this interesting post about a Michigan guy who was prosecuted for using a coffee shop's wireless access without ever entering the coffee shop. As Kerr describes:

Each day around lunch time, Sam Peterson would drive to the Union Street Cafe, park his car and--without actually entering the coffee shop--check his e-mail and surf the Net. His ritual raised the suspicions of Police Chief Andrew Milanowski, who approached him and asked what he was doing. Peterson, probably not realizing that his actions constituted a crime, freely admitted what he was doing.

Milanowski eventually swore out a warrant for Peterson's arrest, even though the coffee shop owner didn't even realize that accessing the coffee shop network without going inside was illegal. Eventually, Peterson was charged with theft under a computer crime statute and given a $400 fine and 40 hours of community service (A more reasonable penalty, it seems, would have been to simply reimburse the coffee shop for the cost of a cup of java for each day that Peterson used the wireless as a noncustomer.).

Kerr wonders whether Peterson actually committed a crime under Michigan's statute prohibited "unauthorized use" of a computer network. Among other things, Kerr argues that Peterson's use was not unauthorized because the coffee shop made the network available to anyone. He writes:

What's the rule — no hopping on wifi from a coffee shop unless you enter the shop? Unless you actually buy something? What if you're outside waiting for a friend to join you for a latte, but you haven't gone in yet? Where do such rules come from, and what notice does a defendant have before being held criminally liable? I've written before about how unauthorized access statutes threaten to punish an incredible amount of conduct online, and this seems like the latest evidence in support of the point.

For now, if you're waiting outside a coffee shop in Michigan, keep your wireless turned off until you enter the store!

May 23, 2007 | Permalink | Comments (1)

Law Firm Goes Green, but Could It Do More?

This piece from MSNBC (5/22/07) discusses how a number of companies are trying to increase their "green-ness" by making business trips more eco-friendly. Efforts range from staying at hotels that tout their environmental efforts and bypassing use of hotel toiletries (to avoid waste). And at least one law firm, Arnold and Porter, is doing its share by purchasing carbon credits to offset business travel. In the article, a firm spokesperson described:

The firm travels in the millions of miles per year in total," says Jonathan Martel, a partner in Arnold & Porter's environmental practice. "It's not easy to reduce the amount of travel lawyers do for clients, but it is something we could offset."

Arnold and Porter's efforts are admirable, but it got me wondering: In this era of high tech, how much travel is really necessary? Clearly, lawyers need to physically attend court hearings (though for minor matters, it would seem to make more sense to retain and send a local per diem attorney). But for routine meetings, or even depositions or matters which the firm is only interested in a limited piece of the case, aren't conference calls and online video an appropriate substitute? Unlike some who believe that carbon credits are a fraud (because they don't reduce pollution), I believe that they're an important tool for financing and encouraging new sources of renewable energy, and I applaud Arnold and Porter for its efforts. Still, at a time when clients are complaining of burgeoning legal costs, it seems that Arnold and Porter could save clients money and protect the environment by using technology to avoid travel where ever possible.

How much do you travel for business -- and how much do you think you could eliminate?

May 23, 2007 | Permalink | Comments (3)

Spending a Summer In-House and Outside

Rees Morrison makes note of an interesting summer associate program offered by DLA Piper and corporate client Accenture. The program is intended to give students a taste of life as an associate at a large firm, as well as in-house at a corporation. Morrison says he's not clear whether Accenture will actually pay for the summer associates who work for it or whether it is leveraging off its existing relationship with DLA Piper. But even if DLA Piper is spending more to subsidize the summers' salaries, it comes out as a winner in the end,by solidifying its relationship with a corporate client, which could lead to more work. If that's the case, we'll likely see more of these programs in the future.

May 23, 2007 | Permalink | Comments (0)

May 22, 2007

Tony Blair's Impact on the Law

With Tony Blair's resignation as British prime minister, The Times of London hosted a roundtable Friday to debate his impact on the rule of law. The complete recording of the live debate is now available to hear online. The debate, held at the The College of Law's Bloomsbury campus in London, featured panelists Michael Smyth of Clifford Chance, Kirsty Brimelow of 187 Fleet Street Chambers, Katherine Gieve of Bindmans, Philippe Sands of Matrix Chambers and Jonathan McCoy of Vodafone UK. Nigel Savage, chief executive of The College of Law, moderated.

May 22, 2007 | Permalink | Comments (0)

Should Law School Curricula Go Global?

In a guest post at The Volokh Conspiracy, Harvard Law School professor Einer R. Elhauge argues that law schools are failing to confront "the reality that the basic law applicable to much conduct simply is multinational." He explains:

"In today’s global markets, firms face the reality that they are subject to simultaneous legal regulation by many nations. Lawyers face the reality that they must advise clients subject to such multinational regulation. Yet law schools continue to teach and research basic legal subjects from the parochial perspective of whatever nation they are located in."

This makes no more sense, he contends, than if Harvard Law were to offer a curriculum limited to the law of its home state of Massachusetts. Some law schools, Elhauge acknowledges, are introducing first-year courses in international and comparative law. But these courses tend to focus on resolving conflicts in national laws or on providing perspective on U.S. law. This approach "ghettoizes the laws of other nations, treating them as something to consider at the margins outside the basic legal subjects," he says.

As it so happens, Elhauge has just finished co-authoring a casebook on global antitrust law that he believes is the first casebook to take the approach that the law applicable to a basic legal subject is multinational.

"We put US regulations and cases side by side with the EC regulations and cases that regulate the same conduct on global markets, without suggesting that one of them is more important or necessary to understanding basic antitrust law and that the other is only useful to add perspective. We designed the book to be able to replace parochial books on basic antitrust law and teach antitrust lawyers the global landscape they must face."

This approach, he predicts, will be "the leading edge" of a wave of similar books. Together, "they will transform legal education more than anything else we have seen in the last few decades." While it makes sense to start this global approach to basic law with antitrust law, he adds, "I really should be teaching all my other subjects from a global perspective."

May 22, 2007 | Permalink | Comments (2)

L.A. Legal -- The Blog

The National Law Journal yesterday announced the launch of Legal Pad/LA, a blog devoted to coverage of news about law firms, courts, lawyers and law in the Los Angeles area. According to this announcement, the new blog is the first in a series of regional blogs the NLJ will roll out in major metropolitan areas to broaden and localize its coverage of law firms and legal trends. The L.A. blog is edited by NLJ blog editor Elizabeth Amon and will include posts from NLJ correspondent Amanda Bronstad.

May 22, 2007 | Permalink | Comments (0)

Firms Opt Out of Martindale-Hubbell

Is the venerable legal directory Martindale-Hubbell becoming an anachronism? Writing for the New York Law Journal, Anthony Lin reports that nine of the firms in the Am Law 100 no longer have Martindale-Hubbell profiles. He observes:

"A major firm without a Martindale-Hubbell profile would have been unthinkable a decade ago, but the company is realizing that, in a world where lawyers can retrieve troves of biographical data about each other for free via Google, the value to a law firm of merely being in Martindale-Hubbell has diminished."

With firms abandoning Martindale-Hubbell in favor of publications that purport to rate lawyers, such as the Chambers guides, Martindale-Hubbell is following suit. In the fall, it will unveil online client reviews and rankings of lawyers and firms. Joe Douress, a senior vice president of Martindale-Hubbell parent LexisNexis, tells Lin the expanded ratings system will be the cornerstone of a two-year-old project aimed at boosting the value of its law firm profiles.

At his Law Marketing Blog, Larry Bodine notes that the question of Martindale-Hubbell's value is particularly pressing because the cost of its profiles is substantial -- around $200 per lawyer per year. Chambers ranks lawyers and firms regardless of whether they purchase a profile, although most do, Bodine says. But Douress tells reporter Lin that he expects these and other changes will bring back many of the departed firms. The article also questions the value of Martindale-Hubbell's ratings. The highest rating of "AV" "applies to so many lawyers in so many practices and jurisdictions that most large firms see little value in brandishing it," Lin writes.

May 22, 2007 | Permalink | Comments (1)

May 21, 2007

Firm's Listing on Exchange Makes History

An Australian law firm made legal and corporate history today, says a report in The Australian, by becoming the first law firm in the world to list on a stock exchange. The Melbourne personal injury firm Slater & Gordon listed on the Australian stock exchange, with trading opening at 32 cents higher than the firm's issue price of $1 a share. At a news conference, managing director Andrew Grech said the firm has plans to grow substantially, doubling or tripling its client base from its current level of 20,000. The firm, he added, is well prepared to manage potential conflicts of interest between its duties to shareholders and those to clients. "The practice has explicitly set out in its constitution that its primary duty is to the court, then to clients, and then to its shareholders," The Australian says.

The Melbourne lawyer who writes the blog The Legal Soapbox wonders whether this is a good idea. The public offering raises two intriguing concerns, she notes. The first involves the impact on the firm's reputation:

"Slater & Gordon is a firm which has a reputation for bringing class actions on behalf of 'little guys' against large corporations. Now it will be listed alongside many of those corporations. Somehow that just seems ironic to me."

Her other concern is the tension the listing creates between earning a profit from clients and achieving efficiency for clients. She writes:

"It seems to me that by adding shareholders to the mix, the firm will be pulled in three ways instead of two -- (a) profiting from one’s client, (b) doing the most efficient job possible for one’s client and (c) keeping one’s shareholders happy. And I haven’t even mentioned the lawyer’s duty to the court (which is supposed to be our primary duty)!"

Slater & Gordon's Web site now features pages for investors, where you can find its prospectus, its governance policies, a description of the company and profiles of its board and management. In its IPO last month, the firm raised $15.4 million. Capital the firm raises will go towards acquisitions of other firms and towards marketing and advertising.

May 21, 2007 | Permalink | Comments (3)

The Great American Blawg Review

Some lawyers aspire to write The Great American Novel. Others, such as Enrico Schaefer of Traverse Legal, set their sights on an even loftier goal: The Greatest American Blawg Review. For the 109th edition of Blawg Review, Schaefer rounds up all things "greatest" from the legal blogosphere, from the greatest laughs to the greatest clashes. Has he achieved the greatest Blawg Review ever? As with all claims to great literary achievement, that is for the reader to decide.

May 21, 2007 | Permalink | Comments (0)

Awards Honor Best of Legal Reporting

My second tip today to come via Mark Obbie at LawBeat is that the American Bar Association has announced 2007 winners of its Silver Gavel Award. The award honors exemplary work in media and arts to foster public understanding of the law and the legal system. This year's winners are:

Books: Guantanamo and the Abuse of Presidential Power; Simon & Schuster, New York, N.Y.; Joseph Margulies, author.
Magazines: "Nobody's Hero"; 5280: Denver's City Magazine, Denver, Col.; Maximillian Potter, writer.
New Media: www.votingforjudges.org; King County Bar Association and 19 co-sponsoring organizations, Seattle, Wash.; Paul Fjelstad, Web designer; John R. Ruhl, president, King County Bar Association.
Newspapers: Signing Statements; The Boston Globe, Boston, Mass.; Charlie Savage, writer; Peter Canellos, editor.
Radio: "Judge Vows to Free Inmates Held Since Katrina"; National Public Radio, Washington, D.C.; Ari Shapiro, justice reporter; Barbara Campbell, editor; Emily Ochsenschlager, producer.
Television News & Documentaries: The Untold Story of Emmett Louis Till , Court TV and Think Film, New York, N.Y.; Edgar E. Beauchamp and Ceola J. Beauchamp, executive producers; Keith A. Beauchamp, producer and director.

The ABA also announced honorable mentions.

May 21, 2007 | Permalink | Comments (1)

Need to Train Judges and Journalists Is Universal

I have just returned from Russia, where I spent a week as part of an exchange program on media and the courts. As I caught up today with a week's worth of blog news, I came across Mark Obbie's Lawbeat post about Yale's new law and media program. Created with a $2.5 million Knight Foundation grant, together with support from The American Lawyer founder Steven Brill, the program will train both legal journalists and media lawyers. Obbie, of course, is an alumnus of The American Lawyer and director of a program to train legal journalists at Syracuse University's Newhouse School. Of Yale's new program, Obbie comments:

"The mix of legal journalism and media law is natural because there's some overlap, but they are distinct disciplines: journalism focused on legal affairs vs. substantive law and policy governing the media. I'll be interested to see how the Yale program blends the two. No matter what, the Knight/Brill/Yale initiative promotes the same goals that we care about here: finding and educating people to provide smarter legal reporting."

Smarter legal reporting was also a goal of our trip to Russia. While it will take me some time to filter all I learned on the trip, one lesson was absolutely clear: The gap in understanding between many of those who cover the law and many of those who practice it is universal. The most common complaint I heard from Russian judges and lawyers about journalists was that they did not understand the law or the legal process. The most common complaint I heard from Russian journalists was that judges and lawyers did not understand or appreciate the process of reporting news. These are the same complaints I hear from their U.S. counterparts.

In Russia, in fact, there is a nascent movement to "qualify" journalists to cover the courts. If this means government accreditation, it would be a step backward. But if it means programs such as those at Newhouse and Yale to train journalists to better understand and report on the law, I am all for it.

Still, to the extent that this mutual lack of understanding between courts and media is universal, these programs offer only half a solution. Training journalists about the legal system is important, but so is training those in the legal system about the workings of the news media. Some programs are doing this, notably The National Center for Courts and Media at The National Judicial College, directed by Gary A. Hengstler, former editor and publisher of the ABA Journal.

During our Russian trip, judges and journalists came together in the same room to discuss issues of mutual concern. For many of them, this was a first. There is no question in my mind that simply bringing them together changed their relationship for the better. Here in the United States, there is equal need for programs that focus not only on training journalists or on training judges but that bring these groups together to better understand each other.

May 21, 2007 | Permalink | Comments (0)

May 18, 2007

Pre-Paid Legal Services Are a Good Bet, but What About Investing in Biglaw?

I was surprised to learn that Prepaid Legal Services comes recommended as a strong investment opportunity at two different stock market advice sites, Motley Fool and Seeking Alpha. I'd always believed that pre-paid services were so limited in scope, basically covering simple routine matters like will drafting or uncontested divorce, that they didn't interest many consumers. Plus, a few months ago, I posted on impending FTC regulations that would significantly restrict some of the multilevel marketing schemes employed by Pre-Paid Legal, thereby reducing sales. Finally, I'd often wondered how Pre-Paid Legal is able to attract enough attorneys to handle cases, given the substantial fee discounts that attorneys must offer for work covered by the plan.

But apparently, I was wrong about many of these issues. A recent article in the National Law Journal reports that many solo and small-firm attorneys are drawn to providing service for pre-paid plans because the stable income outweighs the low rates. And analysts view pre-paid plans as a good investment for other reasons as well. At Seeking Alpha, Alex Shadunsky writes that Pre-Paid Legal has only one competitor (Hyatt Legal), and its target market consists of 100 million households, with only 1.5 million presently subscribing:

This is a big opportunity. Litigation in the United States is a constant; I don’t see how this market can shrink if the population of the United States does not shrink and grows at the steady pace it has been growing. If there becomes a Democrat majority in the government, this can also potentially grow PPD’s member base in the short term since Democrats are more apt for litigation.

I wonder whether the same considerations that make Pre-Paid Legal such an attractive investment opportunity would also apply if bloggers like Larry Ribstein have their way, and large law firms can go public.

May 18, 2007 | Permalink | Comments (57)

Women Lawyers Opting In

Used to be that once woman lawyers jumped off the career path, like Hansel and Gretel, they never found their way back. But in some small ways, that scenario may be changing, as more and more professional women are choosing to return to work after spending several years out of the work force to raise children. The trend, referred to as "opting in" is described in this New York Times piece by Lisa Belkin entitled After Baby, Boss Comes Calling (5/17/07; hat tip to Denise Howell).

The article reports on many of the resources now available to professional women who seek to return to the work force, such as refresher courses and networking groups that weren't available even as recently as five years ago. Moreover, there's been a sea change in employers' attitudes: With high-skilled talent in demand, firms are actively targeting women who've left the work force for jobs. And even law firms are opting in:

The law firm of Heller Ehrman, for instance, created a group called the Opt-In Project, which has spent the past year studying the way the firm does business. At the end of the month, the group plans to unveil a proposal to abandon the idea of billable hours that is deeply ingrained in the profession. “We can’t afford to keep losing all these people,” says Patricia Gillette, founder of the project. “The way we currently reward spending more and more hours at work makes no sense in a world where people demand balance.”

Still, Belkin herself remains skeptical, as do others in the blogosphere. Belkin writes:

So I am too jaded to believe that this small handful of trendsetters will bring transformation overnight. They will not change the fact that too many employers still look at a résumé gap as a disqualifying mark; or that women who leave and return pay an average 18 percent salary penalty compared with those who never pause; or that men feel constrained from asking for flexibility because it carries a stigma; or that the only way to eliminate the stigma is for men to start to ask.

At The Conglomerate, Christine Hurt questions whether you can ever really go home again after having left:

Putting aside biases against employment gaps and the priorities reflected in opting out of the work force, how much does the work change in five years? I left Skadden nine years ago to go into teaching. My section isn't even called the same thing. Does it do the same thing? Would I be able to hit the ground running? And forget about me, someone who has been in academia and at least following my industry from a distance. What about a parent who has been rearing children and occasionally reading the WSJ?

Likewise, Belle Lettres is skeptical that this is really a trend:

But I can't say I trust such anecdotal evidence--just because a few elite firms are changing their policies, or just because there is a "many" or "most" shift in public opinion about work/life balance doesn't mean that there's really a change coming. I hope there is one. But I'll believe it when I see it--or rather, the empirical data and a pro-worker amended statute.

Maybe opting in is a real trend, or maybe it's just an exaggeration, based on a handful of anecdotal stories as Belle Lettre suggest. And perhaps there are, as Hurt writes, barriers to re-entry. But at the end of the day, who cares? By highlighting the very possibility of opting in, difficult or limited in scope as it may be, we make women realize that there's a chance for second or third acts if they're willing to work hard enough for them. And that may be enough to inspire a talented woman (maybe even another Sandra Day O'Connor, who also left the work force to raise her children) to return to the law.

May 18, 2007 | Permalink | Comments (2)

Elliot Spitzer's Old Teammates Move On to Bigger and More Lucrative Things

This New York Times article, What’s Happened to the Lawyers Who Worked for Spitzer? updates us on the comings, and mostly goings, of the lawyers who worked under Eliot Spitzer when he served as New York attorney general. The article leads off with the question:

After reining in Wall Street analysts, curbing mutual fund trading abuses and corralling some of the biggest insurance companies in the industry, what do you do for an encore?

Answer: You cash out, just like many of Spitzer's former colleagues. For example, Michele Hirshman, Spitzer's first deputy, accepted a position at Paul. Weiss. Dietrich Snell, another deputy attorney general, heads to Proskauer, and Caitlin Halligan just secured a partnership at Weil, Gotshal & Manges.

With so many lucrative opportunities for former prosecutors after putting in a few years in service, I wonder whether the loan forgiveness bill now under consideration is really necessary, at least insofar as it applies to prosecutors. As the experience of these attorneys bears out, service in an AG's office is a smart career path that offers terrific hands on training early on (while Biglaw associates are toiling in document review) and a well-paying job down the line. Thus, many smart law students will opt for a position at an AGs office even without loan forgiveness to bypass the drudgery of a Biglaw associate job. Nor does loan forgiveness ensure that prosecutors will remain at a job instead of cashing out. Ten thousand dollars is a substantial amount, but it's not going to prevent a prosecutor earning a five-figure salary to trade up for one double or triple that size later on.

May 18, 2007 | Permalink | Comments (1)

U.K. Lawyers Are Happy Chappies

While lawyers in the United States and Australia rank most depressed in comparison with other professionals, over in the United Kingdom, lawyers are "very happy." According to this article, Lawyers are the happiest chappies in the UK (5/18/07; hat tip to BLT), lawyers are the happiest professionals in the United Kingdom, with two thirds of lawyers describing themselves as "very happy" in their jobs.

The article doesn't offer much explanation for the survey's results, especially in light of criticism even in the United Kingdom of hard-driving law firm culture. But it does identify the particular group of lawyers who've achieved the very pinnacle of happiness:

Gemini women lawyers working in Bristol for a female boss, who travel to work by car and that are allowed to wear casual business clothes.

Hmmm ... since I'm a Gemini and a woman, maybe I ought to relocate to Bristol.

May 18, 2007 | Permalink | Comments (0)

May 17, 2007

Inside the Demise of Jenkens and Gilchrest

In today's Wall Street Journal, there's an interesting article, How a Bid to Boost Profits Led to a Law Firm's Demise by Nathan Koppel, about the events that lead to the demise of Dallas law firm Jenkens and Gilchrist, following payment of a $76 million penalty to the IRS for assisting clients with illegal tax shelter arrangements.

Turns out that Jenkens' involvement in tax shelters didn't generate in-house. Rather, the firm was approached by Chicago tax lawyer Paul Daugerda,s who sold tax shelters and advice to wealthy clients -- and offered to bring his business to Jenkens. The firm was impressed by the potential revenue and had recently lost some tax lawyers, so it brought Daugerdas on board. And though some firm lawyers worried that the tax shelters might raise a red flag for the IRS, they did not feel that they were engaging in conduct that crossed the line. Of course, as Koppel writes, that's not what happened:

That risk assessment proved catastrophically wrong. Mr. Daugerdas's tax work attracted lawsuits from tax clients and became enmeshed in a sweeping governmental assault on abusive tax shelters, sparking an exodus of lawyers and clients. In March, after the firm entered into a nonprosecution agreement with federal prosecutors and agreed to pay a $76 million IRS penalty, Jenkens & Gilchrist, which once numbered more than 600 lawyers, closed its doors for good. It was a rare case of a major law firm being entirely wiped out by a scandal.

Now that the firm has shut down, lawyers have had time to ponder their conduct. Daugerdas continues to maintain that the tax advice that he provided was legal under federal tax law at the time. But other lawyers such as Durbin, the managing partner, wonder whether their desire to increase profits and grow the firm clouded their judgment about the legality of the shelters. Likewise, though Daugerdas was difficult to deal with and some concerns emerged about his activities, no one took action to terminate him.

Once the IRS initiated its investigation, Jenkens had difficulty recruiting new lawyers and clients, and by March, the firm shut its doors. What's interesting is the way that the players have reacted to the closure of the firm. Incredibly, Daugerdas is suing Jenkens for additional compensation, while former managing partner Durbin has left corporate law and is studying Spanish with the intention of helping underprivileged Latino children. At least one lawyer learned something from this mess.

May 17, 2007 | Permalink | Comments (1)

Outsourcing the News ... to India

Usually, when we think of outsourcing (or offshoring) to India, it's in the context discussed by Ron Friedmann in this post at Prism Legal, i.e., where lower level or routinized tasks like document review or billing are performed by overseas workers. But in this post, J. Craig Williams discusses a completely new use for outsourcing: for local news coverage.

That's right -- though it sounds crazy to hire journalists 3,000 miles away to cover local news stories, at least one media source is investigating that possibility as reported in this article that Williams flags in his post. According to the article, since city council meetings are available on the web and reporters in India charge less than what is paid to local reporters, outsourcing coverage of news is not as far-fetched as it sounds.

I just hope that my blogging gig here at Law.com doesn't get sent overseas ...

May 17, 2007 | Permalink | Comments (2)

Lawyers Acting Badly

I realize that I'm a softie when it comes to ethics, but this article, Lawyers Pay Price in DuPont Fee Case, describes a well-deserved suspension and disbarment handed to two Florida plaintiffs attorneys. According to the article, the two attorneys, Roland St. Louis Jr. and Francisco Rodriguez, represented 20 clients suing DuPont for damages arising out of their exposure to a harmful pesticide. The plaintiffs lawyers obtained a ruling for sanctions for discovery abuse; the court was ready to strike DuPont's pleadings and encouraged the company to settle the case. Sounds like a huge win, but read on ...

Instead of leveraging the court's rulings to maximize a settlement award for their clients advantage, the plaintiffs lawyers chose to use it for the own personal benefit. The plaintiffs lawyers settled the case for $59 million, which sounds reasonable enough on the surface. But they also agreed to get the trial judge's order vacated and keep the settlement confidential. And at the same time, the lawyers accepted a secret side deal, where the firm would receive over $6 million from DuPont to refrain from further litigation involving Benlate (the pesticide at issue) and to serve as counsel or consultants for the company in future cases.

Now, if the lawyers had disclosed the side deal to their clients and the clients agreed to the arrangement (which seems unlikely), I'd have a different view. Moreover, the fact that these lawyers concealed the $6 million payoff shows that they recognized that it was shady -- yet they pursued it anyway. And in doing so, they subordinated their clients' interests to their own for pecuniary gain.

Though these lawyers deserved their penalty, the case is sad nonetheless: that two lawyers who had the talent and drive to bring DuPont to its knees didn't have the restraint or discipline to stop themselves from the crossing an ethical line.

May 17, 2007 | Permalink | Comments (1)

May 16, 2007

Is $1M in Attorney Fees Fair When a Law Firm Works Pro Bono?

This story, NY BigLaw Leader Scores $1 Million Fee in Pro Bono Case, raises some interesting questions about how to assess attorney fees under a reimbursable fee statute, when the plaintiffs are represented pro bono by a large law firm.

As the article reports, a federal judge awarded $957,710 in attorney fees, plus costs and prejudgment interest, to Skadden Arps for its pro bono representation of a group of waiters, busboys and captains who sued their restaurant-employer for unlawfully witholding tips in violation of the Fair Labor Standards Act and the New York Labor Law. As discussed in the court's decision on fees in Heng Chan v. Sung Yue Tung Corp., the fee award exceeded the $699,374 judgment by roughly $300,000.

Believe it or not, the $957,710 attorneys fee award (which Skadden will use to support organizations that help Chinese Americans and low-wage earners) reflects a discount in Skadden's fees. Because Skadden voluntarily reduced its fees (for example, charging $450 an hour for a partner or $300 an hour for a sixth-year associate), the judge found that an additional discount to bring fees consistent with market rates for civil rights cases was not warranted. Another factor considered was that Skadden lawyers claimed that they wrote off 4,100 hours. Finally, the judge said the fees were justified, because it would have been "difficult or impossible for a small firm or non-profit to take on the case."

After reviewing the decision, I find several problems with the judge's reasoning. First, while I don't mean to denigrate the terrific work that Skadden performed in this case, I find it extremely difficult to believe that the firm wrote off 4,100 hours of time -- that's the equivalent of TWO FULL years of associate time. And while the case went on for three years (complaint was filed in August 2003, and the case was tried at the end of 2006), it seems unlikely that it consumed two full years of billable hours.

Second, in most civil rights litigation, the Laffey Matrix presumptively applies to determine fees in civil rights cases. The Laffey Matrix establishes different levels of fees, beginning at $185 an hour for lawyers with one to three years of experience (under the 04-05 Matrix) and topping out at $390 an hour for lawyers with over 20 years of experience. The table summarizing each attorney's hours in the case (Opinion at 11) shows that Rachel Passaretti, a sixth-year associate, devoted the most time to the case -- 1,380 hours, at a rate of $300 an hour, for a total of $414,180. Under the Laffey Matrix for 2007, adjusted for large cities, she'd have been paid $245 per hour, for a total of $330,000 -- or $80,000 less than under the higher fee. Likewise, Erica Goodstein and Kennth Schwartz, who were also admitted at the same time as Passaretti, according to the opinion, colectively billed 460 hours, for a total of $138,000 -- or $112,000, under Laffey Index rates. As for partner Mark Cheffo, with his 16 years of experience, he would qualify for $375 under the Laffey index and would have billed $161,000 rather than the $194,000 at his $450 rates.

Moreover, because Skadden was working pro bono, it had no incentive to minimize its costs or limit its time. And indeed, because firms often use pro bono as training, Skadden may have double- or triple-staffed the case where fewer attorneys might have been necessary (in fact, defendants challenged Skadden's bill for three attorneys at trial, rather than just two, the same number that the defense had).

While the judge may be right to conclude that Skadden deserved a higher rate because of the deep discounts offered, on the other side of the coin, it's only fair to ask whether the losing defendants should be forced to foot the bill when a law firm, which originally signed up to work pro bono, subsequently seeks a fee. Yes, defendants should pay in reimbursable fee cases -- the law so requires. But should they have to pay for Cadillac representation when a cheaper model would have worked just as well?

May 16, 2007 | Permalink | Comments (0)

How Law Firms Must Deal With Bad News in an Internet Age

According to this article, Gibson Dunn Linked to Wolfowitz Scandal (Law.com 5/16/07), a report by a special committee of The World Bank Group are questioning Gibson, Dunn & Crutcher's role in the scandal involving World Bank President Paul Wolfowitz's transfer of his girlfriend to a high position at the Department of State. According to the report:

Documents released by the bank show that Wolfowitz asked Gibson to review the deal [whereby Wolfowitz transferred his girlfriend] in the summer of 2005. A Gibson Dunn team, including Theodore Olson and Eugene Scalia, concluded that the contract was "a reasonable resolution of the perceived underlying conflict of interest." But on Monday a special committee of the bank charged with investigating the scandal concluded that the limited and after-the-fact review by Gibson "is squarely at odds with the high degree of ... concern for the interests of" the World Bank, which is required by the institution's rules. Gibson Dunn declined to comment.

Experts quoted in the article disagree as to the extent of Gibson Dunn's ethical culpability. Deborah Rhode, a Stanford professor, opined that those who believe that the transfer was a solution are "ethically challenged." On the other hand, Stephen Gillers at NYU said that much of the uproar in the case stems not from the conduct involved but rather from distaste for Wolfowitz's policies at the bank.

From Rich Klein's perspective at Riverside PR, what's worse for Gibson Dunn isn't so much its conduct in the scandal but, rather, its decision not to make a statement. Klein writes:

Instead of declining to comment, Gibson Dunn should have issued a statement. Any statement. It could have said: "Due to client confidentiality issues, we cannot comment on this matter". Or, even better, it could have said: "We stand by our work on behalf of Mr. Wolfowitz." Or, "Like all matters before us, we treat each of them with utmost seriousness and with careful attention to ethics." Heck, the firm even could have pulled a line from its website that states the firm "is committed to excellence."

Klein concludes that in this day and age, "law firms of all sizes need to engage the media" rather than hiding under no comment. A law firm's reputation can be easily damaged by negative news, which can even replace a law firm's Web site as the top result on a search engine. At the very least, if people are going to discover what's damaging about your firm, you ought to ensure that they turn up something positive as well.

May 16, 2007 | Permalink | Comments (0)

Lawyer Salaries: Past and Present, Large and Solo

I came across two interesting blog posts regarding lawyer salaries that make an interesting contrast. The first post comes from Bruce MacEwen, who takes a trip down memory lane, examining Biglaw salaries, past and present. MacEwen nostalgically recalls Biglaw, circa 1982, when Biglaw meant a firm with 150 or more lawyers, and New York partner salaries averaged $232,110 -- or $478,000 today when adjusted for inflation (outside NewYork, median net income per partner was $143,000 25 years ago and around $300,000 in today's dollars). Of course, part of the difference comes from differences in billable hours: The study that MacEwen unearthed showed the average partner billing 1,530 hours per year, while an average associate managed 1,767. To compare, today's lawyers, partners and associates alike bill at least 1,800 and, in many cases, as much as 2,200 hours a year. Of course, even in 1982, billable hours separated top earners Wachtell Lipton from the rest of the pack. MacEwen notes that back then, senior partners at Wachtell earned million-dollar draws, but lawyers also averaged 2,500 billable hours a year.

On the other side of the bar are solo and small-firm practioners, who earn considerably less (though on average, they too bill fewer hours than their large-firm counterparts). Moreover, in contrast to Biglaw attorneys, who typically earn more in large-city locations, solos tend to do better financially outside of urban locations, according to this interesting survey and analysis by professor Bill Henderson. Based on earnings data from 1,200 Indiana lawyers, Henderson found that:

lawyers working full-time in 1 to 5 lawyer firms in large metropolitan areas [see map below, click to enlarge] made an average of $112,712 (n=318), versus $117,284 in mid-sized markets (75,000 to 200,000 residents) (n=104) and $117,741 in small and rural locales (n = 84).

Henderson described that his results parallel those from a Chicago Lawyers study by Jack Heinz and Edward Laumann, which determined that:

the most salient division [in earnings] was between lawyers who served organizational clients, such as corporations, and those that provided personal services to individuals and small business. These two groups, which reflect a division that tracks not only clients but income, educational backgrounds, social networks, and bar affiliations, comprise the "two hemispheres" of the legal profession. In my sample, the attorneys in the 1 to 5 lawyers firms are the segment most likely to provide personal legal services; they also make up 52.3% of the private practice respondents.

Henderson offers some thoughts on why small-firm lawyers earn less money in larger markets. Henderson postulates that many graduates of urban law schools remain in the metropolitan area, thus creating an oversupply of attorneys. Alternatively, lawyers may also simply prefer the big-city lifestyle, thus, making it a more popular option for work. And Henderson suggests that this analysis may not apply in other areas outside of Indiana.

In my view, I think the results are limited to Indiana, which does not have the same number of large firms as states like California, New York, Massachusetts or Washington, D.C. In larger cities where big firms prevail, many lawyers are leaving to start their own firms -- a trend that I frequently document at my home blog, My Shingle. At the same time, these lawyers are taking their Biglaw practices and lucrative clients with them -- and, in many cases, are not experiencing a significant drop in salary. These Biglaw-turned-solo attorneys raise the average income curve for lawyers in major metropolitan areas.

Based on the article, it is clear that a huge disparity remains between average Biglaw salaries and average solo salaries. What's not clear to me is whether that gap is growing or whether it's diminishing as technology enables small firms to handle the same-size cases that only a large firm could manage 25 years ago.

May 16, 2007 | Permalink | Comments (2)

AAJ Seeks Justice for Couple Taken to the Cleaners

The American Association for Justice (formerly known as the American Trial Lawyers Association) has filed an ethics complaint against ALJ Roy Pearson, who's suing a mom-and-pop dry-cleaning store for $65 million for allegedly losing his pants, as reported in this Law.com article, Ethics Complaint Filed Against Judge Over His $65M Suit Against Dry Cleaners. The article does not detail the basis of the complaint, but presumably, the AAJ has asserted violations of DC Ethics Code Rule 3.1 (frivolous litigation) or Rule 8.4 (interfering with the administration of justice). In reading the DC Rules closely, however, I noticed that most of the prohibitions technically apply to a lawyer who represents a client, while Pearson represents himself. I'm assuming that Pearson will rely on this distinction in an attempt to avoid discipline.

The fact that Pearson is pro se raised another question for me as well: Would the AAJ have filed an ethics claim against Pearson if he was a trial lawyer representing a client instead of an ALJ representing himself? What do you think?

May 16, 2007 | Permalink | Comments (0)

May 15, 2007

Which Law Jobs Are Vulnerable in an Electronic Age?

Justin Patten of Human Law Mediation ponders whether lawyers will survive and thrive in an electronic age. Patten's musings arise out of this article, The Future's Bright...but Not For Lawyers and Accountants (Daily Telegraph 5/9/07), which posits that lawyers may eventually be rendered obsolete by offshoring to less-skilled workers and technology. But even the Telegraph article notes that some lawyers will still be in demand:

Lawyers involved in family disputes, and criminal lawyers - they've got to stay around. But lawyers that write contracts, and lots of accountants, maybe that kind of education is not such a fabulous idea. Educating people to go into what I call the personal services is a good idea - some of which don't require all that much education - so electricians, carpenters, plumbers, roofers - skilled trades. This is a very new thought for the highly-educated, white-collar class to think that they may have to compete with low-wage foreign workers. Manufacturers have been doing that for generations. But accountants, lawyers, intellectuals?"

Patten is not worried -- he just recognizes that as law becomes more routine, lawyers will have to do more to stand out from the crowd. He writes:

Soft skills will come more to the fore. Welcome to the era of the cuddly lawyer. If everything is being automated you have to distinguish yourself somehow from the competition.

May 15, 2007 | Permalink | Comments (2)

What Kind of Footprints Have You Left Tracking Across the Internet?

Back in the bricks-and-mortar, pre-Internet age, one's biggest concern over leaving a trail of muddy footprints was how to avoid a scolding from a parent or a spouse. But today, our electronic tracks result in far more than a simple reprimand. They can prevent us from getting a job, and now, as this NYT Sidebar by Adam Liptak (5/15/07) describes, our paperless trail can keep us from crossing the border into another country.

Liptake reports on the story of Andrew Feldmar, a therapist who was refused entry to the United States after a border guard Googled him and discovered an article about Feldmar on his use of LSD. As a result, Feldmar was directed to gain a waiver from the consul to enter the United States.

Dan Markel discusses the story in this Prawfs Blawg post. Markel is troubled not as much by the extent of reliance on a search engine but rather the end result that it enabled: denial of entry based on a nonadjudicated instance of wrongdoing. He writes:

Adjudicated wrongdoings are generally determined after access to counsel, exhausting of various defenses, etc. One of these defenses is particularly salient in the context of contemporary comparative drug policy: what if the conduct that kept folks like Feldmar out was legal in the jurisdiction it occurred when it occurred? This is precisely the due process consideration that the Supreme Court properly kvetched about in the BMW v. Gore and State Farm punitive damages cases. If Feldmar's story is generalized, US border guards are now empowered to be a one-person judge, jury, and executioner of another nation's drug policy--and who knows what other kinds of inquiries border guards will feel comfortable making; can they call your ex-boyfriends or teachers to ferret out unadjudicated wrongdoing?

Until these issues are resolved, all we can do in this electronic age is tread lightly and hope that our past mistakes don't leave a permanent impression online.

May 15, 2007 | Permalink | Comments (1)

Three Different Blogging Models for Law Firms

Kevin O'Keefe of LexBlog has an interesting post on three models for law firm blogging. The first model establishes a clear law firm brand, with a design that complements or is integrated into the law firm's Web site and a description of firm lawyers in the "about section." I've also noticed that the law firm model of blogging frequently fails to give attribution to the associates or individual attorneys who write each post.

A second law firm model is where a lawyer uses the blog to leverage association with a law firm. O'Keefe writes that sometimes lawyers within a firm want their own blog to develop their own book or business or because they're far ahead of the blogging curve, and the firm does not yet have a formal policy in place. In these cases, the lawyer will typically mention his or her affiliation with the firm -- and the blog may include the firm's branding or logo, but the attorney's identity, rather than that of the firm, predominates.

In the final business model, lawyers start the blog on their own. Some blogs have the firm's blessing, and others do not. The lawyer may mention his or her place of employment and frequently includes a disclaimer that the blog represents the attorney's view and not that of the firm. From what I can tell, this last model seems to have spawned some of the most successful blogs -- think Howard Bashman, Denise Howell and Ernie the Attorney, all of whom started their own "brand name" blogs while working at large firms.

O'Keefe says that the last model is scariest for law firms because of concerns about protecting the firm's brand and image. But I think firms face a different danger when they allow lawyers to start blogs. As the previous examples show, starting a blog can serve as a springboard to moving on to bigger and better things -- that may or may not include their law firm.

May 15, 2007 | Permalink | Comments (1)

Blawg Review #108

Blawg Review #108 is out, hosted by Arnie Herz at Legal Sanity. Blawg Review #108 focuses on ways that you can advance your career goals by acting in a civil manner, living authentically and simply putting on a smile. Take a trip over to Blawg Review #108 this week -- and see if it doesn't put a smile on your face as well.

May 15, 2007 | Permalink | Comments (0)

May 14, 2007

A Tale of Two Lawyer Moms

The past few days of news brought an interesting juxtaposition of two highly accomplished lawyer moms. The first is Michelle Obama, wife of Democratic candidate Barack Obama and an Ivy League educated, former Am Law 100 attorney (she was later hired as a VP at University of Chicago Hospital) in her own right. But according to this profile from the Washington Post (5/1//07), Michelle Obama has decided to wrap up her legal practice, at least for now to support her husband's run for the presidency and ensure time for her children. Like many attorneys, Michelle Obama has long struggled with tension between work and family. In the article, she's quoted as saying:

Every other month [since] I've had children I've struggled with the notion of 'Am I being a good parent? Can I stay home? Should I stay home? How do I balance it all?' " she said. "I have gone back and forth every year about whether I should work."

The second article is by Wendy Hufford, an in-house counsel and mom to eight kids, who authored this Mothers' Day column, entitled, Commentary: Relocating -- With Eight Kids -- for Dream In-House Job (5/14/07). Apparently, Hufford has found that work-life balance that eluded even someone like Michelle Obama: Hufford managed to seamlessly pack up her house and move a family of 10 from the East Coast to Ohio to accept a "dream job" as chief litigation counsel of Cardinal Health in Dublin, Ohio. Even better, Hufford's husband's firm allowed him to telecommute to his position.

While I admire and even envy Hufford (and who wouldn't?), I simply can't relate to her experience. Most days, I feel much more like Michelle Obama, constantly struggling over how to make it all work. What about you?

May 14, 2007 | Permalink | Comments (2)

Did Monica Goodling Have Something to Hide, and If So, Why Won't Gonzales Protect Her?

Back in March, I blogged about all of the speculation around the blogosphere about Monica Goodling's decision to invoke the Fifth Amendment when subpoenaed by the Senate to testify regarding her involvement in the firing of eight U.S. Attorneys. General consensus was that while Goodling may have had practical reasons for invoking the Fifth (e.g., avoiding a Scooter Libby predicament), she had no legal basis for doing so unless she herself had committed a crime.

Well, now Goodling has been granted limited immunity, thus clearing the way for her to testify about the terminations. But apparently, Goodling did have some reason to worry about her own actions: According to this weekend's New York Times story (5/12/07) Goodling engaged in questionable hiring practices of her own, such as quizzing applicants for civil service jobs at the DOJ about their favorite president and Supreme Court justice -- and even inquiring of one applicant whether he'd cheated on his wife. In the Times article, H.E. Cummins III, one of the fired prosecutors commented:

She was inexperienced, way too naïve and a little overzealous,” said Mr. Cummins, a Republican from Arkansas. “She might have somehow figured that what she was doing was the right thing. But a more experienced person would understand you don’t help the party by trying to put political people in there. You put the best people you can find in there.

At Talk Left Jeralyn Merritt asks:

So, where does this leave Ms. Goodling? In the position of Queen for a Day...she gets to tell everything bad she ever did with no personal, criminal repercussions.

I disagree. Though perhaps there'll be no criminal consequences for Goodling (though her hiring practices are not covered by the immunity grant, as I understand), from what I can tell, Goodling's career as an attorney is over. From what's coming out now Goodling looks like a fool who made blatantly foolish mistakes, in large part because she simply lacked experience and wasn't given appropriate guidance from her superior. And now, rather than take responsibility for Goodling's mistakes, Gonzales is hanging her out to dry. Far from being Queen for a Day, Goodling is a sacrificial lamb for the cause of Gonzales keeping his job.

The Code of Professional Responsibility counsels experienced lawyers to offer guidance and training to subordinates. Gonzales failed on that count. And to me, that's far worse than improperly firing eight U.S. Attorneys -- because no matter how this winds up, they're experienced enough to fend for themselves. Goodling never had a chance.

May 14, 2007 | Permalink | Comments (1)

Corporations Want More Than Appearances When It Comes to Diversity at Law Firms

The messsage from Delaware's first Diversity Retreat held last Friday at Widener Law School is clear: When it comes to diversity, law firms must move towards true integration in their ranks and not just superficial changes to win corporate business. This article, Law community's reluctance to diversify subject of retreat (Delaware News Journal, 5/12/07), provides a comprehensive review of the highlights of the retreat and, particularly, corporate frustration at many law firms' glacial steps towards diversity.

According to some of the corporate counsel panelists, law firms often try to portray a diverse image by offering up a handpicked team that includes attorneys of color. But six months later, these attorneys are no longer involved. As a result, many corporations are now skeptical of "beauty pageants."

The Diversity Retreat discussed other impediments, such as the difficulty in luring women and minority attorneys to Wilmington, Del. With so many corporate clients interested in these attorneys, they're in high demand and are likely to opt for more popular cities. According to the article, the percentage of attorneys of color who are partners at Wilmington's top firms is 2.3 percent, compared with 5 percent nationally.

May 14, 2007 | Permalink | Comments (5)

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