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June 29, 2007

Avvo Files Motion to Dismiss

A few weeks ago, I participated in this discussion at Avvo, a new lawyer directory and ratings system. Mark Britton and Avvo didn't participate in the show, but now, their position was clarified with the filing of this 34-page, footnote-packed Motion to Dismiss

From my brief read of the Motion, it seems that courts have previously addressed the legality of ratings systems and generally concluded that they are protected by the First Amendment. In this post at Avvo's Blog, a press release states that:

“Americans have the constitutional right to rate everything from restaurants, beers, books, and movies to colleges, law schools, architecture, and airlines,” said Bruce E.H. Johnson, partner, Davis Wright Tremaine LLP, and Avvo’s counsel. “Lawyers routinely exercise their right to rate judges. It’s a wonderment these particular lawyers seem to believe that Americans shouldn’t rate them.”  Noting cases involving the California Bar Association, Martindale Hubbell, Esquire Publishing and The El Paso Times in which opinions about attorneys constituted protected speech, Avvo’s Motion to Dismiss cites extensive case law protecting media outlets’ First Amendment rights and rebuts the allegations in the Class Action Complaint. That complaint, filed in U.S. District Court on June 14, was initiated by Seattle attorney John Henry Browne whose Avvo Rating exposed a recent disciplinary action he received from the Washington State Bar Association.

Avvo isn't just fighting in the courtroom but on the PR front as well. As this post describes, Avvo has made some changes to its site that address some of the complaints raised in the lawsuit.

After reading the Avvo Motion, it seems to me that if lawyers are going to continue to oppose Avvo, they're going to have to come up with better arguments than, "I just don't like my rating." And moreover, as a recent op-ed piece by Thomas Friedman points out (excepted in this post from the Moderate Voice), the Internet is forcing all of us to change not what we do but how we do it. With bloggers and self-publishers abounding, we all have to zealously guard our online reputations. Whether Avvo and its ratings system survive or not, there will always be information out on the Web about us, some of it positive, some not so much. That's a reality of today's Internet Age -- and one that I willingly accept in exchange for all of the benefits and possibilities. Do you?

June 29, 2007 | Permalink | Comments (5)

Supreme Court to Hear Detainee Case Next Term

In a brief but highly unusual order issued this morning, the Supreme Court reversed course and agreed to hear the Guantanamo detainee case, concerning  the constitutionality of the administration's policy of detaining so-called enemy combatants without allowing them to challenge the legality of detention through use of a writ of habeaus corpus. The New York Times covers the story  here. According to the article, the reconsideration -- which required support from five justices -- "signaled that [they] had determined they needed to resolve a new politically and legally significant Guantanamo issue, after two earlier Supreme Court decisions that have been sweeping setbacks for the administration’s detention policies." 

Lyle Denniston offers additional insight on the Court's change in course:

Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants." Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. (It is a fair assumption that Chief Justice John G. Roberts, Jr., was not in favor of rehearing; in an in-chambers order he issued on an earlier procedural matter in the detainees cases [applications 06A1001 and 06A1002] on April 26, Roberts opined that "possible court action" in the D.C. Circuit Court would not be enough to justify a grant of review in the face of the April 2 denial.) Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented." The new order did not state what changes had come about since the denial in April. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees' lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a "sham."

And in a later post, SCOTUS Blog summarizes the questions presented in the detainee cases. The main questions from the lead case are:

1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay. 2. Whether Petitioners’ habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

With only two years left in Bush's term in office, the Court could have easily avoided these issues and left the potential for change in policy to another administration. By stepping in now, the Court will clarify these issues not just for this administration but for those to come.

June 29, 2007 | Permalink | Comments (0)

New Marketing Idea: Become a Trial Groupie

So what if your firm wasn't selected to represent a defendant in a big-time trial? You can still gain benefits by becoming a "trial groupie" -- hanging out at the courthouse, observing the trial (perhaps even live-blogging it at breaks) and getting yourself interviewed as an expert commentator on TV. That's a strategy that worked big time for one law firm, as described in this piece,  Perkins Coie Finds Marketing Opportunity in Conrad Black Trial Commentary, The National Law Journal (6/29/07).

From the article:

Chicago Perkins Coie partner Hugh Totten and one of the firm's public relations specialists, Lori Anger, hatched a plan at the beginning of the criminal fraud trial to see what kind of publicity they could drum up by making Totten available to comment on the case for the 400 registered U.S. and international press personnel covering it. Many of the law firms in town weren't able to comment publicly because they were representing one of the defendants or witnesses in the case.  So, Totten, a litigator specializing in complex civil cases and co-chair of the group's construction and design team, started sitting in on the trial at the federal courthouse, conveniently located across the street from the firm's Chicago office. It's the same kind of trial he typically works, just with a different burden of proof, he said. Mixing with reporters was natural for him given his journalism studies at Purdue University and his former editor position at the college's newspaper.  To say the plan was successful is an understatement. Totten, a former Kirkland & Ellis attorney who has little experience in criminal defense, got comments into newspapers and wire services all over the world, including the Chicago Tribune, the Financial Times of London, the Globe and Mail in Toronto and Bloomberg News.

The goal of Perkins' plan was to help lure new lawyers to the firm's 3-year-old Chicago office. Currently, the office has 70 lawyers, but the firm expects to grow it as large as 200.

Could this strategy work for your firm?

June 29, 2007 | Permalink | Comments (1)

Could Video Resumes Violate Employment Law?

Ah, leave it to lawyers to put the kibbosh on what seems like a terrific way for law students and lawyers to stand out from the crowd when job hunting and marketing. As this blog post by Dave Lefkow of Director of Recruiting discusses, the legal profession's opinion of online video resumes hasn't been favorable.

According to this article from The National Law Journal, legal employers are cautioned to stay away from video recruiting. From the article:

If a video résumé comes across your computer, hit the delete button. That's the advice labor and employment attorneys are giving employers and human resources professionals about video résumés, the latest job-searching trend that has employers nationwide both intrigued — and scratching their heads. But lawyers are warning employers that video résumés can open a slew of discrimination claims.

One lawyer quoted in the article had this to say:

Cheryl Behymer, a partner at Atlanta's Fisher & Phillips, is advising employers to return video résumés with a request for a traditional résumé. "Just let them know, 'We don't use video,' " said Behymer, who strongly advises against opening up video résumés. "You're opening yourself up to a potential that someone could claim, 'Well, the reason I didn't get hired is because you could see my gray hair and you could see that I'm over 40.' "

Lefkow anticipates that law firms' attitudes toward video resumes might have a slipperly slope effect. He wonders whether law firms will start relying exclusively on phone interviews to avoid the legal hassles of meeting someone in person.

Moreover, even written resumes send signals of their own. Many employers scrutinize candidates' names to guess at race, year of graduation to determine age as well as clubs and activities (e.g., Hispanic Law Students Association or Lambda) to figure out race and sexual orientation. The point is that firms intent on discriminating will find a way to do it, whether based on a paper resume, a videotape or an in-person visit. So why cut off a potential recruiting mechanism that offers the positive benefits of viewing the person as a whole:  an individual with a gender, an age and a race but also an individual with personality and mannerisms that might make him or her a good fit for a firm?

June 29, 2007 | Permalink | Comments (3)

June 28, 2007

Really Big (as in 185 Pages Big) Supreme Court Decision Issued Today

Today, the Supreme Court issued its long-awaited decision in Parents Involved in Community Schools v. Seattle School District, which ruled that use of race by public school systems as one factor in assigning students to school is unconstitutional. At the Wall Street Journal Blog, Peter Lattman provides this  simple summary of the 185-page decision:

Bloggers have already started examining the decision from a variety of perspectives.  The WSJ Blog summary opines that the case does not overturn Brown v. Board of Education (which abolished the "separate but equal" justification for school segregation), but rather, amplifies it to stand for the proposition that schools cannot look at race at all, no matter the reason for doing so.  As Roberts stated in the majority, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

In this post at Prawfs Law Blawg, Paul Horowitz considers what today's ruling means for Grutter v. Bollinger, where the court upheld the University of Michigan Law School's admission program that allowed for consideration of race and other nonmerit-based qualifications. Horowitz draws several distinctions betweeen today's rulings, which related to lower school education, and Grutter, which involved higher education. He writes:

The majority notes that Grutter rested on "the interest in diversity in higher education."  But the Court stresses that the kind of diversity at issue in Grutter was not simply "race alone," but included a variety of factors beyond race.  Moreover, the admissions program approved in Grutter involved a set of holistic and individualized determinations about admissibility, and not just a crudely operated search for racial balance.  The Court thus distinguishes Grutter from the present cases, certainly without overruling and also, I think, without quietly eviscerating it.  I think it is this last conclusion that will occasion the most controversy, and others may point to other aspects of the ruling that they do think damage Grutter.  (More on this later, after the jump.) The majority, in the course of disagreeing with those lower courts that applied Grutter to various K-12 school assignment plans, also emphasizes that Grutter "relied upon considerations unique to institutions of higher education, noting that in light of the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition."  Thus, to the majority, Grutter takes place within the "unique context of higher education," and within the tradition of academic freedom found in many First Amendment rulings over the past 50 years -- a First Amendment tradition that substantially underwrote the Court's decision in Grutter, and that is not relevant with respect to K-12 schools.

Tom Goldstein of SCOTUS Blog also opines that Grutter survives -- and indeed, even thrives -- in the aftermath of today's decision. Goldstein believes that because Justice Kennedy's concurrence does not adopt the majority view that education systems must be color-blind, his decision controls the law going forward. And from Kennedy's concurrence, Goldstein gleans the following points:  (1) There is a compelling governmental interest in school diversity; (2) the Constitution does not require color-blindness; (3) racial classifications are subject to strict scrutinty; but (4) that certain uses of race are sufficiently innocuous that they do not trigger strict scrutiny. Goldstein also notes that Kennedy's opinion leaves one issue open:

Here is what is not perfectly clear, and regrettably so. Justice Kennedy leaves open the substantial prospect that schools can use the Grutter model of employing race as one of many factors, even absent a showing that other efforts that do not involve the express use of race have failed. But he does not clearly decide the issue, which is the major open jurisprudential question.

The commentary keeps coming in, but for now, enough with the experts. I'll close this post with the view of Fran Ellers, a parent of two children in the Jefferson County Public School System (the other respondent in the case along with the Seattle school system). In this guest blog post, Ellers writes:

I’m so disappointed – for my two kids, for our school system, and for students and families across the U.S. My son has six or seven running buddies at his elementary school, only one of whom is from our same neighborhood. The rest are from throughout the county and include children of other races and socioeconomic backgrounds. If we return to a system of neighborhood schools, that learning experience will be lost. My middle-school daughter’s reaction: “You mean we don’t have to have integrated schools anymore? That sucks!”

June 28, 2007 | Permalink | Comments (0)

Every Law Firm, a Publishing House

Imagine if your firm could boast that half of its partners were also published book authors. That dream may not be far off, if the Espresso Book Machine gains traction (hat tip to Dave Swanner of South Carolina Trial Law Blog). Though it appears that the book machine produces already published books in the public domain, there's no reason why it couldn't be used for self-publishing. How impressive to send a client home with a book that you've written.   

June 28, 2007 | Permalink | Comments (0)

A Law Firm Ashamed of Its Roots?

Could it be that Biglaw firm Jones Day has an inferiority complex about its Cleveland, Ohio, roots? This story, Deception HQ, ponders that question:

Most large law firms proudly announce the locales of their corporate headquarters. Skadden Arps, America's third-largest firm, boasts of headquarters in New York. Baker & McKenzie (no. 1) regularly notes its central Chicago location, while Latham & Watkins (no. 4) never denies it's based in L.A. But while no. 2, Jones Day, may be one of the jewels of Cleveland, don't ask where its headquarters are located. We "have no corporate headquarters," a spokesperson for the company said recently. The firm, it seems, is just a tad embarrassed to be from Cleveland.

As the article points out, Jones Day's deception isn't unique. For example, lawyers practicing in suburbs often use virtual office addresses in cities to convey greater sophistication, as do many solo lawyers who work from home. 

So what's your view? In our increasingly virtual world, does real-time location still matter?

June 28, 2007 | Permalink | Comments (5)

Blogs Grading Law Schools

Used to be that U.S. News and World Report, albeit controversial, had cornered the market on ranking law schools. That's no longer so, according to this article from The Wall Street Journal, Law Schools Also Ranked By Blogs. According to the article:

In the last two years, at least a dozen upstart Web sites, academic papers and blogs have stepped in with surveys of their own to feed the hunger for information on everything from the quality of the faculty to what a school's diploma might be worth to future employers.  Last year, a blogger and Notre Dame Law School graduate who goes by the name "law firm addict" began trolling message boards frequented by law students. The blogger invited students to share figures on school representation in law firms' summer-associate programs (one finding: Columbia is the perennial winner in New York), as well as where federal appeals clerks went to school. (This year's winner is Stanford by number of clerks as a percentage of its class.) The information is posted on and

Not surprisingly, the blogs provide more useful information than U.S. News, which focuses on factors more important to academia than to students making an investment in their future -- and who are interested most in clerkship and job placement. From the article:

Knowing the value of a school's diploma to firms that pay big first-year salaries has grown more important as law school has become a bigger investment. Between 1987 and 2005, the average public law school's resident tuition increased to $13,145 from $2,398, while the average private-school tuition jumped to $28,900 from $8,911, according to the American Bar Association. Graduates in 2006 of public and private law schools had borrowed an average of $54,500 and $83,000, respectively, according to the ABA.

Now that law schools are being graded, will blogs start ranking law professors as well?

June 28, 2007 | Permalink | Comments (4)

June 27, 2007

The Wal-Mart Model: Trendy for Fashion, Why Not for Law?

Mike Sherman of the relatively new blog Law for Profit posts on the easiest way to a million dollars. Drawing on the "ubiquitous" Seth Godin, Sherman writes that "it’s easier to make a million dollars selling a $10,000 service to 100 people than it is to make a one dollar profit selling to a million people." And Sherman argues that this principle should inform lawyers' pricing strategy. He writes:

I know a divorce lawyer who has been practicing 30 years (twice as long as I have) and whose technical skills are very well respected in his community.  However, he takes the Wal Mart approach - low fees, high volume.  I have often been opposite him in cases where, despite my having half his experience, I made literally two to three times the fee he did in the case.  When he and I talk about this he essentially admits he is afraid to raise his fees.  He thinks he will lose business.  He doesn’t realize that would be a good thing (despite my repeatedly telling him so).  He could double his fees and even if he lost half the volume (which he wouldn’t because of his reputation) he’d make more money, work less and be able to deliver a higher level of service to his clients.  That’s a win all around.

I've seen this model recommended by consultants, and of course, it makes eminent sense. And yet, as lawyers are encouraged to move away from Wal-Mart volume practices, other industries are embracing them. For example, one major trend in the fashion industry, as described in this article, 'Sex and the City' star sells cheap chic, is "cheap chic," where famous celebrities like Sarah Jessica Parker, Madonna or even basketball superstar Stephon Marbury lend their names to bargain basement-priced attire and athletic shoes. Many of these products are carried by stores like Steve & Barry's or H&M, which sell bargain-priced fashion.

Wal-Mart has achieved its success because some people love bargains, but even more have no choice but to seek out bargains. In law, that's equally true: Some clients will always need the Wal-Mart version of legal services. I'm not saying that you have to be the lawyer who provides them, but if the legal profession doesn't offer some version of affordable legal service, the integrity of our entire system suffers. At the same time, because there's a demand for cheap legal service, it seems that there ought to be a way to fill that niche and still profit. Wal-Mart is doing it, as is the fashion industry. Will lawyers find a way to do the same?

June 27, 2007 | Permalink | Comments (7)

Hollywood Offshoring

Seems as if offshoring is now trendy enough to have been adopted by Hollywood, according to this post by Wired GC. Apparently, the New York law firm of Smith Dornan Dehn has established an affiliate in India with more than 40 people working on various matters for clients like HBO, Sony Pictures, Universal and MTV Networks. When you examine the costs, the offshoring decision makes sense. As Wired GC notes:

Office space in Mysore is 43 times cheaper than in Manhattan. In New York most legal fees go to real estate. We have eliminated that. We pay $2,000 rent per month for a three storey building in Mysore. For that kind of money we won’t get anything in New York.  And neither in Mumbai or Delhi. Also, Mysore is over five times cheaper if you consider legal services fees. We charge $30 to $90 per hour compared to $200 to $700 per hour in the US.

So perhaps it is only a matter of time before more associate work (growing more expensive each day with rising salaries) will migrate over seas as well.

June 27, 2007 | Permalink | Comments (0)

The High Cost of Brand

Mark Merenda of Smart Marketing posted this first in a series of videos on lawyer branding. Merenda emphasizes the importance of branding in his post, but also admits that branding is expensive and does not always produce a quantifiable ROI (return on investment).

Of course, some folks do obtain an ROI from branding. Consider this recent article reporting that  the Learning Annex offered Paris Hilton  $1 million to host an hourlong seminar called "How to Build Your Brand." One million for the Paris Hilton brand? Sounds like a pretty good ROI to me. 

June 27, 2007 | Permalink | Comments (0)

June 26, 2007

Chambermaid: The Summer Must (Not?) Read

Chambermaid When a former law clerk to 3rd U.S. Circuit Court of Appeals Judge Dolores Sloviter writes a novel that her publisher promises "breaks the code of silence surrounding the clerkship ... and boldly takes us into the mysterious world of the third branch of the U.S. government," lawyers' ears perk up. The novel, Chambermaid, by Saira Rao, is now shipping, and James Grimmelmann at PrawfsBlawg says, I'm Sorry I Read It:

"The book is an abomination, one of the worst novels I have ever read, both artistically and morally. The affected style, which runs the gamut from 'cutesy' to 'bench memo,' would be forgivable if the substance weren’t so dreadful."

Grimmelmann calls the narrator "a raving narcissist" and offers examples of her shallowness drawn from her own words, such as this: "I was suddenly intrigued. A real-life lesbian! And she was my coclerk. I would actually have a lesbian friend! [My sister] had recently convinced me that lesbians were more fabulous than gay men."

Others had kinder words for the book. At Above the Law, David Lat says he "thoroughly enjoyed" it. Legal Antics writes: "It really is hysterical! I highly recommend it." And in the New York Law Journal, reporter Thomas Adcock describes the book as "witty" and "suffused with humor." (Adcock is himself the award-winning author of several novels.)

Rao, meanwhile, is doing the Q&A circuit. Earlier this month, she spoke with Peter Lattman at Law Blog, who asked her how much of the novel was based on personal experience. Her reply:

"While informed by personal observations, this is a novel, this is fiction. If I wrote a memoir it would be pretty damn boring. I clerked in the Third Circuit, the novel is based in the Third Circuit. People can draw their own conclusions."

Brett McKay also interviews Rao at his blog, The Frugal Law Student. He asks her that all-important law student question, "How much debt did you incur while in law school?" Her answer:

"I did take out loans to pay for half of law school. But I was also deeply lucky to have parents who paid for the other half."

She has yet to pay off that debt, she confides, but the second novel she is already at work on may help.

June 26, 2007 | Permalink | Comments (0)

Blawg Review: Double the Hosts, Double the Fun

For this week's Blawg Review #114, two bloggers team up as hosts, and the result is an almost double-length collection of citations to the week's best of the legal blogs. Double-teaming for this first Blawg Review of summer 2007 are mediator Stephanie West Allen of idealawg and mentor and lawyer coach Julie Fleming-Brown of Life at the Bar. With Julie already at the beach and Stephanie visualizing herself there, the two offer their summer summary of the sangria and watermelon of the legal blogosphere. 

June 26, 2007 | Permalink | Comments (0)

Sneak Peek: Top-ranked EDD Vendors

As I noted here a year ago, the annual Socha-Gelbmann Electronic Discovery Survey could be called the Consumer Reports of EDD vendors. Based on vendor-provided data, interviews and other research, the survey ranks the top EDD companies and provides information on a number of others. The survey costs $5,000 to purchase, but an abbreviated version will be published in the August issue of Law Technology News. Today at her blog The Common Scold, LTN editor-in-chief Monica Bay has a sneak preview of the report. Among other things, she reveals the survey's 2007 picks for the top-five EDD providers. They are:

Monica has other peeks at the survey, including the top-ranked providers of EDD software. Read more at her blog and watch for the article in the August LTN.

June 26, 2007 | Permalink | Comments (0)

Cadwalader's Bed Bug Solution

Bugs have been found in the New York office of white-shoe law firm Cadwalader, Wickersham & Taft. They are not of the eavesdropping kind, but of the bothersome, itch-inducing bed bug kind. At the blog,  David Lat has the memo sent yesterday to all New York staff from chairman Robert O. Link Jr.

According to the memo, said bed bugs were found not in beds, but in the 33rd floor word-processing department. In a paragraph that could only -- as Lat observes -- have been written by a lawyer, Link advises:

"We immediately arranged with Assured Environments, a full-service integrated pest management firm operating in the metro NY area for over 70 years and a specialist in the treatment of bed bugs, to review our problem and make recommendations on both short and long-term solutions."

The short-term solution: remove the box from whence said bugs emerged. And remove the person who brought the box. There was a guilty party, the memo suggests, who brought the bed bugs into the firm. That person, Link adds, "is no longer associated with the firm."

Link goes on -- again sounding every bit the lawyer:

"Bed bugs, while not usually found in a work environment, can cause uncomfortable itching. They do not show themselves during daylight hours, only at night in the dark. ... The best evidence of bed bugs is not the actual bugs but the waste material left behind that is either a dark brown or reddish color."

He later concludes:

"Other reports of insects -- which we receive periodically in an office environment -- have been carefully investigated and, in each instance, were identified as fruit flies or gnats."

So there you have it: short- and long-term strategic planning and solutions, application of the best-evidence rule, and careful ongoing investigation -- all in a day's work for a major law firm responding to a bed bug crisis. Meanwhile, Cadwalader's fruit flies and gnats are resting easy.

June 26, 2007 | Permalink | Comments (3)

June 25, 2007

Bong Hits Case Goes Up in Smoke

With the Supreme Court wrapping up its term this week, it issued five decisions today, including one on what may well have been the most blogged case of the year, Morse v. Frederick, aka "Bong Hits 4 Jesus." As Associated Press reports, the Court ruled 5-4 against the high school student who claimed a First Amendment right to display a banner bearing those now famous words.

Chief Justice Roberts wrote the the Court's opinion, joined by Justices Scalia, Kennedy, Thomas and Alito. Justices Stevens, Souter and Ginsburg dissented, and Justice Breyer concurred in part and dissented in part. For the majority, Roberts wrote:

"The message on Frederick's banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. to still others, it probably means nothing at all. ... But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."

The case is not about political debate, Roberts said, but about "whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use."

At SCOTUSBlog,  Marty Lederman's "quick preliminary notes" call Morse "a very limited holding" in which Justice Alito's concurrence, joined by Justice Kennedy, is controlling. Lederman cites this passage written by Alito:

"I join the opinion of the Court on the understanding that (a) it goes no further than hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

But at the National Review blog phi beta cons, David French sums up the opinion as an example of that old saw, "bad facts make bad law." He sees the ruling not as limited but as potentially expansive, in that the Court's reasoning about drug-related speech could apply to all sorts of unpopular speech. He explains:

"Virtually all restrictive speech policies ... are justified by the prevention of serious mental or physical harm to young people and by reference to other laws and regulations.  All of the justifications that Justice Roberts applied to limiting speech regarding drug use could be used by school administrators to silence dissent on controversial issues regarding, for example, homosexual behavior, religion, and gender politics."

We'll give dissenting Justice Stevens the final say, since to me his words make the most sense:

"Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. ... In the national debate about a serious issue, it is the expression of the minority’s viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular."

June 25, 2007 | Permalink | Comments (0)

A Dope Request to Remove a Post

In the quest for search-engine rankings, are lawyers forgetting the value of good PR? As told in a post at Blawg Review, that might be the case. The anonymous editor of this blog says he received an e-mail from L.A. lawyer Allison Margolin, aka LA's Dopest Attorney, asking him to remove a blog post he wrote about her last year. We've all heard of bloggers receiving take-down letters in which posts are claimed to be defamatory or otherwise legally offensive. But Margolin's complaint was much different. She wanted Blawg Review to remove its post because it is ranking higher than her own site in a Google search for "LA's Dopest Attorney." The Blawg Review editor puts it this way:

"Did we say anything untrue or unflattering? Did we cause her embarrassment? No, it seems the problem is that her computer guys are having difficulty getting their client's blog to the number one spot on Google for the search string LA's Dopest Attorney."

Generously -- and tongue-in-cheekly -- the editor implores readers to add links to Margolin's blog on their own blogs, "and give her the Google juice she deserves." Meanwhile, in what can only be considered an act of poetic justice, Margolin's computer guy is featured on a YouTube video sending his client an e-mail informing her that her blog's ranking on Technorati has surged to 188,865th place.

In that original Blawg Review post, the editor called Margolin "definitely one to watch." Thanks to that post, other bloggers such as Susan Cartier Liebel at Build a Solo Practice learned about Margolin and praised her for her brilliant branding campaign. Apparently, however, Margolin and her computer guy think a slight boost in Google rankings is worth more than all this good PR. Sounds like a case of failing to see the forest for the trees.

June 25, 2007 | Permalink | Comments (0)

Watch What You Say -- YouTube Edition

In what could be a case study for a lecture on law firm public relations, lawyers at a Pittsburgh firm are finding their words come back to haunt them, courtesy of YouTube and a disgruntled computer programmer. At a May 15 immigration law seminar, lawyers from the immigration practice at Cohen & Grigsby gave tips on how U.S. employers can skirt federal requirements that they seek qualified American workers before applying for a green card for a foreign worker. The firm posted video of the seminar online as a marketing maneuver.

One speaker featured on the video was Lawrence Lebowitz, a Cohen & Grigsby immigration attorney and the firm's vice president of marketing. Writing today in The Legal Intelligencer, reporter Gina Passarella relates what he said:

"'Our goal is clearly not to find a qualified and interested U.S. worker,' Lebowitz said. 'And, you know, that, in a sense, that sounds funny, but it's what we're trying to do here.'

"Other panelists laid out ways in which employers could comport with the federal requirements for advertising to American workers, but could limit the number of potential applicants. Advertising in papers with lower circulation was one example given."

Kim Berry, president of the Programmers Guild, saw the video and was irate. He shortened the video, added subtitles and music for emphasis and posted it to YouTube. The result, as both The Legal Intelligencer and the Pittsburgh Post-Gazette called it, was a "firestorm" on the Internet and in the news media. Consider:

  • As of the morning of June 25, more than 120,000 viewers have downloaded the video.
  • CNN's Lou Dobbs aired an unflattering piece on the seminar.
  • U.S. Sen. Chuck Grassley, R-Iowa, and U.S. Rep. Lamar Smith, R-Texas, sent a letter to Cohen & Grigsby asking the firm to explain its advice and another to Labor Secretary Elaine Chao asking her to investigate the firm's "unethical procedures and advice."
  • In addition to the news reports mentioned above, the video has been covered by Information Week, Business Week, Associated Press and a host of other news outlets.
  • Any number of blogs have picked up the story, from high-profile political blogs such as Daily Kos to high-profile legal blogs such as LexBlog and Overlawyered.

So amidst this firestorm, what is the law firm's response? It issued a statement saying, "[W]e stand by the substance of our recent Immigration Law Update Seminar. We regret the choice of words that was used during a small segment of the seminar. It is unfortunate that these statements have been commandeered and misused, which runs contrary to our intent."

Now back to that PR lecture I mentioned at the outset. To my mind, the firm's response translates to this: "We did nothing wrong, and we are the victims here." Was this the right response? I don't think so. If ever there was a time to eat crow, this was it. What do you think?

June 25, 2007 | Permalink | Comments (1)

June 22, 2007

Avvo's Ratings 'a Crock'

Trust us, Avvo's ratings are a crock. So writes Scott Graham, editor-in-chief of The Recorder in San Francisco and Cal Law, at the blog Legal Pad. With all the controversy surrounding the new lawyer-rating service, Graham decided to see how some of California's most prestigious attorneys fared. He picked some of the top names from Chambers USA's guide to California's attorneys and found that Chambers and Avvo do not always agree. In the bankruptcy arena, for example, here is what Graham found:

"L.A. bankruptcy lawyer Kenneth Klee was one of the select few to score a perfect 10. Heller Ehrman bankruptcy partner Peter Benvenutti notched a nice 8.9. But Winston & Strawn bankruptcy sage Patrick Murphy -- identified by Chambers as a 'senior statesman' -- scored only 7.3. And Howard Rice's James Lopes was rated 6.5. What was PG&E thinking putting him in charge of its $12 billion bankruptcy?"

Corporate heavyweights met with similarly inconsistent results. For example, Graham writes:

"Cooley Godward M&W whiz Keith Flaum was rated 6.5, and O'Melveny heavyweight Warren Lazarow got two ratings, 6.7 and 6.4. Flaum and Lazarow were thus rated lower than ex-Hewlett Packard GC Ann Baskins (6.9), who resigned from the company last year after pleading the Fifth Amendment in regard to the pretexting scandal, and former Mercury Interactive Corp."

Graham walks through a number of examples, ending with The Recorder's own attorney, Levy Ram & Olson's Karl Olson, "who has rendered incomparable service to us for more than a decade." His Avvo rating: a "paltry 6.5." Leading Graham to conclude, "the ratings are a crock."

(Our legal-affairs podcast Lawyer2Lawyer earlier this week spoke with attorney John Henry Browne, a lead plaintiff in the lawsuit against Avvo. Also on the program were bloggers Denise Howell and my Legal Blog Watch colleague Carolyn Elefant. Avvo representatives declined to participate.)

June 22, 2007 | Permalink | Comments (1)

At Legal Tech, Whirlwinds and Shifting Winds

Law Technology News editor-in-chief Monica Bay attended Legal Tech West Coast this week, where  her technology barometer found both whirlwinds and shifting winds, as she relates at her blog The Common Scold.

The whirlwind, she reports, was the entire show. But she was particularly proud of one program near and dear to her heart: "Green Law: A Leadership Challenge." The program, which Monica moderated, featured presentations by Alvidas Jasin, director of business development at Thompson Hine, who offered a mini version of Al Gore's An Inconvenient Truth; Bruce Lymburn, partner with Wendel Rosen, Black & Dean, on "The Greening of a Law Firm"; Matthew Heartney, a partner with Arnold & Porter, on developing a green office initiative; and Tony Hoke, global technology purchasing and assets manager at Morrison & Foerster, on the leadership challenge of green law. For those of us who missed the panel, Monica's post includes links to download PowerPoints of the presentations.

As for shifting winds, Monica found them at Legal Tech in the way that e-discovery vendors are shifting their postures from defense to offense. She explains:

"I just wrote a mini-essay in LTN (p5, July) about a huge trend that I've noticed this spring -- that EDD vendors who are changing from a 'reactive' approach to e-discovery in favor of a 'consulting' approach. (That plus a definite power shift to GCs in determining technology tools.)

"Kroll is the latest EDD vendor to announce a new consulting arm -- Ontrack Consulting -- and I'm sure there will be more. Clearly, we're at 'EDD 2.0' -- or maybe 3.0 -- as the focus moves to 'litigation readiness' rather than reacting to a particular lawsuit."

This was not the only trend Monica found bubbling to the surface at Legal Tech. For the others, you will have to read her full post.

June 22, 2007 | Permalink | Comments (0)

Report: Labor Laws Systemically Flaunted

Laws mean little if not enforced. That is the premise of a study published this week by the Brennan Center for Justice at NYU School of Law that documents a pervasive workplace culture of noncompliance with basic wage, hour and safety laws. So extensive is this disregard of labor and employment law, argue the authors, that it threatens to become an established way of doing business in the United States.

Based on three years of research and more than 300 interviews, the report, Unregulated Work in the Global City, examines conditions in New York City. But the conditions they describe, the authors contend, exist throughout the U.S. economy.

"In this report, we describe a world of work that lies outside the experience and imagination of many Americans. It is a world where jobs pay less than the minimum wage, and sometimes nothing at all; where employers do not pay overtime for 60-hour weeks, and deny meal breaks that are required by law; where vital health and safety regulations are routinely ignored, even after injuries occur; and where workers are subject to blatant discrimination, and retaliated against for speaking up or trying to organize.

"Such conditions exist here in New York City, in occupations and industries that span the breadth of the city’s economy. They are not isolated, short-lived cases of exploitation at the fringe of the city’s economy. Instead, the systematic violation of our country’s core employment and labor laws – what we call 'unregulated work' – is threatening to become a way of doing business for unscrupulous employers. And yet from the standpoint of public policy, these jobs (and the workers who hold them) are too often off the radar screen."

The report was written by Annette Bernhardt, deputy director of the Brennan Center's Justice Program; Siobhan McGrath, former Brennan Center research associate; and James De Filippis, assistant professor of black and Hispanic studies at Baruch College. Based on their findings, they call on federal and state governments to strengthen the labor laws and their enforcement of those laws and to provide equal protection to immigrants in the workplace.

June 22, 2007 | Permalink | Comments (0)

Filling the References Void

At Counsel to Counsel blog, Stephen Seckler points to two pieces -- one recent, one older -- that address an often vexing question for job seekers: What to do when you don't have a reference, either because you've had only one job or because you've left a job on unfavorable terms?

The first situation -- where the job seeker's current employer is his or her first -- is addressed this week by legal recruiter Ann Israel in her New York Law Journal column, Advice for the Lawlorn. Israel's advice turns on whether a recruiter is involved.

"If so, the recruiter should explain to the prospective employer that you will be more than happy to give references as soon as an offer has been extended, accepted and you have given notice. That is normal procedure and how 99.9 percent of the law firms operate."

If no recruiter is involved, the job seeker should directly ask the same of the firm. Rarely, a firm will say that it cannot extend an offer until it checks references, Israel says, but this is "utter nonsense." Still, a candidate can always dig deeper for references -- law school professors and internship supervisors, for example.

The second situation -- where one has been fired from a job or quit on shaky terms -- was addressed in an August 2006 column by Dana Mattioli. First off, writes Mattioli, don't assume that your firing necessarily means you can't get a good reference. "It isn't unusual for managers to put in a good word for employees whom they have dismissed." Second, contact former bosses and use them as references. Third, find other managers from within your former workplace who may be sympathetic to your situation and solicit references from them. Fourth, use former clients or vendors as references. Last, verify your former employment through the HR department, not through your former boss, lest the former boss say something negative.

As Ann Israel sums it up: "Not to worry -- every problem has a solution."

June 22, 2007 | Permalink | Comments (0)

June 21, 2007

The End of the Track ...

After 80 years, are we coming to the end of the partnership track? This LPM Magazine article, Making Partner -- Or Not: Is It In, Up or Over in the 21st Century? (June 2007), explores the future of the partnership track in the 21st century.

The article opens with a historic perspective on how back in the 1920s, Cravath, Swaine & Moore became the first firm to recruit lawyers right out of school with the understanding that they would become partners down the line. And the Cravath model reigned, up until about 20 years ago. But now, increased pressure to pump profits per partner has lead firms to de-equitize nonrevenue-producing partners. Lateral partners with attractive portfolios and even entire practice groups move firm to firm -- something unheard of 20 years ago, according to the article. And lateral movement decreases the chance of associates hoping to advance to partnership. Finally, the desire for work-life balance means that most younger lawyers are willing to give up on hopes of partnership in exchange for a life outside of work.

The article reports on some options to retain senior associates. One approach (which seems counterintuitive) is to increase partnership track to 12 years. As the article describes, this option gives firms more time to evaluate associates and gives associates more time to prove themselves. And there are also options such as senior or permanent associates, of counsel and contract lawyer positions.   

Has your firm incorporated any of these designations? Would you take one of these positions if available? And what does all of this mean to law firms that seek to perpetuate their longevity? Can they achieve that in the absence of a new generation of vested partners?

June 21, 2007 | Permalink | Comments (1)

Martindale-Hubbell Expands Its Market to TV Ads

So, is the divine order of the legal universe undergoing a cosmic fissure, or what? First, we had the launch of Avvo, which brings that same type of upscale Martindale-Hubbell ratings to consumers. And now, we have Martindale-Hubbell looking to bring upscale television advertisement to small-firm lawers, as Wired GC informs us in this post, linking to this New York Times coverage (6/19/07).

As Wired GC describes:

The New York Times details a new initiative by LexisNexis unit Martindale-Hubbell to create ads for law firms that could go beyond the Robert Vaughn-says-call-plaintiffs-lawyer-X variety. According to the Times, Martindale-Hubbell is working with ad agency Spot Runner to develop ads covering areas “…like family law, drunken driving, personal injury and general practice; commercials for criminal and immigration law are also being developed.”

And Wired GC also acknowleges the possibility of the Avvo effect on LexisNexis/Martindale strategy.

But do TV ads make sense? As Wired GC also comments:

What I find most revealing is that Martindale-Hubbell is targeting television for lawyer ads. Many other sophisticated advertisers are moving more spending online, given the superior targeting and tracking it can offer.

No matter how Martindale-Hubbell's strategy works out, it's a sure sign that the legal profession and the players certainly are changing. Perhaps the next generation of lawyers will associate Martindale-Hubbell with a 1-800-Mar-dale phone number rather than the staid, tan volumes of lawyer listings that we older lawyers are most familiar with. 

June 21, 2007 | Permalink | Comments (0)

Order Up in French Fry Case

An order is now up in the case of the lawyer who accused a Florida bankruptcy court judge of being "a few french fries short of a happy meal." According to this follow-up article, Judge Goes Easy on Lawyer Who Made 'French Fries' Comment About Her (6/21/07), Judge Laurel Myerson Isicoff ordered McDermott Will & Emery partner William Smith to take an online course in professionalism sponsored by The Florida Bar -- something that Smith had already completed by the date of the hearing. And of course, the judge scolded Smith about his conduct, asserting that there is no jurisdiction "where it would fall in the bounds of acceptable behavior." And, Smith has also committed to perform 200 hours of pro bono service and has stepped down from the head of the bankruptcy division.

My reaction to the ordeal described in the article is the same that I'd have after a fast-food binge: sickened. Did this judge get some kind of ego boost forcing these lawyers (not just Smith but also the head of McDermott, Will and Emery) to grovel before her, seeking forgiveness? Did she ever intend to revoke Smith's pro hac vice license? Or was this just some kind of way for the judge to send a message to all Biglaw attorneys that even though they make at least five times her salary, she's still the big boss in the courtroom. I guess an ordinary short-order apology doesn't cut it these days; only a supersized humiliating one will do.

June 21, 2007 | Permalink | Comments (5)

Changing the Law as a Way to Build Law Firm Business

Well, here's an interesting marketing idea: Why not change the law in a way to drive more business to your firm? That may not have been Virginia state delegate David Albo's intent when he increased the penalty to $2,500 for exceeding a speed limit by as little as 15 miles an hour and added a mandatory $1,050 tax besides, according to this article, Virginia Introduces $3550 Speeding Ticket (6/21/07). But the article predicts that the change in the law will bring a significant increase in revenues to Albo's firm, which, among other things, handles traffic offenses.

June 21, 2007 | Permalink | Comments (0)

June 20, 2007

How Congress Is Kept Offline

Politicians have fallen in love with the Web. Political candidates use blogs, videos and social-networking tools to win votes and fill coffers. But for candidates elected to Congress, their victory means they must curtail their use of cutting-edge technologies.

In an op-ed yesterday in The Hill, "Modern World, Ancient Websites," David All and Paul Blumenthal discuss how congressional franking rules restrict members of Congress in their official Web sites.

"Due to such restrictions, most member websites function as little more than online brochures, when they could better serve as a place to share information about the member’s activities in Congress, or even as a vital community center. Under these rules, members cannot use Google maps to provide visuals for district information important to constituents. Neither can members use non-congressionally provided blogging tools, nor link to other blogs that may be deemed to be of a political nature."

The authors, both bloggers, note that the franking rules were created decades ago to restrict the use of snail mail at taxpayer expense. Last updated in 1996, the rules prohibit use of outside Web services and ban links to personal or political Web sites.

The harm in this is to the public, the authors say, blocking the free flow of information to constituents and others. They call on Congress to convene a bipartisan task force to review this situation. "The time has come," they write, "to re-imagine the world of the wired elected official."

June 20, 2007 | Permalink | Comments (0)

Our Judicial Imperialism

Imperialism is a word that suggests power fitting of an empire or of an emperor. An op-ed out of Australia today uses the phrase "judicial imperialism" to describe the U.S. legal system's increasing extension of its power overseas. The term might also have fit a story earlier this week out of Washington describing the increasingly imperial stance being taken by some judges towards the news media.

In the opinion piece from The Sydney Morning Herald, Lawyers Without Borders is Justice American-Style, Mark Coultan, the newspaper's New York correspondent, describes how the United States is giving new meaning to the phrase, "long arm of the law." There is Hew Griffiths, the Australian forcibly extradited to a Virginia prison last month even though he never committed a crime on U.S. soil; he is charged with helping to crack copy-protected software and media products and distribute them for free. There are three British bankers -- the so-called Natwest Three -- extradited to the United States for allegedly taking part in a scheme involving former Enron executive Andrew Fastow to acquire ownership of a Cayman Islands investment company at far below worth. "If there was a crime," Coultan writes, "it was committed against a British company, in Britain by British citizens." After citing other examples, he concludes:

"The point about this judicial imperialism is not that any of these cases is without merit. In the Natwest case, prosecutors have emails in which the accused refer to the transaction as 'robbery'.

"Nor is it that US courts are unfair or unjust. But justice systems vary widely. US prison sentences tend to be longer, particularly for white-collar crimes.

"Extending the reach of courts may be the answer to a globalised economy. But we will have to wait and see."

In Washington, meanwhile, Legal Times correspondent Tony Mauro writes about the increasing number of libel cases brought by judges. He sets the stage:

"Supreme Court Justice Antonin Scalia once said judges should adopt a 'rope-a-dope' posture when criticized, taking the hits passively until their adversaries wear themselves out.

"But with 25 judges suing for libel in 2005 alone — nearly 10 percent of all libel suits filed nationwide — that form of judicial restraint is fading, raising questions about the role, and the ethics, of judges and whether they have a right to be as litigious as everyone else."

Last week, the news media began to push back, Mauro reports, "questioning when and whether judges should be able to use their own court systems as a tool to retaliate against the media." One leader in that pushback is media lawyer Bruce Sanford, a partner with Baker & Hostetler in D.C. He tells Mauro: "If these suits lead the public to feel that judges are taking care of their own, it will only add to cynicism about the judicial process."

No question, judges sometimes find themselves stuck between a rock and a hard place when it comes to the news media. But even Gary Hengstler, director of the Reynolds National Center for Courts and the Media at the National Judicial College, tells Mauro that judges nowadays "are more emboldened to sue." In some cases, it seems to me, this attitude begins to approach imperiousness. Judges themselves differ widely in their dealings with and attitudes towards the news media. But I say Justice Scalia got it right. Becoming a judge opens you to criticism; it does not raise you above it. Judges need to understand that going in.

June 20, 2007 | Permalink | Comments (0)

A Blawger, a Priest and a Rabbi ...

This is no laughing matter. In fact, it is getting darned right serious. At her blog Legal Antics, New York lawyer Nicole L. Black is running a competition to name the funniest law blog. Why? Well, it seems we have our own Carolyn Elefant to blame ... er, thank. Last week right here at Legal Blog Watch, she suggested that other bloggers follow the lead of Jamie Spencer at Austin Criminal Defense Law Blog and poll readers on the best blogs in a given field. (Last November, I had a similar poll on top law blogs at my LawSites blog.) The same day, Black picked up on Elefant's idea and announced her funniest blawg poll. As of today, it is down to 10 finalists, with polling set to close June 25 at 10 p.m. Eastern. Still in the running for yuk-iest law blog are Above the Law, Anonymous Lawyer, Buffalo Wings and Vodka, Legal Antics, Legal Reader, Lowering the Bar, Overlawyered, PhilaLawyer, Quizlaw and Say What?

As the deadline nears, the competition heats up. At Above the Law, Billy Merck says he didn't care about it at first, but now urges readers to cast their votes because "we're getting jacked around" (pointing a finger at PhilaLawyer). And Quizlaw, amid rumors of voter fraud and ballot stuffing, says shenanigans have officially been declared. Quizlaw effectively challenged PhilaLawyer to a blogging duel when it expressed surprise at the site's standing, "considering that its 723 votes are probably more than the number of readers the blog actually has, coupled with the fact that I hadn’t even heard of the site before this poll."

If you're wondering what's at stake to drive otherwise upstanding blawgers to such lengths, this is not merely about crowing rights. The winner gets his or her choice of any item from The Billable Hour.

June 20, 2007 | Permalink | Comments (0)

June 19, 2007

Watch What You Say at a Conference -- It Might Wind Up on YouTube

I'm sure you've been to a conference at one point or another where a speaker has given inside tips on how to legally skirt a process if the recommended approach doesn't seem entirely ethical. Now one law firm, Cohen & Grigsby, has discovered the hard way that dispensing this type of "lawyerly" advice on how to get around the law can land you in hot water online.

As this article and accompanying YouTube video describe, Cohen & Grigsby's grew out of what seemed like a clever marketing idea at the time. The firm apparently posted a video of a conference at which a C&G attorney gave advice on how companies that want to hire foreign workers on H-1B visas could meet the government's labor certification requirement. By way of background, in order for a company to hire foreign workers, it must certify that there are no qualified U.S. workers. So, the C&G attorneys advised companies to advertise open positions in places that would generate a less desirable applicant pool -- such as on or at job fairs -- to meet certification requirements. As the C&G attorney summed up, the ultimate objective of this is "to not find a qualified U.S. worker" -- but rather, to get a green card for a foreign worker.

C&G's advice didn't sit well with the Programmers Guild, an organization of IT professionals trying to keep jobs within the United States. The guild put together it's own video, excerpting parts of the C&G video and commenting that the ads posted by many U.S. companies "constitute fraud on job seekers." C&G has since taken its conference video down, though the Programmers Guild video remains up on YouTube.

So, if you're a law firm, give some thought to the kind of advice that you decide to put on the Internet and how it may be perceived by others. Many lawyers fear that a sites like Avvo or may tarnish their reputations. But as C&G's recent incident shows, ultimately, the biggest threat to your online reputation are your own actions.

June 19, 2007 | Permalink | Comments (11)

Law Firms Subsidizing the Public Interest

This week's news carried two items on what Above the Law's David Lat terms "irrational law firm egotism" -- and how that egotism is being harnessed for the public good. The first item is David Lat's Op-Ed piece in yesterday's New York Times, titled The Supreme Court’s Bonus Babies, which comments on the stratospheric bonuses of $250,000 that law firms are expected to pay to this year's crop of departing Supreme Court clerks (my colleague Bob Ambrogi posted on the topic of Supreme Court bonuses previously here, and WSJ Law Blog readers discuss Lat's article here). Lat questions why firms pay out these huge bonuses; as he points out, Supreme Court litigation is a narrow niche, it's not all that profitable and ethics rules bar Supreme Court clerks from appearing before the court for two years, by which time they may have left the law firm for other employment (most commonly, academia). So if the bonuses aren't a wise economic investment, why do firms pay? Here's Lat's fascinating response:

The financial freedom supplied by these bonuses can allow the clerks who decide against a corporate career to move on more quickly to what truly interests them — academia, government practice or public-interest law. Law firms end up in effect subsidizing less wealthy precincts of the profession.  In recent years, the practice of law at the nation’s largest firms has become much more of a business and much less of a profession. Firms have been squeezing more billable hours out of their associates, abandoning less lucrative practice areas and showing the door to partners who don’t bring in enough business — measures that would have been unheard of in the profession’s more genteel days. So this bizarre competition among prestige-hungry law firms to collect the most young legal rock stars actually represents a healthy check, however modest, on this profit-maximizing behavior. By harnessing irrational law firm egotism to serve the rest of the profession, enormous clerkship bonuses achieve an impressive, increasingly difficult feat: getting top law firms to contribute to something other than their own bottom line.

Though Lat's concept of the "benevolent power of irrational egotism" seems a bit far-fetched, already, one story from today's Wall Street Journal, Willing to Pay to Work for Nothing, corroborates Lat's theory. The WSJ article reports that law firms have grown so eager (perhaps desperate?) to take on interesting pro bono cases that they have started to pay for the privilege. And legal assistance groups, realizing that they have the upper hand, are pumping law firms for contributions. From the article:

Since 2005, Lawyers Without Borders Inc., a nonprofit organization that focuses on strengthening the legal process around the world, has required that law firms donate at least $7,500 a year to guarantee access to the cases it handles. Volunteer Lawyers for the Arts Inc., a nonprofit which delivers legal services to the arts community, gives first crack at desirable cases to firms that contribute to it. In other, less explicit arrangements, firms give money, office space or clerical help to organizations that funnel pro bono work to them.  These cases don't just come," says Scott Harshbarger, a former attorney general of Massachusetts who was hired by Proskauer Rose LLP in 2005 in part to head up a new pro bono initiative at the firm. "You've got to pony up."

Of course, pay-to-play doesn't apply for just run-of-the-mill pro bono cases like landlord tenant evictions and welfare matters, where there's always a demand. Instead, firms are more interested in high-profile cases such as asylum cases, voting-fraud class actions and reviewing tax-reporting requirements for organizations like Teach for America Inc.

Is irrational egotism more tolerable when it produces incidental, altruistic results? I'd like to say no, but then again, it beats  the alternatives: irrational egotism void of any beneficial results, or mandatory pro bono where every lawyer, from Biglaw to solo practice, is forced to handle a case for a legitimately needy litigant. What do you think?

June 19, 2007 | Permalink | Comments (0)

One Option for Women Who Want More Balance: Leave

Leave. That's one option for women who can't find the right work-life balance at a law firm. But if you think that leaving a law firm amounts to career suicide, settling for more time at home than you'd prefer or giving up on money and prestige, think again. 

Consider the women lawyers profiled in this piece, Women Leave, by Lynne Marek, The National Law Journal (June 19, 2007). There's Mae O'Malley, mom to three children who started providing legal service on a contract basis after leaving an in-house position -- and now has 20 other lawyers who work for her. There's Stephanie Scharf, a litigator who left a large firm to open her own women-owned firm. And the article mentions several other women lawyers who've gone in-house or moved to government. 

Whether you're a female or male attorney, the article reinforces an important lesson: that partnership track isn't the sole route to becoming the boss.

June 19, 2007 | Permalink | Comments (0)

The 'Write' Way to Stand Out as a Summer Associate

Most summer associates want to find a way to shine, to stand out from the pack of other associates hired for the summer. Well, you could stand out by kissing up to an important partner or by sabotaging your colleagues by critiquing their memos -- but you may find yourself with few friends or allies. Why not take a more proactive approach, such as the one suggested by Ari Kaplan in this National Law Journal article:  Summer Associates Can Write Their Way to Success.

Kaplan argues that the best way to distinguish yourself from your peers is by offering to co-author an article with a partner. As Kaplan explains, writing demonstrate genuine interest in a subject, saves partners valuable time and shows that you're cognizant of the importance of rainmaking. And unlike a memo, a published article comes in a "uniquely tangible and lasting format" -- which will remain in a magazine or up on the Web site long after you've gone. What better way for the firm to remember you when offer time comes around?

June 19, 2007 | Permalink | Comments (0)

June 18, 2007

Nifong's Post Mortem Begins

With Durham, N.C., district attorney Michael B. Nifong's disbarment Saturday, the only surprise may be how quickly the disciplinary commission reached its decision. As Michael S. Frisch observes at Legal Profession Blog, such swift action in a lawyer-discipline case is rare and, no doubt, came about "in large part because the former prosecutor threw in the towel." In a press release, North Carolina State Bar President Steven D. Michael seemed to suggest that the committee's swift action was because "misconduct of the sort Mr. Nifong engaged in is vary rare" and that the bar wanted to make clear "that the ethical rules restricting pretrial public comment and requiring prosecutors to turn over exculpatory evidence will be strictly enforced." The chair of the disciplinary panel, F. Lane Williamson, in announcing the decision, was even more direct:

"[T]here’s no discipline short of disbarment that would be appropriate in this case given the magnitude of the offenses we have found and the effect upon the profession and the public."

One downside of all this, observes Frisch at Legal Profession Blog, is that with so much attention given to the case, the general public's "take-away" may be "that bar discipline is both swift and sure"  -- when it is rarely either. Another downside, says Jeralyn Merritt at the blog TalkLeft, would be to leave the impression that Nifong's case was a complete anomaly when the facts show otherwise:

"While many, and perhaps most prosecutors don't cheat and lie, Nifong is not the only one. This happens to many defendants all over the country who don't have the resources for top-flight lawyers who will fight for them to the end."

She points to an Innocence Project report on cases discovered through DNA testing that "are replete with evidence of fraud or misconduct by prosecutors or police departments."

If it is true that DAs have been given looser rein up until now, the Nifong case may mark a turning point, says John Wesley Hall Jr. at Fourth He recalls that he once had a prosecutor deny on the record that there was any exculpatory evidence when a police officer had already told him that another man had confessed.

"The punishment? No contempt, no referral, no nothing. DAs are judged by different standards, at least until now.

"In the end, this proves that there is no double standard in lawyer discipline, and some disciplinary authorities will take it prosecutorial misconduct seriously."

One postscript: At his blog Durham-in-Wonderland , KC Johnson points out that Nifong's resignation takes effect July 13. "So for almost one month," he writes, "the 'minister of justice' of Durham County will be someone that, according to the DHC, lied to the court, to defense attorneys, and to the State Bar."

June 18, 2007 | Permalink | Comments (42)

Winning: Who's Tops in the Trenches

The National Law Journal today came out with its annual listing of 10 top litigators (11, counting one pair). Worth noting up front: The NLJ does not claim these are the top litigators -- it describes them as "some of the nation's top litigators" who are "at the top of their game." To be selected, a lawyer had to have at least one significant win within the last 18 months and a track record of significant wins over several years. While "significant win" is admittedly "an expansive and subjective term," writes NLJ managing editor Steve Fromm, as used here it includes large monetary awards or noteworthy defense verdicts.

The list is heavy with big-firm lawyers and white males. Only one lawyer on the list is from a firm with fewer than 70 lawyers, and only two on the list are women. At a time when many are touting the demise of the megafirm and the emerging role of the litigation boutique, this list would suggest otherwise. That said, this year's NLJ picks as top litigators are:

June 18, 2007 | Permalink | Comments (0)

ABA Accredits Private Law School

Phoenix School of Law, a privately owned Arizona law school with 128 students, has won provisional accreditation from the American Bar Association's Section of Legal Education and Admissions to the Bar. That means that when the school graduates its first class next year, the graduates will be able to take the bar exam. After three years, the school will be eligible to seek full accreditation.

The school, which opened in January 2005, is part of The InfiLaw System, a consortium of independent law schools that also includes Florida Coastal School of Law in Jacksonville, Fla., and Charlotte School of Law in Charlotte, N.C. Florida Coastal, which opened its doors in 1996, is fully ABA accredited, while Charlotte, which opened last year, remains unaccredited.

InfiLaw and Phoenix are overseen by a national policy board chaired by Dennis Archer, 2003-2004 president of the American Bar Association and chairman of Detroit's Dickinson Wright. Accreditation also means that the school can create clinical student-advocacy programs, receive federal student loan assistance and take part in admissions recruiting events with other ABA-approved schools.

June 18, 2007 | Permalink | Comments (0)

Blawg Review Looks at Special Ed Law

In recognition of Autism Awareness Day today, Blawg Review #113 is hosted at Special Education Law Blog by Chicagoan Charles Fox, a lawyer who practices special-education law and who is the father of a child with cerebral palsy. His unique version of Blawg Review combines reviews of blogs with a round-up of useful resources and his own insights and commentary, all packaged in a series of eight posts:

As always, you can read about the current week's Blawg Review and forthcoming installments at the home of Blawg Review.

June 18, 2007 | Permalink | Comments (0)

June 15, 2007

Case Dismissed as Untimely Even Though Judge Granted Extension

Most of us lawyers know that we can't rely on advice from government officials or court clerks and, instead, need to verify and corroborate whatever they tell us. But now, this advice of "don't trust and verify" also applies to an order granting an extension of time to file an appeal duly issued by a federal judge. At least, that's the state of affairs in the aftermath of yesterday's Supreme Court decision in Bowles v. Russell

As summarized in this coverage of the case by Tony Mauro, convicted murderr Keith Bowles was denied habeas relief, with 30 days to appeal. The federal rules of appellate procedure allowed for a 14-day extension of time to file an appeal, but federal Judge Donald Nugent (identified in Mauro's article, but not the Supreme Court decision) gave Bowles 17 days. Bowles filed his notice of appeal on day 16 -- within the time permitted by the judge, but outside the extension period authorized by statute. At the 6th Circuit, the state argued that the court lacked jurisdiction over the appeal, since it was filed beyond the period authorized by statute. The 6th Circuit agreed, and the Supreme Court affirmed its ruling.

Writing for the majority of five, Justice Thomas explained that a judicial order could not extend a deadline mandated by statute, even under a doctrine of "unique circumstances." The majority instead clarified and emphasized that:

timely filing of a notice of appeal in a civil case is a jurisdictional requirement. Because this Court has no authority to create equitable exceptions to jurisdictional requirements, use of the “unique circumstances” doctrine is illegitimate.

Souter, writing for the dissenters, expressed outrage at the decision. He argued:

It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.

He explained that the term "jurisdiction" has many meanings -- and "the stakes are high in treating time limits as jurisdictional."

There's mixed reaction to the decision around the blogosphere. At Crime and Consequences, Kent Scheidegger writes here that the ruling wont' affect habeas statute of limitations, which are not jurisdictional -- and notes that the dissent is in line with recent trends to cut back on what is considered "jurisdictional."

And at this post at Prawfs Law Blawg, Stewart Green writes that the Supreme Court's decision has gotten him thinking about whether to confer mercy not on defendants who make untimely filings but students who turn work in on time. Green ponders:

Should one just accept the paper and get on with the grading?  Should one accept it but find some appropriate penalty (and, if so, what should that be)?  Or should one refuse to accept it at all?  More generally, what is the appropriate mix of factors one should consider in dealing with these problems?  Should one’s primary concern be with professional development?  After all, if the student doesn’t learn to hand in her papers on time while in law school, won’t she be developing bad work habits that she will carry with her into practice, when a late filing could result in dismissal and a subsequent malpractice suit?  On the other hand, is it really one’s job, as a professor, to impart these kinds of values to students who haven’t already learned them by the time they’ve gotten to law school? Perhaps one’s primary concern should be with fairness to other students.  But what exactly does that mean?  If the paper comes in an hour late, how much of an advantage is that?   Or perhaps one should endeavor to display the kind of compassion and caring that one hopes one’s students will demonstrate when they someday are in a position of power. Try as I might to solve these kinds of problems with my head, I usually end up deciding them with my heart, and a heavy bleeder mine happens to be.  I suppose the same can be said of the Justices.  The issue in Bowles was not the kind that could be decided through any grand theory of statutory interpretation.  It’s the kind of decision that one makes with one’s heart, and one’s soul.  Was it really any surprise that the Court’s majority opinion should have been written by Justice Thomas, joined by Justice Scalia?  And that the dissent was written by Justice Souter? 

As an appellate practitioner, I'm cognizant that missing deadlines often carries jurisdictional consequences. Thus, I always try to abide by deadlines and don't bother asking for waivers. But if a federally appointed judge gave me the go-ahead to file outside of a deadline, at best, I'd be confused, and at worst, I'd follow the judge's order and wind up missing the deadline, just like Bowles did. I agree with Thomas that deadlines are important to our judicial system -- but isn't the ability to rely on the word of a judge equally important? For that reason, I come out with the dissent in this case.

June 15, 2007 | Permalink | Comments (0)

Blog Watch Briefs: Updates on Earlier Lawsuit Stories

Here are two updates on two previous stories involving ongoing disputes.

First up is the brewing controversy over Avvo, a newly launched legal rating service that Bob Ambrogi and I each covered here and here. Following the preliminary and somewhat critical reviews, now, the first class action suit has been filed against Avvo by a group of lawyers challenging various aspects of Avvo, specifically the controversial and allegedly deceptive rating system. Kevin O'Keefe also posts on the lawsuit here, while over at MyShingle, I ponder why some ratings systems get sued, but not others

Second, here's an update on Roy Pearson's $54 million lawsuit (reduced from $65 million) lawsuit against his dry cleaner for losing his pants that we covered here. Pearson's trial concluded yesterday, and while a decision isn't expected until next week, there's already one ruling in: Pearson won't be re-appointed to his administrative law judge position in DC due to adverse publicity from the case. Sounds like another lawsuit to me ... stay tuned.

June 15, 2007 | Permalink | Comments (0)

More on Law Firms Going Public

A few weeks back, I posted about an article authored by professor Larry Ribstein on everything you wanted to know about law firms going public. Now, Bruce MacEwen offers a perfect bookend to Ribstein's article, with this post entitled Seven Perspectives on Law Firms' Going Public

Actually, the seven perspectives in the article -- offered by a prominent group of authorities from law firms, the financial industry and academia -- are all surprisingly similar. Most quoted in MacEwen's post expressed surprise that the United States is so far behind the times or seemed resigned that law firm IPOs are just a matter of time. Only one lawyer, Steven Krane, chair of the ABA's ethics committee and a partner at Proskauer Rose, took a different position, identifying potential problems with law firm IPOs. Krane's position is that:

Stock sales might force lawyers to put shareholders above clients and create conflicts between the attorney-client privilege and Securities and Exchange Commission disclosure requirements. "It's a perpetual conflict, at least potentially, with non- lawyers controlling a law firm,'' said Steven Krane, the chair of the American Bar Association's ethics committee and a partner at New York's Proskauer Rose. "There's very little interest in changing the rules.'

MacEwen asks for your input on this question, which you can supply below or at his site: "Who do you think is closest to the truth here -- understanding that all of us are looking into the future?"

Based on what I've been following in the blogs, I agree with the commentors that we'll see law firm IPOs at some point -- perhaps as soon as the next decade (my own prediction). I expect that ethics concerns such as those expressed by Krane will be glossed over or simply overhauled (a trend that we've already seen as firms merge and relax conflict-of-interest standards to retain clients). And while big firms certainly have a profit motive in pursuing IPOs, I also think that the blogosphere will help push the trend as well by continuing to provoke discussion between academics and large law firms on law firms IPOs. 

June 15, 2007 | Permalink | Comments (8)

Tips on Getting Business From Corporate Clients

If you're trying to reel in some more business at your firm, Larry Bodine offers some great advice in this post, Tales from the Front: Getting Business from Corporate Clients. What's top on corporate clients' wish lists? Eliminating the billable hour and replacing it with fixed fees or strict budgets. And law firms shouldn't be shy about asking clients to participate in the process. Said Jerry Bradford, one of the GCs quoted in Bodine's post:

My mind boggles at how few lawyers call me up to say, 'I'm having difficulty with the budget process, could you talk me through what you are looking for so I can give you what you want?"  He added, "Picking up the phone is the simple way to figure things out.

Clients also prefer lawyers who know their business (one lawyer asked a company what kind of work it did instead of researching it in advance) and offer proposals tailored specifically to the company's needs.

One last tip is to "train lawyers to use news aggregators and subscribe to RSS feeds of clients." That way, you'll stay on top of what your clients are doing and also send them articles on industy trends that might be useful in their business. 

June 15, 2007 | Permalink | Comments (0)

June 14, 2007

Holy Copyright Claim! Virtual Desecration

"Virtual desecration" is what happens when new media and old religion collide in legal theory. The term comes from the Very Revd Rogers Govender, dean of The Church of England's Manchester diocese, in a letter republished earlier this week by the Times of London. The original letter was sent to Sony Computer Entertainment Europe and followed from the church's outrage over Sony's use of the interior of Manchester Cathedral for a shoot-em-up scene in the PS3 game "Resistance: Fall of Man." Wrote Revd Govender:

"We are currently seeking the advice of our lawyers in this matter and reserve our legal position in relation to the same however, as it is our fervent desire to find a mutually satisfactory conclusion to this matter, we ask Sony to email or write to us to arrange a meeting in the next few days so that the issues we have raised can be discussed."

You can see for yourself what the dean is upset about in this YouTube clip. Meanwhile, bloggers in the United Kingdom and in the United States are asking the question, "Just what legal standing does the church have?" At the U.K. intellectual property blog IMPACT, Freeth Cartwright partner Andrew Mills says that the church's most obvious claim would be for copyright. But it is unlikely that the church has any currently valid copyright in the cathedral's design, and, even if it did, it is unlikely Sony would be found to have violated it. "It seems to me that Sony were perfectly entitled to do this and did not need permission and the Church doesn't have any grounds for complaint," Mills concludes.

On this side of the pond, William Patry reaches much the same conclusion at The Patry Copyright Blog. "From what I have read so far, it appears doubtful there is a claim under UK law." Nor would the cathedral's design be protected under U.S. copyright law, Patry says, because it was constructed so long ago. Even if it were, U.S. copyright law permits pictorial representations of buildings "ordinarily visible from a public place."

Writing about all this yesterday at the Fortune blog Legal Pad, Roger Parloff suggests that the church may be tying its legal claim to the theory that Sony's artists  may have used copyrighted photos of the cathedral's interior. But he notes that neither Mills nor Patry believe that theory would hold water -- holy or not. So while the game may be desecration and while it is most certainly virtual, it appears not to be actionable.

June 14, 2007 | Permalink | Comments (1)

Lawyers Behaving Badly -- On the Phone

What is it about that staple of law practice, the conference call, that makes "normally well-behaved people forget all their manners and start acting in the most inconsiderate fashion?" asks Christoph von Teichman at the Legal Week blog Legal Village. Von Teichman, a partner in the Hamburg office of Latham & Watkins, acknowledges that conference calls have their useful role, "but most of the time they make for a painful experience," he says. In describing what ails the common conference call, he offers tips for its cure:

  • Be punctual. "More often than not, the first 15 minutes of any call are spent waiting for other participants to join."
  • Observe roll-call etiquette. "Every conference call has a host and it is up to that host to call the roll."
  • Take it off line. "It is quite rude to waste everyone else's time by engaging in long discussions about a topic that is of interest to only one or two."
  • E-nun-ci-ate. "It is often a challenge to understand all that is being said."
  • Discover your mute button. "Many people do not seem to realise that their mobile phones can be put on mute."
  • Juice your BlackBerry. "These, left near the phone, will produce a weird electronic noise."
  • Hold the hold music. "You get an urgent message to call someone else, so you put the conference on hold."

He has others, but they boil down to this: "A bit more consideration for the fact that you are not the only person on the call!" [Hat tip to Rees Morrison at Law Department Management.]

June 14, 2007 | Permalink | Comments (0)

The Blogger Outside Your Office

Much attention is paid to lawyers' blogs, but what about those other bloggers in your firm -- the paralegals, legal secretaries, librarians and the folks in the C suite? The always-informative blog The Estrin Report serves to remind us that paralegals are bloggers too. Now, the San Francisco legal newspaper The Recorder spotlights the range of nonlawyer legal professionals who write blogs of their own -- "some proudly, some secretly."

In that latter category is the legal secretary who writes Lawyer's Right Hand. She blogs anonymously, she tells reporter Pam Smith, because she is "not quite ready to find out what my employer thinks about my blogging." But after working as a legal secretary for 15 years, she felt she had a lot to share, so she started her blog in February.

For longtime paralegal Jeannie Johnston, her blog, ParalegalGateway's Weblog, started as a companion to her Web site, She continues it for the love of her profession, she says, while acknowledging that it helps bring in phone calls at her current job as manager of client accounts for an Atlanta court-reporting firm.

Then there are those who blog from the C-suite, such as Tom Baldwin, chief knowledge officer at Sheppard, Mullin, Richter & Hampton, who writes the blog Knowledgeline, and Bruce Allen, chief marketing officer at Rutan & Tucker, who blogs at Marketing Catalyst. When reporter Smith asked Allen what prompted him to start blogging back in 2002, he laughed and replied, "Being opinionated." In that respect, these nonlawyer legal bloggers have much in common with their lawyer counterparts.

June 14, 2007 | Permalink | Comments (1)

What Lawyers Learned from Orwell

George Orwell had in mind politicians, not lawyers, when he coined the term "doublespeak." But Orwell's writings on language and politics certainly held lessons for a profession known for its use of arcane legalese and esoteric Latin. In a new research paper, University of Louisville law professor Judith D. Fischer argues that lawyers have listened to Orwell's lessons on language -- but only up to a point.

In her paper, "Why George Orwell's Ideas About Language Still Matter for Lawyers," Fischer discusses Orwell's two best-known works on language. In the essay Politics and the English Language and the novel 1984, Orwell explored both the use of language and the dangers of totalitarianism. Together, these works set out the twin themes that writers should express themselves in plain English and that "euphemism, question-begging and sheer cloudy vagueness" conceal clear thought and become tools of totalitarianism.

The good news, Fischer argues, is that lawyers have heeded Orwell's advocacy of plain English, to the extent that "some legal writing experts have explicitly acknowledged their debt to Orwell." Citing examples from contracts to courts to the SEC, she refers to the drive for plain English in the law as "a movement." "Today, legal writing experts nearly all promote the same ideas about plain English that Orwell did," she says.

But when it comes to euphemism, Orwell's teachings "have been heeded mainly in their breach," Fischer contends. "Numerous instances of misleading and duplicitous language exist in contemporary American laws and discourse about the law." Take, for example, the "almost Orwellian" USA PATRIOT Act passed in the wake of Sept. 11.

"Placing the word patriot in the act's popular title deflects attention from the act's 'encroach[ment] on civil liberties' by allowing, for example, searches and surveillance without a prior finding of probably cause. Moreover, naming terrorism as the enemy adds the sort of vagueness Orwell disliked: it will be difficult to know when we have won a war against an abstract noun."

Other examples from law of euphemism, evasion and doublespeak: "tort reform," "death taxes," "faith-based initiatives," "Clear Skies Initiative" and "Healthy Forests Restoration Act." By recognizing and avoiding the kinds of perversions Orwell decried, Fischer argues, "lawyers can elevate legal language and public discourse."

June 14, 2007 | Permalink | Comments (0)

June 13, 2007

Are Web Sites Liable for Libelous User Comments?

With reports of a possible potential class action against Avvo, a controversial new lawyer-rating site, now seems as good a time as any to discuss liability of a Web site owner for libelous material posted by commentors. Though the lawsuit against Avvo apparently relates to downgrading of lawyers by the Web site itself rather than commentors, because Avvo invites lawyer and client testimonials, it could also face lawsuits by attorneys upset about negative comments.

Denise Howell discusses some of the legal issues related to Avvo in her recent Lawgarithms column. Howell predicts that the lawsuits may run into trouble under Section 230 of the Communications Decency Act, commenting that:

the kind of ownership and control over one’s reputation data attorney Browne and others are threatening to enforce in court may find itself running up against Section 230 of the Communications Decency Act, which shields providers of interactive computer services from liability for simply filtering and/or distilling information provided by others. Though a California district court recently skirted the issue of whether Section 230 immunizes search engines for the reputational consequences of their ranking and placement algorithms, the situation is analogous. It’s interesting that unlike the search engine cases, these attorneys aren’t complaining about reputational slippage; they’re saying Avvo’s rating system has harmed them from the get-go. What’s not clear from the lawyers’ demand letter is the legal basis for the threatened lawsuit. Defamation I assume, but what’s defamatory? Individual components of the rating or the rating itself? Avvo says it merely synthesizes data from third party sources, including the subject lawyers if they choose to participate in the process (e.g., by claiming and editing “unlocked” portions of their profiles or reporting incorrect data). The key question for Section 230 purposes will be whether Avvo and other reputational ranking systems are embellishing or enhancing third party material (or creating new material) by virtue of the way it is collected, processed, and displayed. (See Professor Eric Goldman’s excellent post on the recent Ninth Circuit decision/”hairball” that is Fair Housing Counsel v.

Section 230 is receiving additional discussion these days in two other cases involving commentary at Web sites that adversely affected lawyers or, at least, a lawyer-to-be. The first of these cases involves a suit by two female law students against Anthony Ciollio, founder of Autoadmit, a bulletin board-type site, as well as commenters who badmouthed them in postings at the site. The women claim that as a result of false and slanderous comments, no law firms would hire them (we posted on this story here). In posts here and here, Eugene Volokh discusses the hurdles to the suit that Section 230 erects. Volokh opines that Section 230 generally immunizes Web site owners from these types of suits and also has questions about causation. Volokh argues that the women may have trouble proving that firms did not hire them because of comments at Autoadmit rather than reasons such as lack of merit, not a "fit" for the firm, etc.

Eric Goldman has a post on the Autoadmit case as well, also anticipating that Section 230 will serve as a bar. And, Goldman also anticipates that the case will also result in embarrassing relevations about the female plaintiffs, such as rehashing of the rude comments and discussion of other reasons that made them undesirable law firm associate candidates. (Incidentally, for those upset that Ciollio might not face liability for the site, as discussed by Brad Wendelhere at Legal Ethics Forum, Edwards Angell, Palmer & Dodge rescinded its job offer to Ciolli, and Wendel predicts that Ciolli might have trouble gaining admission to the bar with this incident on his record. In short, even without a suit, Ciolli has paid for his involvement.)

The second suit involves a site called (see our earlier story here), where users post about their bad experiences with men they've dated. In this case, Section 230 likely would have played a role had the suit not been dismissed for jurisdictional issues. As discussed by the Electronic Freedom Foundation in this Web site post,

EFF filed an amicus brief in support of Dontdatehimgirl in December, arguing that the site cannot be held liable for comments written by others under Section 230 of the Communications Decency Act. Section 230 specifically protects hosts of interactive computer services from liability, and is key to fostering free discourse online. Without Section 230, no one would risk creating a website where others could post opinions.

What's interesting about this trio of cases is that all of the suits brought or contemplated involve lawyers or lawyers to be. Are lawyers more sensitive than the general population or more seriously harmed by negative comments? Or are we simply more litigious?

June 13, 2007 | Permalink | Comments (2)

Crying in Court

So what do Judge Larry Seindlin (of Anna Nicole fame), Paris Hilton and now Roy Pearson (of the $54 million-dollar pants suit) have in common? All have been laughed at for crying in court.

June 13, 2007 | Permalink | Comments (0)

Law Firms Go Green Globally

In Thomas Friedman's words, green is the new red, white and blue. But for law firms, going green goes beyond U.S. borders and is also part of a global trend.

Consider these recent stories. Back in May, we made mention of Arnold & Porter's efforts to improve the environment by investing in carbon credits to offset emissions caused by lawyers' extensive travel. But Arnold & Porter's efforts to go green go further; the firm is also undertaking measures to cut back on paper use by printing briefs on double-sided paper and recycling. 

In Canada, firms are designing law firms with environmental benefits in mind, as described in this post from Toronto Estate Lawyer. From the post:

Implementing the use of green electricity or natural light are just two of the many measures open to a law firm looking to help the environment. Little things, like conserving water, reusing scrap paper and replacing incandescent light bulbs with compact fluorescent ones, can reap substantial green results. Such measures can also save law firms money. Environmental action can also be good for building business. A recent survey by Bullfrog Power found that 67 per cent of Canadians are likely to switch to banks, stores and other retail or service firms that have a demonstrated “green” track record.

And across the pond, firms in the United Kingdom are joining the green bandwagon as well, according to this story, Law firms pledge to go green in wake of World Environment Day (6/11/07). Several U.K. firms, in recognition of World Environmental Day, pledged to cycle to work, use mugs instead of throwaway cups and put biodegradables in compost heaps. Other firms switched off lights, watched Al Gore's documentary, "An Inconvenient Truth," and committed to reducing their carbon footprints.

So why the sudden interest in going green? Are firms suddenly gaining awareness of environmental problems? Or is going green a marketing or PR tool to help firms can earn more of another kind of green?

June 13, 2007 | Permalink | Comments (2)

Best of the Criminal Law Blogs

As more lawyers enter the blogosphere, there's a growing amount of duplication in coverage of legal topics. Take a look at Bill Gratch's breakdown of law blogs by topic: 68 IP blogs, 20 personal injury blogs, 25 corporate/securities blogs, 17 practice management blogs and 16 criminal blogs. In some of these cases, there's not as much overlap as you'd think (for example, many of the PI blogs cover one or two states, while the corporate blogs cover a variety of different topics). Even so, with so many blogs, how can you decide which ones are worth following?

One blogger, Jamie Spencer of the Austin Criminal Defense Law Blog, has one idea: Solicit reader input. Last month, Spencer asked his audience to send in their favorite blogs relating to criminal defense or criminal justice. Out of those blogs, Spencer culled the Top Eleven, which he posted here, along with a brief explanation of the blog's point of view. And tomorrow, Spencer plans to reveal the other entries, which ensures that all blogs that were nominated receive broad exposure.

So if you run a blog in a heavily populated space, why not follow Spencer's lead and conduct a poll? Your readers will appreciate learning about new sites, and by providing useful information about related sites, you'll enhance the popularity and usefulness of your own.

June 13, 2007 | Permalink | Comments (0)

A Lawyer Does Time

I have to admit that when I read about white-collar crime cases and sentences -- even those as outrageous as that of Jamie Olis (whose plight has been covered exhaustively by Tom Kirkendall at Houston's Clear Thinkers) --  I don't often think about what comes after. And of course, I've always assumed that convicted defendants doing time for white-collar crimes don't endure the same conditions as more violent offenders in maximum-security prisons.

Still, even lower-security prisons aren't a picnic, as borne out in this article, Enter a Hellish Place (Luke Mullins,, May/June 2007 issue, via Alan Childress at Legal Profession Blog). Mullins covers the experience of lawyer Alfred Porro, nicknamed the "Teflon attorney" for managing to evade numerous investigations, until they caught up with him and his wife -- who was also convicted for various fraud charges. 

The article is a long read, but it offers a fascinating and detailed account of prison life. Though the article focuses mostly on Porro's experience, there are other side stories about  a "sperm smuggling" operation (so that prisoners could get their wives pregnant)  or how prisoners can leave the premises but rarely try to escape because that would result in immediate transfer to a high-security facility.

As for Porro's experience, some aspects are unsurprising. As  a former lawyer, Porro predictably became the law librarian at the prison, taught constitutional law and worked as a jailhouse lawyer pro bono, helping other inmates with their cases. But his work as a lawyer didn't spare Porro from the monotony of daily chores, constant fear for his own safety and guilt at having put his wife in jail and harmed his son's career as an attorney.

Unlike other prisoners, however, who become "monsters" due to frustration of prison life, Porro believes that he gained some meaning during his time in jail. Among other things, he also began lecturing along with other prisoners at business schools, in an effort to keep others from making his same mistakes. And now that he's been released, Porro has another business as well:  serving as a consultant to white-collar prisoners sentenced to prison.

June 13, 2007 | Permalink | Comments (0)

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