Legal Blog Watch

Law.com Blog Network

July 31, 2008

e-Lawyering Offers a Win-Win for Clients and Lawyers

Today's news brings not just one, but two stories that demonstrate the value of e-lawyering -- that is, the automated processing of simple legal matters -- to both lawyers and clients.

Larry Bodine describes how one Chicago firm is benefiting from e-marketing. Referencing this article by Lauren Daley, Bodine discusses the success that Cowell, Taradash has had with its Web site, Illinois Divorce, which helps clients obtain divorces over the Internet. Today, the site generates 10 to 15 percent of the firm's business.

But how do clients feel about assembly-line service? At least one -- Janet Long of Elaine's Toffee Company -- is raving about the benefits of Legal Zoom, a service that she used to incorporate her now-successful San Francisco-based toffee business. Indeed, Legal Zoom was so grateful for Long's positive feedback that it featured her in a Legal Zoom television commercial, which in turn helped propel Long's previously local company onto the national scene.

July 31, 2008 | Permalink | Comments (3)

The Cadwalader Crash and Famous Last Words

Oh what a difference 18 months can make for a law firm. Recall that in February 2007, it seemed that the future belonged to Cadwalader. Back then, the firm had just come off a banner year, with profits per partner of $2.9 million for 2006, double the figure from 2002. And the firm's managing partner, Robert Link, predicted that the firm would have no difficulty sustaining its record growth, "short of some cataclysmic event that hits everyone else too."

Famous last words. Only that cataclysmic event -- the crash of the mortgage securities market and the subprime crisis -- hasn't hit everyone. Yesterday, it was Cadwalader alone that announced a massive layoff of 96 lawyers, just six months after the firm's first cut of 35 lawyers.

Around the blogosphere, the mood is gloomy. There's not yet been a sound, inside analysis of what went wrong. Did the firm unwisely put all of its eggs in the mortgage securities basket, or was it driven to do so by its clients' demands? But, here's a sampling of some of the commentary from around the blogosphere:

-- Cadwalader associates will have a tough time finding jobs in this market. [ Am Law Daily]

-- Were the layoffs really economic, or did the economy give the firm a good excuse? [Comments section of the WSJ Law Blog]

-- Layoffs are tough, but it's important to take action, not just explore feelings. [Law and More (offering other job seeking advice)]

-- Why the Cadwalader casualties should think about starting a law firm. [MyShingle (my home blog)]

What do you think about the layoffs? How should these newly unemployed lawyers plan for their future?

July 31, 2008 | Permalink | Comments (2)

Lawyer Raising Ineffective Assistance Claim Is the Subject of One Herself

For a lawyer, filing a claim of ineffective assistance of counsel (IAC) can be tough. Of course, ethically, lawyers have no choice but to raise a valid IAC claim -- after all, it's part of the duty to zealously represent a client. But at the same time, it's hard to attack another lawyer (particularly if he or she was well meaning) for an error that you might just as easily have committed yourself.

And in fact, that's what happened in Stallings v. United States, a case out of the 7th Circuit. There, the lawyer who raised an IAC claim about her client's previous lawyer was herself found ineffective because she failed to preserve an argument about the legality of the sentence length under the Supreme Court's holding in Booker.

As discussed at Sentencing Law Blog, Stallings was sentenced to 188 months of imprisonment just prior to the Booker decision holding mandatory sentencing guidelines unconstitutional, and a few months after the 7th Circuit's ruling reaching the same conclusion. In imposing the sentence, the court specifically stated that it had no choice under mandatory guidelines. Stalling's appellate counsel raised an IAC related to his attorney's representation at trial, but did not challenge his 188-month sentence under Booker. Stallings then filed a habeas petition, claiming that his appellate counsel was ineffective for failing to make the Booker argument and asking for a reconsideration of his sentence.

The 7th Circuit agreed, ruling that Stallings' appellate counsel was ineffective for failing to request a limited remand "to determine whether the sentencing court would have imposed the same sentence under an advisory guidelines regime." However, Stallings doesn't necessarily receive relief; the case has been remanded to the lower court to determine whether the failure to raise the Booker claim was prejudicial.

July 31, 2008 | Permalink | Comments (0)

Campaign Watch: Obama Earns High Grades for Exams; Should a President Be Computer-Literate?

Grading Professor Obama -- Back before presumptive Democrat nominee Barack Obama became a rock star, he was an unassuming senior law lecturer at the University of Chicago Law School, where he taught constitutional law and "Current Issues in Racism and the Law." The New York Times Caucus Blog asked prominent law professors such as Pamela Karlan of Stanford and Akhil Reed Amar of Yale to grade Obama's teaching performance, and uniformly, they awarded him high marks and spoke of his intellectual skills in glowing terms. For example, Professor Amar, a constitutional scholar himself, remarked that he was "dazzled, really — by the analytic intelligence and sophistication of these questions and answers," while Karlan could not find any distinction between the less-experienced Obama's exams and those prepared by full-time, first-rate academics. Take a look at the comments to the post, since several of Obama's students chimed in with their thoughts as well.

Must A President Be Computer Literate? -- Lee Gomes of the Wall Street Journal poses this question: Should a president -- of the United States, or even of a company, for that matter -- use a computer? He writes:

Sen. Barack Obama lives the life of every modern road warrior, checking a BlackBerry as easily as he checks his wristwatch, and decompressing in his downtime with an iPod. That latter preference is one of the few he shares with the current president, who is known to take along an iPod, preloaded by his White House staff with classic rock, on his mountain-bike runs. Sen. John McCain, by contrast, represents the last generation that will be able to claim imperviousness to the machines. Judging by the way his self-acknowledged computer illiteracy is mocked in YouTube videos, it's probably a safe bet that his campaign wishes he were more fluent in technology, especially considering the number of his contemporaries who have taken up the machines without a problem. But anyone who has ever been flustered by a gadget, or who has watched a teenager work a cellphone, won't be unsympathetic to Sen. McCain.

What do you think? How important is tech savvy to serving as Commander-in-Chief, for the country or even for a large law firm?

July 31, 2008 | Permalink | Comments (0)

July 30, 2008

Inside Look at Prosecutors' Payrolls

Salaries of district attorneys in Massachusetts are set by state law at just under $150,000 a year, but the DAs are free to pay assistant DAs whatever they want. As a result, ADA salaries in the state vary widely from office to office and even within a single office. In a story published this week, The Springfield Republican surveyed DAs' offices in Western Massachusetts and found staff salaries ranging from a high of $115,000 to a low of $37,500. "While some current and former prosecutors say they are compensated fairly, a greater number grouse privately that many of the hardest workers are not the highest earners," reporter Stephanie Barry writes.

Of the DAs contacted by the newspaper, only Hampden County District Attorney William M. Bennett would explain how he sets staff salaries. He looks to such factors as experience, merit, areas of responsibility and years of service, he told Barry. "If I had more money I would raise all the salaries in my office," he said. "For the responsibilities they have, they're all underpaid." Salaries make up 90 percent of his budget, he said. The top 10 earners in his office make between $90,000 and $115,000, while the lowest paid earn around $40,000.

For some, an ADA's salary is not enough to make ends meet. Michelle S. Cruz, a single mother, told The Republican that she left her ADA job, where she was earning between $50,000 and $60,000, for a job just over the state line in Connecticut, where she doubled her pay. "There's this misinformation out there that if you're an attorney you make all this money. But if you work for the state, you don't -- particularly if you work in Massachusetts and even more in Western Massachusetts," she told The Republican. "I thought I would be a career prosecutor. I loved my job, but I drive a Kia and I had to take this job to make ends meet."

The Republican's coverage includes a searchable database of salaries for the five district attorneys' offices in Western and Central Massachusetts. Last year, the Boston Herald posted a database of all state employees' salaries. At the time, Massachusetts Lawyers Weekly reporter David E. Frank culled through that to find the state's highest-paid attorneys. He found "an astonishingly small percentage" of lawyers among the top-paying jobs. Among staff prosecutors, only 38 out of 700 earned more than $100,000, he found. The highest-paid lawyer on the state payroll: Richard J. Stanton, who happens to have a law degree, but earns his $363,186 salary as deputy chancellor of the UMass Medical School.

July 30, 2008 | Permalink | Comments (3)

Lawyer Blogs His Boxing Bouts

When last I checked in with Chicago lawyer Steven D. Imparl, it was 2005, two years after his 40th birthday and his launch of the blog Steve's Midlife Crisis and three years after his creation of the Web site MaleDepression.com. Both sites continue in full force today. Meanwhile, Imparl has taken up yet another extra-legal interest, boxing, and, needless to say, he has launched yet another blog to chronicle it, Lawyer-boxer's Blog.

Recent entries chart Imparl's training regimen (up to an hour of roadwork, followed by multiple rounds of shadowboxing, bag boxing, stretching and sit-ups) and provide homages to fighters, gyms and the "joy of fighting." He started his boxing blog two years ago, writing at the time, "I created this blog to chronicle my adventures in the Sweet Science and to share links to news and opinion articles, other boxing sites and blogs, and some of my own writing about the 'manly art of self-defense.'"

For someone who started out blogging on topics of depression and midlife crisis, Imparl produces an impressive array of output. He also created the sites Blog Law Guy, Guy Tools, Imparl.com, Internet Law: The Complete Guide, SteveWiki and The Manly Teas and found time to author a three-volume treatise on Internet law. In blogging terms, that all add up to a TKO.

July 30, 2008 | Permalink | Comments (1)

Lawyer Alleged to be Sexual Predator

"Wow." That was the reaction of Zach Lowe at our sibling blog The Am Law Daily after reading charges against prominent Texas plaintiffs' lawyer Richard Laminack made in a wrongful termination lawsuit filed this week by former paralegal Angela Robinson. I second that emotion. To wit:

Laminack was and remains a sexual predator. During and after working hours, both on and off the premises and with the actual knowledge of his peers and superiors, he used and continues to use his position of power and authority over vulnerable, economically-dependent and emotionally vulnerable subordinates to seduce or compel, as circumstances might warrant, intimate sexual relations of a conventional as well as deviate nature. Laminack is bisexual, preying on susceptible male as well as female employees. Knowing full well of Laminack's proclivities, OLP and LPM simply adopted the expedient practice of enabling Laminack's tastes by handsomely compensating injured employees in exchange for their perpetual silence.

Perpetual doesn't mean forever, it appears. Robinson's references to "OLP" and "LPM" are to the two law firms in which Laminack has been a principal: Laminack, Pirtle & Martines and O'Quinn, Laminack & Pirtle. The latter, with which Laminack is no longer associated, now goes by the name The O'Quinn Law Firm.

Robinson alleges that, besides preying on her directly, Laminack once tried to convince her to go to the hotel room of a highly paid expert witness who was faring poorly in a deposition. Her instructions were to "take care" of him in order to improve his mood. "The clear implication of Laminack's suggestion was that, at a minimum, Robinson was expected to fellate Laminack's very expensive yet defective expert witness," the complaint alleges.

The situation all came to a head -- no pun intended -- after Robinson refused Laminack's offer of $15,000 to accompany him on a weekend trip to Las Vegas, she alleges. This, coupled with her previous rejections of his advances, "sealed her fate as an employee of Defendant law firms." Her lawsuit seeks $27,500 in damages for unpaid overtime plus unspecified damages for wrongful termination, battery and intentional infliction of emotional distress.

July 30, 2008 | Permalink | Comments (0)

The Innovators Among Us

The 2008 InnovAction Awards have been announced. Ron Friedmann provides the pointer via his blog, Strategic Legal Technology. These awards, from the College of Law Practice Management, honor lawyers, law firms and other legal professionals for "extraordinarily innovative efforts." Without further ado, I give you this year's three extraordinary innovators:

Pillsbury Winthrop Shaw Pittman. Pillsbury Winthrop Shaw Pittman was selected for its ValueChain outsourcing methodology. ValueChain is a unique system that visually displays client objectives, capabilities, opportunities and risks to Pillsbury lawyers. This helps the lawyers better understand the impact on clients' business of outsourcing business functions such as HR, customer service, and IT accounting, as well as how the outsourcing of such operations can best be designed and structured. Pillsbury was recently granted a business method patent for ValueChain by the U.S. Patent and Trademark Office.

Mallesons Stephen Jaques. Mallesons Stephen Jaques of Sydney, Australia was honored for PeopleFinder, the technological spearhead of ClientFirst, a program of continuous improvements to the firm's standards of client service. PeopleFinder gives individuals who contact Mallesons using a BlackBerry the ability to determine whether the person they're calling is available, and if not, when and where they can be found. PeopleFinder has rerouted more than 10,000 phone calls per month from voice mail to a person who can provide assistance. Mallesons also won an InnovAction Award in 2007 for its TalentNet initiative.

Novus Law. For the first time in InnovAction's history, an award was given to a non-law firm -- in this case, a company that provides services to law firms. Novus Law was selected for its documentation of the e-discovery process. Novus developed a program that documents and captures the e-discovery process (a significant cost in litigation) to give clients, attorneys and courts a reliable and predictable method for efficiently completing an important part of the litigation process.

Congratulations to all.

July 30, 2008 | Permalink | Comments (0)

The Willie Gary Sex Tapes

Here is a story straight out of the annals of bizarre-but-true. Prominent Florida attorney Willie Gary has released two sex tapes that he says help disprove claims made in a sexual battery suit against him. Gary, whose Web site boasts that he has won more than 150 verdicts in excess of $1 million and that he travels the country in a custom-built Boeing 737 named "Wings of Justice II," contends the lawsuit against him is all about money. In the suit, a Florida woman named Jillian Nedd contends Gary raped her at a Florida motel last year. Gary admits having had sex with the woman, but claims it was consensual.

This week, in a bid to get the case thrown out, Gary's lawyers filed two videos with the court allegedly showing her having consensual sex with Gary's son Kenneth. The lawyers say the videos were made eight days after the alleged sexual assault and help disprove the woman's claims against Gary. "She claims she was assaulted by the father yet, a week later, she's making an amateur sex video with the son," said West Palm Beach lawyer Michael Pike. Nedd's lawyer admits she had a relationship with Kenneth Gary but disputes when the videos were made.

Don't expect the tapes to pop up on the Internet anytime soon. Yesterday, a judge issued an order sealing them.

July 30, 2008 | Permalink | Comments (0)

July 29, 2008

How to Trap a Liberal DOJ Attorney

So, are you in the market for a "liberal" lawyer? There's no need to spend time creating a targeted want ad. Why not just use this same LexisNexis string search that former DOJ official Monica Goodling used to screen undesirable liberal leaning lawyers from the DOJ honors program:

[first name of a candidate] and pre/2 [last name of a candidate] w/7 bush or gore or republican! or democrat! or charg! or accus! or criticiz! or blam! or defend! or iran contra or clinton or spotted owl or florida recount or sex! or controvers! or racis! or fraud! or investigat! or bankrupt! or layoff! or downsiz! or PNTR or NAFTA or outsourc! or indict! or enron or kerry or iraq or wmd! or arrest! or intox! or fired or sex! or racis! or intox! or slur! or arrest! or fired or controvers! or abortion! or gay! or homosexual! or gun! or firearm!

The string search is just one of the unbelievably offensive practices that has emerged from the recent 140-page DOJ Report detailing its investigation into its improper hiring practices. Also, as an aside, one also has to wonder why DOJ officials felt the need to spend taxpayer dollars on LexisNexis searches when they could have relied on Google for free.

The Legal Times has more on the DOJ Report.

July 29, 2008 | Permalink | Comments (0)

Should You Break Bread With the Enemy?

Most of us deplore the lack of civility in the legal profession. But does a desire to increase collegiality and respect mean that we should bond with opposing counsel at social activities? That's the question posed by Jon Katz in this thought-provoking post at his Underdog Blog.

Katz describes an invitation he received asking him and fellow criminal defense attorneys to turn up for a happy hour with county prosecutors. In addition, the invitation solicited contributions of up to $50 to pay the prosecutors' bar tab in recognition that government lawyers don't earn much. Though some of his colleagues viewed the party as a way to improve relationships with opposing counsel, whom they work with everyday, here's what Katz had to say:

First, paying for prosecutors' happy hour refreshments creates dissonance in me as to my clients' role in the mix. That is right, no clients were invited to the happy hour. If I went to this shindig at a tapas restaurant two blocks from the county courthouse, I would think it a good idea to invite some of my clients, to humanize them (while assuring they do not discuss their cases), to respect them rather than having a private get-together with the opponents of them and me, and to highlight that the business as usual of marginalizing criminal defendants is unacceptable. Second. I wonder how such purchases jibe with bribery statutes, even though I do not believe such behavior should be made criminal.

Ultimately, Katz can't stomach the idea of sitting down with prosecutors and law enforcement, many of whom "degrade, dehumanize and disrespect" his clients. Moreover, he wonders:

How would I feel about a client seeing me breaking bread with the same prosecutor or cop who is trying to get my client locked up, particularly in instances where I feel the prosecution is based on false evidence, an effort to obtain a disproportionately severe sentence, or a law that I feel should be stricken or heavily decriminalized in the first place (e.g., I want the legalization of marijuana, prostitution, gambling, criminal libel and obscenity and the heavy decriminalization of all other drugs)?

I admire Katz's conviction -- it's not often that attorneys maintain and adhere to principles the way he does. And having represented criminal defendants myself, I realize that they don't always understand the necessary niceties of, for example, shaking opposing counsel's hands or saying hello, and may sometimes view these civilities as a sign of disloyalty or a lack of zealousness. At the same time, I do wonder whether a stand-offish manner to opposing counsel hurts a lawyer's client in the long run by making a prosecutor less likely to cooperate or exercise discretion to drop a case or reduce charges. And I also wonder whether we as lawyers cede too much to clients when we decline accepted professional civilities because we fear offending our clients.

What's your view on all of this? What kind of relationships do you have with opposing counsel -- and is there a difference between civil and criminal proceedings?

July 29, 2008 | Permalink | Comments (7)

Blawg Review #170

Not surprisingly, Scott Greenfield, the blogosphere's most prolific law blogger (if you don't believe me, then take a look at his monthly archives in the left menu bar of his blog) has done Simple Justice to Blawg Review #170.

Dedicating the review to the all-encompassing 14th Amendment, Greenfield offers an all-encompassing tour of the past week in the Blawgosphere, from the question of what a judge should do when a lawyer's summation moves jurors to applause to a debate amongst law prof bloggers (after all, who else has the time?) about whether Batman was a libertarian. And as Blawg Review's Ed. points out, Greenfield completed his task with all deliberate speed, posting Blawg Review #170 a day early.

If you're interested in taking on the challenge of hosting Blawg Review at your blog, here's how.

July 29, 2008 | Permalink | Comments (0)

Michelle Obama Critiques Law School

Trial lawyer Gerry Spence wasn't the only famous lawyer to gripe about legal education last week. In this interview with the Telegraph, Michelle Obama critiques the law school experience (albeit far more gently than Spence, who calls legal education a fraud).

As highlighted by Abony Holmes in The Shark, Obama's major complaint about law school is how it contracts one's perspective, rather than broadening it as an educational experience ought to do. Said Obama:

The thing about these wonderful schools is they can be surprisingly narrowing to your perspective. You can be a lawyer or you can work on Wall Street; those are the conventional options. They are easy, socially acceptable, and financially rewarding. Why wouldn't you do it?

It wasn't until Obama's father and best friend died that she managed to step back and evaluate her decision to practice corporate law, explaining that "I knew I would never feel a sense of passion or joy about the law. I was on a conveyor belt. Law school had just been the next step."

By now, it's no secret that legal education demands reform, and slowly, law schools are evaluating corrective action. At the same time, the very legal education that Obama questions and Spence outright harpoons has brought each of them considerable success, which suggests to me that somewhere, legal education must have some redeeming qualities. Why don't Spence or Obama acknowledge the benefits?

July 29, 2008 | Permalink | Comments (4)

July 28, 2008

New England Mourns Superstar Lawyer

Boston criminal defense lawyer Richard Egbert was a superstar -- not for his flamboyance but for his skill and tenacity in the courtroom. One prominent Bostonian called him "the Muhammed Ali of attorneys." Egbert died Thursday while on vacation with his family in upstate New York. He is being buried today in funeral services starting at noon. Egbert defended a roster of notorious clients who ranged from organized crime leaders to top politicians and judges. His client list included former Providence, R.I., Mayor Buddy Cianci, former Massachusetts House Speaker Tom Finneran, former R.I. Supreme Court Justice Joseph A. Bevilacqua and mobster Frank "Bobo" Marrapese.

Egbert, who leaves behind a wife, Shannon A. McAuliffe, a public defender in Boston, and three children, once told an interviewer, "I don't care how many guilty go free, as long as the system is working right. The worst bum in the world is entitled to be prosecuted fairly and honestly." Egbert set the mark of a great lawyer, said his friend, Boston criminal defense lawyer Anthony Cardinale. "I think we’ve lost a champion. I don't know that there's anybody who can fill his shoes."

July 25, 2008

Got Lawsuits?

Talk about nursing a grudge. The California Milk Processor Board, owner of the ubiquitous "Got Milk" trademark, sent a cease and desist letter to Alaska artist Barbara Holmes, putting her on notice that the "Got Breastmilk" T-shirts that she created infringe on its trademark. Holmes sold about six of the shirts over two years ago, and has since moved on to other projects.

Holmes is taking the C&D letter seriously, though. She's hired Talkeetna, Alaska, attorney Paul Bratton who has opined that Holmes' work is a parody protected by the Constitution. Bratton's letter to the Processor Board also noted that Holmes' T-shirts make the case for the benefits of breast-feeding and thus may constitute a form of protected speech.

But perhaps the very best defense in the case is raised by Holmes herself:

"They say I'm going to confuse milk consumers," she said. "How can you get confused between a boob and a bottle of milk from the store? They're two different kind of jugs."

With a quote like that, I'd say that the Milk Board's "got PR problems" with a case like this.

July 25, 2008 | Permalink | Comments (1)

Judge Overturns 9/11 Settlements

Should a court overturn a settlement agreement as unreasonable and excessive where the lawyers adopted a "wait and see" approach to filing a lawsuit and in so doing, achieved a better deal for their clients? That's one of the questions raised by yesterday's ruling by Manhattan federal district judge Alvin Hellerstein, overturning settlements in four lawsuits by the Maryland law firm of

Azrael, Gann & Franz on behalf of victims of the Sept. 11 attacks. The judge found that the firm's fee request of 25 percent of the $28.5 million recovered reflected a "large windfall," because the firm had filed its cases late in the process, thus allowing it to "coast on the work of others." The judge also said that the four settlements, which ranged from $5.5- to $8 million for "modest wage earners at the Pentagon" were disproportionately large when compared to similar cases and therefore unreasonable.

Huh? How can the lawyers have coasted on the work of others, if they managed to achieve settlements well in excess of similar cases? The judge's ruling seems internally inconsistent. While I agree that it's appropriate to cut contingency fees to reflect a firm's reduced risk in bringing a case forward, any reduced risk that Azrael may have achieved while waiting to file its clients' claims was counterbalanced by the extraordinary results that the firm obtained presumably as a result of holding out. Why should the firm be penalized?

July 25, 2008 | Permalink | Comments (2)

For Three Firms, Detainee Work Wasn't Pro Bono

Arguably, the collective efforts of more than 50 of the nation's top law firms to provide pro bono representation to Guantanamo detainees and vindicate their rights has been one of Biglaw's finest hours. Capitalizing on a deep pool of talent, resources and commitment, the firms successfully challenged the issue of the legality of the military tribunals all the way up to the Supreme Court, garnering deserved accolades, while fending off efforts by former Assistant Defense Department Secretary Cully Stimson to intimidate the firms into dropping the detainees' cases.

But apparently, at least three of the firms involved in the Guantanamo pro bono efforts may actually have received payment, in at least one case to the tune of $1 million, reports the Washington Times. A story in today's issue reports that Shearman & Sterling received more than $1 million from the Kuwait-based International Counsel Bureau (ICB) to fund its efforts on behalf of Guantanamo detainees, while Pillsbury Winthrop Shaw Pittman collected $250,000 for its work on recent Supreme Court cases. Arnold and Porter also earned around $75,000 in legal fees as well as $250,000 for lobbying efforts to obtain due process protections for Kuwaiti detainees in U.S. custody at Guantanamo.

While Shearman acknowledges having received fees for some of its detainee work, it also said that work performed since 2005 has been pro bono. In addition, a spokesperson for Shearman said that the firm donated $1.5 million of the proceeds from Guantanamo detainee cases to the not-for-profit Regional Plan Association in New York, which "seeks to shape transportation systems, protect open spaces and promote better community design for a 31-county area of New York, New Jersey and Connecticut."

I realize the the acts of three firms that received money for work held out as pro bono shouldn't taint the heroic efforts of the other 50 firms which did indeed work at no cost and at least, in my mind, they don't. Still, this story points out that firms must be completely transparent when it comes to pro bono work and disclose when they receive fees and when they don't. Otherwise, they risk casting a shadow on the laudable work they performed as well as the good intentions behind it.

July 25, 2008 | Permalink | Comments (1)

July 24, 2008

The Karma of Business Development

Mark Beese has been an infrequent poster lately at his blog, Leadership for Lawyers, which, like this blog, is part of the Law.com Blog Network. This is understandable, given his day job as head of marketing at Holland & Hart. So I was glad to see, via Larry Bodine's Law Marketing Blog, that the latest issue of the business development newsletter Originate! includes a piece by Beese on the why and how of building relationships.

In the article, Beese tells the story of his encounter many years ago with a top rainmaker at his firm. Curious about the lawyer's success in developing business, Beese asked his secret. The lawyer traced it back to early in his own career, when he made himself a list of people he thought would someday be successful. "My goal was to develop a relationship with each person so that when he or she needed a lawyer, I would be the first person they called," he told Beese. Initially, he built relationships with 40 people. Over time, the list grew to more than 100. As predicted, some of the people became quite successful and developed into major clients.

So what did Beese learn from his conversation with this senior rainmaker? Several lessons, and I urge you to read his article to get all of them. But the overarching one, of course, is that relationships are the key to success and that developing relationships takes planning and work. "Always look for a way to help others, even if it doesn't immediately benefit you," Beese writes. "Believe in karma."

July 24, 2008 | Permalink | Comments (2)

The Diogenes of the Legal Profession

Remember the story of Diogenes, who roamed ancient Greece with a lantern in search of an honest man? Well, meet the Diogenes of the legal profession: J. Kim Wright. In place of a lantern, she has a video camera, and with it, she is touring the country in search of innovative lawyers. She calls it the New Lawyer Tour, and it is part of a more ambitious project, CuttingEdgeLaw.com, which she envisions as "a movement, a magazine, a community."

The innovators Wright seeks stand on a very particular cutting edge -- that of helping to move law towards a more holistic, humanistic model. They are the lawyers who are blazing trails towards collaborative law, restorative justice and other alternative ways to resolve conflicts and solve problems. Accompanied by a videographer, Wright is traveling to various cities, interviewing these "pioneers in peacemaking and champions of justice." She has already posted more than a dozen of her interviews on YouTube. Eventually, the interviews will become part of the larger site, which Wright describes as the hub of a community built around this more collaborative approach to law.

CuttingEdgeLaw.com provides a community gathering place for sharing experiences, ideas, and concepts that are arising within a movement in the law. It responds to the urgent need to report on these positive innovations in law. On our pages, lawyers who are pioneers know that they are not alone, that others are hearing the call to positive action and using their legal training to make the world a better place. They're expanding the time-revered roles of lawyers in creative and non-traditional ways that are more satisfying and contribute to making a difference in the world -- while improving career satisfaction and life balance. Our content will educate mainstream lawyers about new concepts. It will give much-deserved attention to the pioneers in the movement. It will share tools to more fully integrate transformative and comprehensive law concepts into day to day legal practice. It will provide the space for critical examination of the issues confronting the lawyers who are stepping out and trying the new approaches, a community where ideas can be discussed and methods explored.

Wright describes herself as a part-time lawyer in North Carolina and a "pioneer in the field of law as a healing profession." She was the founder of the Renaissance Lawyer Society, which supports "legal transformation and innovation," and is a speaker, writer and coach on the practice of collaborative law.

[Dual thanks to Diane Levin and Stephanie West Allen for pointing me to this.]

July 24, 2008 | Permalink | Comments (1)

The Death of Google's Patents?

That is the title of a provocative new article arguing that the U.S. Patent and Trademark Office's newly developed position on patentability will invalidate countless software patents, notably among them Google's patent on its Web searching technology. The article, written by George Washington University Law School Professor John F. Duffy, was published this week on the patent law blog Patently-O (also in PDF).

In a series of recent cases, Duffy notes, the USPTO has argued in favor of imposing new restrictions on the scope of patentable subject matter. In the most recent, the en banc appeal In re Bilski, the USPTO argues that process inventions generally are unpatentable unless they "result in a physical transformation of an article" or are "tied to a particular machine." While the case has attracted enormous attention among patent lawyers, most see it as affecting "only a few atypical patent claims," he writes.

That view is wrong, he argues, and to illustrate just how far off the mark it is, he considers the impact of the USPTO's position on Google's PageRank technology. In light of two recent USPTO decisions, he asserts, 'it is increasingly hard to see how Google’s PageRank patent survives."

Nor is that one patent an anomaly in Google’s portfolio. Indeed, other patents owned by Google include claims that do not even include a formal limitation to a computer. Google might have thought that the patent system would surely protect new technological developments that are highly creative and socially valuable. The PTO’s new position proves that view mistaken.

Depending on your perspective, you may see the death of Google's PageRank patent as good news or bad news. But aside from the implications for any particular patent, the greater worry is that the USPTO's proposed rule would throw open any number of patents to uncertainty and give rise to "previously unimagined litigation." If that happens, Duffy contends, "vast industries of modern innovation" will be put on hold.

July 24, 2008 | Permalink | Comments (0)

July 23, 2008

Blogs Shown to Get Press for Lawyers

Over at Law Marketing Blog, Larry Bodine references a new study by eMarketer showing that reporters rely heavily on blogs for a variety of tasks, including finding new story ideas and locating industry experts. Bodine explains that reporters will typically find legal experts by running a search using Google Blog Search, using terms that describe the subject matter of the story. When reporters find a blogger who's covered the topic they'll call; indeed, Bodine himself reports that he receives calls from reporters every week.

So if you or your firm still haven't started blogging, perhaps the prospect of seeing your name in print, identified as an industry expert, will motivate you to start.

Update: Larry Bodine's post quotes heavily from Steve Matthew's post at Stem Legal. I should have noted this point in my original post.

July 23, 2008 | Permalink | Comments (0)

Tight Jeans Not a Chastity Belt, Rules Italian Court

As the late Johnnie Cochran might have put it, "If the jeans were too tight, then she didn't put up a fight." As offensive and ludicrous as this defense might be in an assault or rape case in the United States, unbelievably, up until yesterday, it was completely legitimate in Italy. However, as the Times Online reports, Italy's top appeals court overturned a 1999 ruling that a woman wearing tight jeans cannot by definition be raped or sexually molested because removing skintight pants necessarily requires "collaboration and consent."

The court's ruling grew out of a May 2005 conviction of a 37-year-old man, identified as RP, who was convicted of sexual assault for molesting a 16-year-old by "inserting his hands inside the front of her jeans." RP appealed his conviction to Italy's high court, the Court of Cassation, arguing that under its 1999 precedent, his actions must be deemed consensual. The court rejected the argument and upheld RP's conviction, ruling that "jeans cannot be compared to any type of chastity belt."

July 23, 2008 | Permalink | Comments (0)

What Are Your Thoughts on Paternity Leave?

Denise Howell is busy preparing the next installment of her Dicta column for The American Lawyer and she's looking for reader insights on work/life balance and male attorneys. Specifically, Denise asks:

Is the legal workplace really changing, or are law firms putting a high-profile band-aid on a chain saw wound? Why are lifestyle issues inevitably "women's issues?" Do men care about work life balance? Are they achieving it? Is the paternity leave stigma really gone? What about men availing themselves of part-time schedules for family reasons? What is the long-term career impact of such a choice?

If you have any thoughts on this topic, you can comment below or directly in the comment section at Denise's post.

July 23, 2008 | Permalink | Comments (0)

Some GC Bonuses Dwarf Am Law 100 Profits Per Partner

A few months back, 19 Am Law 100 law firms celebrated $2 million profits per partner for 2007. Gosh, those numbers seem like small potatoes now, at least in comparison to the record pay and stock grants that Chief Legal Officers (CLO's) enjoyed during the same time frame, according to Corporate Counsel's annual survey of general counsel compensation.

Consider Gary Lynch, the CLO for Morgan Stanley who snagged a $6.3 million bonus, earning him the number 2 slot on the list. But these huge bonuses aren't reserved just for those at the very top of the list. Overall, bonuses and non-equity incentive compensation jumped 17 percent to $1.1 million, double the average CLO salary of $503,545.

But with the economy on the decline, will the good times last? Joel Henning, a senior vice president and head of Hildebrandt International's Chicago office says that it's too soon to tell how the economy will impact GC salaries. And indeed, though many banks or financial companies struggled last year under the weight of decreased earnings or financial scandals, their GCs still topped the compensation list. In addition to Lynch's $6.3 million bonus, take a look at these numbers:

Carrie Dwyer at Charles Schwab Corp. and Thomas Russo at Lehman Brothers Holdings Inc. both got sizable nonequity incentive compensation. Dwyer pulled in an extra $2.7 million, a 112 percent increase over the year before. That brought her total cash compensation to $3.2 million, and she jumped to the 11th spot on this year's list, up from 26th place in last year's survey. While Lehman Brothers has been struggling, Russo's compensation held steady. He took home the same incentive compensation he did the year before: $4.6 million. That brought his total cash compensation to $5 million. He also made $5.4 million by selling stock, although his total compensation was 43 percent less than the $9.5 million he made the year before.

While top GCs earn more than most law firm partners, there's one question that remains unanswered: Who works harder for their money? If you have any thoughts, let me know in the comment section below.

July 23, 2008 | Permalink | Comments (0)

A New Kind of Corporate Workout

For most lawyers, the phrase "corporate workout" describes a complex financial transactional process, which brings to mind images of stressed out lawyers shuffling through documents or pedaling different versions of an agreement during negotiations. But at the Boston office of Roseland, N.J.-based law firm Lowenstein Sandler, corporate workouts have a more colloquial meaning, with lawyers shuffling on treadmills or pedaling on exercise bikes installed in their offices.

As this news video shows, Lowenstein has gone the extra mile to help lawyers and staff incorporate exercise into their day-to-day work routine. The video portrays lawyer Sarah Reed, dressed for success in a smart dress and two inch heels, striding on a treadmill that incorporates a stand fashioned for her computer, while another lawyer breathlessly chugs away on a recumbent bike while reading legal material. There's also a paralegal who jumps on a trampoline while discussing her cases. Admittedly, these lawyers look a little foolish working up a sweat in their business clothes or doing doorway chin-ups in heels and a dress, but more power to them. After all, getting fit at work beats having fits at work.

July 23, 2008 | Permalink | Comments (2)

July 22, 2008

Breakup in the Berkshires

In the bucolic Berkshire mountains of Western Massachusetts, one law firm stands out so prominently within the region that its Web page URL is berkshirelaw.com: Cain, Hibbard, Myers & Cook. So it came as a surprise when four of the firm's 10 partners announced they would leave to start their own firm. Partners Leonard H. Cohen, C. Jeffrey Cook, Kevin M. Kinne and David E. Valicenti will open their own firm Jan. 1, the Berkshire Eagle reports. Cohen and Cook have each been with the firm more than 40 years.

In a follow-up report today, the Berkshire Eagle says the breakup is amicable and was sparked by the partners' interest in new business opportunities. "We truly mean it when we say we wish each other well," Kinne told the newspaper. "I have no doubt both firms will be very successful, we all respect each other and want each other to do well." A fifth partner, William B. Roberts, is also leaving, but for reasons unrelated to the others' departures. One of Cain Hibbard's remaining partners, Lucy Prashker, said the firm retains a strong position within the region and will continue its "growth mode."Notably, the departures will transform the firm into one run predominantly by women, who make up three of the five remaining partners.

July 22, 2008 | Permalink | Comments (1)

The 25 Greatest Legal Movies

If only we could all be Atticus Finch. No doubt, the 1962 film, "To Kill a Mockingbird," is the greatest movie ever made about law and lawyering. But what other movies merit mention as the greatest legal movies? In The 25 Greatest Legal Movies, the August ABA Journal asks 12 prominent lawyers who teach film or are connected to the business to pick what they believe to be the best movies ever made about lawyers and the law. The judging panel ranges from a real judge, U.S. District Judge James B. Zagel in Chicago, who has appeared as an actor in two films, to a solo practitioner in Massachusetts, Lynne Spigelmire Viti, who teaches law, literature and film at Wellesley College. Their selections start with Gregory Peck's classic portrayal of small-town lawyer Atticus Finch and end with the 1947 film that put Santa Claus on trial, "Miracle on 34th Street".

At the magazine's Web site, you can browse a gallery of images from the top-25 films and then vote for your favorites from among them. Accompanying all this is the feature article, "How I Learned to Litigate at the Movies," in which four top trial lawyers reveal lessons they've learned about litigating from watching Hollywood movies. Steven O. Rosen, for example, cites the influence of the 1996 summer blockbuster, "Independence Day". "Amid the special effects excitement and a rousing climactic battle—the aliens lose again!—the writer and director of Independence Day give us an important lesson about how to tell a story and how to persuade: Start big and end big," he writes. "To borrow a term from astrophysics, it’s the big-bang approach."

July 22, 2008 | Permalink | Comments (2)

Survey: The Busiest Patent Firms

The magazine IP Law & Business is out with its annual survey of patent litigation, revealing the busiest law firms on both sides of the aisle in patent litigation. This year for the first time, the survey includes patent appeals at the Federal Circuit. There is also a change in the survey's methodology, as reporter Joe Mullin explains at his blog, The Prior Art:

This year, there's one major change worth noting here: we counted only patent cases filed in 2007 that were alive for at least two months. Last year, we counted patent cases filed in 2006 that were still alive in February 2007. Both rules are attempts to discount here-today, gone-tomorrow lawsuits. This year's method is more consistent, but probably resulted in slightly higher counts all around.

That said, here is a summary of the results:

Firm that handles the most appeals: Howrey with 19, followed by Fish & Richardson with 16.
Firm with the most district court cases: Fish & Richardson with 98, followed by Morrison & Foerster with 69.
Firm that represents the most plaintiffs: Niro, Scavone, Haller & Niro with 48, followed by Fish & Richardson at 37.
Firm that represents the most defendants: Fish & Richardson with 61, followed by Kirkland & Ellis at 49.
Firm representing the most appellants at Federal Circuit: Fish & Richardson with a dozen, followed by Finnegan Henderson with 10.
Firm representing most appellees at Federal Circuit: Howrey with 12, then Paul Hastings with six.

You can see the full results here, after completing the free registration.

July 22, 2008 | Permalink | Comments (0)

Oldest Patent Lawyer Dies at 107

In a post here last October, I asked readers for help in identifying the nation's oldest lawyer. My query was prompted by the death of Reuben Landau, who at 103 was said to have been the oldest practicing lawyer in Massachusetts. One astute reader commented then that the holder of the title may have been New Hampshire's Charles Yardley Chittick, whose age had earned him an entry in Wikipedia as the oldest living patent attorney in the United States. The reader's comment added, "Not sure if he is still alive but I cannot find an article on his death and this wiki was updated in July 2007."

Well, now we know. Mr. Chittick died Friday at the age of 107, several days after suffering injuries in a fall, The Boston Globe reports. Born in 1900, he turned down a job offer from Thomas Edison and attended George Washington University Law School in Washington, D.C., to become a patent lawyer. He became registered as a patent attorney in 1934 and went to work at the U.S. Patent Office earning $1,900 a year. He later moved to Boston and opened his own office, where he practiced full time until he was 85. He retired to New Hampshire in 1975.

In a 2005 interview on the occasion of his receiving an honorary degree from Franklin Pierce Law Center in Concord, N.H., Chittick was asked why he had not patented the secret to longevity. The reason, he replied, was that he had not figured it out.

He does, however, have a few theories. 'I was a runner from my very beginning,' Chittick said, recalling the 'Italian boys' who hung out on a corner he had to pass on his way to grade school in Newark, N.J. 'I was always afraid of those boys, so I ran to school,' he said. 'When I got to high school, I kept on running.'

An outstanding athlete in his younger days, Chittick still swings a golf club with ease and participates in ... exercise classes. He's never smoked, and he's always drunk in moderation. 'I have a screwdriver every night,' he said. 'It's a pleasant drink, which I enjoy - but I never get drunk.'

He retained his registration as a patent attorney but once told a reporter he deserves no special attention. "I'm an entirely undistinguished person in industry and intellectually," he said. "All I've managed to do is stay alive longer than anybody."

[View photos and listen to a 2000 interview with Chittick, on the occasion of his 100th birthday, via the Pierce Law IP Mall.]

July 22, 2008 | Permalink | Comments (0)

Sex Crime Expert Nabbed for Sex Crimes

So that's how he got his expertise. A North Dakota psychologist who served as an expert witness in hundreds of sex-crime cases in multiple states has admitted an addiction to child pornography and now faces federal charges for possession of child porn. His admission has caused reviews of hundreds of cases in which he served as an expert witness and resulted in orders of new trials for two Iowa sex offenders.

The psychologist, Joseph Belanger, 61, admitted his child-porn addiction in a Nov. 27 letter to the North Dakota licensing board after federal authorities seized his home computer and he was forced to leave his job at a state mental-health hospital. The letter was brought to light by Des Moines Register reporter Jeff Eckhoff, whose story about Belanger appeared this week. The letter blamed his addiction on childhood sexual abuse and the fact that he has "been so frightened of the world and of women that I mostly used pornography ... as an outlet."

The letter resulted in reviews of more than 145 Iowa cases in which Belanger was a witness. Judges in two Iowa counties cited the admission as grounds for granting new trials in two cases of men locked up in part based on Belanger's opinion that they were dangerous. "The disturbing nature of Dr. Belanger's own deviate behavior ... is sufficiently large to undermine the court's confidence in the jury verdict that may be largely based on that testimony," wrote one of the two judges, J. Hobart Darbyshire, in a ruling last month. "Presumably ... the state will be able to secure a new evaluation of the respondent by an expert not burdened with the same problems Dr. Belanger has."

Yesterday, Belanger was arraigned in federal court in Fargo on three charges of possession of child pornography, where he pleaded not guilty, the Associated Press reports. Belanger's admission is not likely to affect cases in his home state of North Dakota, AP says, because of a state law, since repealed, that required supporting testimony from two expert witnesses to justify indefinite confinement of sexually dangerous persons. U.S. Magistrate Judge Karen Klein ordered the former expert witness to report to a halfway house until he can be placed on electronic home monitoring.

July 22, 2008 | Permalink | Comments (3)

July 21, 2008

The Cravath System and the Demise of Large Firm Business as We Know It

Professor Bill Henderson of the Empirical Legal Studies Blog has opened an interesting discussion with his recent analysis of the bimodal distribution of law firm starting salaries. Essentially, Henderson's salary charts reflect the current "winner take all" nature of the law firm marketplace, with a small percentage of talent collecting enormous salaries. While this type of distribution is typical for industries like professional sports or celebrity entertainment, Henderson says that he's never seen this type of distribution for "a normal labor market involving tens of thousands of people and not just a handful of superstars."

But what's more interesting is Henderson's observation that law firms still have no interest in deviating from "the Cravath model" of paying top dollar for elite grads, even where they lack the mix of business to support it. Henderson's research shows that:

Partners in marquee practices like white collar crime, securities enforcement, M&A, private equity, emerging markets, and intellectual property litigation are disproportionately moving upstream to more profitable firms. Partners specializing in regulatory compliance, real estate, public finance, project finance, and trust & estates are disproportionately moving downstream....In the long-run, firms without an optimal mix of premium practice areas will have a hard time sticking with the Cravath system. Increasingly, corporate clients are refusing to have their cases staffed by expensive first- or second-year associates who don't know very much and tend to leave. Hence, the training the clients are allegedly paying for has little or no future payoff.

In other words, for many large law firms, the wheels of their hallowed business model are falling off. During this period of denial, every firm's short term strategy is to work harder, promote fewer lawyers to equity partner, and de-equitize as needed.

Bruce MacEwen offers this take on Henderson's data:

The bimodal distribution of starting lawyer salaries is not, economically speaking, an equilibrium condition. It will change.

The last great associate salary spike, from $125Kto $160K, took place roughly 18 months ago when times were flush. Even then, some firms began panting at the effort to keep up. (Recall that the instigator of that spike was Simpson Thacher, which didn't have to raise its resting pulse to manage the spike.)

The next spike—I won't predict when it will be but I will predict it will be to $200K—will leave a lot of firms crying "Uncle." They will stop struggling to keep up with the receding red lights moving on down the highway. And it will be economically rational, geographically defensible, and culturally unifying.

At the end of the day, perhaps it's not discontent with the lack of meaningful work or work/life balance that will bring change to -- or the demise of -- the current large firm business model. Yet again, it's the economy, stupid.

July 21, 2008 | Permalink | Comments (0)

Presidential Campaign Roundup

With the Democratic and Republican party conventions fast approaching, it's time for another presidential campaign roundup.

Summary of Campaign Positions -- Not sure of who to vote for yet? Then take a look at this summary from Reuters on each candidate's position on legal issues like the death penalty, immigration enforcement, the Supreme Court, wiretapping and civil rights. Not surprisingly, the candidates are farthest apart on the question of who they'd nominate to the Supreme Court. Throughout the campaign, McCain has promised that if given the opportunity, he would select jurists in the mold of Roberts or Alito, while Senator Obama voted against these two appointees.

Preferential Press Treatment for Obama? -- Drudge Report says the New York Times rejected an editorial written by McCain as a rebuttal to Obama's op-ed article entitled, My Plan for Iraq, published by the Times less than a week earlier. Does the Times' decision reflect media bias, as many top Republicans charge, or what the Times claims is a reasonable exercise of editorial discretion? (H/T to Volokh.)

July 21, 2008 | Permalink | Comments (0)

Lawyer Translator Helps Associates Understand How Firm Is Different

Minneapolis law firm Halleland Lewis Niland & Johnson wants to make absolutely sure that its prospective hires understand how the firm differs from its competitors... so much so that the firm has created The Lawyer Translator, an online recruitment Web site that translates the jargon behind law firms' promises of hefty salaries and meaningful work. From the firm's press release:

[T]he Lawyer Job Interview Translator features an online "talking head" law firm interviewer who provides pat answers to questions on topics ranging from work environment to professional development to salaries. Using this tool, Halleland Lewis distinguishes its own competitive compensation program, for example, from other firms' salary-matching practices by emphasizing its own opportunities for significant performance-based bonuses. After the virtual interviewer has given his jargonistic response, viewers of the site can click a "Translate" button to decode the jargon, then learn about the "Halleland Way" of responding to these same questions directly.

The press release also notes that the firm's associates played a significant role in developing the Translator recruitment campaign.

July 21, 2008 | Permalink | Comments (3)

Microsoft Willing to Pay for Diversity

Well, if law firms won't increase the number of women and minority hires because it's the right thing to do or even because it's what clients want, then by golly, maybe they'll do it for cash. That's apparently the theory behind Microsoft's new diversity initiative that will award bonuses to outside counsel based on their inclusion of minority and women attorneys, reports the National Law Journal. Firms that participate in the diversity initiative can earn an extra two percent bonus on top of the three percent increases that all seventeen of Microsoft's preferred firms are eligible to receive in FY 2009.

Firms that choose to participate in Microsoft's diversity initiative -- which is strictly voluntary -- must agree to allow Microsoft to track diversity progress. Firms can demonstrate improvement and qualify for bonuses by either (1)showing a two percent increase in hours worked by diverse attorneys on Microsoft matters over the previous year; or (2)showing a .5 percent increase in total diverse attorneys as a percentage of the firms' total attorneys. Oh, and by the way, firms can't use contract attorneys, whose ranks are disproportionately comprised of minorities,to meet diversity requirements.

Microsoft's diversity goals don't seem very demanding but then again, firms may not find a two percent bonus worth changing business as usual. What do you think? Will the Microsoft initiative succeed? Or are firms better off achieving diversity not by extending a golden carrot but by wielding a big stick and dumping those firms that fail to meet diversity requirements.

July 21, 2008 | Permalink | Comments (0)

Sending Judges to Medical School

Marcia Oddi at Indiana Law Blog shares this interesting piece from the AMA Med News about the National Judges' Medical School, a program designed to equip judges with better knowledge of medical science to help them interpret complex health care cases.

This year's 2008 program focused on medical malpractice, where judges observed staged trials, reviewed clinical studies and learned about the differences between "standard of care" and "medical necessity." Judges are also offered training to help them ask the right questions about an expert's qualifications or a peer-reivewed study, so that they can cull irrelevant evidence from the record and determine whether evidence is scientifically reliable and ultimately helpful to juries.

July 21, 2008 | Permalink | Comments (0)

July 18, 2008

Military Court Finds Right to be Racist

The First Amendment prohibits criminal prosecution of a U.S. Army paratrooper for racist statements he made online, the U.S. Court of Appeals for the Armed Forces has ruled in a July 15 decision, United States v. Wilcox. The soldier, Private First Class Jeremy T. Wilcox, faced charges under the Uniform Code of Military Justice related to statements he posted online and made in online chat rooms that were racist and that expressed support for white supremacy. While emphasizing that it did not approve of the soldier's statements, the court, in an opinion written by Judge Margaret A. Ryan, ruled that the government had not shown sufficient grounds to bring charges against him.

[T]he issue in this case is whether Appellant's statements constituted a criminal offense in light of the evidence set forth in the record of this case, not whether this Court approves of the statements made by the Appellant. We do not. But condemnation and conviction are drastically different when the First Amendment is involved, and our disagreement with his statements cannot substitute for the Government's failure to introduce evidence legally sufficient to meet the element of either service discrediting behavior or prejudice to good order and discipline necessary for a conviction.

In a lengthy dissent, Judge James E. Baker took issue with the majority's reliance on the First Amendment:

The fact that Appellant's words appeared on the Internet on a profile does not transform this case from one of public conduct to one of private conduct. The Internet profile is the modern equivalent of standing on a street corner in uniform with a sign saying 'I'm in the Army and I am a racist and Aryan extremist.' This may not be a busy corner -- we should hope that it is not -- but it is a public corner nonetheless.

Read more about the case from Jurist Paper Chase and Associated Press.

July 18, 2008 | Permalink | Comments (1)

A Call for Social Justice Lawyering

Hearkening back four decades to the civil rights movement, Harvard Law Professor Charles J. Ogletree Jr. is issuing a call for litigators to revive the passion for social justice that characterized that era. In " Social Justice Lawyering: The Rule and the Limits of Law," an article published by the American Bar Association Section of Litigation, Ogletree recalls the groundbreaking work of lawyers such as Charles Hamilton Houston, Thurgood Marshall, Oliver Hill and Spotswood Robinson as inspiration for lawyers today. In particular, he singles out Houston, after whom the Harvard-based foundation Ogletree directs is named, for having laid the legal and theoretical groundwork that paved the way for the civil rights movement and Brown v. Board of Education.

The groundwork of building theory, training litigators, and systematically bringing lesser known cases to build a legal record was often not the stuff of public glory and recognition. Often, it was tedious and slow. Sadly, Houston died of heart failure in 1950, four years before his most famous student, Thurgood Marshall, argued and won the Brown case. Nevertheless, the power of his mentorship and intellectually rigorous mind was evident in that every lawyer involved in the transformative Brown case had been taught, mentored, or encouraged by Houston in profound ways.

How far have we come these 40 years since the death of Dr. Martin Luther King Jr.? "Blatantly racist laws are off the books, but the lingering effects of old laws and structural arrangements remain and have the same result -- unequal opportunity," Ogletree writes. "Personal racism no longer comes in the form of white southern sheriffs and governors blocking black children from schoolhouse doors. Rather, it has moved underground, so vaguely or passively expressed that it is utterly unassailable." But Ogletree finds hope in the belief that law and morality will always intersect, and he believes that it is from there that a new social justice movement can begin.

To be sure, the signature message from the work of Dr. King, Charles Hamilton Houston, Thurgood Marshall, and others, or lawyers today, is that creative arguments and a passion for justice are the key ingredients necessary for litigators to move us closer to a just and equal society. The opportunity to follow the lead of the great visionaries of the twentieth century is staring us in the face in the twenty first. It will require women and men of faith and commitment to lead this effort forward, learning the lessons of the past.

Plenty of passionate and committed lawyers remain active, of course, but Ogletree's piece is a reminder of the tedious groundwork that goes into the pursuit of social justice.

July 18, 2008 | Permalink | Comments (1)

Changes in Store for 'Above the Law'

Popular legal-gossip blog Above the Law will soon have a new editor in place of David Lat, the former federal prosecutor turned blogger who gained notoriety in 2005 when he was revealed to be the pseudonymous Article III Groupie who wrote the blog Underneath Their Robes. Lat is moving from D.C.-based pajama-blogger to New York City-based honcho for the company that hosts his blog, Breaking Media, Lat told The BLT: The Blog of Legal Times. Lat is moving up the company ladder to oversee its three blogs -- Dealbreaker.com and Fashionista.com are the other two -- and to help develop and launch new ones.

He will still write for ATL, he says, "But we are looking to hire a new full-time editor/writer, who will take over day-to-day responsibility for ATL from me, and whose vision will largely determine the direction of the site."

As any devoted blogger will understand, the most significant aspect of the move for Lat may be this: "This gig will require me to brush my teeth, put on clothes, and schlep into an office each morning -- just like I did before I left the practice of law for blogging, some two and a half years ago." For a blogger, it is the greatest sacrifice. Let us hope for Lat's sake they are making it worth his while.

July 18, 2008 | Permalink | Comments (1)

July 17, 2008

Misuse of Red Cross Emblem: Another Kind of War Crime

These days, most discussions about war crimes bring to mind current or former Bush Administration officials like John Yoo, or even Vice President Cheney, for their endorsement of the use of torture in military interrogations overseas in violation of the Geneva Convention. However, today's news brings mention of a somewhat more obscure war crime known as perfidy: the deceptive or abusive use of the Red Cross emblem.

The Associated Press is reporting that Colombian President Alvaro Uribe acknowledged that his army used the Red Cross emblem in its bloodless July 2 rescue of 15 hostages. According to Uribe, an army official wore a vest with the red cross emblem because he was nervous about the operation with so many rebels on the scene. Unfortunately, deceptive use of the Red Cross emblem violates the Geneva Convention. Lawyers for the two rebels captured confirm that they had been tricked by the soldiers' use of the Red Cross emblem.

The Red Cross responded to abuse of its emblem swiftly explaining that "The respect of the emblem is crucial so the ICRC can bring help to people affected by the conflicts in Colombia or elsewhere." However, Colombia's general prosecutor Mario Iguaran said he believed the act of "perfidy" could not be applied in the hostage-rescue case, where the objective was not to use trickery to attack the other party but merely to rescue hostages. No word yet on whether the Red Cross will pursue further action.

July 17, 2008 | Permalink | Comments (1)

What Do Clients Really Think About Outsourcing to India?

I've posted previously, here and here about some of the concerns that law firms have raised about offshoring legal work to India. But truthfully, who cares what the lawyers think about offshoring? After all, they're not paying the bills. By contrast, we rarely hear about legal outsourcing from the perspective of corporate clients who actually use these services.

Until now. At Prism Legal, Ron Friedmann summarizes a presentation by Connie Brenton, Assistant General Counsel for Sun Microsystems, on the company's experience with outsourcing. Brenton described that Sun began to explore the LPO (legal processs outsourcing) option in 2005 to reduce its legal costs. Unfortunately, the company's offshoring efforts had a rocky beginning with a contract review project in 2006. However, the second project fared better because Sun required much more training and process guidance, even providing its own project manager and contract templates.

Bottom line: Sun enjoyed substantial savings and continues to use LPOs.

July 17, 2008 | Permalink | Comments (3)

July 16, 2008

Are Virtual Law Firms Really a New Idea?

For the past news cycle, the blogosphere has been buzzing about Silicon Valley lawyer-entrepreneur Craig Johnson's next big thing: Virtual Law Partners (VLP), an 18-member virtual law firm. The idea behind the firm, according to The Recorder, is that by cutting out costly overhead, clients can pay lower rates and attorneys can retain more of what they bill. In fact, the firm plans to charge $400 an hour, in contrast to prevailing rates of $700 to $800 to comparable work. But lawyers won't take much of a pay cut, as they'll retain 85 percent of what they take in.

While the VLP concept of earning a good salary seems idyllic, how realistic is a large-scale virtual firm? Law firm consultant Peter Zeughauser expressed doubts to The Recorder about the firm's chances of success, commenting that a heavier infrastructure may be needed for the type of work that VLP proposes to do. At The Conglomerate, Christine Hurt also wonders whether it's feasible for a firm to do IPO or merger work without associates.

As for me, while I endorse any type of innovation that reduces the cost of legal services and gives lawyers more freedom, I question a couple of aspects of Johnson's proposal. First of all, keeping overhead to 15 percent of revenues is amazing, even by small firm standards. At her blog, Build A Solo Practice, Susan Cartier Liebel, a national consultant on starting a firm, recommends striving for overhead of 25 to 35 percent of each dollar earned. For a firm like VLP, they certainly must have significant costs for legal research and other computerized databases or the computer network that these lawyers use to communicate with each other. And what about marketing expenses? Will these lawyers have enough work to sustain 18 lawyers simply through word of mouth referrals? For the type of work that VLP plans to do, retaining 85 percent of revenues seems overly optimistic.

I'm also a bit put off by Johnson's arrogance. Consider this quote from an interview with Law Dragon:

Everyone agrees that the vision of a big virtual firm will succeed or fail on the quality of its lawyers. Johnson is an admitted CV snob and Virtual Law Partners is stocked with Harvard this, Yale that, and Stanford all around. "It's our way of saying this is not a ragtag group of people from fourth-grade law firms. This is an elite group of practitioners who think this is a better model."

Virtual law firms have been around for a long time -- there's Vantage Counsel in Hawaii that's been around for a few years, and solos like Stephanie Kimbro who have even developed software that allows clients to submit case information online. So if Johnson is, as he describes, such an "elite practitioner," why is he so late to the virtual law firm party?

July 16, 2008 | Permalink | Comments (3)

Slate Puts its Convictions on Hold

Just four months after launching its legal blog, Convictions, the online magazine Slate is putting the blog on a sabbatical. The blog's editor, Phillip Carter, an associate at McKenna Long & Aldridge in New York, explained:

Over the past four months, Convictions has reached hundreds of thousands of readers and contributed a great deal to America's legal conversation. However, we have decided to take a sabbatical. Instead of running Convictions as a continuous blog, we'll call on our excellent roster of contributors when news breaks, and run their exchanges as a multi-part conversation, as we do Dahlia Lithwick and Walter Dellinger's Supreme Court conversation at the end of term.

Carter added that he would be taking a leave of absence from Slate to serve as the Obama campaign's national veterans director. Earlier this week, I posted here about our podcast interview with one of Convictions' more notable contributors, U.S. District Judge Nancy Gertner of Boston. She was just one of a roster of contributors that included legal scholars, legal journalists and practicing lawyers. Even at just four months, it was a good run.

July 16, 2008 | Permalink | Comments (0)

Lawyer Sues Google Over Ads

Don't ever mess with a lawyer and his ads. Boston lawyer Hal K. Levitte has filed a lawsuit against Google for placing his ads on parked domain pages, and he is seeking class action certification. Levitte advertised his firm through a Google AdWords pay-per-click campaign last year. His lawsuit says he spent $136.11 for ads on parked domains and error pages -- 15.3 percent of an ad campaign that cost him a total of $887.67. Although the ads on parked pages received more than 200,000 impressions, they generated just 668 clicks through to Levitte's site and zero conversions. Ads on errors pages brought just 25 clicks and no conversions.

The lawsuit was filed in U.S. District Court in San Jose, Calif., by lawyers from the San Francisco firm Schubert Jonckheer Kolbe & Kralowec, Information Week reports. The lawsuit alleges that Google's sale of low-quality ads constituted fraud and unjust enrichment. The lawsuit seeks class certification on behalf of other aggrieved Google advertisers. "We believe it's a problem that affects all [Google's] advertisers equally," Schubert Jonckheer partner Kimberly Kralowec told Information Week.

If Kralowec's name sounds familiar, it may be because she is the longtime author of two legal blogs, The UCL Practitioner, a blog about unfair competition law and class actions in California, and The Appellate Practitioner, a blog about appellate practice in California and the 9th U.S. Circuit Court of Appeals.

July 16, 2008 | Permalink | Comments (4)

The U.K. Firm Gamers Love to Hate

London firm Davenport Lyons is the talk of some corners of the blogosphere this week, although the talk is not kind. The firm announced that it would be taking 100 British gamers to court for allegedly uploading the game Dream Pinball 3D to file-sharing sites. BBC's Newsbeat reports that it is the biggest drive yet against gamers who use peer-to-peer networks such as BitTorrent and Limewire, and that the lawsuits are only the first wave of thousands more to be filed by the end of the year.

While these are the first legal actions filed by the firm against alleged file-sharers, it has been sending out letters to gamers demanding payments in excess of £600. The letters said the firm's client was "prepared to give you the opportunity to avoid legal action" provided it received compensation of £600 plus £8.18 to cover costs. In announcing this week's lawsuits, Davenport Lyons partner David Gore, the lawyer in charge of the cases, told the BBC, "There is no difference between stealing a DVD from a high street retailer and downloading it from a peer-to-peer network. We hope that it will act as a deterrent. There is a hard core of file sharers who are just interested in getting something for nothing."

Criticism of the actions stems in part from the firm's reliance on tracking technology developed by a Swiss company, Logistep, that is used to record the individual IP addresses of computers used in file transfers. At the blog Techdirt, Mike Masnick calls the evidence collected using Logistep's technology "flimsy."

Davenport Lyons relies on the increasingly questionable evidence provided by the firm Logistep, whose evidence is so shaky that the company has been found to have broken the law in both Italy and Switzerland. And, oh yeah, another lawyer who relied on questionable Logistep evidence has been banned from practicing law in France for six months, after the Paris Bar realized that this questionable 'evidence' was being used more for extortion-like 'pre-settlement' letters that demand money to avoid getting taken to court.

The firm continues to pursue these cases, Masnick contends, because they are so lucrative. And that means it will be bringing many more such cases -- thanks in part to a recent High Court decision that the firm says will force ISPs to hand over thousands of names and addresses of suspected file sharers.

July 16, 2008 | Permalink | Comments (0)

Goodwin Focuses on Non-Lawyer Training

The law firm of Goodwin Procter is stepping up its training and development of non-lawyer professional staff. The firm announced yesterday its appointment of Jamie L. Krulewitz to the newly created position of director of professional development and training for professional staff. The position is unique among law firms, Goodwin says, in that it is the first director-level position at a law firm focused exclusively on the development of non-legal staff. In explaining why the firm created this position, the announcement said:

The firm has grown rapidly, opening five offices in California since 2006, and a critical step in this nationwide expansion has been optimizing its organizational structure. As part of this key initiative, Krulewitz will devise and implement a cutting-edge program focused on the development, engagement and elevation of all levels of professional staff at Goodwin Procter.

Krulewitz will work out of the firm's New York office, where she formerly served as senior human resources manager. Before joining the firm in 2004, she was vice president of a legal staffing and recruiting company.

July 16, 2008 | Permalink | Comments (0)

Dishonorable Achievement: Disbarred for Life

John D. Duncan achieved a dubious milestone this week, becoming the first lawyer ever in Maine to be disbarred for life. The former partner in the Portland-based firm Verrill Dana admitted to stealing $300,000 from clients from 1997 to 2007. His disbarment is the most severe sanction ever imposed on a Maine lawyer, the Portland Press Herald reports. In ordering the disbarment, Maine Supreme Judicial Court Associate Justice Warren M. Silver described the charges against Duncan:

For a significant period of his practice, Duncan had been a leader of Verrill Dana's Private Clients Group, where he primarily handled estate planning and estate administration matters. Starting in September 1997 and continuing through January 2007, Duncan deposited checks for the payment of legal and other services totaling at least $109,000 into his personal bank account, and did not transfer the proceeds to the firm as he should have. Duncan also agrees that a client, JT, had appointed him to act under a durable power of attorney. As part of his duties, Duncan issued or authorized checks from that client's bank account for payment of legal fees. On occasion, he detailed in the client's check register the amount of the check and the firm's name as the payee, but Duncan wrote his name on the check as the payee. Duncan then deposited the check into an account he controlled.

Given the size of the theft and its continuation over a period of 10 years, Silver wrote, he was clear in his conclusion "that Duncan should not ever be eligible to apply for reinstatement to the Bar."

While this is the end of the disciplinary process for Duncan, his former firm continues to be under investigation for its handling of the matter. Complaints filed by Duncan's former secretary against former managing partner David Warren and the members of the firm's executive board remain pending with the Board of Bar Overseers, the Press Herald says. They could face discipline for not immediately reporting Duncan's misconduct.

[Hat tip to Al Nye The Lawyer Guy.]

July 16, 2008 | Permalink | Comments (0)

From the Law.com Newswire

Law.com Blog Network

Blogroll

July 31, 2008

July 30, 2008

July 29, 2008

July 28, 2008

July 25, 2008

July 24, 2008

July 23, 2008

July 22, 2008

July 21, 2008

July 18, 2008

July 17, 2008

July 16, 2008

Categories

Archive