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January 30, 2009

Bankruptcy Lawyer Advertising Spike Follows CLE Mad Dash

Total Attorneys Inc., a Chicago-based company that provides services like office management and business development for solo and small firm lawyers, runs a number of practice-specific blogs -- from lemon law to DUI. The sites, which are sponsored by law firms offering services in these areas, are designed to attract consumers interested in these topics. Not surprisingly, the company's bankruptcy site,, became a real hot spot for both lawyers and consumers in recent months.  

According to statistics provided by the company: 

Ad spend by bankruptcy lawyers on increased 24% from 2007 to 2008 as a group, but Dec 2007 compared to Dec 2008 they spent 72% more.

Total Attorney president Kevin Chern says the site's surge in traffic began in the second week of September, which coincided with the government's announcement of a $700 billion bailout. "Even the slow days of the week increased dramatically," says Chern.

We also noticed some comments from consumers wondering if their bank crashed, would they still need to pay off credit cards? That mentality could have caused many consumers to wait and see what happened -- and quite possibly, go ahead with filing for bankruptcy now in '09, realizing they have no more options.

Online CLE provider reported a similar September spike for its bankruptcy courses. David Schnurman, the company's president, said:

In the 10 years that we have been providing Online CLE, I cannot recall another time when the events of the real world crossed over into the courses attorneys chose to complete their mandatory requirements.

Have you been thumbing through that old "Bankruptcy in a Nutshell" recently?

January 30, 2009 | Permalink | Comments (14)

'Economic Hell' and the Billable Hour

Big firm economic hell is upon us, do not pass purgatory, do not collect $200. According to legal marketer Larry Bodine:

Two leading advisors to major law firms predicted a declining demand for legal services, a 15% drop in net income from 2008, the inability to raise rates, additional layoffs, salary freezes and cost cutting, heavier fee discounting, expenses rising faster than revenues -- and a long wait for better times.

News of big firm layoffs have gone from a few early drips and drabs just months ago to a daily torrent, with firms cutting staff and attorneys by the dozens. The cuts are affecting legal services providers too, like electronic discovery companies. What is to be done? A fundamental restructuring of the big law billing structure seems to be the most talked about measure, with the New York Times today picking up on the perennial law firm debate:

"This is the time to get rid of the billable hour," said Evan R. Chesler, presiding partner at Cravath, Swaine & Moore in New York, one of a number of large firms whose most senior lawyers bill more than $800 an hour.

"Clients are concerned about the budgets, more so than perhaps a year or two ago," he added, with a lawyer's gift for understatement.

Chesler has been on an anti-billable-hour crusade of late, including a Forbes op-ed earlier this month (see American Lawyer editor-in-chief Aric Press' response, and our previous coverage of his comments in Business Week). While many small firm lawyers scoff at Chesler's recent advocacy of a policy they've used for years, the dire economic situation we're in right now might finally be the act of creative destruction big firms need to reform. Bodine cites Hildebrandt International managing director James Jones:

2009 will be an extraordinarily bleak year because of one key factor, according to Jones: "The single factor that worked consistently to drive profitability in the past was the ability to drive up rates 6% to 8% per year, regardless of what else was happening. As we are entering a period of extended softness in demand, corporate clients are going to be more resistant to the overall cost of legal services. You are looking at a fundamental shift in the law firm economic model we've lived with for many years.

The big firms themselves have mostly been tight-lipped about their billing structures, with even Chesler himself denying the Times any details on Cravath's rates. But more importantly, there's scant evidence that a billing revolution can stem the tide of law firm layoffs, at least not until the economy begins to rebound. At that point, perhaps new fee structures can help law firms learn how to staff up at a sustainable level. Wall Street might have gotten drunk, as former President Bush explained the economic crisis last year, but will its law firms sober up when they hit rock bottom?

January 30, 2009 | Permalink | Comments (1)

LegalTech New York 2009 Coverage on Legal Blog Watch

A quick programming note: We'll be interrupting Legal Blog Watch's regularly scheduled posts Feb. 2, 3 and 4 to present our blogosphere (and this year, Twitter too) coverage of LegalTech New York 2009, Incisive Media's annual law technology blowout. As we did last year for both the New York and West Coast versions of the trade show and conference, we'll be highlighting reports from Law Technology News and's Legal Technology editors, in addition to collecting blog posts and tweets about the show from around the Web.

Planning to brave the cold and the crowds for the biggest legal technology show of the year? Drop us a line at [email protected]. And for those of you with a Twitter account, be sure to use the #LTNY hash tag for your posts during the show.

January 30, 2009 in LegalTech New York 2009 | Permalink | Comments (0)

January 29, 2009

New York Lawyers in Trouble

This week's news brings two stories of New York lawyers in big trouble. First, the New York Times reports on the indictment of New York lawyer Steven Rondos, for stealing over $1 million from the disabled clients for whom he was appointed as guardian. Rondos' theft went undetected because he failed to file required summaries with court examiners showing how he managed his clients' money. Court examiners in turn never reported Rondos' failure to file the reports to the judge, enabling him to continue to misappropriate client money.

In the second case, Eric Turkewitz at New York Personal Injury Attorney Blog writes about New York attorney Kenneth Heller who was sent to jail after refusing to release files to a client who wanted to change lawyers. The First Department affirmed the court's decision today, finding that Heller defied the court's order to turn over the files. But it turns out that Heller may be in more trouble than that -- Turkewitz uncovered additional information suggesting that the same Kenneth Heller was disbarred in 2004. If that's the case, Turkewitz wonders why Heller was practicing in 2007 (when he failed to turn over the files) to begin with.

January 29, 2009 | Permalink | Comments (5)

Obama Signs Ledbetter Legislation

When Lilly Ledbetter tried to file a claim for unequal pay against her employer after 19 years on the job, the Supreme Court ruled against her her, holding that her claim fell outside the 180-day statute of limitations. While Ledbetter lost the battle, she won the war on unequal pay, with President Obama today signing into law the "Lilly Ledbetter Fair Pay Act," which expands workers' rights to sue for unequal pay by relaxing the statute of limitations.

So what's the impact of the new legislation on the workplace? 

MarketWatch carries an analysis. From employees' perspective, the Ledbetter law "levels the playing field" says Margot Dorfman at the U.S. Women's Chamber of Commerce. In addition, extending the statute of limitations may actually cut down on the number of "placeholder suits" filed by litigants who suspect unequal pay policies in order to preserve their claims, even if they hadn't gathered all of the evidence to support their case.

But the law also places a new burden on companies. Even those companies that don't violate equal pay laws can expect added costs in the form of increased paperwork and recordkeeping. Because the law allows employees to sue over decisions that may have been made many years back, companies will need to document pay decisions and keep good records on worker pay. Those companies that lack  necessary documentation may find themselves forced to settle cases. 

Bloggers are now just weighing in with their commentary. Jane Genova at Law and More observes that "the way the bill is configured, statutes of limitations go out the window" and employers can be sued for unintentional wage discrimination. Meanwhile, Jeffrey Hirsch of  Work Place Prof Blog highlights that the Ledbetter Act creates another precedent: the publication of Obama's signing statement on The White House Blog.

January 29, 2009 | Permalink | Comments (1)

Can Blogs Survive Twitter?

Blogging is a conversation, Kevin O'Keefe of LexBlog is fond of saying. But how can you have a conversation if others can't join in through comments? Recently, the editors of popular legal blogs The Volokh Conspiracy and Above the Law have updated their respective comment policies, reserving the right to moderate comments as they deem fit. Above the Law took a further step, changing the site design to hide comments by default -- requiring readers to opt-in to view them. The sites have taken this approach to crack down on crude or offensive comments that may drive other readers away, or intimidate them from commenting. In that regard, the restrictions that ATL, Volokh and others place on commenters help to encourage the conversation rather than kill it.

But even without restrictive policies, blog comments in general are dwindling, writes Scott Greenfield. On his Simple Justice blog, Greenfield says many regular readers and commenters (largely from the criminal defense community) have taken the conversation over to Twitter:

The reason for this shift is clear: community. My primary community, the criminal defense lawyers in the practical blawgosphere, spends a lot more time on twitter these days. Some can be found there every evening, twitting away. I tend to jump in and out in short bursts, then move to another activity that involves flesh and blood people, but that's my choice. Others find the virtual community more comforting, more addictive.

Though Twitter supports community and short interchanges between participants, in the long run, Greenfield regards it as "a minus for the blawgosphere:"

[Twitter] reduces the value of blawgs by siphoning off the valuable discussion and leaving either a void or a palette to be painted by the nuttier folks who file in and out. There are still plenty of nuts around to comment, even if the more thoughtful people have gone elsewhere for their discussions. Statistics [at Simple Justice] show that readership remains high, and increasing, while discussion wanes.

Has Twitter rendered the comment sections of blogs obsolete and is that a loss for the blogosphere? And if traditional comments at blogs are obsolete, could video commentary revive them? Please post your thoughts below (comments aren't entirely obsolete yet!).

January 29, 2009 | Permalink | Comments (7)

California Wants Malpractice Coverage for All, Except Heller

For some time, law practice expert Ed Poll has been blogging about the California Bar's efforts to force lawyers to procure malpractice insurance, most recently by requiring lawyers to disclose to clients their lack of malpractice insurance. Poll's primary objection is that the state needs to ensure that lawyers can find affordable insurance plans before making them mandatory.

Given California's strong interest in lawyers having coverage, it's ironic that Bankruptcy Judge Dennis Montali won't let the defunct Heller Ehrman purchase three years of malpractice insurance for $10.2 million, according to The Recorder. Heller wasn't able to buy it prior to filing for bankruptcy because its accounts had been frozen. Montali found that allowing the purchase would significantly dilute creditors' claims. In addition, the judge noted that bankruptcy puts a stay on all suits, including legal malpractice. Incidentally, the court's decision differs somewhat from the outcome with regard to another defunct firm, Deier LLP. As The Am Law Daily reported, a bankruptcy judge allowed Dreier to spend some money to keep the firm's malpractice insurance policy in place temporarily.

January 29, 2009 | Permalink | Comments (0)

January 28, 2009

To Tweet or Not To Tweet?

The debate continues among lawyers: Is Twitter the greatest thing since sliced bread or a complete and utter waste of time? I weighed in on the pro-Twitter side last month with my article, "Sixteen Reasons to Tweet on Twitter." Now Eric Turkewitz has his say, writing at his New York Personal Injury Law Blog that his brain is sufficiently swamped as it is without having to follow a steady stream of tweets.

At some point I need to stem this tide. I'm not looking to retreat to a cabin in the woods, eating grubs to survive and working on an anti-technology manifesto, but I also don't feel a compelling need to open every valve of the technology river. There are only 24 hours in the day, and yes, I like to also use some of them to eat and sleep.

He has not been convinced otherwise by the recent launch of LexTweet, a site that aggregates the stream of Twitter posts as it flows from lawyers, law students and others within the legal community. When he checked it out recently, he writes, he found these "pearls of twittering":

  • Is about ready to make some creamy broccoli cheese soup...yummy!
  • Have a serious craving for macaroni & cheese... might have to go to Garden of Eden.
  • OK, finally made it to library, rocking out to "Lavalounge" via, and reading Crim Law. Woot for law school
  • Our four year old has just admitted that she is being bullied at school. ipod is switched off... Kids are so cruel. 

To which Turkewitz says: "Who wants to sort through this crap looking for substance? Thanks, but I have enough to do. Even if I knew these people I wouldn't want to read this dreck."

A panel next Monday at LegalTech in New York will attempt to answer the question, What is Twitter and how can I use it? The panelists -- whom I will be introducing -- lean toward the pro-Twitter side, but I suspect they'll provide a good overview for the curious of what Twitter is all about. So if you're curious about Twitter and in New York Monday, come on by.

January 28, 2009 | Permalink | Comments (1)

A Bunch of Wine-y Lawyers

How do I get a job like this, at once full-bodied and complex? The North Bay Business Journal, a newspaper located in the heart of California's wine country, has published its first-ever listing of "Who’s Who in Wine Law." The more than two dozen attorneys, it explains, "represent a range of specialization and a deep appreciation of wine making, often extending to their own vineyards and vintages." In other words, some of these folks toil not only the vineyards of law practice, but in actual vineyards.

Take Robert Anderson, for example. He long ago left a job at Cravath, Swaine & Moore in New York to return to his native state, where he became a partner with the Santa Rosa firm Lanahan & Reilley. Now, his practice deals with licensing and contracts involving grape purchases, vineyard management and the purchase and sale of wineries. When he is done lawyering for the day, he returns home to his own winery, Cole Bailey Vineyards, which he founded in 1998 and named after his son who was born the same year.

Another on the list is Robert Quail, a partner with Clement, Fitzpatrick & Kenworthy in Santa Rosa. He worked nearly a decade as an in-house lawyer for a large Sonoma Valley winery before joining Clement in 2003. He also makes wine in his free time, although not on a commercial scale. His extracurricular interest in wine production has earned him three medals for amateur winemaking at the Sonoma County Harvest Fair.

For Jan Gabrielson Tansil, a partner with Spaulding, McCullough & Tansil in Santa Rosa, California's wine country reminds her of the place she grew up in rural Minnesota. "The clients I work with very much remind me of the people I grew up with in Minnesota -- down to earth, practical, able to see a bigger picture with a long-term view, interested in sustainability,” she told the Business Journal. Not to mention, she adds, "And I love wine." She is not one who makes wine in her spare time, but she does farm a five-acre apple orchard with her husband and two teenage daughters.

The Business Journal has more than two-dozen such stories. All will leave you convinced that none of these wine lawyers have any sour grapes about their choice of career. We can only lift a glass as a toast to their success!

January 28, 2009 | Permalink | Comments (2)

Hawaii's Proposed Practice Rules Make Waves

It's lawyers versus realtors, accountants, architects, title insurers and a slew of other professions as the Hawaii Supreme Court considers a proposal to tighten the state's definition of law practice. As a matter of fact, even many lawyers now say the proposal goes too far, including the state's attorney general.

The Hawaii State Bar Association submitted a revised version of the proposed rule on unauthorized practice of law in December after its original proposal came under attack last year. Yet one of the most controversial provisions of the original proposal remains in the revised version. The controversial clause would define the practice of law to include "selecting, drafting or completing documents that affect the legal rights of another person or entity."

"This basically shuts me down," opponent Betty Marais told the Star Bulletin last year. She runs a business, Legal-Ez, that helps customers fill out legal documents at rates far below what lawyers charge. She had allies then in John Schapperle and Cheryl Yuen. Schapperle, president of the Hawaii Insurers Council, said that the proposed rule would prohibit many of the activities now done by property and casualty insurers, including such routine tasks as preparing auto insurance policies. Yuen, president of the Hawaii Paralegals Association, said the proposal would crimp the livelihoods of realtors, accountants, architects, title insurers, sports agents and others.

In the year since submitting its original proposal, state bar officials met with representatives of several professional groups who banded together as the UPL Coalition to fight the proposal. In a letter to the Supreme Court, the bar's immediate past-president, Jeffrey H.H. Sia, says the latest proposal represents an attempt to achieve a balance between protecting against unauthorized law practice while avoiding any adverse effect on certain types of nonlawyer work already permitted under Hawaii law.

But this latest proposal is being dealt a significant blow by the opposition of Hawaii Attorney General Mark J. Bennett, according to reports this week in both the Star Bulletin and the Pacific Business News. "Bennett wrote to the bar association saying he could not support the revised rules because they were laden with exceptions and exclusions that were overly broad, ambiguous or do 'not make sense,'" the report said. And at least one legal blogger in Hawaii, Charles A. Foster, agrees. He wrote last year on his blog, Planet Kauai, the the proposal as originally drafted was overbroad:

On their face, the rules would seem to prohibit an accountant from informing clients about the legal (including tax(!)) ramifications of choosing one form of business entity over another (partnership, say, over a corporate form), or a Realtor from helping a buyer or seller fill out listing or offer forms, or anyone who is not a lawyer from negotiating on another's behalf pretty much any kind of legally binding agreement whatsoever. This strikes me as a significant expansion of the legal trade's cartel.

Of this latest proposal, he pointed to the AG's comments and said only, "I would add that ambiguity invites litigation." The Supreme Court has given the public until April 27 to file comments.

January 28, 2009 | Permalink | Comments (0)

January 27, 2009

Malia Is Marvelous, Sasha Is Sweet, but Are They Legal?

Michelle Obama may have once been a copyright lawyer, but in criticizing Ty Inc.'s Obama-inspired "Marvelous Malia" and "Sweet Sasha" dolls, Obama was wearing her mom hat, not her lawyer hat. In a recent statement, Mrs. Obama's press secretary asserted that "it is inappropriate to use young private citizens for marketing purposes" -- but made no mention of any possible legal issues.

So, do the Obamas have a legal remedy for stopping the production of the dolls? Mark Goldstein, posting at Patently-O, believes that there are a few legal options to stop sales. First, Sasha and Malia could bring claims for false endorsement against Ty for using their names and likeness to sell the dolls. In addition, Goldstein says that "the right of publicity protects the commercial value of an individual in the commercial use of that person's identity." Susan Newman at Psychology Today suggests another remedy besides injunctive relief -- for example, the Obamas might seek royalties from sales and donate them to an Obama scholarship fund or a worthy children's program.

On the other hand, a blog post at doubts the viability of a lawsuit. First, the Obamas would have to bring the suit, not their daughters, and they'd have to prove that the dolls were based on their daughters (which Ty somewhat implausibly denies). In addition, the Obamas would need to show that their daughters are not public figures and that the dolls caused emotional distress or invasion of privacy, which would be harder to prove if the girls are deemed public figures.

Ultimately, it seems as if the First Lady's first instinct to play the mom-card, rather than the law-card to stop sales of the dolls makes the most sense.

January 27, 2009 | Permalink | Comments (1)

How the Economy Is Affecting Electronic Discovery

With the economy in a tailspin, what's the future of electronic data discovery? Over at Law Technology News, columnist Craig Ball writes that, like any other company in this recession, EDD vendors are vulnerable to bankruptcy or business failure. For that reason, Ball cautions that law firms using EDD services need to undertake due diligence and assess their "exposure, mobility and disaster recovery strategy." At a minimum, firms must consider the following questions:

    • Do they have the only accessible copy of any evidence?

    • Do we have a complete copy of our vendor's work-product in a format we can use?

    • How will we handle the inevitable delay occasioned by the flight of key personnel or outright failure?

    • What becomes of our data in vendor hands in the event of bankruptcy or failure?

Law firms are responsible for guarding client confidences and data. As such, lawyers have due diligence obligations when it comes to entrusting data to EDD vendors. Though firms can't eliminate the risk of EDD failure, Ball says that firms can manage it -- "by doing [our] homework, asking hard questions, educating our clients and planning for the foreseeable and the formidable."

January 27, 2009 | Permalink | Comments (0)

Are Ethics Rules What's Killing Biglaw?

Over the past few months, we've seen a stream of stories -- like this one -- on how the the economy is driving law firms to stop billing by the hour because clients can no longer afford it. Even Evan Chesler, head partner at Cravath, Swaine & Moore, has called for an end to the practice.

But is it the billable hour that's killing law firms, or other factors? Commenting on a recent Wall Street Journal piece, "Recession Batters Law Firms," Professor Larry Ribstein of Ideoblog argues that the bar's archaic ethics rules are contributing to the demise of Biglaw.

Ribstein outlines the factors that contributed to the demise of Heller Ehrman (though as I noted here, the circumstances surrounding the downfall of other firms is remarkably similar). First, like most firms, Heller's main assets were senior partners who jumped ship when Heller's economic problems started. Second, Heller wasn't able to find any suitable merger partners because it ran into conflicts of interest with viable suitors. Finally, Heller couldn't come up with the cash to pay down the bank loan that it takes out at the beginning of each year to cover its costs. With the banks bearing down, the shareholders voted to dissolve the firm.

Ribstein suggests that these events might have been avoided but for archaic conflict of interest rules, intended to ensure that the law remains a profession rather than a business. For example, if bar rules did not bar non-compete agreements, lawyers could not have walked away from Heller with its most profitable clients. And if not for rigid restrictions on client conflicts, Heller might have found rescue through a merger. Finally, if nonlawyer owners could invest in law firms, Heller might have had access to a permanent source of capital to stay afloat and would not have had to rely on bank loans alone.

So should the profession change longstanding ethics rules to save Biglaw? Ribstein says that bar rules "are not in clients' long run interests," but I disagree. The ban on non-compete agreements preserves the client's unfettered right to choose a lawyer, even where granting a client the choice may cause firms to lose clients. Meanwhile, though Ribstein says that conflicts rules don't matter to clients, the facts suggest otherwise -- increasingly, clients are suing firms for breaching conflicts rules. If conflicts didn't matter to clients, then why the lawsuits? As for allowing nonlawyers to invest in firms, here, we'll have the benefit of learning from the U.K.'s experience under the Legal Services Act of 2007, which allows the practice. At the same time, I also have to wonder why law firms must rely so heavily on loans to keep their businesses running. Perhaps timely collection of client fees would help cash flow as much as outside investment.

Ultimately, the bar rules are a red herring. Every business faces constraints -- from antitrust laws to SEC enforcement -- but good businesses figure out how to thrive even in the face of these constraints. If some large firms can't find a way to profit under existing ethics rules (even as many smaller and mid-sized firms still can), the solution isn't to change the rules, but to change Biglaw.

January 27, 2009 | Permalink | Comments (1)

Race Matters and Eric Holder's Nomination as Attorney General

Yolanda Young, author of the blog On Being A Black Lawyer, stirred up some controversy in the blogosphere last year with an exposé in the Huffington Post describing her treatment as a black staff attorney at Covington and Burling as "reminiscent of Jim Crow." Turns out that while Covington was relegating Young and her black colleagues to second-class status, Attorney General nominee Eric Holder, who stands on the verge of becoming the first African American to head the Department of Justice, was a litigation partner at the firm. In this piece, Young asks whether Holder's tolerance of Covington's treatment of black attorneys is relevant to his appointment as Attorney General.

Young has mixed feelings on the issue. She writes:

I, for one, am torn on this issue. On the one hand I hope that Mr. Holder's affiliation with Covington does not impede his opportunity to once again serve his country. On the other hand, I believe that it is important to acknowledge the fact that Mr. Holder's mission at Covington did not include addressing the disparate treatment of minority attorneys working in his firm.

Young's piece suggests that Holder was, at least on some level, aware of how his firm treated black staff attorneys yet did nothing to change it. At the same time, Young wonders about the level of responsibility that black attorneys have to help their black colleagues with career development. That's a tricky question, and Young acknowledges that "we can't seek to align ourselves only with other blacks. It is essential that we be open and trusting of anyone who extends a hand." In Young's case at Covington, though black partners shunned her, at least one white female partner was supportive.

Is Holder's past at Covington indicative of how he may treat black lawyers at the DOJ, or enforce the nation's affirmative action laws? Personally, I don't think so. Though I don't doubt Young's examples of racism at Covington, when it comes to contract attorneys, firms are equal-opportunity discriminators -- treating all contract lawyers as second class citizens, regardless of their race. As a litigation partner at a large firm, Holder may have bought into the mentality that staff attorneys are inferior to Biglaw associates, but that wouldn't make him a racist. It would make him an elitist.

What's your opinion?  Share your comments below.

January 27, 2009 | Permalink | Comments (1)

January 26, 2009

Former Dean in Running to Lead University

DavidHall The former dean of Northeastern University School of Law in Boston and former provost of Northeastern University is one of two finalists under consideration to become president of the University of the Virgin Islands. David Hall, now a professor of law at Northeastern, is one of two top candidates from a field of more than 70 under consideration to lead the university, which has campuses on the islands of St. Thomas and St. Croix in the U.S. Virgin Islands.

Hall will visit the territory this week to be interviewed by the university's trustees and to participate in a series of public forums with students, faculty and staff, and community members, according to a report in the Virgin Islands Daily News. The other finalist for the job is Calvin Jamison, vice president for business affairs at the University of Texas at Dallas.

Hall has taught law at Northeastern since 1985. He served as the law school's dean from 1993 to 1998. In 1997, he was named Outstanding Dean of the Year by the National Association of Public Interest Lawyers. He then spent four years as provost and senior vice president of academic affairs for Northeastern University. Earlier in his career, he taught law at the University of Oklahoma School of Law and the University of Mississippi School of Law and was an attorney in the Chicago office of the Federal Trade Commission. He received his law degree at the University of Oklahoma and went on to earn an LL.M. degree and a doctorate of juridical science from Harvard Law School.

At Northeastern, his areas of focus are civil rights, legal education, social justice and the interplay of law and spirituality. He explored the latter topic in his 2005 book, The Spiritual Revitalization of the Legal Profession: A Search for Sacred Rivers. He is on the board of directors of the Legal Services Corporation, to which he was appointed by President Bush in 2003. As an undergrad at Kansas State, he was an all-American basketball player and later played professionally in Italy. Northeastern's loss would be UVI's gain.

January 26, 2009 | Permalink | Comments (0)

E-mail Scam Still Snaring Lawyers

In September, in a post here entitled, "The Great Lawyer E-mail Scam," we wrote:

If you think lawyers are too savvy to fall prey to an e-mail scam, think again. One lawyer who fell victim to it estimates that the scam has bilked lawyers out of more than $1 million. That lawyer is now being sued by Wachovia Bank for the $190,000 he wired from his escrow account to a Korean bank on behalf of what he believed was a company in Taiwan.

That lawyer, Gregory Bartko, a securities lawyer in Atlanta, told his story to the Fulton County Daily Report and then on the podcast that I co-host, Lawyer2Lawyer. Now, another lawyer has fallen prey to the scam. Houston lawyer Richard T. Howell Jr. tells Texas Lawyer that his firm was bilked out of $182,500 by a client who contacted and hired him through e-mail. "I'm a capital 'D' Dumbass," he tells reporter Brenda Sapino Jeffreys, but says he is talking about it publicly to prevent other lawyers from making the same mistake.

Howell was contacted by e-mail by what he believed to be a Japanese company, Techno Design Industry, seeking to collect some $3.6 million in accounts from U.S. customers. The company signed a retainer agreement by which he would receive a third of any amounts he collected. Before he could file lawsuits against any of the customers, Techno notified him that one customer wanted to make a partial payment. He received what appeared to be an official Citibank check from the supposed customer in the amount of $367,500. After confirming through Citibank that it had paid the check, he disbursed $182,500 to Techno. Needless to say, the check was counterfeit.

Howell and his firm have sued Citibank, which denies any wrongdoing. Meanwhile, Howell knows he is not alone in falling victim to this, even among lawyers in his home state. He says he has spoken to another Texas lawyer who lost $300,000 to the e-mail scam.

January 26, 2009 | Permalink | Comments (6)

How Lawyers and Technology Matter

Last month, my colleague in writing this blog, Carolyn Elefant, celebrated the sixth anniversary of her other blog with an essay contest. As she announced then at the blog, My Shingle, she would award an Asus subnotebook computer to a solo or small-firm lawyer who wrote a blog post on one of two topics: "Why I matter," explaining how the lawyer has made a difference in the legal profession or in the lives of clients, or "How technology helps me serve clients or make a difference," describing how technology has improved the quality of services the lawyer provides. The winner was to be chosen at random from among the top entries.

The wait is over. Elefant has posted all of the essays she received. Most, she writes, chose to write about the difference technology has made in their practices. The randomly chosen winner of the Asus computer is Adrianos M. Facchetti, a Los Angeles lawyer who writes the California Defamation Law Blog. His contribution covered three key ways technology helps him serve clients. He writes about better communication with clients, the ability to charge lower fees due to lower overhead, and his "transparency" to clients and other lawyers. None of it is novel, he acknowledges. "But you know what? These things make my clients happy and that's all I care about."

There are a number of interesting contributions here. Michael D.J. Eisenberg tells how he and his wife were able to escape from his "unforgiving mistress" -- his solo law practice -- to spend a week in the Caribbean, thanks to technology. That sounds good until you read Kimberly Alderman's account of how she escaped from the Caribbean to a cabin she built in remote Alaska.

My infrastructure is completely dependent on technology. Solar panels, generator, military-built battery bank, satellite internet, satellite phone. The internet alone was quite the project to set up, as we had to drive 400 miles to pick up a dish that would put most coffee tables to shame.

Here's the kicker: She got clients. Alone (with her boyfriend) in remote Alaska, hours from the nearest gas station or corner store, she hung out a virtual shingle on the Web. She put up a Web site, got Skype and started networking furiously. "For someone who wanted to 'get away from it all,'" she writes, "I sure am plugged in sometimes." She credits Elefant for giving her great advice when she was just getting started. "Treat the internet like your cocktail party," Elefant told her. Now, she writes, "I may not be drunk yet, but I'm sure having a grand old time."

January 26, 2009 | Permalink | Comments (0)

You to Heaven, Your Practice to Hell?

In the latest issue of the ABA Law Practice Management Section e-zine Law Practice Today, lawyers Courtney Kennaday and Reid Trautz consider a topic most of us prefer not to think about: "When You Go to Heaven, Will Your Practice Go to Hell?" Lawyers -- especially those in solo and small practices -- know full well they should protect their clients and their families by planning for untimely death or disability. Do they? Not often enough.

Kennaday and Trautz are both practice management advisers -- Kennaday for the South Carolina Bar and Trautz for the American Immigration Lawyers Association. Both agree that it is all too common for a lawyer's practice to be hobbled by sudden death or disability. How do they know? "Because we get the calls and e-mails from the people the lawyer left behind, wondering what on earth they are supposed to do."

So what should the lawyer do to prepare for the unforeseeable? Prepare a plan. Designate another lawyer to step in and review your files and notify clients. Contact your own bar's practice-management adviser to discuss options. If you die without a succession plan," Kennaday and Trautz write, "you are leaving no possibility of a satisfactory outcome for anyone you leave behind."

January 26, 2009 | Permalink | Comments (1)

January 23, 2009

India Considers Opening Its Doors to Foreign Law Firms, Again

Since 1995, international law firms have been banned from practicing law in India. Though some global firms have tried to establish a presence in India's booming legal market by creating partnerships with domestic firms, the official ban remains in effect. But perhaps things are starting to change.

Foreign lawyers and corporate voices in India have long argued for liberalization of the country's legal market, only to be put off by domestic opposition from local lawyers. But Bloomberg reports that India's Minister of Law and Justice, H.R. Bhardwaj, is calling on India's government to stop opposing the entry of overseas firms that might create "thousands" of legal jobs. India's government has also circulated draft regulations on foreign law firms as a step towards opening up the market. In spite of the global economic downturn, India remains an attractive market for many U.S. law firms.

January 23, 2009 | Permalink | Comments (0)

The Difference Between Clinton and Obama? Their Law Schools

How much of a difference does the law school you attend really have on your career or your life? Plenty, contends Noam Scheiber of The New Republic -- that is, if you're Bill Clinton or Barack Obama. Contrasting the differences between the chaotic and error-ridden early days of Clinton's presidency with Obama's smooth and "brutally efficient," transition, Scheiber concludes that part of the explanation for the difference "lies in the elite institutions that socialized them -- namely Harvard and Yale, their respective law schools."

Scheiber contrasts the rigor and competitiveness of Harvard Law School with the somewhat more relaxed environment at Yale. At Yale, class attendance wasn't required, and professors engaged students in broad policy discussions. By contrast, Harvard classes focused more tightly on legal issues. Likewise, at Yale, the law review conferred little prestige, because anyone could join, whereas at Harvard, law review participation depended upon grades and a writing competition. As a result, Harvard Law review editors like Obama stood a good chance at a coveted Supreme Court clerkship.

But does law school influence lawyers more than their choice of undergraduate institution? Brian Lauter at The Shark says no. He writes that college provides "the more formative experience. Personal identity, at least partially formed during the college years, guides the way we approach decisions and situations" -- including one's choice of law school.

Ultimately, I think that our personalities matter much more than where we attend school -- undergraduate or law school. Had Bill Clinton attended Harvard, he probably would have chafed against the rules and formalities with his less-disciplined personality, but I doubt that Harvard would have changed him. Likewise, if Obama had gone to Yale, it's not likely that the relaxed atmosphere would have encouraged him to drop his work ethic. Still, I enjoyed Scheiber's piece quite a bit for the insight that it gives into the differences between Harvard and Yale as well as the differences between our two most recent Democratic, Ivy-league lawyer presidents.

January 23, 2009 | Permalink | Comments (2)

New York's Advertising Rules and the Problem of Ethics Laundering

You'd expect a personal injury attorney to flatly oppose any restrictions on anti-solicitation rules. But not New York Personal Injury Attorney Eric Turkewitz. In this post, Turkewitz criticizes New York's controversial 2007 advertising rule, which the Second Circuit hears today, not because the rules ban lawyer solicitation --  "an ugly blight on the profession," according to Turkewitz -- but because the rules outlaw certain protected First Amendment communications, while enabling lawyers to circumvent the ban through "ethics laundering."

Turkewitz writes that the new rules are at once overbroad and not broad enough. Ethical Consideration (EC) 2-18 of the rules defines a solicitation as an advertisement initiated by a law firm that is intended to persuade recipients to retain the firm and has lawyer profit as a significant motive. However, as Turkewitz points out, it's tough to know where to draw the line. If a blog merely references an accident, would that constitute a prohibited solicitation? If so, that would trigger First Amendment concerns.

Personally, I don't think there's much to worry about here: I don't view blogs as advertising, and referencing an accident to explain a point of law would fall within an educational, non-financially motivated exception to the rules.

Turkewitz's more interesting point concerns "ethics laundering" by attorney search services. Here's how it works:

The attorney search services... are web sites that are not affiliated with any one law firm, with charming names like WhoCanISue and SueEasy, that run ads trying to attract potential clients. Leads are then distributed by the company to attorneys, whose names do not appear anywhere on the website. There are dozens of these companies out there, and I regularly get calls and emails from them. One called PleaseGetMeAnAttorney, for example, sent me an unsolicited email that offered to provide leads at "$3,995.00 per territory, per month."

These attorney search services are particularly diabolical from the ethics standpoint. They are unlikely to have their home in New York and may not even be run by attorneys. They therefore will fall well outside any jurisdiction that New York courts may have to discipline for ethics violations. They can advertise free from any constraints and may skate right off the edges of the ethical pond. But what of the attorneys that have signed up with them? They, no doubt, turn a blind eye to the devices used by the companies and will cry ignorance if confronted.

And very similar to the attorney search services are the "national" law firms that are little more than referral mills. They seek to sign up clients the same way the attorney search services do, but instead of getting paid a flat fee for leads they will receive a piece of the legal fee if the matter [is] successful, as part of a joint venture with local counsel.

How, exactly, is New York going to stop these outside lawyers and search services from soliciting in New York and laundering the ethical rules that local counsel must abide by? Well these outsiders are theoretically subject to New York's anti-solicitation rule under EC-221.

Turkewitz's solution to "ethics launderers" would be for the Office of Court Administration to use the Retainer Statements to catch the ethical launderers:

Those statements, that must be filed in every personal injury case taken on contingency, require the retained lawyer to specify who the referring sources are, be they attorneys or not. In the event of a tragedy that triggers the rule, OCA must anticipate the problem and do an immediate web search to see who is violating the rules, then cross-check that list against the incoming Retainer Statements. The rules must be clear now that, if the referring lawyer or service violated the anti-solicitation rule, then the matter will be forwarded to the disciplinary committee.

Turkewitz's discussion of ethics laundering is a must-read for every attorney disciplinary committee, which must realize that banning in-state lawyers from solicitation is only one piece of the puzzle in cleaning up lawyer advertising. Ethics laundering is the other.

January 23, 2009 | Permalink | Comments (1)

January 22, 2009

Jury Slaps Lawyer for Workers' Compensation Malpractice

An injured worker whose workers' compensation claim was dismissed due to his lawyer's negligence will recover after all, thanks to an Illinois jury verdict this week ordering the St. Louis lawyer and her firm to pay him $338,000. The worker, Frank Krausz, sued his former attorney, Ann Dalton, and her law firm, Hammond, Shinners, Turcotte, Larrew & Young, in 2007, claiming that he would have received nearly $400,000 in benefits had his lawyer properly handled his case, according to a report in The Madison Record.

Krausz claimed Dalton allowed his case to be dismissed by the Illinois Industrial Commission for lack of prosecution in August 2005, and then she failed to timely file for its reinstatement.

He also claimed Dalton failed to advise him of the adverse action until approximately November 2006, more than a year after his claim was permanently barred.

The two-day jury trial focused only on the extent of Krausz's disability, the newspaper reports. Prior to trial, the court granted Krausz summary judgment on the issue of the lawyer's negligence. Jurors deliberated just over an hour before arriving at the verdict.

January 22, 2009 | Permalink | Comments (1)

The Hearing Will Not Be Televised

"The revolution will not be televised," musician and poet Gil Scott-Heron recited on his 1970 debut album, "Small Talk at 125th and Lenox." Nor will be the proceedings in U.S. District Judge Nancy Gertner's courtroom, at least not today. After the recording industry sought appellate review of Gertner's order last week allowing the webcast of a motion hearing scheduled for today, she entered an order yesterday postponing the hearing until Feb. 24. The Boston Globe reports:

Six days after US District Court Judge Nancy Gertner granted a motion by the student's legal team to let the hearing scheduled for tomorrow be streamed onto the Internet, she issued a stay late Tuesday sought by the Recording Industry Association of America. The association has asked the US Court of Appeals for the First Circuit to block the webcast.

Gertner denied the association's request for a permanent stay, but said in a ruling late Tuesday that postponing the hearing will allow the appeals court "an opportunity to fully consider the petition before it."

In granting the postponement, Gertner noted that there is no emergency that would require the motions to be heard immediately. She also said that many of the plaintiffs' objections "involve questions of 'how' the recording will be made and distributed and not 'whether' the hearing can be recorded." Additional information is available from the Citizen Media Law Project.

January 22, 2009 | Permalink | Comments (0)

Not Bad for First Day on the Job

President Obama had plenty to do yesterday on his first full day in office, including a precautionary do-over of the flubbed oath of office. But one act he took officially yesterday and another he hinted at leave me feeling as if I'm in the political equivalent of hog heaven.

The official act was his issuance of a memorandum instructing all executive departments and agencies to apply a presumption of openness in their dealings with the public. Part of my law practice is to represent news organizations in their efforts to gain access to government documents and meetings. It is no secret outside government that the prevailing sentiment within many corners of government in recent years has seemed to be one of tighter secrecy. Some attribute this 9/11. Whatever the reason, the apparent clamp-down has made it harder for reporters and citizens alike to get access to even routine government information, at both the federal and state levels.

Thus it is encouraging that Obama chooses to make the reversal of this trend one of his first official actions. His memorandum directs:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

Obama's other act yesterday -- expected to be made official today -- was to circulate a draft of his executive order on the fate of detainees at Guantanamo. Lyle Denniston at SCOTUSblog details what the order reveals about Obama's plan:

A draft of an Executive Order circulating in Washington on Wednesday revealed a plan for, first, a full-scale review of the case of each of the remaining 245 or so prisoners; second, relocation of the prisoners either to the U.S. or to foreign countries with full release for some, and, third, prosecution of some -- though not necessarily in regular civilian courts -- for terrorist-related crimes.

In the meantime, the Order indicated, the government would extend full protection under all humane treaties on prisoners’ rights for those still at Guantanamo, indicating an end to any harsh treatment in violation of four aspects of the Geneva Convention.

As for execution, with regard to both the openness of government information and the closing of Guantanamo, the devil may be in the details, as one commentator suggested. Still, in these opening gestures from the new president, it feels as if the nation has taken an about-face and is now headed in the right direction.

January 22, 2009 | Permalink | Comments (0)

Allen & Overy Muzzles Lawyer's Erotic Fiction

Deidredare One of the world's largest law firms, Allen & Overy, has ordered a senior lawyer in its Moscow office to stop publishing erotic fiction on her personal Web site. A spokesman for the firm told news reporters that the saucy stories written by lawyer Deidre Dare, who is from the United States, violated the firm's strict rules governing employee conduct.

On her Web site,, which features the tagline, "Philosophy can be sexy," Dare has been publishing weekly chapters of her serialized novel about living in Moscow, "Expat." Recently, she stopped adding new chapters and posted this explanation: "The Author has been forbidden from publishing further chapters of Expat for the time being. She will resume if and when she is permitted to." Dare's Web site also features her poetry, photographs of her in transparent lingerie, and a page of "philosophy and quotes," which has just two items: "In order to succeed at marriage, you must fail at yourself," and, "You know how they say we only use 10% of our brains? I think people also use only 10% of their lives."

Her novel details its heroine's sexual encounters in Moscow with a series of men of various nationalities. It also describes more routine aspects of living and working in Moscow. The first chapter opens with this bit of provocation: "There is something thrilling about being in bed with a Frenchman, even if he does have a small ... ." Ahem, yes, let me stop there. As if an exercise in parallel structure, chapter three starts similarly: "There is something thrilling about being in bed with a German, even if he does have a tendency to make uninteresting small talk while ... ." Again, this being a family blog, I will stop short.

In addition to censoring Dare's fiction, it appears the firm also put a lid on her firm biography. One news report earlier this week quoted her firm biography's description of her practice: "Deidre is an international finance and projects lawyer who has represented diverse clients involved in financings, equipment leasing and projects around the world." But her biography page now is virtually blank, one of the few without even a photograph. Instead, it instructs anyone wanting her CV to e-mail the Web site's administrator. According to her LinkedIn profile, Dare is a 1989 graduate of Columbia University School of Law.

January 22, 2009 | Permalink | Comments (2)

January 21, 2009

Some Partners Still Seeing Profits

Since the start of 2008, many observers predicted that law firms would experience decreased revenues and diminished profits per equity partner (PPP) for the year. But so far, a handful of law firms are reporting modest increases. Earlier today, The Am Law Daily reported that Pittsburgh-based K&L Gates announced an increase of 27 percent in 2008 revenues, as well as 7 percent growth in PPP. The firm also grew from 1,235 to 1,552 attorneys, following mergers with Texas firm Hughes & Luce and North Carolina's Kennedy Covington Lobdell & Hickman. The firm is continuing with plans to expand in 2009 with the launch of an office in Frankfurt and potential merger with Chicago-based Bell Boyd & Lloyd.

K&L Gates' growth isn't an anomaly. A subsequent post at The Am Law Daily reports that Wilmer Hale saw a 1.2 percent increase in gross revenues, and a 1.44 percent increase in PPP. Revenue per lawyer also went up by 5.8 percent to $1,027,103. Meanwhile, Above the Law notes that in a firm-wide email, White and Case boasted of a seven percent increase in 2008 revenues.

So what accounts for the growth? Above the Law speculates that cost-cutting may play a big part. ATL suggests that the 70 lawyers White & Case cut a few months back may have contributed to the firm's growth, and that K&L Gates' new frugality with bathroom supplies might have also made a difference.  And cost cutting remains a part of firms' financial strategy. Firms such as Squire Sanders and Akin Gump are laying off dozens of non-legal support staff, according to the National Law Journal. And Abbe Mald Bunt, a recuiter, told the NLJ that firms will probably never again hire the same volume of support staff as they did through the '70s, '80s and '90s.

Are cutbacks as a means to preserve profits smart business strategy? Or is downsizing associates and support staff cold-hearted at a time when the economy is floundering and partners, on the whole, are doing well. At Law 21, Jordan Furlong references Obama's inauguration speech (in which Obama finds inspiration in the willingness of workers to take a paycut to keep their colleagues employed) and asks:

The answer to that question might just determine how well, if at all, your firm weathers the coming months.How many partners in your firm would willingly — enthusiastically — assent to a drop in profits per partner in order to keep fellow partners in the fold?

What do you think?

January 21, 2009 | Permalink | Comments (2)

Obama's First Hundred Minutes

Obama has been president a little over 24 hours, and already executive orders and policy pronouncements have come streaming out of his office. Initiatives announced today include:

-- A pay freeze for White House staffers who earn over $100,000 a year and new rules that ban former staffers from lobbying the administration for two full years after leaving their position [Source: Associated Press]

-- A directive to military prosecutors to seek a 120-day suspension of legal proceedings involving detainees at Guantanamo Bay [AP, via], as well as a yet unsigned draft executive order providing for the closure of Guantanamo within a year and commencement of a review on how to deal with the remaining prisoners. [Reuters]

-- A change in the presumptions applied to Freedom of Information Act requests in favor of disclosure of information, with the onus on government officials to justify withholding of information [MSNBC]

Finally, Obama received a favorable order of his own: the Secret Service will allow him to keep his BlackBerry despite concerns that it represents a legal and security risk. Obama is aware that any e-mails he sends may wind up on CNN -- and is apparently willing to accept the loss of privacy. In addition, Obama must also archive all of his messages to comply with applicable record-keeping requirements.

January 21, 2009 | Permalink | Comments (0)

Obama's Botched Oath of Office

By now, even those who didn't watch yesterday's inauguration ceremony of Barack Obama have heard about the debacle surrounding his oath of office, or "Oaf of Office" as the New York Post put it. As described by the New York Times, Obama flubbed first by jumping the gun and beginning the oath, before Chief Justice Roberts had a chance to complete the first phrase. As a result, Obama ended up saying the first to words, "I, Barack" twice. Then, Roberts, relying on memory, fed Obama the wrong phrase, asking him to repeat "I will execute the office of the president faithfully" instead of the correct, "I will faithfully execute the office of the president." Obama recognized the error and paused, but even on the second try, Roberts followed up with "Faithfully the office of president of the United States," omitting the word execute.

So does the flubbed oath represent another historic precedent, like the inauguration of the first African-American president? Nope. As Tony Mauro writes at the Blog of the Legal Times, the oath was garbled once before, by Chief Justice William Howard Taft who administered it to Chester A. Arthur Herbert Hoover. As a former president, Taft had taken the oath himself.  From the BLT:

Taft did not use the back-and-forth, prompt-then-repeat style of giving the oath, which helped trip up Roberts and Obama on Tuesday. Instead, Taft did it in the form of a command, beginning with "You, Herbert Hoover do solemnly swear..." followed by the entire oath, so that all Hoover had to say was, "I do." Not a bad idea, come to think of it, except that Taft's recitation of the oath had Hoover swearing to "preserve, maintain, and defend" the Constitution instead of the "preserve, protect, and defend" formulation set forth in the Constitution.

In that pre-blog era, according to [Jim Bendat's book, Democracy's Big Day], the only one to notice the error was an eighth-grade girl from upstate New York who heard the blunder on the radio. She wrote Taft, who replied that he was quite sure he had made a different error, stating "preserve, maintain and protect." He chalked up the error to "an old man's memory."

But that was not the end of it. The schoolgirl, named Helen Terwilliger, stuck to her guns, and the dispute became something of a public controversy. Three newsreel companies checked their tapes and pronounced the girl correct. Taft eventually confessed error, but shrugged it off. "After all, I don't think it's important."

Mauro also notes that questions were raised about Coolidge's oath of office, which was administered by his father, a notary public. But Attorney General Harry Daugherty and Solicitor General James Beck voiced doubts that the father had authority to swear in anyone other than Vermont state officials, so Coolidge took the oath again.

In this situation, experts say that Obama's flubbed oath wouldn't impact his legitimacy as president but that he might want to re-take the oath as a precaution, reports the Washington Post:

Charles Cooper, head of the Justice Department's Office of Legal Counsel under President Ronald Reagan, said that the oath is mandatory, that an incorrect recitation should be fixed and that he would be surprised if the oath had not already been re-administered.

Akhil Reed Amar, a Yale University professor of constitutional law, said, "Out of a super-abundance of caution, perhaps he should do it again."

January 21, 2009 | Permalink | Comments (7)

January 20, 2009

Lawyers Celebrate Inaugural With Cash

It is a festive time to be in the nation's capital and law firms are at least partly to thank. Marcia Coyle writes today in The National Law Journal that lawyers and law firms are a major financial force behind the presidential inaugural festivities. "Lawyers and law firms are the second largest contributors thus far, kicking in $2.5 million (175 donations), according to the Center for Responsive Politics, which has analyzed contributions reported in advance of the event. They are second only to the securities/investment industry, which has donated a total of $3.6 million (118 donations)."

Check out Coyle's piece for the names of some of the lawyers who contributed the maximum-allowable donation of $50,000. Meanwhile, at least one firm chose to throw a gala party of its own. Tony Mauro reports at The BLT on Sunday night's reception sponsored by Bingham McCutchen to honor Harvard Law School professor Charles Ogletree. "It was a star-studded event," Mauro writes, "with luminaries of the black bar and bench mingling and celebrating, not just the career of Ogletree -- some just called him 'Tree' -- but the impending inauguration of Barack Obama."

One other firm tried to stage a more low-key event. Unfortunately, it was not successful, at least not for now. The Washington Post, in an article about Obama's tight rules for inaugural donations and percs, tells what happened to the unnamed D.C. firm:

Some District companies have been stymied by Obama's arm's-length approach. A local law firm asked at least five Obama cabinet nominees to attend a brunch in their honor. All the invitations were declined.

"I was going to do a brunch for them, and they all said, do something for me after my confirmation," said a partner in the firm, who requested anonymity because he did not want to get off on the wrong foot with incoming administration officials. "In the past, companies could write checks to the inauguration committee, make in-kind contributions, and now it's completely flipped."

Do something for me after my confirmation? OK, that's one approach to starting off on the right foot.

January 20, 2009 | Permalink | Comments (1)

A Long Weekend's Legal Link Wrap

It was a long weekend for some, a work weekend for others. But legal blogs and legal news kept on rolling. Here is some of what has happened since Friday:

January 20, 2009 | Permalink | Comments (1)

World Court Finds U.S. Guilty as Charged

The International Court of Justice at The Hague in the Netherlands ruled unanimously yesterday that the United States violated international law by failing to stop Texas from executing a Mexican national last summer, Lyle Denniston reports at SCOTUSblog. But Denniston says the court seemed to absolve the Supreme Court of any legal violation, even though it refused to block the execution.

Even while finding a breach by the U.S. government as a whole, the international court did not attach any legal consequences to that, and declined to take any action to keep the U.S. from committing another such violation in the future. The ICJ (popularly known as the “World Court”) split 11-1 in some part of the ruling, but all 12 judges — including the judge from the U.S., Thomas Buergenthal — supported the finding that the U.S. government failed in its duty.

The case had to do with Jose Ernesto Medellin, a Mexican national who was sentenced to death in Texas for murder. In 2004, the World Court ordered the U.S. to take steps to assure that foreign nationals facing execution were allowed an opportunity to show that denial of access to a diplomat from their native county harmed their cases. Last July, the World Court specifically ordered the U.S. not to allow Medellin's execution. But the Supreme Court ruled that the 2004 World Court decision was not binding and on Aug. 5, it declined to stop Texas from carrying out the execution. Medellin died that night.

January 20, 2009 | Permalink | Comments (0)

Supreme Discomfort on Inauguration Day

Will there be a hint of frost in the air today as Barack Obama is inaugurated as president of the United States? I am not referring to the weather; the frost I am talking about would come from the chilly reception Obama might feel from at least two justices of the Supreme Court. Three articles published over the weekend examine the parallels and the differences between Obama and Chief Justice John Roberts and Obama and Justice Clarence Thomas. While each article finds parallels of one sort or another, all three conclude that these three powerful men are more defined by their differences.

Let us start with Chief Justice Roberts, who will administer the presidential oath of office. Both Dahlia Lithwick writing in Newsweek and Linda Greenhouse writing in The New York Times suggest that the Obama/Roberts pairing brings us full circle from the inauguration of Abraham Lincoln. Lincoln was sworn in by Chief Justice Roger B. Taney four years after Taney wrote the opinion in the pro-slavery Dred Scott case. If there was no love lost between Lincoln and Taney that long-ago day, what will be the mood on the podium today?

Both Lithwick and Greenhouse remind us that Obama was one of 22 Democratic senators who voted against Roberts' confirmation. Greenhouse quotes Obama saying about Roberts, "It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak." They have continued to differ on a number of issues, notably the extent of executive power. Greenhouse portrays them as two divergent faces of a generation:

What is most striking about the two men who will meet at arm’s length, the Lincoln Bible between them, is the difference in the paths that brought them to this moment. In this tableau, they represent two faces of a generation that grew to adulthood after Vietnam, after the fantasies and tragedies of the 1960s, after the civil rights marches were over, when the cities were still smoldering but no longer burning.

Noting that the two met last week under a portrait of Chief Justice William Howard Taft, the only president to become a Supreme Court justice, Greenhouse wonders whether, after today, Obama and Roberts might someday see their paths cross again as colleagues the high court. Lithwick, on the other hand, says the two have more in common than might appear:

Both are gifted attorneys. Both are charismatic and respected by peers across the ideological spectrum. Both claim to seek unanimity and moderation. And both are devoted to putting America's racial divisions behind us, even if they would disagree on the mechanism. Roberts and Obama certainly differ on presidential powers and judicial philosophy. But that will matter not at all this week when they stand side by side and swear on a Bible once held by two men who could never have imagined this day would come.

If Greenhouse and Lithwick see at least grounds for mutual respect between Obama and Roberts, Gregory Allen Howard, writing at Huffington Post, sees only seething resentment of Obama in Justice Clarence Thomas:

Watch him as he sits but a few feet away from Barack Obama at the swearing in ceremony. Watch the furious, suppressed envy in his eyes. The hatred. The jealousy. In his small, simple brain he thinks: Him? That should be me taking the oath of office. I've done everything they wanted.

Just as Greenhouse contrasted the careers of Obama and Roberts, Howard, a Hollywood screen writer, does the same for Obama and Thomas. But he calls Thomas' career a "fictional narrative" and argues that Thomas resents Obama for pointing it out when he once called the justice unqualified for the Supreme Court.

Thomas, angry, bitter and unqualified will have to look at this man who revealed him for the fraud that he is for the next 8 years. Once a year at the State of the Union, Thomas will sit just a few feet from Obama. He will have to watch him and listen to him, his eloquence, his command. That will be difficult for Clarence. It will be so painful that Thomas may actually implode; he may even explode. We could only hope...

So as you watch the inauguration today, do as Howard suggests: Pay careful attention to the eyes of all three men. As Chief Justice Roberts administers the oath, as Obama lays his hand on the Bible that Taney held for Lincoln, as Justice Thomas looks on, see if you can read into their eyes their thoughts about the drama of the moment.

Postscript: For yet another take on today's face-off between Obama and Roberts, see Robert Barnes' piece today in The Washington Post.

January 20, 2009 | Permalink | Comments (1)

January 16, 2009

Trade Secret Ruling Crashes DUI Cases

A manufacturer's refusal to reveal the source code for its breath machines to test blood-alcohol content could cripple hundreds of prosecutions of suspected drunk drivers in Florida. An appeals court has upheld the rulings of two trial court judges that the breath-test results are inadmissible unless defendants are allowed to examine the source code for the Intoxilyzer 5000. But the company that makes the machines, Kentucky-based CMI Inc., refuses to release the code, which it says is a protected trade secret.

According to a report in The Bradenton Herald, two Florida judges -- Doug Henderson in Manatee County and David Denkin in Sarasota County -- ruled the tests were inadmissible if defendants could not examine how they worked. Prosecutors appealed and this week a state appeals court affirmed the rulings. Prosecutors must now decide whether to take the cases to trial or dismiss the charges.

Both judges agreed that CMI could not be forced to divulge the source code. But without it, the evidence could not be allowed in. "The defendant's right to a fair trial outweighed the manufacturer's claim of a trade secret," Judge Henderson said during a hearing this week. Prosecutors are awaiting Henderson's written order before deciding how to proceed, but one defense attorney said the state would most likely have to reduce the charges in many cases or drop them altogether.

January 16, 2009 | Permalink | Comments (1)

Nancy Gertner: New Media Judge

U.S. District Judge Nancy Gertner gets new media. She was the first judge in Massachusetts to blog, she has appeared as a guest on at least one podcast that I happen to know of, and this week she entered a history-making order allowing a hearing before her next week to be broadcast over the Web.

Her order came in a music-industry case against a Boston University graduate student alleging illegal file sharing. The student, Joel Tenenbaum, is being defended by Charles Nesson, who filed the motion asking Gertner to permit the webcast. Nesson is a professor at Harvard Law School and a founder of Harvard's Berkman Center for Internet & Society. Gertner's order applies only to next week's hearing, where she will take up various motions. It will allow the Courtroom View Network (which is a business partner of, the host of this blog) to "narrowcast" the hearing to the Berkman Center's Web site, where the public will be able to view it.

The case is a natural for a webcast, Gertner's order suggests:

"Public" today has a new resonance, especially in this case. The claims and issues at stake involve the internet, file-sharing practices, and digital copyright protections. The Defendants are primarily members of a generation that has grown up with the internet, who get their news from it, rather than from the traditional forms of public communication, such as newspapers or television. Indeed, these cases have generated widespread public attention, much of it on the internet. Under the circumstances, the particular relief requested -- "narrowcasting" this proceeding to a public website -- is uniquely appropriate.

The music industry objected to the webcast, something Gertner described in her order as "curious," given the industry's purported interest in bringing these lawsuits in order to deter file sharing among the broader public. "Their strategy effectively relies on the publicity resulting from this litigation," she notes." More coverage of her ruling is available from The Boston Globe and the Citizen Media Law Project, which is an affiliate of the Berkman Center. If the case goes on to trial, Gertner will consider then whether to allow the webcasts to continue.

January 16, 2009 | Permalink | Comments (2)

Early End to Depo Put Lawyer on Flight

Michaelnunn Lawyer Michael M. Nunn was no doubt happy about the early end to the deposition that had brought him to New York. Worried that bad weather was on the way, he went straight to LaGuardia and was able to get on an earlier-than-scheduled flight that would take him back to his home in Florence, S.C., where he is a partner at the firm Aiken, Bridges, Nunn, Elliott & Tyler. As fate would have it, it appears that a certain flock of geese was also hightailing it out of New York, and the crossing of their paths put Nunn not in sunny South Carolina but in the middle of the frigid Hudson River.

Nunn's law partner, Glenn Elliott, told the Florence Morning News that he heard from Nunn shortly after the U.S. Airways plane's soggy landing. "He called shortly after he got off the plane. He apparently was helped off fairly quickly," Elliott said. "I understand that he got wet -- I’m not sure how much exposure he had -- but I understand that he's afraid he might have a little frostbite. Otherwise he is safe."

Nunn told Elliott that he was supposed to be on a later flight but took advantage of the early end to the deposition to try to beat the weather out of New York. Shortly after take-off, Nunn told Elliott, he heard a loud noise and all the passengers assumed something was wrong with the engines. "The plane banked and, shortly thereafter, the pilot told them to brace for impact. That's all he heard," Elliott recounted.

Nunn's profile describes him as a litigator who focuses on business litigation, employment law, medical malpractice and products liability. He is a 1982 graduate of the University of South Carolina School of Law and a former executive committee member of the South Carolina Defense Trial Attorneys Association. He is also, I would guess, a very thankful man today.

[Hat tip to ABA Journal.]

January 16, 2009 | Permalink | Comments (0)

Geese in Engines, Vultures on Land?

Passengers on U.S. Air flight 1549 had barely found time to thank their lucky stars yesterday when Carl Malamud, founder of, discovered a legal referral Web site offering legal assistance to those involved in the Hudson plane crash. Malamud posted the link to Twitter, where it spread like viral wildfire, eliciting comments from others on Twitter such as, "Ambulance chasers def got to the Hudson River quickly." The page, from attorney-referral service AttorneyOne, said this:

If you or a loved one are in need of legal assistance concerning Hudson Plane Crash you should get a lawyer on your side immediately. You will pay no attorney fees unless you win your case.

Email up to 10 Hudson Plane Crash law firms in one click; by filling out the simple Free Case Evaluation form.

For additional info on Hudson Plane Crash use the related topic links on the far right.

That was quick, even by the standards of a profession known for its ambulance chasers. As it turned out, however, the site had nothing to do with that Hudson plane crash. As Walter Olson explained at his blog, Overlawyered, a small bit of sleuthing on his part found that the page existed well before yesterday's crash:

Indeed, it was a website prearranged just to be sitting there should a plane crash take place connected with the town of Hudson, Ohio. A bit of URL-tinkering confirms that one can generate a similar AttorneyOne page hawking attorneys’ services for a hypothetical plane crash in Chillicothe, Ohio. So don't compare this sort of thing to online ambulance chasing. It's more like camping out online and waiting for the accident to come to you.

OK, that one turned out to be a false alarm, but lawyers elsewhere are no doubt packing their briefcases at this very moment. If so, they may force a test of New York's new attorney ethics rules governing solicitation, observes Eric Turkewitz at New York Personal Injury Law Blog. The new rules, which prohibit solicitation within 30 days of a mass disaster, came into effect in the wake of the 2003 Staten Island Ferry disaster, he explains, when lawyers raced to place ads in the Staten Island newspaper on the day it happened. Will lawyers respect the 30-day rule? No doubt, we'll find out soon enough.

January 16, 2009 | Permalink | Comments (0)

January 15, 2009

Partner Confidence at All-Time Low, but Some Bright Spots Remain

It's no surprise, but law firm managing partners aren't very optimistic about the health of the economy, says Legal Times. The paper cites Citi Private Bank's Law Watch Managing Partner Confidence Index, whose fourth quarter findings show that managing partners' confidence in the economy at large has plunged to a record low of 38 on a scale of 0 to 200. And they ranked expectations for profits, revenue and client demand for 2009 at 70, 83 and 97 respectively. Still, despite the severe economic crisis, most partners remain optimistic about their own law firms' prospects, many figuring that their firm will buck the economic trend. 

Of course, the economic downturn wasn't bad news for all lawyers. During the last quarter of 2008, employment law work boomed for firms in California, says The Recorder. Though employment work typically experiences an uptick in down times -- such as during the dot-com bust of 2000 -- because this recession has impacted industries across the board, employment work has really exploded. In addition to dealing with layoffs and workforce restructurings, employers are seeking legal advice on reductions in compensation and work schedules, pay freezes, job sharing and telecommuting. And though the economy may improve with a new administration, the anticipated flood of new laws should keep employment lawyers busy for a while.

January 15, 2009 | Permalink | Comments (1)

Former Lawyer's Infidelity Agency Called a Bitter Success

They say the law is a jealous mistress. If that's the case, then former lawyer Noel Biderman is uniquely qualified for his current position as president and CEO of The Ashley Madison Agency, a dating service for people who are married or attached. (The company's tag line -- "Life Is Short. Have an Affair." -- brings to mind a Chicago divorce lawyer's similarly controversial advertisements, which we covered here in 2007). The Web site Bitter Lawyer has a new Q&A with Biderman, a 1995 graduate of Toronto's Osgoode Hall Law School.

He explains that the concept for came to him when he discovered that roughly 30 percent of those participating in online dating services were "attached and using the anonymity of the web to lie about their marital status." Creating a site specifically for this niche made good business sense. 

So how do Biderman's legal skills come into play in this venture? Lawyers and bankers seem to be the largest professional groups among the site's clients, Biderman says. But he also describes how he uses his legal training to build a cohesive defense against those whe criticize as offensive or immoral because it facilitates infidelity. I'm not sure that's the best use of legal training, but then again, Biderman is no longer a lawyer.

January 15, 2009 | Permalink | Comments (3)

Work/Life Balance in Theory, Not in Practice

The National Law Journal reports that the Diversity and Flexibility Connection, a new initiative headed by the Project for Attorney Retention, will bring together a dozen general counsel from major U.S. companies with managing partners from law firms with good track records on work/life issues in an effort to develop a list of best practices that promote both diversity and work/life balance among attorneys. What's unique about this initiative is that it combines law firm diversity and work/life balance initiatives, instead of treating them separately.

Still, don't count Yahoo among the participants, at least if a More Magazine profile of new Yahoo CEO Carol Bartz (via the Wall Street Journal blog, The Juggle) is any indication. Essentially, Bartz says that work/life balance is a myth that leads to guilt for working moms.

So what's Bartz's solution? Focus on doing one thing well at a time, instead of trying to be perfect across the board. And from what I could tell, Bartz chose business over family, or at least, that's how it seems to me. From the profile:

When [Bartz's] daughter was an infant she would spend four days of the week working in California, while her family was back in Dallas. “For four days, I got to use my mind, I got to sleep, I got to have a real career. I had the best of both worlds,” she said. “It was awesome for me, and I don’t think [my daughter] is any the worse for it.”  When her daughter got older, mother and daughter would gather around a calendar at the beginning of each school year, and Ms. Bartz would mark a handful of commitments, such as a Halloween party and a Christmas pageant that she wouldn’t miss.

“I’d tell her, ‘These are the times Mommy will be here. Anything else will be a surprise,’” she said. “So she was surprised when I showed up, instead of depressed that I wasn’t at everything. She learned about schedules, she learned about commitments, and I did get to enjoy some of the school times.”

Still, by anyone's measure, Bartz is a success in the workplace. Do Bartz's experiences justify leaving the system as is? Or can it be changed, as PAR believes, to open doors for other women? What are your thoughts?

January 15, 2009 | Permalink | Comments (1)

Does Naming a Child 'Adolf Hitler' Constitute Abuse?

What's in a name? Quite possibly, child abuse, at least if you've named all three of your children after Nazi figures. Various news sources, including and Fox News, are reporting that the New Jersey Division of Youth and Family Services (DYFS) removed three New Jersey siblings with Nazi-inspired names  -- Adolf Hitler, Joyce-Lynn Aryan Nation and Honszlynn Hinler Jeannie Campbell -- from their parents' home and placed them in state custody. The children's parents, Heath and Deborah Campbell, had previously attracted media attention last month when a local Shop-Rite refused to write the son's name, Adolf Hitler, on a birthday cake.  (H/T Volokh)

Experts quoted in the news stories emphasize that a poor name choice wouldn't give cause for removal, and suggest that DYFS must have had other reasons for its decision. At the same time, Sgt. John Harris of the Holland Township Police Department told Fox that he was not aware of any reports of abuse, and that in his view, Mr. Campbell had always been good with his children.

However, forensic psychologist N.G. Berrill told Fox News that naming a boy Hitler could be considered child abuse:

"Part of it is the infantile nature of the parents’ behavior," Berrill said. "You can name your dog something weird, but they think they’re making some kind of bold statement with the children, not appreciating that the children will have separate lives and will be looked at in a negative light until they’re able to change their name. It is abuse."

Moreover, removing children from a home for an inappropriate name is not unprecedented -- last year, a New Zealand court removed a 9-year-old girl from her parents in order to change her birth name: Talula Does The Hula From Hawaii.

Personally, I cannot imagine a worse choice of names than those selected by Campbell, nor can I imagine why any parents, even if they liked a Nazi-related name or the sick philosophy behind it, would ever want to saddle their children with a legacy of pure evil. Still, if poor name choice is deemed abusive, where do we draw the line on what types of names justifies removal from the home? What are your thoughts?

January 15, 2009 | Permalink | Comments (7)

January 14, 2009

The Business World's Most Ethical Lawyers

Ethisphere, a magazine that covers ethics in business practices and corporate citizenship, recently came out with its list of the 100 most influential people in business ethics. The list recognizes individuals in 2008 "who pushed the envelope in legal compliance, business ethics, sustainability or social responsibility." I found 19 lawyers on the list -- not a bad showing for the legal profession in promoting business ethics. 

The list does not identify honorees as lawyers unless they are so employed, so it might include even others.

January 14, 2009 | Permalink | Comments (5)

Another Firm Recruits on Facebook

If you want to catch fish, go where the fish are. If you want to catch law students and young associates, go to Facebook, which is teeming with them. That was the reasoning last August, when the Am Law 200 law firm Curtis, Mallet-Prevost, Colt & Mosle launched a Facebook page to serve as a central component in its law school recruiting efforts. (I wrote it about it then at my LawSites blog.) Now, a Texas firm is dropping a line in the water with a Facebook recruiting page of its own.

Munsch Hardt Kopf & Harr, a commercial law firm with offices in Dallas, Houston and Austin, unveiled its Facebook page Monday. "The initiative is designed to increase Munsch Hardt's visibility among young associates and law students," an announcement said. The page features video testimonials and photo albums from former summer associates along with information about the firm and its summer-associate program. A poll on the page asks, "How many weeks would you prefer your summer clerkship program to be?"

The page was the work of the co-chairs of the firm's law school hiring committee, partner Kitty O’Connell Henry and associate William J. Moore. Henry tells Texas Lawyer reporter Brenda Sapino Jeffreys, writing at Tex Parte Blog, that she believes information on the Facebook page will help sell the firm and answer some of the questions students and young lawyers have about it. Young associates at the firm are enthused about the page, Henry says. "We have video clips of four of our youngest associates, who talk about our culture and how they feel about the firm. It’s great," she says. Now to reel them in.

January 14, 2009 | Permalink | Comments (2)

Folos: Violent Felons and WhoCanISue

The news today brings follow-ups to two stories we previously wrote about here.

The Supreme Court yesterday decided Chambers v. U.S., a sentencing opinion holding that the failure to report to prison is not the same as a prison escape and is not a "violent felony." We wrote about the issue here in November, just after the court heard oral arguments in Chambers and on the heels of a U.S. Sentencing Commission report that looked at failure-to-report cases and found that none involved the use or threat of force. At SCOTUSblog, Lyle Denniston has a recap of yesterday's opinion.

The provocatively named Web site had its formal launch yesterday, according to the blog technola. I cannot find the blog's source for this or any such announcement from WhoCanISue of a formal launch, so I cannot vouch for it. Carolyn Elefant, my colleague here at Legal Blog Watch, was not impressed with WhoCanISue when it first launched in August or later that month when it exhibited at the American Bar Association annual meeting with three models in skin-tight nurse outfits and red high-heels.

January 14, 2009 | Permalink | Comments (3)

Bar's Firing of Director Causes Waves

The mystery surrounding the Massachusetts Bar Association's decision last month to terminate its executive director, Marilyn J. Wellington, is causing waves within the state's legal community. Last week, the Massachusetts Lesbian & Gay Bar Association sent MBA leadership a letter demanding that it be provided with an explanation for her firing by noon today. On Monday, MBA President Edward W. McIntyre denied the MLGBA's request, "in the interest of employee confidentiality." Then yesterday, Wellington filed a complaint of gender discrimination against the MBA with the Massachusetts Commission Against Discrimination.

As Massachusetts Lawyers Weekly reported Dec. 22, the Dec. 11 termination of Wellington came about abruptly. But rumors had swirled around her tenure since last summer, when Lawyers Weekly reported that the MBA had hired an outside lawyer to conduct an investigation pertaining to Wellington and that she had retained an employment lawyer to represent her interests. Her lawyer, Paul F. Kelly, now tells MLW that last summer's investigation focused on whether Wellington had been subject to retaliation for having lodged complaints about gender discrimination.

Leadership of the MBA (of which I am a dues-paying member and committee member) has provided no explanation for its decision to terminate Wellington, a former court administrator who had held the job for three years. She succeeded an executive director who also alleged gender bias after being terminated from the post. The resulting rumors of gender bias in Wellington's case led the MLGBA to write its letter demanding a "full written accounting."

All of this may come to the fore tomorrow, when the House of Delegates, the MBA's governing body, is slated to meet. The MLGBA told MLW that if it did not receive an explanation by today, it may resign its MBA affiliation at tomorrow's meeting. The MBA may be between a rock and a hard place on the question of disclosure, given that Wellington's lawyer said in a public statement that her employment agreement bound the MBA to protect her confidentiality. "Without an employee’s written consent and voluntary waiver of rights of confidentiality and privacy," the MBA's president told the MLGBA, "it would be unlawful under state and federal law to release confidential employee information; it would also be unethical."

January 14, 2009 | Permalink | Comments (2)

January 13, 2009

Rabbis Call for Release of Jewish CEO

Bernie Madoff should feel fortunate that he doesn't live in Iowa. Yesterday, Southern District of New York Magistrate Judge Ronald Ellis rejected the government's motion to jail Madoff pending trial, merely imposing new restrictions to keep him from mailing any more valuables to family and friends, reports the New York Law Journal. But in Dubuque, Iowa, another Jewish defendant remains incarcerated pending trial because of concerns that he might avail himself of the "law of return" and flee to Israel if released on bail. 

As explained by the Iowa Independent, Israel's Law of Return provides citizenship to any Jew and members of his family who express a desire to settle in the country. Iowa Judge Jon Scoles cited the law of return as a consideration in his decision to keep former Agriprocessors CEO Sholom Rubashkin, who stands accused of bank fraud and immigration charges, locked up pending trial. Scoles' decision has drawn criticism from rabbis and Jewish groups who believe that the judge improperly assumed that Rubashkin was more likely to be a flight risk because, as a Jew, he could take advantage of the Law of Return to flee the country before trial. But prosecutors argue that they presented additional evidence to suggest that Rubashkin was a flight risk, including a suitcase filled with money -- which Rubashkin claims was charity for Purim, a Jewish holiday).

For previous discussion of this issue, see Volokh and Simple Justice.

January 13, 2009 | Permalink | Comments (0)

Will Obama Side With High-Tech or Hollywood?

Tony Mauro of Legal Times reports that the Supreme Court justices have invited the view of the solicitor general on a petition for cert filed in Cable News Network Inc. v. CSC Holdings, which concerns the issue of whether, under the Copyright Act of 1976, Cablevision’s on-demand service infringes the petitioners’ exclusive copyrights by copying, storing and transmitting its programs without an additional license.

The case is significant for at least two reasons. First, the Court's order seeking input from the solicitor made public that both Chief Justice Roberts and Alito have recused themselves from the case. Roberts owns stock in Time Warner, parent company of CNN, that was valued at between $100,001 and $500,000 as of May 15, 2008, while Alito owns less than $15,000 worth of stock in Disney, which is also a party in the case. It's difficult to predict how these justices' absence will impact the Court's final judgment.

But the case is significant for a second reason, according to the San Francisco-based Legal Pad blog, because Obama's new administration must take a side and choose to support either the content providers and copyright owners or the technology companies. Again, no prediction as to which way Obama will go -- as the post notes, "Obama loves his BlackBerry and used the Internet better than any other presidential candidate. But he’s also got big supporters in Hollywood, which has always done a lot better job lobbying than our local tech companies."

January 13, 2009 | Permalink | Comments (0)

Does Blogging Generate Business?

Once again, a perennial question has resurfaced in the legal blogosphere: Does blogging generate revenues? Leading off is Mark Hermann, of Drug and Device Law, who writes:

In our little niche, however, we're pretty well known. To the extent that a blog of this type can generate business, we would have expected that to have happened during the two years we've been at this. It really has not.

Hermann speculates that one reason blogs don't work as well for large firm lawyers is that his target clients -- large companies and corporate general counsel -- typically don't surf the Internet to find counsel. Thus, to the extent blogs generate business by attracting prospects through search engines, they're not as effective a marketing tool for a large firm lawyer as for those with smaller practices. At the same time, Hermann leaves open the possibility that blogging, when combined with other marketing, could prove an effective business development tool over the long term. In the interim, Hermann advises large firm lawyers who aspire to blog to do it for pleasure or to keep abreast of the law, but not for profit.

On the other side of the argument, Kevin O'Keefe of Lexblog offers several instant success stories from blogging Iowa lawyers. As O'Keefe describes, Rush Nigut, Austin Kennedy and Patrick Burk have attracted calls from prospective clients via their blog (though O'Keefe doesn't provide details on how much business each lawyer generates from his respective blog).

So who wins the argument over whether lawyers should blog for business? Without data, it's tough for me to quantitatively evaluate the return on investment. But anecdotally, I note that Hermann's curmudgeonly attitude toward blogging (which produced an invitation to the curmudgeon's club from Scott Greenfield of Simple Justice) also earned Hermann coverage in the popular WSJ Law Blog. Apparently, when it comes to legal blogging, being a skeptic rather than a cheerleader garners the most publicity.

January 13, 2009 | Permalink | Comments (3)

January 12, 2009

Exploring Innovation, Significant or Small

How do lawyers innovate? Susan Cartier Liebel counts the ways as author this week of Blawg Review #194. Innovation, she notes, may be incremental, radical or revolutionary. For examples, she culls through the week's blawg postings, where she finds innovation in various forms, such as:

Liebel also touches on posts that suggest innovation is not always what it's made out to be. These include posts by Erik J. Heels, who suggests the legal system is not keeping pace with innovations in technology, and Scott H. Greenfield, who says a lawyer-rating system trumpeted as innovative ain't necessarily so.

This being Blawg Review, Liebel also wraps up other posts of interest from legal bloggers on a range of topics. Read her full recap here.

January 12, 2009 | Permalink | Comments (0)

Who's Worse: Blagojevich or Fitzgerald?

Has U.S. Attorney Patrick J. Fitzgerald absconded with Illinois Gov. Rod R. Blagojevich's presumption of innocence and right to a fair trial? If so, whose conduct -- that alleged of Blagojevich or that seen of Fitzgerald -- is more abominable? These are questions Carolyn Elefant asked here last month, and now trial lawyer Gerry Spence raises them on his blog in a post entitled, "Guilty Until Proven Innocent." Never one to mince words, Spence accuses Fitzgerald of acting more like a jury than a prosecutor.

Mr. Fitzgerald has absconded with the governor’s presumption of innocence. The prosecutor has abused the immense power of his office to transform otherwise innocent members of the public -- all of us -- into persons who, as a result of Mr. Fitzgerald’s releases to the media, have already decided the governor’s case before we have been provided the first word of sworn testimony in a court of law.

Even assuming the charges against the governor to be true, it is the conduct of the prosecutor that is of greater concern, Spence argues.

The act of the governor results in his illegal enrichment and constitutes a serious undermining of our representative system. The act of the prosecutor results in the wrongful destruction of an American citizen’s rights and casts a threatening shadow over the entire judicial system charged with the duty to secure our constitutional protections.

The bar, the courts and the media have been complacent in this through their silence, Spence suggests.

Mr. Fitzgerald’s conduct transcends this case. What we witness without a whimper from the media, the courts, or the bar is a prosecutor charged with the highest professional duty to see that every accused, no matter how guilty, obtains a fair trial, and who, instead, in this historical instant, has voluntarily taken steps to see that such a right becomes little more than a sad, distant echo of a justice system that once set the standard for the world.

In contrast to Spence, USA Today compares Fitzgerald to TV cop Joe Friday, describing him as having a "strait-laced, just-the-facts ma'am style" and sharing with Blagojevich's defense counsel Ed Genson "a strong vision of right and wrong ... and a belief in the system." What do you think about his tactics in this case? Has Fitzgerald tried and convicted Blagojevich without ever even filing formal charges? Or do the circumstances justify the means?

January 12, 2009 | Permalink | Comments (1)

The Young-Gun Lawyers of Porn

Looking for a recession-proof area of practice? If so, perhaps X marks the spot. The business of porn grinds on even in lean times, and its purveyors need lawyers just as do any businesses. Adult-entertainment law is not just about obscenity and free speech, but also about zoning, labor law, record-keeping and who knows what else.

Thus, it should come as no surprise that the four-day Adult Entertainment Expo that wrapped up yesterday in Las Vegas included a program on adult-entertainment law. The Friday legal program was billed as featuring the "Young Guns" of adult-entertainment law, "the next generation of legal superstars in the adult industry." The three porn-law sharpshooters featured on the panel were Jennifer Kinsley, a member of Sirkin, Pinales & Schwartz in Cincinnati, Ohio; Marc John Randazza, a partner with Weston, Garrou, Walters & Mooney in Altamonte Springs, Fla. (and author of the blawg The Legal Satyricon); and Cary S. Wiggins, a partner with Cook, Youngelson & Wiggins in Atlanta.

As out-of-place as lawyers might seem at an adult-entertainment conference, even odder was the number of lawyers in the audience of more than 200, reports AVN Media. "It was strange to see an AEE legal seminar that had more attorneys in the audience than on the stage," writes AVN reporter Mark Kernes. The three panelists talked mostly about obscenity prosecutions, federal record-keeping requirements and zoning laws. But audience members asked them about a range of other issues, from photo ID requirements for foreign performers to the effectiveness of Web site disclaimers.

Lawyers, it appears, can make a decent living from indecency, even in a recession. So if these young guns inspire you to pursue a career in adult-entertainment law, you may wish to start out by going for a bachelor's degree at the University of Florida. As it turns all, all three of these young guns graduated from there.

January 12, 2009 | Permalink | Comments (4)

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