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October 31, 2008

Supreme Court Stalemate Resolved

The case of Carcieri v. Kempthorne, which involves a dispute between the Narrangansett Tribe and the state over land in the town of Charlestown, R.I., is scheduled for argument before the Supreme Court in three days.  Yet until earlier today, the question of which lawyer would argue for the petitioners remained the subject of dispute.  [Source: SCOTUS Blog].  The state of Rhode Island wanted former solicitor general Theodore Olson to handle the case, while the town wanted to rely on its attorney, Joseph Larisa, who'd shepherded the case through the lower court.   The Court refused to grant time to both attorneys, leaving them no choice but to resolve the impasse amongst themselves.  This morning, reports the Blog of the Legal Times, the Court upped the ante, with court clerk William Suter calling Olsen and Larisa and ordering them to choose one lawyer within an hour or forfeit argument time entirely.  Ultimately, Larisa capitulated; Olson will argue, with Larisa sitting at the counsel table.

Olson has argued 49 cases before the Supreme Court, while this would have been Larisa's first time. Personally, I think that Olson should have stepped aside and given Larissa a chance at the podium.  If Olson's clients objected, Olson could have assured them that he'd work to prep Larisa for big day.  Ultimately, this story, which has gotten lots of coverage in the blogosphere as an example of lawyers behaving like children, could have been about sportsmanship and collegiality. 

October 31, 2008 | Permalink | Comments (2)

Would You Pay for Social Networking Apps?

Just as social networking applications like Twitter, Facebook and LinkedIn are gaining traction and respectability within the legal community, there's a new question worth considering: Would you pay to use these applications? In this piece in Slate, "A Radical Business Plan for Facebook," Farhard Manjoo suggests that social networking companies like Facebook and Twitter begin charging for admission.

Manjoo opens his piece by describing the suffering in Silicon Valley -- the layoffs and cost-cutting measures and evaporation of free flowing venture capital. Though many more established companies are weathering the storms, start-ups, long reliant on a diet of venture funding or IPOs, are struggling most. Manjoo suggests that now is the time for these companies to cut the purse strings and come up with ways to fund themselves instead of relying on wealthy benefactors. The most obvious solution: Charge users. 

So here's the question for you: Would you pay to use Twitter or to maintain a Facebook account? And if so, how much?

October 31, 2008 | Permalink | Comments (2)

Lawyer's Blazing Anger Gets Him Disbarred

Let's just say that Samuel Pontier, former lawyer and O'Hara, Pa., councilman is hot-tempered.  What else could explain his decision to burn down his family's home out of frustration that his estranged wife kept an untidy household?  Last February, Pontier pleaded guilty to charges of aggravated assault and arson and was sentenced to five to ten years in prison.  Not surprisingly, Pontier's legal career is now up in smoke.  Pontier resigned from the bar following his sentence, and yesterday, the disciplinary board ordered him disbarred.

[Source: Pittsburgh Gazette.]

October 31, 2008 | Permalink | Comments (0)

Are Lawyers More Prone to Cheating?

Are lawyers more prone to cheating than other professionals?  Maybe so, at least if there's any truth a recent report on cheating that appeared in a Cambridge (U.K.) student newspaper. According to the report, nearly half of the undergraduates surveyed admitted to cheating, with law students topping the list. Nearly two-thirds of law students said that they'd engaged in activities such as plagiarism.

So what's up with law students? Is it the training to rely on precedent -- which encourages us to cut and paste quotes and holding from other cases -- that makes law students more prone to plagiarism? Are law students under more stress, and therefore, more tempted to cut corners or cheat? Or does our profession just encourage dishonest actors? Post your views below.

October 31, 2008 | Permalink | Comments (6)

October 30, 2008

Obama Unrated on Lawyer Rating Site

In just a few days, voters will be asked to decide whether to cast their ballots for or against the one lawyer running for president, Barack Obama. But at lawyer-rating site Avvo, the verdict remains out on Obama's score as a lawyer. Obama's Avvo profile shows him as unrated. According to the site, that means "we don't have sufficient information to calculate a rating or because a rating would not be useful." It also shows that Obama has yet to claim his profile, which would allow him to edit and add to it. Wife Michelle, also a lawyer, is likewise unrated on Avvo.

The Obamas' profiles show Barack's sole area of practice to be civil rights and Michelle to be devoted exclusively to intellectual property. According to their profiles, both Barack and Michelle are inactive members of the Illinois bar and neither has been the subject of discipline. Among Barack's honors, according to Avvo, are honorary doctorates of law from five universities, while Michelle's include having been named one of the world's 10 best dressed people by Vanity Fair, one of The Harvard 100 by 02138 Magazine and one of the world's 25 most inspiring women by Essence Magazine.

Note to Obama's campaign staff: Get on this. Claim his profile today and by tomorrow he could be a 10. It could just help on Tuesday. Plus, if the election thing doesn't work out, he'll be all set to hang a shingle.

October 30, 2008 | Permalink | Comments (8)

Judge: 'Huge Imbalance' in RIAA Cases

At his blog Recording Industry vs. The People, Ray Beckerman, a lawyer who defends people sued by record companies for unlawful file sharing, has posted a fascinating transcript of a June 17, 2008, motion hearing in Boston before U.S. District Judge Nancy Gertner, who is presiding over a number of consolidated RIAA cases. Present at the hearing were several lawyers representing the music industry and a handful of pro se defendants, and Judge Gertner made no bones about pointing out the obvious imbalance:

I've said this before in open court. There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights.

Some category of individuals are defaulted because they read the summons, and they haven't the foggiest idea what it means and don't know where to go, so they're defaulted, and they owe money anywhere from $3,000 to $10,000 as a result of these defaults. Sometimes they answer and get counsel, and because the law is so overwhelmingly on the side of the record companies, there's a negotiated settlement which is slightly lower than the settlement the people that are unrepresented have been getting. In other words, with a lawyer, you can get some kind of leverage, but it is a delaying game in some sense.

The transcript also offers a picture into Judge Gertner's efforts to help the unrepresented defendants obtain counsel to represent them:

THE COURT: Mr. Tenenbaum, did anyone get in touch with you? I sent numbers of lawyers your way.
THE COURT: So you have filed a motion to amend your answer to raise a whole host of constitutional issues. I will allow you to amend your answer. I still want to find you a lawyer, I'm not giving up. Did you get a call from an individual named Charlie Nesson or someone from the Berkman Center?
MR. TENENBAUM: No, your Honor.

As for Beckerman, he praises Judge Gertner for recognizing the imbalance in these cases, but takes issue with her assertion that the law is overwhelmingly on the record companies' side. "How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side," he asks, "when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves?"

October 30, 2008 | Permalink | Comments (0)

The Hottest Law Profs

No, this post is not about physical hotness or even about a calendar, but rather about blogosphere buzz. Paul L. Caron at TaxProf Blog has updated his rankings of the hottest law professors in terms of traffic to their blogs. Not surprisingly, the most sizzling among them remains InstaPundit, the more-political-than-legal blog of University of Tennessee law professor Glenn H. Reynolds. He burns the competition with a staggering 90 million unique visitors and 95 million page views from Oct. 1, 2007, to Sept. 30, 2008.

From InstaPundit's 90 million visitors, it's a big drop to the next two in line, Hugh Hewitt and The Volokh Conspiracy, which are relatively close with 13 million and 10 million visitors respectively. Hewitt is a professor at Chapman University Law School while Eugene Volokh teaches at UCLA School of Law and shares the blog he founded with a number  of co-contributors. From those second- and third-place profs, the remaining top 10 in numbers of visitors line up this way:

Caron ranks only blogs with publicly available site meters. That means, he notes, that other law professors with popular blogs could qualify for this list but are not included because of the lack of data. Notably, the blogs on this list showed an 8.8 percent growth in visitors since June 30, when Caron last compiled the numbers.

October 30, 2008 | Permalink | Comments (0)

It's Official: Blawging Now Mainstream

Given the popularity and influence of blogging, I continue to be surprised by the number of luddites lawyers who continue to debate whether it will catch on among the mainstream of the profession. Well, it doesn't get much more mainstream than this: H. Thomas Wells Jr., the president of the American Bar Association, that bastion of traditional lawyerdom, has launched a blog.

Call it On the Road, minus the jazz and attitude of Kerouac's classic. The new ABA President's Blog describes Wells' jaunts around the country and around the world as leader of the world's largest voluntary professional membership organization. Although the blog was announced publicly just yesterday, Wells, who took office as president in August, started keeping the log of his travels during his year as president-elect, recounting each trip in perhaps more detail than we really need. Thus, one entry relates:

After leaving Annapolis and the Southern Conference of Bar Presidents, I flew out of BWI for Chicago Midway, again on Southwest to meet Tom Curtin, the New Jersey State Delegate, and Charles Weiss, a member of the Board of Governors from St. Louis (not the Notre Dame football coach of the same name), in Chicago. Tom was the one who had arranged the visit to the Notre Dame Law School, and had also arranged for us to attend the Notre Dame-Purdue football game on Saturday afternoon.

Friday night Tom, Charlie and I dined together at the restaurant at the Fairmont, where they were staying. I was at my usual haunt: the Westin River North, which is adjacent to the ABA headquarters building. They mapped out for me the plans for tomorrow, including meetings with the Dean, faculty and student leaders.

Saturday morning at 7 a.m. we headed out for South Bend. Once we arrived, the first stop was the book store, where Tom bought some Notre Dame logo wear for his grandchildren and me. Then we went over to the Morris Inn, a hotel on campus, for a brunch with Dean Patricia O'Hara, and Prof. Carter Sneed, a Birmingham native, who is on the faculty at the law school. Also joining us was Frank Julian, a former President of the Notre Dame Law Alumni, and his wife, Carol.

Still with us? According to the announcement, Wells, a partner and founding member at Maynard, Cooper & Gale in Birmingham, Ala., has been on the road 161 days since August 2007. He is writing the blog, he said in the announcement, as a way to "connect with our younger members, both lawyers and law students (and both of my children are young lawyers)." If you think all that travel would become tedious, this blog suggests you'd be right.

October 30, 2008 | Permalink | Comments (0)

Law Clerk Slain, Suspects Charged

Sad news from the U.S. Virgin Islands, where a young lawyer who had recently moved there was found dead yesterday, murdered in an apparent robbery. Gabriel Lerner, 27, was a graduate of Georgetown University Law School who moved to St. Thomas in January to work with a law firm there. He later became a law clerk to V.I. Superior Court Judge Brenda Hollar. He was sworn into the Virgin Islands Bar Association just last week. (Note: I am a member of the V.I. bar.)

He was last seen Saturday, just a day after his swearing in, driving away in his car after jogging with another clerk. When he failed to show up to work for two days or reply to text messages, Judge Hollar reported him missing Tuesday morning. That afternoon, police spotted two males driving his car. When police tried to pull them over, a five-hour chase ensued, involving federal and local law enforcement officers, K-9 teams and helicopters.

By the time police finally apprehended the pair and brought them into the Superior Court building, onlookers broke into applause, according to The Virgin Islands Daily News. Police continued to search for Lerner into Wednesday, when they finally located his body along a dirt path, according to The Chicago Tribune. The two suspects, 22 and 17, are being held without bail on charges of murder, robbery and kidnapping. Another report said that Lerner was on his way to a Bible event Sunday morning when he picked up the pair hitchhiking.

Lerner grew up near Milwaukee, Wis., and attended the University of Wisconsin-Madison before going to law school. His sister told The Chicago Tribune that his friends were all jealous of his move to St. Thomas. "He was offered a job down there ... and thought how can you pass up an opportunity to work down in paradise, instead of cold Wisconsin." The Tribune reports that on his Facebook profile, Lerner wrote, "I would like to be the most successful lawyer to play guitar for a ... hard rock band, and/or vice versa. I hope to accomplish this while becoming a leader in the Baha'i community too. Am I crazy? Oh yeah." Our condolences to all his family and friends.

October 30, 2008 | Permalink | Comments (1)

October 29, 2008

IM for Lawyers

As my colleague and fellow tweep Bob Ambrogi posted here yesterday, is gaining traction in legal circles. But what about Twitter's distant cousin, texting or instant messaging, with which it shares a "conciseness" gene? (Twitter limits posts to 140 characters, while IM messages work best when kept short.) In this post, as well as in this longer ABA Journal piece, law technology guru Dennis Kennedy offers some tips for how lawyers can use instant messaging effectively.

Kennedy suggests that texting can be used to determine whether someone is on or offline, and to get quick answers to questions without the bother of e-mail or a return phone call. Commenting on Kennedy's post, Ernie the Attorney suggest another use for texting: as a way to get in touch with someone who may have stepped out of a conference or a deposition and let them know that they need to return, ASAP.

As for texting tips, Kennedy offers six, including giving texting a trial run with family or friends, and avoiding acronyms or emoticons until you understand their meaning.

October 29, 2008 | Permalink | Comments (0)

How Blogs Can Hurt Employment Prospects

Though Web 2.0 tools like blogs or social networking Web sites can help lawyers build relationships or better position themselves for employment opportunities, there's also a downside to creating a public digital trail. Though by now, most of us realize the danger to reputation that can arise from uploading suggestive photos or writing expletive-filled blog posts, sometimes even relatively innocuous commentary can come back to haunt us. 

Consider this example from a post by Lynne Traverse at the Am Law Daily. A recruitment manager at a large firm, Traverse reveals that firms do indeed mine the Internet for background information on job applicants, including blog posts and Web pages. Traverse describes one incident in which the firm located a blog post authored by an applicant's spouse, listing the cities where the applicant hoped to find employment. Trouble was, the location of Traverse's firm didn't make the list. Harmless error, perhaps, but it also raised suspicion that the applicant wasn't really interested in the firm, just in getting a free trip during the callback process. Finally, lest you think that the firm acted intrusively in hunting down the applicant's spouse's blog, it didn't have to. Apparently, the applicant listed it on the résumé, making it fair game.

The bottom line: Just because you're not posting the photos of yourself partying at a frat house, you're not immune from the adverse consequences of a public profile. Remember, in an Internet Age, anything you write can -- and likely will -- be held against you.

(H/T ABA Journal.)

October 29, 2008 | Permalink | Comments (6)

October 28, 2008

Thelen and the Fragile Nature of the Midsize Law Firm

Over in San Francisco, it's déjà vu all over again.  Almost exactly one month after Golden Gate law firm Heller Erhman met its demise, neighboring Thelen likewise has announced its dissolution, reports The Recorder. According to the firm's press release, the dissolution decision was:

precipitated by several economic factors, including recessionary pressures and numerous partner departures over the past year, both of which have negatively impacted firm revenues.  For the past several months, Thelen management has aggressively sought a full firm merger. Unfortunately, the most promising merger opportunity was derailed by conflicts, and all other full firm merger discussions terminated last week.

My initial reaction to the Thelen news was one of amazement -- after all, how can an 84-year-old, 400-person firm with such a rich history vanish so quickly? But as San Francisco legal recruiter Stacy Miller Azcarate told the Wall Street Journal, "Thelen's fate illustrates just how fragile law firms are."

What also puzzles me about the dissolution is why Thelen focused so much on finding a merger partner to rescue it from its fate.   After all, given its economic woes, what made Thelen believe that another firm would take on that kind of liability? 

Are firms like Thelen -- and Heller Erhman before it -- anomalies?  Or will we see more collapses before this recessionary economic cycle concludes?  For more post mortems, see Above the Law and WSJ Law Blog.

October 28, 2008 | Permalink | Comments (0)

Work/Life Balance: Goodbye to All That?

Just a few months ago, Working Mother magazine was singing the praises of the "Best 50 Law Firms for Women," and highlighting groundbreaking programs like on-site childcare or part-time partnership tracks designed to help retain top female prospects. But given the current economic climate, is it time to say goodbye to all that? This story from the Miami Herald suggests that family-friendly initiatives like flex-time, part time and telecommuting may head to the back burner with the economy now in free-fall. That's because these days, for most employees -- lawyers included -- keeping a job takes priority over work/life balance. 

Supporters of work/life balance programs have always sold the economic benefits, arguing that it's cheaper for firms to retain the employees they've got than to invest in hiring new ones. But does that economic analysis hold water now?  Not from the news that I see. What about you?

October 28, 2008 | Permalink | Comments (3)

Lawyer Burns Ties to Harvard, Literally

We've seen lawyers' careers go up in smoke before, but never quite so literally. "Jack" is a Washington, D.C., lawyer who hopes someday to be to the legal profession what Siddhartha was to Buddhism -- one remembered for giving up a life of luxury to pursue the path of simplicity. Unlike Buddha, Jack has a blog, "Adventures in Voluntary Simplicity," where he anonymously chronicles his self-charted conversion from highly paid lawyer to pilgrim of simple happiness. It all started last June, when Jack took a vow: "stop living a life of excess, materialism, and unnecessary stress in order to gain something much more valuable: unencumbered, simple happiness." Out would go his job at a large law firm. Out would go his $300,000-plus annual salary. Out would go his newly renovated, four-level townhouse. Out would go his mix of expensive antique and modern furniture. At least that was the plan, yet to be executed.

But one vestige of his yet-to-be-past self nagged at him -- his Harvard Law School diploma. It stood, a symbolic barrier, between him and freedom. "Sometimes," he decided, "you just need to say goodbye to your past in order to move forward." So goodbye he said, in much the same way that a spurned spouse says goodbye to memories of a former lover. He set it on fire.

Not only did he incinerate his Harvard degree, but he captured the conflagration on video, describing it on his blog and posting it to YouTube. "In the end," he writes, "it was just a piece of paper. Nothing more. I would rather live my life on my own terms than be a person that needs a piece of paper to justify their own worth." I suspect a few folks in Harvard's alumni-development office will be hot under the collar when they see Jack's video. But one lesson every Harvard Law grad can learn from watching Jack's act of career-defiance is that these things are not all that easy to burn.

October 28, 2008 | Permalink | Comments (12)

The Legal Profession's All Atwitter

Among lawyers on Twitter (of which I am one), there was a chorus of excited tweeting yesterday about the Wall Street Journal article that declared, "Twitter Goes Mainstream." Their excitement was not merely over the article's conclusion that "Twitter is starting to cross into the mainstream," but even more over the article's inclusion of one of their own to make its case, Fredericksburg, Va., lawyer Andrew Flusche, known to those on Twitter as @aflusche. Here is the portion of the article that has these lawyers all atwitter:

Other users are flocking to Twitter as an easy self-publishing and promotional tool. People are using it to build up their professional reputation by sharing updates about their work in a less time-intensive way than starting a blog. Andrew Flusche, an attorney in Fredericksburg, Va., recently used Twitter to promote a webinar he was holding on trademark registration. The session got 15 attendees, compared with seven for a subsequent seminar he didn't promote on the service.

Mr. Flusche, 26, has also found the service handy for referring cases to experts in other areas, as well as keeping up with professional contacts he doesn't see often. "You get interesting glimpses of them," he says. "It's a different way to network with people and get to know them."

We wonder how all this sits with Brian McDonough, whose recent post at Legal Pad made quite clear that he is anything but a lovebird in his feelings towards Twitter. He described it as "the mutant stepchild of text messages and blogging," and called it "as silly for lawyers as for anyone else." Thus, while the mainstream media pronounces Twitter mainstream, McDonough seems to suggest that those who tweet are somewhat bird-brained.

October 28, 2008 | Permalink | Comments (3)

Court Documents Rife with Private Data

Publicly available federal court opinions and pleadings are brimming with private and personal information, including Social Security numbers, medical conditions and birth dates, concludes a preliminary audit conducted by Public.Resource.Org. Carl Malamud, the organization's president, describes the scope of the problem in an Oct. 24 letter to Judge Lee H. Rosenthal, chair of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. After examining opinions and other publicly accessible documents from 32 federal district courts, Malamud found 1,669 containing Social Security numbers and other personal information. His letter describes some of the "horror stories" he encountered:

  • In Massachusetts, a 54-page list filed in June 2008 contains the names, birth dates, Social Security numbers, and medical problems of 353 patients of a doctor.
  • In the District of Columbia, an attorney supported his claim against a school district for unpaid legal fees by listing  page after page of the names, home addresses, birth dates, and psychological issues for countless minors he saw.
  • In Alabama, lawyers routinely sign briefs with their Social Security numbers, and the court consistently exposes the Social Security numbers and birth dates of police officers, state employees, and even court administrators.
  • In Illinois, litigants involving pension funds representing labor unions frequently attach the unredacted list of all union members and their Social Security numbers.
  • In a huge number of IRS actions, unredacted tax returns are filed, including a large number where the redaction was performed incorrectly by simply placing a black box on top of the taxpayer ID, leaving the numbers untouched underneath the graphic.

I've written before about Malamud's work to put case law in the public domain (here, here and here). It was through that work that he became aware that some of the federal circuit cases he had published contained personal information such as Social Security and alien identification numbers. In a release covering 50 years of appellate decisions, he found 1,718 with personal identifiers. The worst offender was the 9th Circuit, with 990 such cases.

The discovery of this information in appellate cases led Malamud to undertake his review of District Court documents. You can follow the full paper trail from this link. As part of his analysis, Malamud plotted a "Privacy Problem Index" for the 32 courts, assigning them a numerical score and a letter grade. Among the courts with grades of D and F were Alaska, the Middle District of Alabama, the Central District of Illinois and the Southern District of Ohio. The one court given an "A+" for no privacy disclosures was the Southern District of Texas.

As an advocate of open government, I worry that reports such as this serve the side of secrecy. But Malamud's letter to Judge Rosenthal convincingly makes the case for even greater transparency. Although this information has been available to court staff and commercial publishers for several years, he notes, no one pointed out the privacy breaches until the material entered the public domain.

[P]ublic interest groups and the public in general, when given access to these public records, are able to provide the kind of feedback that leads to the correction of these privacy issues. As Justice Brandeis said, 'sunlight is said to be the best of disinfectants; electric light the most efficient policeman.' If we want to be serious about personal privacy, we can only do so if we are also serious about public access.

Malamud's letter to Judge Rosenthal promises to continue the review and offers to work with the federal courts to help redact personal information on a broader scale.

October 28, 2008 | Permalink | Comments (2)

The Great Judge Jacobs Pro Bono Dust-Up

Rarely do we see a row that directly implicates a federal circuit chief judge, a law school dean, legal journalists and any number of legal bloggers. But such is the situation following the report by a small New York legal newspaper that 2nd U.S. Circuit Chief Judge Dennis Jacobs, speaking at a Federalist Society event in Rochester, N.Y., described pro bono work as "antisocial" and "self-serving." The report evoked criticism of the judge from some prominent lawyers, doubt from others and denial by Judge Jacobs himself, all leading to the question, What did he really say? Now, we have the answer.

We were among the first wave of blogs to pick up on the story, which was reported in the legal newspaper The Daily Record and then republished on the American Constitution Society Blog. As The Daily Record reported it, Judge Jacobs said in his speech that "pro bono work is an 'antisocial' and self-serving activity lawyers use to develop their skills, firms use to recruit and 'give solace' to associates, and nonprofits use to further a political agenda." Following the report, an outraged Erwin Chemerinsky, dean of the new UC Irvine School of Law, wrote in The National Law Journal that Judge Jacobs "should be ashamed of himself."

Chemerinsky's op-ed prompted Judge Jacobs, through a spokesman, to send a message to the Wall Street Journal's Law Blog  in which he said that the newspaper's report of his speech "grossly misstates what I said and think" and that "I support, endorse and solicit pro bono work, and my talk said just that." Jacobs' denial prompted Walter Olson at to write that he "knew from the very first reports that there was something very 'off' about the story as it was being retailed," and Mark Obbie at LawBeat to believe that "partisan critics" had pounced on the judge "without thinking skeptically enough about what might actually have been said."

No longer need we speculate about what the judge said or did not say, because The Federalist Society has posted the full transcript of his speech. Unfortunately, even the transcript has failed to settle this dust-up. Obbie, in a follow-up post he titles "Anatomy of a Smear," reads the transcript as proof that the initial news report "wildly misinterpreted" Jacobs' remarks. But Chemerinsky stands by his op-ed, telling the Law Blog, "Having read Judge Jacobs' speech, I believe that the newspaper reports about it were accurate."

As I read the speech, the newspaper's report falls somewhere in the middle ground between right on and way off. The fact is, Jacobs did say what the newspaper said he said:

My point, in a nutshell, is that much of what we call legal work for the public interest is essentially selfserving: Lawyers use public interest litigation to promote their own agendas, social and political -- and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting -- to confer glamor on their work, and to give solace to overworked law associates. And it has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit.

The problem is, that was not all he said. His comments were directed at a particular subcategory of what we call pro bono -- so-called public interest litigation -- not at all pro bono of any kind. Much of what the legal profession calls public interest litigation, he argued, "is purely political, and transcends the interest of the named plaintiffs, who are not clients in any ordinary sense." But he ed his speech with a vow to "encourage the kind of pro bono activity that is an aspect of traditional American volunteerism,open" and he concluded with these words:

To the extent that lawyers act as volunteers for the relief of those who require but cannot afford legal services, lawyers' work is beyond praise. I am grateful (and I think the public should be grateful) to lawyers who serve people and institutions that otherwise would be denied essential services and opportunities. I think of wills for the sick, corporate work for non-profit schools and hospitals, and the representation of pro se litigants whose claims have likely merit."

Obbie at Law Blog suggests that perhaps the reporter who covered Jacobs' speech "simply didn't grasp the nuance and depth of the judge's brainy, contrarian comments about the nature of big-time pro bono."The judge himself, in the speech, described his comments as "provocative." The speech was all of these: nuanced, contrarian and provocative. What it was not, we can now confirm, was a sweeping dismissal of all pro bono.

October 28, 2008 | Permalink | Comments (1)

October 27, 2008

Lawyers Fall Short in Protecting Client Confidences in a Mobile Age

Lawyers have an ethical obligation to safeguard client confidences, yet most are falling short when it comes to protecting clients' privileged information in a this on-the-go age. The results of a recent survey of U.K. law firms by Credant Technology show that 24 percent of U.K. firms admit to misplacing at least one mobile device containing confidential information. Yet at least two-thirds of the lawyers surveyed continue to use mobile devices -- such as BlackBerrys, laptop computers and USB memory sticks -- to store confidential information.

According to the survey, most lawyers do protect their mobile devices with a password. However, according to Robert Schifreen, an IT security consultant (and former hacker) quoted in this press release:

Passwords are just inadequate if you have confidential sensitive information residing on a mobile device. You can download cracking software from google that can break the average password in less than 30 minutes. These findings show just how naïve the legal profession is when it comes to data security and I suspect other professions are just as bad, if not worse! The only answer is, if you store sensitive data, you must encrypt it.

So what can lawyers do to protect confidential client data?  Credant offers these tips:

-- Encrypt the data on every device you carry if it's sensitive.

-- Get a solution which can detect devices trying to connect to the enterprise and sync up with corporate data.

-- Make sure the encryption solution is transparent to end-users and doesn't interfere with any of your operational activities.

-- IT departments should never leave data security up to the end user.

October 27, 2008 | Permalink | Comments (1)

The Deterioration of Legal Writing

Legal writing -- along with other genres of business and professional-related writing -- is deteriorating, contends this story from Financial Week. But is the erosion of quality explained by the proliferation of tools like e-mail, texting and Twitter, which encourage stream-of-consciousness ramblings and careless phrasing, as the Financial Week article suggests? Or is it, as Scott Greenfield argues at Simple Justice, that law schools themselves don't recognize the value of legal writing?

The Financial Week story highlights the need for strong, sound and precise writing skills in today's business world. From drafting change orders to communicating clearly by e-mail to dealing with participants in a global economy for whom English is not a native tongue, writing skills are more important than ever. Nonetheless,

U.S. employees appear to be falling short when it comes to writing skills. In 2006, 81% of corporate leaders rated the writing of high school graduates as deficient and nearly 28% gave similarly low marks to four-year college graduates, according to survey data compiled by a consortium that included the Conference Board and the Society for Human Resource Management.

Lawyers aren't immune from this criticism. In fact, Steve Gluckman, senior director of professional development at Manatt, Phillips & Phelps, decided to hire an outside writing coach after fielding complaints from partners about younger associates' writing abilities. The firm discovered that the poor writing was draining revenues, since partners found that they needed to devote significant amounts of non-billable time to edit associate work product.

When it comes to lawyers, the problems with legal writing may result from lack of sound teaching rather than poor habits developed through e-mail and texting. While professors like Jim Chen emphasize that legal writing matters, some law schools -- like University of Pennsylvania -- give their legal writing program short shrift by hiring third-year students to teach it.

While I believe that both factors -- the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is  the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality.  At the end of the day, with so many resources available, legal analysis is suffering, and as a result, so too is the quality of legal writing, which relies on the quality of the underlying analysis for its impact and effectiveness. 

October 27, 2008 | Permalink | Comments (2)

U.S. Lawyer Population Dwarfs China's

When it comes to national population, China, with its 1.25 billion residents easily beats the United States, whose population of 305,512,549 is one-third the size.  But if you count lawyers, there's hardly a contest: The United States outranks China 7-to-1, with roughly 1 million lawyers to China's 140,000

Even though the Chinese government has signaled that tainted-milk lawsuits are off limits, Chinese lawyers are keeping busy.  From this recent news story:

Lawyers in China have handled a total of nearly 1.2 million criminal cases, 3.24 million civil and commercial cases, nearly 170,000 administrative proceedings and approximately 2.45 million non-litigation cases in the last three years, said Yu Ning, president of All China Lawyers Association.

With U.S. law firms downsizing, it's unfortunate that it's not easier for lawyers here to relocate to China, where a demand for lawyers remains. (Of course, language barriers and stringent bar requirements complicate that kind of career path.)  Still, if you're interested in learning more about finding a legal position in China, check out this post (it's about a year old, but the advice remains sound) and related links from China Law Blog.

October 27, 2008 | Permalink | Comments (2)

Blawg Review #183

Kimberly Kralowec's UCL Practitioner Blog is billed as "the first and only weblog on California's Unfair Competition Law (UCL) and California class actions. So it's not surprising that in hosting  Blawg Review #183, Kralowec opted for another first:  a California-themed Blawg Review, in honor of Kralowec's home state.

Good thing for Kralowec that California is so densely populated when it comes to homegrown blogs. Blawg Review #183 is jam packed with links to plenty of must-visit California blog sites. Interesting destinations this week include Cathy Gellis' post on Law Crossing, a legal search firm and job board that earned an "F" from the Better Business Bureau, and the Legal Pad which plays host to a stimulating conversation over the merits of Twitter for lawyers.

October 27, 2008 | Permalink | Comments (0)

October 24, 2008

Judge Halverston's Husband Found Guilty in Frying Pan Attack

The tragicomedy that is Las Vegas Judge Elizabeth Halverston's recent life closed one act today when her husband pleaded guilty to "one count of battery with a deadly weapon with substantial bodily harm after attacking his wife with a frying pan," according to the Las Vegas Sun. Edward Halverson avoided a charge of attempted murder for the attack, which left his wife in the hospital for two weeks with severe injuries.

Above the Law has followed Judge Halverston's travails for some time, even publicly offering her a regular column on the legal gossip blog. Accusations by judicial aids that she ordered them to give her foot massages and back rubs, and often fell asleep on the bench were more than enough to earn ATL's infatuation. What started as a passing interest in her plus-sized, er, personality, grew into a fascination with her battle to keep her judgeship and finally into an appreciation for her advocacy and a genuine concern for her well-being after the vicious attack by her husband. You can catch up on all the sordid details of L'Affaire Halverston here.

October 24, 2008 | Permalink | Comments (0)

Lawyer Calendar Prompts Savage Love

Over the past few months, blogger Bob Ambrogi has written a couple of posts -- both here and on his own blog -- about the "Beautiful Lawyers" calendar featuring Massachusetts attorneys put together by a Boston law firm to help benefit Greater Boston Legal Services . The 2009 calendar is out now, and while the photos of both male and female lawyers are far from scandalous -- all are fully-clothed, shown doing benign things like cooking or lifting weights -- a story about it in Thursday's Boston Globe has prompted a steady stream of Internet traffic here and on other legal blogs. Inquiring minds are Googling in droves to find out more about one beautiful lawyer in particular: Wendy Savage, in-house counsel for Liberty Mutual in Boston. We've noticed the phenomenon here at Legal Blog Watch, and so has legal blogger David Giacalone, who took time out from writing an important piece on legal ethics to dig deeper into the Savage phenomenon. See the results of his intrepid research at f/k/a...

October 24, 2008 | Permalink | Comments (0)

Excuse Me While I Sue This Guy

Two years ago I went to a live auction of intellectual property at a swank former bank in lower Manhattan. It was the second such event organized by Ocean Tomo (the company is holding its eighth auction next week in its hometown, Chicago), and the lots ranged from the patent for a screwdriver with a retractable pencil tip to a video-on-demand patent, all offered up by a saucy British barker best known for his appearances on "Antiques Roadshow." But the night's big draw was the chance to buy the copyrights to the entire Jimi Hendrix music catalog -- they went to an anonymous phone bidder for $15 million.

There was plenty of controversy around the sale -- litigation over who really owns the rights to the music threatened to halt the auction up until the last minute -- but I met one man in the audience who had a unique take on the glitzy event. He was a representative of Seattle businessman Craig Dieffenbach, who claims to own the rights not to Jimi's music, but his image and likeness. Craig's man at the auction said he could care less about the music rights; nobody makes real money from selling music these days anyway. Instead Craig had used the Hendrix rights to create Hendrix Electric Vodka at the height of the premium vodka craze, selling purple bottles with Jimi's face on it for $33 a pop. He had plans to open Hendrix bars in Las Vegas and California. "People love Jimi's spirit," he told me -- no pun intended on his part.

Then, as now, a big part of the Hendrix Electric Vodka marketing revolved around proving its legitimacy in the eyes of the extended Hendrix family -- the vodka's Web site lists 18 Hendrix relatives who have shares in his company. But Craig failed to get permission from the one family member who mattered most, Janie Hendrix, Jimi's sister. This week she gained a permanent injunction against the use of Hendrix trademarks for the vodka. Janie also has a multimillion-dollar claim against Dieffenbach set for trial in February. Meanwhile, premium vodka makers these days are trying out a different kind of dead celebrity to promote their new bottles.

October 24, 2008 | Permalink | Comments (0)

October 23, 2008

Resources and Tips for Attorney Transitions

Few attorneys keep one job for life, instead transitioning throughout their careers as their interests and life circumstances demand. This week, I found two resources to help lawyers in transition. The first is, a job site for lawyers who are tired of traditional law practice (H/T JD Bliss.)  Right now, the board has 312 positions listed, which surprised me a little, since I assumed that lawyers seeking to change fields would need to ferret out jobs through personal networking.

The next resource is an article by Christy Burke, entitled "Strategies for Transitioning Female Attorneys." Burke offers a bunch of options for female lawyers seeking a new career path including the solo option (she even interviewed me for that one!), moving in-house, transitioning to a job in e-discovery or even leaving the practice of law entirely. Burke also includes a number of practical tips on how female lawyers can make their preferred transition.

October 23, 2008 | Permalink | Comments (1)

Presidential Campaign Roundup

PresbadgeWith around two weeks to go until Election Day, this will be one of our last presidential campaign roundups. And with so little time, there's more news than ever:

The Elections and Employment Issues -- At Point of Law, Walter Olson highlights posts from two bloggers who discuss the impact of the elections on employment law. Meanwhile, employment lawyers are also fielding calls about election-related issues in the workplace, such as how to deal with employees who engage in disruptive political debates or seek to wear attire emblazoned with a political message.

Employment in the Administration -- This week brings two stories about likely post-election appointments. USA Today focuses on the candidates' possible judicial nominees, while the ABA Journal examines how the candidates might staff the legal positions within their administration.

Election Day Employment for Lawyers -- Election Day, and possibly the days thereafter will bring employment (some of it pro bono) for the armies of lawyers who'll be involved in monitoring the polls or representing one candidate or another in post-election challenges (Bloomberg).

Was Money Spent on Palin's Wardrobe Legal? -- Lots of news stories like this one over whether the $150,000 spent on Vice Presidential candidate Sarah Palin's wardrobe was legal. Apparently yes, as some loophole permits the Republican National Committee to make the purchases, even though the McCain-Palin team could not.

Obama Winning Over Lawyers -- Obama is winning over lawyers, or at least their campaign contributions, by a 3-1 margin over McCain, reports  the New York Law Journal.

October 23, 2008 | Permalink | Comments (0)

Lehman Bankruptcy Means Record Fees for Lawyers

OK, forget what I said  earlier this week about the demise of the billable hour. The billable hour system hasn't gone bankrupt yet. Indeed, if this Bloomberg story is any indication, the billable hour system is thriving in the Lehman Brothers bankruptcy.

According to Bloomberg, fees for lawyers, accountants and other professional working on the Lehman bankruptcy case could reach $1.4 billion. Lehman has already asked for court approval of fees for its Weil, Gotshal & Manges attorneys at rates that range from $650 to $950 an hour for partners and $355 to $595 for associates. It's estimated that Weil will take home about $209 million all told, topping the $149.4 million the firm earned for its work on the Enron bankruptcy.

October 23, 2008 | Permalink | Comments (0)

Wacky Defenses to Tax Evasion

For Charles J. O'Byrne, New York Gov. David Paterson's top aide, filing taxes was a taxing task. So much so, that year after year, O'Byrne failed to file, eventually running up a tax debt of $300,000 which he has since paid. According to the New York Times, O'Byrne's lawyer claims his tax evasion did not result from malice or even laziness: He was apparently afflicted with "late filing syndrome," a condition that made it difficult for him to fill out his tax returns in a timely manner.

From the article:

Late-filing syndrome, sometimes known as nonfiling syndrome or failure-to-file syndrome, is not listed in the Diagnostic and Statistical Manual of Mental Disorders. A spokeswoman for the American Psychiatric Association said that the group does not recognize it as a psychiatric condition.

But legal experts said that it is not uncommon for tax evaders to claim they suffer from such a syndrome, because it can shield them from criminal penalties.

Meanwhile, Orange County, Calif.'s Harpreet Singh Brar came up with an even better defense to charges of failure to file tax returns on behalf of himself and his professional corporation: ineffective assistance of counsel. Sounds promising, except when you consider that Brar is an attorney who represented himself at trial. On appeal, he's argued that he did not knowingly waive his right to counsel, and that he may have been under the influence of drugs and alcohol at the time of the waiver. Not surprisingly, the appeals court rejected Brar's argument. (Source: Metropolitan News-Enterprise.)

October 23, 2008 | Permalink | Comments (2)

October 22, 2008

Defense Lawyers Descend on New Orleans

If the courts seem a bit quieter this week, it is because trial lawyers from all over the United States are convening in New Orleans for the annual meeting of the Defense Research Institute, the organization that is to the civil-defense bar what the American Association for Justice is to the plaintiffs' bar. The meeting -- which begins today and runs through Sunday -- will feature such big-name guest speakers as former House Speaker Newt Gingrich, Newsweek commentator and The McLaughlin Group panelist Eleanor Clift and NPR correspondent and Fox News political analyst Juan Williams. Some 1,000 defense lawyers and corporate counsel are expected to attend.

I note that the conference agenda includes a panel, "Blogs, Browsers and Briefs -- Leveraging Technology to Research and Present Your Case," but I have had no luck finding anyone who is blogging, tweeting or otherwise issuing dispatches from the conference. If anyone is live-blogging DRI, let us know by adding a comment below.

I could not help but notice a peculiarly lawyer-like twist to the conference registration form. On Saturday morning, the DRI will sponsor a 5K "Fun-raiser" run and walk to benefit New Orleans-area charter schools. But this being a conference of defense lawyers, it should be no surprise that the conference brochure includes a full-page "Assumption of Risk and Waiver of Rights." Anyone wishing to join the "fun" by walking or running must first acknowledge and agree to the following:

[T]hat it may involve numerous risks and dangers including, but not limited to: acts of God; civil unrest; terrorism; use of roads, trails, hotels, vehicles, boats or other means of conveyance that are not operated nor maintained to customary and usual standards; high altitude; accident or illness without access to means of rapid evacuation or availability of medical supplies; the inadequacy of medical attention once provided; physical exertion for which I am not prepared; consumption of alcoholic beverages; or negligence (but not willful, fraudulent, or malicious conduct) on the part of DRI.

OK, civil unrest and terrorism? A long shot, but maybe. But high altitudes? In New Orleans? It goes on:

I fully understand, acknowledge and recognize that such risks and activity may be beyond the accepted safety and health standards of my life at home or work, yet they will contribute to my enjoyment and excitement and are a reason for my voluntary participation.

If I read this correctly, by signing this, you are affirming that the risks spelled out above -- acts of God, terrorism and all the rest -- will contribute to your enjoyment and excitement and are a reason you are joining the race. Either defense lawyers are an unusual lot or they are badly in need of a good editor.

October 22, 2008 | Permalink | Comments (2)

Update on the War Crimes Conference

It has been well over a month since an array of lawyers, academics and authors met in Andover, Mass., for the Justice Robert Jackson Conference on the Planning for Prosecution of High Level American War Criminals, but the group remains as committed as ever to seeking the prosecution of Bush Administration officials for war crimes. (See our prior posts on this here, here, here and here.) Just this week, the group issued a statement promising to demand the immediate impeachment of President Bush should he issue any last-minute pardons of himself or any of his subordinates. "The presidential pardon power must not be distorted to include the power to self-pardon the president, or to pardon any staff or contractors of the executive branch, including the vice president, for crimes authorized by the president," the statement said. The group has set up a Web site,, where it is soliciting signatures on a petition supporting its demand for immediate impeachment in the event of pardons.

Last week, the group named the members of the steering committee that will take up the task of pursuing these war crimes prosecutions, and it includes a number of lawyers and law professors. Not surprisingly, the principal organizer of the September conference, Lawrence Velvel, dean of Massachusetts School of Law at Andover, will chair the committee. Its other members are:

  • Benjamin Davis, associate professor at the University of Toledo College of Law and author of numerous articles on international law
  • Marjorie Cohn, president of the National Lawyers Guild and professor at Thomas Jefferson School of Law in San Diego
  • Christopher H. Pyle, professor at Mount Holyoke College and author of many books and articles
  • Elaine Scarry, the Walter M. Cabot Professor of Aesthetics and the General Theory of Value at Harvard University and winner of the Truman Capote Award for Literary Criticism
  • Peter Weiss, vice president of the Center For Constitutional Rights in New York
  • David Swanson, author, activist and co-founder of, of Charlottesville, Va.
  • Kristina Borjesson, an award-winning print and broadcast journalist and editor of two recent books on the media
  • Colleen Costello, staff attorney with Human Rights USA in Washington, D.C., where she coordinates its work involving torture by the American government
  • Valeria A. Gheorghiu, attorney for the Workers' Rights Law Center in Kingston, N.Y.
  • Andy Worthington, a British historian and journalist and author of books dealing with human rights violations

Earlier, Velvel had called for "appropriate punishments" for administration officials found guilty of war crimes, including "the hangings visited upon top German and Japanese war-criminals in the 1940s."

October 22, 2008 | Permalink | Comments (3)

How Not to Get Admitted to the Bar

From an opinion of the Supreme Judicial Court of Massachusetts this week comes a brief lesson in how to be sure you are turned down when applying for admission to the bar.

First, start by verifying that you are properly enrolled in law school and close to completing your third year of study.

Second, just before submitting your application for admission to the bar, engage in outrageous conduct, preferably directed at a current member of the bar or family member of a current member of the bar. It is best if the conduct includes threats and harassment involving abuse of legal process. Sending angry e-mails also helps.

Third, when bar officials interview you about your conduct, say you do not remember, but go ahead and acknowledge that you did "rant and rave."

Fourth, should the bar decide to conduct a hearing on your fitness to become a lawyer, try to call character witnesses who have nothing helpful to say about you.

Finally, when the initial decision is made to reject your application, file an appeal to the state's highest court and attempt to convince it that its authority over your case is preempted by federal law.

That's it. Those are the simple steps that could get you, too, rejected for admission. As the SJC said in its decision this week, Desy v. Board of Bar Examiners, such conduct "strongly suggests dishonesty, poor judgment, and a willingness to misuse the judicial process."

October 22, 2008 | Permalink | Comments (3)

Who Benefits From Work/Life Balance?

Lawyers love to discuss work/life balance -- that often-elusive pursuit of simultaneous personal and career satisfaction. Law schools stage workshops about it, law firms hype it in their recruitment materials, and lawyers write loads of articles and blog posts about it. But the conversation always seems to be all about us. As Steve Imparl observes at the JD Bliss blog, "[N]early everything I've read (and written) on the topic emphasizes the benefits of work-life balance for attorneys." Let's forget about ourselves, for a moment. What, Imparl wonders, does a more balanced life for the lawyer mean for the lawyer's client? He poses two questions:

  • Will living a more balanced life allow me to do better work for my clients?  If so, what are some of the potential benefits for clients?
  • If I don't live a reasonably balanced life, could my lack of balance harm my clients?  If so, how could clients be harmed?  What could I do to prevent such harm?

Imparl writes that he does not presume to have the answers, although he intends to pursue an inquiry into what he calls "a client-centered rationale for work-life balance." Yet it seems to me that simply in phrasing these questions, he has suggested the answers. With balance comes a more fulfilling personal life, more regular exercise and a broader range of activities and interests. With those come an improved outlook, new ideas and greater creativity. Can there be any doubt that work/life balance benefits not only the lawyer, but everyone with whom the lawyer is involved -- firm, family, friends and clients? My answer to Imparl's questions is "yes" to both: balance benefits clients and its absence hurts them. In other words, work/life balance is an all-around win-win-win-win.

October 22, 2008 | Permalink | Comments (2)

October 21, 2008

Blawg Review #182

This week, David Gulbransen of Preaching to the Perverted perverts Blawg Review #182 into a full-fledged multiple choice Bar Review exam, that you can fill out online.  So what's the reason for this exam-themed edition?  Well, Gulbransen's celebrating a big event: He passed the Illinois Bar.  Congratulations David on the good news, and a great Blawg Review.

October 21, 2008 | Permalink | Comments (0)

Economic Downturn Roundup for Law Firms

Here's a roundup of recent news stories on the impact of the economic downturn on law firms:

End of the billable hour? Could the billable hour become the next victim of the economic downturn? After all, cash-strapped clients are no longer as willing to write a blank check for $1000/hour billable rates. There's some discussion of this issue over at Above the Law and also at my home blog, MyShingle.

Downsizing minority recruitment programs? Via the ABA Journal, a dozen law firm managers interviewed by the Legal Times (registration required) say that they do not plan to invest more money in minority recruitment and may in fact downsize some programs. As law firms are cutting back on associate hiring generally, vigorous recruitment efforts that drive minorities to associate programs are apparently no longer necessary.

Will law firms suffer from the credit crunch? Though firms now have enough money on hand to pay bills, exercising prudence makes sense in tough times, advises law practice guru Ed Poll at Law Biz Blog. In particular, Poll advises lawyers to stay on top of their collections efforts to avoid cash flow problems.

What's the outlook for associates? Not surprisingly, the job market for new associates is grimmer than ever, reports the National Law Journal. According to the article, the number of legal jobs nationwide is steadily declining; jobs in the law sector shrank by 2,000 in September -- the fifth consecutive month of losses. The legal workforce of 1,165,100 was down by 1.15 percent from a year ago, when the industry employed 1,178,600 people.

So what are some other trends that we'll see moving forward? I foresee massive cuts to law firm pro bono programs. Susan Cartier Liebel anticipates that more lawyers will open their own practice to take advantage of opportunities that the downturn offers. Jordan Furlong predicts new focus on clients. What are your predictions?

October 21, 2008 | Permalink | Comments (0)

Lawyer Directories Might Not Work, but Networks Do

Last week, my colleague, Bob Ambrogi posted on Larry Bodine's criticism of lawyer directories as a waste of money at his Law Marketing Blog. Well, if directories don't work, what does? The results of a recent survey by law firm marketing consultants Alyn-Weiss & Associates offers some answers: search engine optimization (SEO) and legal networking.

According to the survey results, 59 percent of law firms used SEO over the past 24 months. More importantly, 20 percent of the firms surveyed said that they generated cases from their SEO efforts, compared to just 8 percent in 2005-2006.

The second trend the survey uncovered is the value of membership in a law firm network, which is an association of law firms that affiliate with each other on various cases (for examples, see here or here). In the survey, more than 80 percent of firms of more than 50 lawyers reported that they had received work from membership in a legal network. And the number of firms that joined networks jumped to 48 percent from 32 percent over the past two years.

October 21, 2008 | Permalink | Comments (3)

October 20, 2008

Highlighting Innovation Among Lawyers

Ron Friedmann at Strategic Legal Technology directs our attention to the annual Innovative Lawyers edition from London's Financial Times. This collection of articles highlights law firm innovation (no, it is not an oxymoron) in such areas as billing and fees, human resources, management, client services, IT and marketing. The array of innovation is surprisingly broad, but the lead article zeroes in on a single area of innovation -- legal process outsourcing.

But the trend that is having the most impact on the thinking of the partners at top law firms, according to the research for this report, is the impact of globalisation and its intersection with people and technology. In particular, the way in which legal work is resourced and the location in which it gets done is coming under greater scrutiny. Outsourcing to India was the theme of many top-ranked submissions both from company legal departments and private practice. Although business process outsourcing is a mature business, its sister, legal process outsourcing (LPO), is still an infant.

But LPO may have a huge growth spurt as top corporate clients in the US and Europe cut costs. For example, in the European general counsel section, both Deutsche Bank and BT cited their outsourcing and off-shoring initiatives to India as significant innovations. Cost pressures, always intense for general counsel, have intensified as the financial implications of e-discovery work, which involves scrutinising electronic paper trails and requires armies of associates, hit home.

In the marketing arena, another article in the FT report suggests that a law firm can fuel growth by showing itself to have a conscience. The piece points to Clifford Chance, which undertook an International Climate Change Survey with the objective of informing and influencing governments, regulators and business leaders. "The bigger law firms are following a path, which clients want us to go down, to have a moral conscience and contribute to the major issues of the day," Nigel Howorth, co-head of the firm's climate change group, told FT. "With this report, we are seeking to put something back into society. If we are involved in the debate, we can help shape it for the benefit of our clients."

For Friedmann, another finding that stood out was that firms are recognizing that non-legal talent can make valuable contributions to how a firm's business is run. A critic of what he sees as a caste system within law firms, he was glad to see the FT refer to "non-legal staff" rather than use the demeaning label "nonlawyer."

October 20, 2008 | Permalink | Comments (2)

Firm 'Pedals' Unique Practice: Trails-to-Dollars

Three lawyers in the St. Louis office of Lathrop & Gage are establishing themselves as national leaders in a unique niche: rails-to-trails compensation. In 2006, the team won the largest per-mile recovery ever when the federal government had to pay $8.2 million to 100 St. Louis property owners for converting two miles of unused railroad rights-of-way into a recreational biking and hiking trail. Currently, the firm has eight rails-to-trails cases pending in the U.S. Court of Federal Claims in Washington, D.C. It is the only law firm currently handling more than a single such case, according to the St. Louis Business Journal.

The three lawyers -- Mark Fernlund Hearne II, Meghan S. Largent and Lindsay S.C. Brinton -- are credited with having helped shape and clarify the law under the 1983 Rails-to-Trails Act, which allows the federal government to take abandoned railroad tracks and convert them into recreational trails. Determining just when these conversions constitute a taking of private property can be complicated, lawyers on all sides agree. But Hearne can boast victories in each of the three cases he has so far taken to conclusion. Not only that, but their work has drawn the attention of Congress, the Business Journal reports. The U.S. Senate held a hearing on the issue last April, at which one of Hearne's clients testified, and Missouri's congressional delegation has introduced companion Senate and House bills aimed at ensuring that property owners are compensated for land taken under the Rails-to-Trails Act.

While the work of these three lawyers is helping their clients win fair compensation, it sure isn't hurting their firm's bottom line. The minimum billing rate courts have set for this type of work is $800 an hour, and Hearne said that each case costs a minimum of $2 million in fees and costs just to go to trial. Now that's rail money!

October 20, 2008 | Permalink | Comments (0)

Weekend Roundup

October 20, 2008 | Permalink | Comments (0)

After 18 Years, ACLU Elects New President

Susanherman The American Civil Liberties Union elected a new president Saturday, choosing Brooklyn Law School professor Susan N. Herman to succeed Nadine Strossen, who resigned in May from the post she'd held since 1991. Herman, a professor of constitutional law, has served on the ACLU's National Board for two decades, on its Executive Committee for 16 years, and acted as the board's general counsel for the past 10 years.

Herman told Associated Press that her agenda includes reaching out to African-Americans and to religious communities where the group has sometimes been seen as an adversary. "There's a very widespread misimpression that the ACLU opposes religion," she said, even though the ACLU works to protect rights of religious expression. And she has been surprised to find that "there aren't more people in the African-American community that believe the ACLU is their organization."

Herman's faculty bio says that she has written a number of Supreme Court amicus briefs in the area of criminal procedure and constitutional law. She is the author of a 2006 book, The Right to a Speedy and Public Trial, and of sections for several books on criminal law and procedure, law and film, prisoners' rights and civil rights. Before joining Brooklyn's faculty, she was associate director of Prisoners' Legal Services in New York and pro so law clerk to the 2nd U.S. Circuit Court of Appeals.

At her blog Hunter of Justice, Georgetown law professor Nan Hunter praises Herman. "The ACLU chose well, and we can all celebrate that such an immensely important organization will be led by such an immensely principled and gracious woman," Hunter writes. She will be the organization's second female president, after Strossen.

October 20, 2008 | Permalink | Comments (0)

Harvard's Success Secret: Free Coffee

Harvard Law School is in the process of reinventing itself as a more vital, nimble educational institution. And its turnaround is due, at least in part, to free coffee. "As it turns out," explains Dean Elena Kagan, "you can buy more student happiness per dollar by giving people free coffee than anything else I've discovered."

Kagan laughed as she said that, because there is more to Harvard's turnaround than caffeine-pumped students. As Drake Bennett recounts in Sunday's Boston Globe, Harvard is shaking off its image as a factory funneling bright young minds into corporate law firms and as a place characterized by estranged students and fractious faculty.

Over the past five years, however, that has begun to shift dramatically. After an unprecedented hiring binge, Harvard has assembled what many legal scholars believe is the most formidable law faculty in the country, with preeminent experts in most major fields - many poached from other top schools. The percentage of accepted students who say "yes" to Harvard Law is at its highest in two decades. Surveys find students happier than at any point in recent memory, and by nearly all accounts, so is the faculty. Harvard is looking - surprisingly - nimble. And in some corners of the legal academy, there is a suggestion that it is at long last catching up to Yale.

As Brian Leiter puts it, "Harvard Law School was the sleeping giant of legal education and, you know, they woke up." The coffee was part of it, perhaps, but even greater credit goes to the person who served up the coffee, Dean Kagan. Bennett writes that Kagan "has galvanized the place with her ambition and adroit management style, knitting together the faculty, charming the students, and attracting top-flight talent to the school."

The most visible evidence of Harvard's turnaround is faculty hiring, Bennett says. Not only has its faculty grown in number, but also in balance, with the school bringing in a "new wave of young, high-profile public law scholars." Among them: Jack Goldsmith, John Manning, Adrian Vermeule, Noah Feldman, Yochai Benkler, Jody Freeman and, perhaps most notably, Cass Sunstein, whom Kagan called "the preeminent legal scholar of our time." (The article makes no mention of the recently snagged Jonathan Zittrain.)

The article frames Harvard's turnaround in terms of its rivalry with Yale to be the top-ranked law school. As Harvard's faculty has grown younger and more diverse in recent years, Yale's has "been graying in place," Bennett writes. Nearly half its professors are over age 60. How all this will play out in the rankings is anyone's guess, but one effect is clear: top schools are scrambling to hire the best and brightest, waging war against what Leiter describes as Harvard's "endless amounts of money." Perhaps these other schools should sweeten the pot with offers of free coffee?

October 20, 2008 | Permalink | Comments (3)

October 17, 2008

Law Firms Cut Costs, With ABA Dues and Fancy Restroom Supplies First to Go

Nickel and diming isn't something new to lawyers -- after all, many lawyers do it to clients, all the time.  But now, Elie Mystal is reporting at Above the Law that firms are taking their penny pinching in-house.  For example, K&L Gates will be introducing cheaper paper products in the restrooms, while Pillsbury has told its lawyers that it will only pay ABA dues for those lawyers who are actively involved in ABA committee work.

Though I'm not a fan of nickel-and-diming clients, cutting back on expenses is just such a no-brainer in tough times.  Law firms are so large that even little tweaks like lesser-quality paper towels or foregoing the several hundred dollars a year in bar dues for 75 percent of its lawyers can make an enormous difference to the bottom line (e.g., $400/year in dues x 700 lawyers = $280,000 in savings).   That's a lesson that tech giant Google just mastered.  According to this news story, Google's revenues and profits increased by 31 percent and 26 percent respectively over the third quarter, in large part due to cost-cutting measures, such as slowing recruitment and shortening the opening hours of the free cafeterias for workers.  (Full disclosure: My spouse works at Google.)

So where do you think firms should make the cut? 

October 17, 2008 | Permalink | Comments (2)

Rate the Lawyer's Video

We all know lawyers are suckers for rankings, as evidenced by the myriad lists that rank U.S. lawyers.  But here's one that's a little bit different -- a graded review of lawyer videos, sponsored by Technolawyer and written by lawyer/video guru/New York medical malpractice lawyer Gerald Oginski, with additional comments from a "Back Bench" of experts. (H/T to my colleague, Bob Ambrogi). 

This week's review features a video by Illinois employment lawyer Fern Trevino. Oginski awards Trevino a near-perfect score, deducting just a half-point for lack of direct eye contact and failure to include easily visible contact information. What's your opinion of the video -- why not weigh in over at Technolawyer?  And more importantly, do you have the courage to take the video-rating challenge?

October 17, 2008 | Permalink | Comments (2)

U.S. Treasury Receiving Bargain-Basement Rates for Bailout Advice

Simpson, Thacher and Bartlett, the firm selected by the Treasury Department to advise the government on the $700 billion bailout plan, will collect an average of $113/hour for its service, with its total fee capped at $300,000, reports The New York Times' Dealbook Blog.  And no, that's not a typo -- Simpson Thacher is apparently taking a huge pay cut from the $1000/hour billing rates that were all the rage at some top law firms last summer.

According to the Treasury's contract with Simpson Thacher (which you can view either here or here) the law firm will receive $300,000 to advise Treasury on the $700 billion bailout plan.  Don't assume that this is some kind of value billing price, where Simpson can make up the lower cost on increased efficiency.  No, Simpson Thacher will take a bath on its hourly rates as well.  On page 5 of the contract, Simpson estimates that the work, which will take place over a six-month period, will involve 564 hours of partner time, 1,692 hours of associate time and 376 hours for of counsel work, for a total of 1,632 lawyer hours that, spread over the $300,000 budget, amounts to an average lawyer rate of $113.98 an hour (there are also 1,128 hours allocated for legal assistants, which I didn't include in my calculation).  And while the contract does permit Simpson Thacher to submit a change order if the costs of performance exceed its estimate, I'm not sure how that would work in practice.  After all, based on the hourly estimate and the going rate for large-firm lawyers, which start at the $300/hour range, Simpson's estimate already well exceeds the cap.

So was it rate caps rather than anticipated conflicts of interest that lead four other large firms to decline Treasury's request to participate in the procurement?  And did Simpson Thacher accept the Treasury contract to fulfill a civic duty for the country in a time of crisis, or because the contract makes for good PR and may help the firm position itself for work in a post-bailout world? 

As for me, Simpson's motives don't matter.  From my perspective, it's nice to see that besides oil prices, other prices such as legal fees may start falling, particularly in this case, when I, as a taxpayer will ultimately foot the bill. 

October 17, 2008 | Permalink | Comments (1)

October 16, 2008

Directories Matter: Yes or No?

At his Law Marketing Blog, Larry Bodine offers three good ways to throw away your money: "1. Shoveling bales of cash out of the back of a moving pickup truck; 2. Starting bonfires with wrapped packs of $100 bills; and 3. Buying a listing in a directory of law firms."

At the recent Chief Marketing Officers' Forum in New York, Bodine explains, two speakers -- Peter Columbus, director of business development for Kaye Scholer, and Mark Messing, chief marketing officer of Weil, Gotshal & Manges -- presented research showing that less than 3 percent of corporate counsel use directories to select law firms. Bodine writes:

When Acritas research surveyed in-house lawyers in 2007 about what sources influence their consideration of law firms, none spontaneously mentioned law firm directories. Instead the corporate lawyers said they relied on referrals from companies, personal experience, referrals from colleagues, the reputation of the firm, publications and articles, referrals from outside law firms and referrals from peers.

Overall, three quarters are not at all, or only marginally, influenced by directories in their selection of law firms, according to the research. When Acritas asked, "Do you ever refer to directories when selecting law firms?" the respondents said that less than 3% of work is influenced by directories.

Not surprisingly, one who begs to differ is Laxmi Stebbins Wordham at The Offical Blog of Martindale-Hubbell. Directories do matter, Wordham argues, and the 3 percent statistic is at odds with Martindale's own research.

At Martindale-Hubbell we conduct significant research, both on our own and through third-party companies using blind survey methodology, that indicate a different perspective. The difference in the results largely depends on the specific question asked and the individuals being surveyed. We also track traffic on at the user level based on IP address. Our traffic supports our research that indicates corporate counsel are using on a regular basis as part of their hiring process.

Wordham says that 90 percent of corporate counsel use Martindale-Hubbell when hiring outside counsel and that it is their second most-common method for finding lawyers after personal referrals.

Here's your chance to weigh in. Do directories matter anymore? Feel free to share your thoughts below.

October 16, 2008 | Permalink | Comments (6)

First Thing We Do, Let's Waterboard All the Lawyers

A California attorney is under fire for posting offensive material on a Republican Party Web site linking Sen. Barack Obama to Osama bin Laden and encouraging readers to "Waterboard Barack Obama." Taking credit for the offensive site, according to the Sacramento Bee, is Craig MacGlashan, chair of the Sacramento County Republican Party and attorney at Sacramento firm Nageley, Meredith & Miller.

When asked about it Tuesday by the Bee, MacGlashan defended the the site's content, saying, "Some people find it offensive, others do not. I cannot comment on how people interpret things." But by the end of the day, the content had been taken down, replaced with political cartoons attacking Obama. For the curious, the blog The Shark posted copies of the offending images. One shows the following text sandwiched between images of bin Laden and Obama: "The only difference between Obama and Osama is BS." Another shows an American flag pennant with the caption, "Waterboard Barack Obama."

Republicans elsewhere in California are condemning the site. Gov. Arnold Schwarzenegger's spokeswoman Julie Soderlund said, "In the governor's view, it's completely and totally inappropriate." And California Republican Party spokesman Hector Barajas said that, even though he sees Democrats playing the race card, the Sacramento site went too far. Kevin Johnson, dean of the UC Davis School of Law, told the Bee he was taken aback by the Web site's warning to "Be Afraid. Be Very Afraid" of Obama. "It suggests to me that we haven't gone as far as we would have liked in putting racism to bed," Johnson said.

October 16, 2008 | Permalink | Comments (0)

Judicial Candidates Face Off on Facebook

Gildea_gopher While some lawyers debate whether to dip their toes into social-networking site Facebook, others are charging through the surf and diving right in. The latest twist in how the legal profession is using social networking comes from Minnesota, where dueling candidates for a seat on the Minnesota Supreme Court are hoping to find friends on Facebook.

Mark Cohen at Minnesota Lawyer Blog discovers that both Minnesota Supreme Court Justice Lorie Skjerven Gildea and her opponent in the upcoming election, Hennepin County District Court Judge Deborah Hedlund, have profiles and more on Facebook. Justice Gildea's profile includes the requisite Facebook photo album, which is devoid of any particularly compromising pictures, save for one of her hugging a person in a gopher costume. Also on her profile is a link to her campaign Web site and lists of events related to her campaign. Her profile lists 55 supporters and includes several comments on her Wall, such as, "Hello, I think we're like fourth cousins, but I really like the way you do things!"

Hedlund's full profile is open for viewing only by her Facebook friends. Not being one, I can't tell you what's on it. But she also has a group, Deborah Hedlund for Minnesota Supreme Court. Like her opponent's Facebook page, hers also points to her campaign Web site. But there are no photo albums or postings on her Wall and the group so far has just 12 members. In the true spirit of social networking, Hedlund also has a YouTube page, where she has posted seven videos showing her with her family, with a woman who describes herself as a "victim" of the court system and with a former police officer.

"While campaigns run in the virtual world are all well and good, I would like to see a real-world debate between Gildea and Hedlund," Cohen writes in his blog post. "They have one of the more engaging races, and I think it might generate some public interest in judicial elections." Minnesota Lawyer newspaper has much more on this year's judicial elections.

October 16, 2008 | Permalink | Comments (0)

Prominent Lawyer's Son Pleads Father's Case

Prominent Texas trial lawyer Fred Baron, founder of the firm Baron & Budd and a major Democratic Party fundraiser, is dying of cancer, and his son has taken up his defense. Andrew Baron wrote this week to James C. Mullen, chief executive of Cambridge, Mass.-based Biogen Idec, pleading with him to let his father use the experimental drug Tysabri. The younger Baron, founder of Rocketboom, posted the letter Tuesday on his blog, Dembot. And to help argue his case, he's enlisted some big-name celebrities and politicians.

According to the letter, Fred Baron may have only days to live. He is being treated at the Mayo Clinic in Rochester, Minn., for the blood cancer multiple myeloma. His doctor has been studying the use of Tysabri, a multiple-sclerosis drug, in cancer patients, and wants to use it to treat Baron, but Biogen has refused. It says that Baron does not fit the drug trial's profile and allowing him to use it could jeopardize its use by thousands of other patients. Michael Baron's letter describes calls made to Biogen on his father's behalf by President Bill Clinton, Sen. John Kerry, Sen. John Harkin, Sen. Ted Kennedy and cyclist Lance Armstrong, among others, but to no avail. "Please Mr. Mullen, there is no time left," Baron writes. "There is no justification. Just say yes."

Several years ago, the 61-year-old Fred Baron sold his interest in the firm he founded and stopped practicing law to focus on political fundraising. He was finance chair of Sen. John Edwards' 2004 presidential campaign and co-chair of Sen. Kerry's Victory '04 committee. He was in the news earlier this year when he admitted that he paid to move a woman with whom Edwards had an affair. Read more from The Boston Globe and The Dallas Morning News.

October 16, 2008 | Permalink | Comments (1)

October 15, 2008

Getting to the Meat of Chief Justice Roberts' Dissent

An experienced police offer more than a dozen drug busts under his belt and intimately familiar with the crime infested neighborhood properly concluded, based on the totality of the circumstances that he had probable cause to arrest the defendant.  The lower court erred in finding otherwise.

If you came across a passage like this in a legal brief or judicial opinion, you probably wouldn't blink. You've probably seen lines like this one dozens of times, probably written this type of passage or similar ones dozens of times yourself. For many of us lawyers, producing or reviewing this kind of mediocre, pedantic writing comes with the job; it's just another day at the office, to quote a Supreme Court justice who's now garnering extensive media coverage for his literary legal prose.

Now, what if I'd rephrased that same passage to read this way:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three­-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office...

That was not good enough for the Pennsylvania Supreme Court, which held in a divided decision that the police lacked probable cause to arrest the defendant. The Court concluded that a “single, isolated transaction” in a high-crime area was insufficient to justify the arrest, given that the officer did not actually see the drugs, there was no tip from an informant, and the defendant did not at­tempt to flee. 941 A. 2d 671, 679 (2007). I disagree with that conclusion, and dissent from the denial of certiorari.

Suddenly, you're engaged and captivated... and like some, persuaded. 

Presumably, Chief Justice Roberts realized all of that when he penned his novel dissent from the majority's denial of cert in Pennsylvania v. Dunlap.

Roberts' dissent shows the power of unusual, stylized or simply out-of-the-ordinary legal writing. But does sexing up that proverbial three-dollar steak and selling it as a filet mignon help to highlight the importance of the issues at stake (no pun intended), or does it obscure the meat of the matter? 

That's one of the issues that Scott Greenfield beefs about in his post on the Roberts dissent at Simple Justice. He argues that everyone's so focused on Roberts' style they've overlooked the substance of the position: that it would essentially make arrests based on hunches constitutional. Greenfield notes that of all the posts on the dissent, only Steve Vladek at Prawfs Law Blawg delved into the underlying legal issues. (As an aside, Greenfield's post also reflects, to some degree, the current state of the law blogsophere, where just a small percentage of bloggers routinely offer meaty commentary, while many are content to simply pass along scraps). 

What's your view of Roberts' dissent?  Would an ordinary lawyer get away with this type of writing? And did Roberts fulfill his apparent purpose of getting attention for his position, or in doing so, did he obscure any real discussion of either side. Post your comments below.

October 15, 2008 | Permalink | Comments (3)

Who Needs a Mentor, When You Can Have Your Own Posse?

Most lawyers are advised that finding a good mentor is the key to success.  And indeed, the legal profession has, more or less, bought into this concept.  Some large firms assign mentors to new associates, while a handful of bar associations have created mentoring programs to provide guidance to solo practitioners.  Yet, while the mentor concept sounds great in theory, in reality, most mentoring relationships falter for a variety of reasons.  Though well intentioned, mentors don't always have the time to help new lawyer along, or they try to force the mentee to take the same steps they did, even though that path may not be a good fit.  And sometimes mentees feel uncomfortable imposing on their mentors' time, and after a while, they let the relationship wither.

So what's the solution?  Instead of finding a mentor, why not, as Peter Smith of Ad Arguendo suggests, round up a posse?  No, he's not talking about calling up a group of cattle ranchers to round up the horse thieves.  Rather, he's referring to today's colloquial meaning of "posse" -- a group of folks with whom you surround yourself for personal support, or in the case of the workplace, to help you meet your career goals.  As Smith explains:

[W]hat all of us need, at every stage of our careers, is a group of people that we can rely on to listen to our problems, be a sounding board, and perhaps share with us some war stories. The relationship, while set up to be of benefit to you without strings, should be collaborative. The point is that you are eliciting comments from a number of people that you trust and putting it all together to come up with good decisions. You are not in the relationship to be spoon-fed by one well-meaning "elder." You are building a network of trusted advisors that enjoy being a part of a team-your team.

Smith's post offers further advice on how to create your own posse (and of course, you don't have to use that term when you're rounding one up though personally, I like the cutting edge sound of the term).

What techniques -- mentoring or the posse approach -- have helped you most in advancing your career and providing the support you need?  Send your comments below.

October 15, 2008 | Permalink | Comments (0)

Are Clients Too Lax on Conflicts, or Is the Government Too Harsh?

Earlier this week, I posted about how banking industry clients have been willing to act flexibly with respect to conflicts of interest so that they can retain certain go-to law firms to shepherd them through the credit crisis. (As an aside, it bears noting that even go-to law firms can make mistakes, like erroneously including 179 contracts in an asset purchase deal because a first-year associate mis-formatted an Excel spreadsheet). However, the United States government is apparently, a somewhat more discerning client. The American Lawyer is reporting that four of the six law firms asked to submit proposals to advise the U.S. Treasury on the bailout plan declined to participate, concerned that stringent conflicts of interest requirements in the procurement process might force the firm to give up a more lucrative client. Ultimately, Treasury awarded the work to Simpson, Thacher & Bartlett, which is not concerned about losing business to conflicts as a result.

October 15, 2008 | Permalink | Comments (0)

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