Legal Blog Watch

Law.com Blog Network

March 31, 2009

Twitter Doesn't Stack Up for Law Librarians

The folks at Law Librarian Blog wondered whether law librarians use Twitter. So they took a poll. The outcome: Most law librarians do not use Twitter for library-related purposes and have no plans to tweet anytime soon. The admittedly unscientific survey drew 166 participants. Asked, "Do you Twitter?" their responses broke down this way:

57 percent do not Twitter
25 percent Twitter for both work and personal reasons
11 percent Twitter only for personal activity
7 percent Twitter for work-related activities

Those who do not now Twitter at work were asked whether their libraries are likely to launch a Twitter feed at some point. Probably not, said 71 percent of the non-tweeters. Only 3 percent said they would be likely to launch a Twitter feed within the next three months.

Some other interesting findings:

Of those who use Twitter at work, 63 percent said they are the only staff member who does so.
44 percent of workplace users send out fewer than five tweets a week. Only 14 percent exceed 20 tweets a week.
Those who use Twitter outside work do it somewhat more frequently, with 29 percent saying they send out more than 20 tweets a week.

Law Librarian Blog editor Joe Hodnicki now wishes his survey had included questions about participants' ages. "As more young law librarians enter the field and more Google generation patrons enter the practice of law will Twittering for work-related communications increase?" he wonders. I don't know the answer to that question, but I'd be happy to submit it to the virtual reference desk of the Twitter-sphere.

March 31, 2009 | Permalink | Comments (2)

Lawyer Sues Playboy for Harassment

A Chicago divorce lawyer who put up billboards around Chicago showing her in skimpy black lingerie and who then posed nude and wrote a legal advice column for Playboy is now suing Playboy for sexual harassment. Corri D. Fetman yesterday filed a lawsuit in which she alleges that former Playboy executive Thomas Hagopian canceled her column after she rebuffed his sexual advances. She is seeking damages of more than $4.5 million.

We first wrote about Fetman's firm, Fetman, Garland & Associates, in May 2007, after we read Larry Bodine's post about the firm's racy Chicago billboard. It showed a scantily clad, faceless woman next to the slogan, "Life's short. Get a divorce." We wrote about Fetman again in January 2008, when she revealed in a press release that the woman on the billboard was her. That was not all she revealed. The February 2008 issue of Playboy included what was described as a "provocative nude pictorial of Corri" accompanied by the debut of her online column, The Lawyer of Love.

Her lawsuit alleges that Hagopian, a former executive in Playboy's digital division, harassed her with sexually explicit e-mails and phone calls, groped her, and then took away her column when she rejected him. The harassment caused her to lose focus at work, grow depressed and anxious, and seek medical care, she alleges. "Sometimes attractive women get unwanted attention," said Fetman's lawyer, Timothy J. Ashe. A Playboy spokesperson said the company is investigating Fetman's allegations and takes them "very seriously."

March 31, 2009 | Permalink | Comments (5)

Love in the Age of Legal Blogs

Given that this is Legal Blog Watch, we tend to watch what is happening out there in the world of legal blogs. We've seen blawgers come, blawgers go, blawgers rise in popularity and blawgers fall in popularity. But here is something we've never seen before: a blawger deciding to marry someone she met through a comment posted to her blog.

By her own description, Ann Althouse, law professor at the University of Wisconsin Law School, announced her engagement somewhat enigmatically. After returning from a spring break week spent in Cincinnati with the commenter known as Meade, she posted a set of photographs on her blog that ended with one showing only her hands as she was fitted with an engagement ring. The import of the suggestive photo was confirmed when Meade added a comment to the post proclaiming, "Althouse said yes! I am the happiest man in the world." Later the same day, Althouse added a second post for the benefit of anyone who did not understand the first.

Let there be no doubt about it: A blogger — Althouse — is engaged to be married to a man who began his connection to her as a commenter on her blog. After 4+ years of writing at each other, we met in real life and found real love.

As word spread of this unprecedented union between commenter and blogger, Althouse appeared on Bloggingheads.tv to tell how it all happened. "I just found out I'm getting married," she announced, adding, "It's as if the blog was a massive net that was sent out there to catch the one perfect person."

That one perfect person had been commenting on her blog for four years with nothing more coming out of it. After an e-mail exchange between the two in December, they had their first face-to-face meeting in January. That meeting "didn't work out well," Althouse said. But after a further exchange of e-mails, the two met again over Valentine's Day weekend. That meeting went "incredibly well," she said. They spent more weekends together in February and then 10 days during spring break in March. By the time that last visit was over, the two were engaged.

Reaction from other bloggers varied. The news prompted one blogger who is no fan of Althouse to declare, "This is what the internet invented OMFG for." Andrew Sullivan comments, "No comment possible," and then mistakenly accelerates the timeline of their courtship. And at Above the Law, Elie Mystal says, "Thank God I'm married. I'm so glad that I don't have to look for love in the comments." As for Meade, he no doubt counts himself the lucky one. In the Bloggingheads.tv interview, Althouse says he told her that he believes most of the people who post comments to her blog are in love with her.

If you are a lonely legal blogger having trouble finding romance in your own life, perhaps you should check to make sure you have not disabled comments.

March 31, 2009 | Permalink | Comments (3)

Corporate Scorecard 2009: Annus Horribilis

For anyone who lived through 2008, no Latin training is required to understand the import of the phrase annus horribilis. That is the phrase used by the editors of The American Lawyer to describe the state of corporate law practice in the magazine's Corporate Scorecard 2009, its annual survey of the legal industry's top corporate practices.

Call it what you like -- historic, unprecedented, apocalyptic -- 2008 was a year that few Am Law 100 lawyers will forget. As former M&A masters of the universe, structured finance seers, and debt wheeler-dealers told us, 2008 started off fine. But Black Monday, September 15, the day Lehman Brothers died, was the beginning of the end. M&A came to a standstill. Corporate debt offerings dried up. Securitizations, already under pressure, stopped. It was an annus horribilis -- and our Corporate Scorecard write-ups show how every sector of dealmaking and capital markets practices was affected.

A series of charts show the top corporate practices for 2008 in various areas including mergers and acquisitions, private equity, project finance, equities and IPOs and others.These numbers deserve more careful study and thought than I can give them here, but they certainly appear to support the description of 2008 as annus horribilis.

Take just the example of firms that served as counsel to principals in M&As. For 2007, the scorecard gave top ranking in this category to Sullivan & Cromwell. That year, it handled 61 deals with a total dollar value of $369 billion. For 2008, it fell to third place with deals valued at $214 billion. The top spot for 2008 went to Skadden, Arps, Slate, Meagher & Flom, which had been ranked third the year before. But even as it rose in rank, the value of its deals likewise went down, from $316 billion in 2007 to $309 billion in 2008.

This issue of The American Lawyer also profiles the top 25 dealmakers of 2008. The ranking is based "on the import of the deals themselves, the role of the lawyering, and the degree of difficulty involved." By that standard, the editors' choice for top dealmaker was H. Rodgin Cohen of Sullivan & Cromwell. "He was in the room when Bear Stearns was sold, when Fannie Mae was nationalized, and when Lehman Brothers died," writer Ben Hallman explains. "He helped American International Group secure an $85 billion bailout and told Wachovia's board of directors that they should spurn Citigroup's buyout offer in favor of one from Wells Fargo." By that description, it was quite a year for Cohen. Perhaps even an annus horribilis.

March 31, 2009 | Permalink | Comments (2)

March 30, 2009

Another Social Media Site for the Legal Community

Ho hum. Another day, another social media site for the legal community. This time, reports The Shark, it's Advanced Advocates, which bills itself as the first "worldwide collaborative platform for law students." Translated into current parlance, that's "Facebook for law students," according to Brian Lauter.

So is the site worth a visit? Perhaps not just yet, says Lauter, because the site is somewhat sparse content-wise, with only 40 registrants to date. Still, Lauter sees some potential:

For instance, the site has searchable brief and outline databases. Also, there is a “Clerk Ratings” feature which basically allows users to rate their employers (the name is slightly misleading, as the idea is that users will want to rate legal employers of any kind).

The site also includes a less useful “Bookstore,” feature which would be cool if, instead of just hawking Amazon.com products, it allowed users to sell their used books to other law students a la Half.com.

A one-stop hub for briefs, outlines, student employer reviews, and book sales is actually a pretty good idea. The biggest problem with the site right now, as [Social Media Law Student] points out, is that there are only around 40 users. The site relies on users to upload their briefs and outlines to the databases, which I doubt many will do. No users means empty databases which means no reason to join, which means no new users.

Lauter suggests that Advanced Advocates might want to start putting together the databases itself to attract more students to the site. Otherwise, it will fail as another one of the “if you build it, they will come” situations.

What about you? Is the social-networking scene for lawyers at a saturation point? Or are there some sites that you'd still find useful in this space?

March 30, 2009 | Permalink | Comments (3)

Blawg Review #205 at Declarations and Exclusions

This week, Blawg Review #205 comes to Declarations and Exclusions, and it's a multimedia extravaganza featuring English composer Gustav Holt's orchestral suite, "The Planets," as both a theme and background music.

Anne Reed of Deliberations is included in the Venus category, which highlights her blog's recognition as best law blog in Wisconsin, beating out tough competitors like Althouse and Ross Kodner's Ross Ipsa Loquitur. At Uranus, planet of magic, we learn that a down economy means a business boom for psychics from Law and Magic, while at the last stop, Neptune, planet of mysticism, there's a link to Wired GC's explanation of the mystery of why some law firms just go poof.

March 30, 2009 | Permalink | Comments (1)

Lawyers Flocking to Chinese Drywall Cases

Another week, another new practice area. This time, the focus of attention is Chinese drywall, a possibly defective drywall product installed in houses that is spawning claims nationwide, reports Bradenton Herald.com. (See previous reports here and here.)

So what exactly is Chinese drywall? According to Wikipedia, it's a type of drywall manufactured in China out of fly ash from coal-fired power plants. As a result, it's chock-full of potentially dangerous chemicals, including hydrogen sulfide or carbon disulfide, which cause corrosion to electronic equipment, wires and other metals in a home as well as respiratory ailments, headaches and nosebleeds. Most Chinese drywall was imported by the U.S. during the construction boom between 2004 and 2007 when it was in high demand. Florida and Virginia, two states that experienced a housing boom during that period, have been most affected, though Louisiana also has its share of cases due to post-Katrina rebuilding.

Law firm interest in drywall cases on the plaintiffs' side should be obvious: potential prestige and a huge financial payoff. As Darren Inverson of Norton, Hammersley, Lopez & Skokos told the Bradenton Herald,
“This could be a $100 million case, and [lawyers] could get 35 percent” of any settlement or judgment if they’re the lead attorney." Not surprisingly, firms have stocked up on keyword-based Internet domain names to recruit potential clients, while other lawyers are going directly to construction contractors who are inspecting homes to determine whether there are drywall problems.

In addition to plaintiffs' work, firms are also finding clients on the defense side -- manufacturers, suppliers, builders and contractors who are the likely targets of class actions.

March 30, 2009 | Permalink | Comments (9)

Expert Witness in Poker Case Takes No Chances

Over the past few months, courts have been addressing the question of whether games like poker or Texas Hold 'Em depend on luck or skill. The question is important because, typically, state gambling laws outlaw games based entirely on chance but may allow those that involve skill or judgment. As described in the Pittsburgh Post-Gazette, back in January, a Pennsylvania county court dismissed charges against two individuals who ran a poker game out of a garage, finding that because the outcome of poker has more to do with skill than chance, it was not illegal under the state's gambling laws. Likewise, in a recent South Carolina case, a judge also determined that poker is a game of skill, but he said the state's 1802 law still led him to convict individuals charged there for running a gambling house.

So how does a defendant charged with illegal gambling prove that his activities depend on skill? Hire an expert witness, of course. Today I came across a fascinating account at Poker News Daily by poker expert Mike Sexton, who testified in the South Carolina case. To Sexton, testifying in this critical case, wasn't a game -- and Sexton didn't leave the outcome to chance. He writes:

Proving that skill predominates over chance in a court of law is quite different than discussing it among poker players. Even if someone was a big favorite to win a pot, people who really don't play poker see that any card can come up in the end and, therefore, many would think that Hold'em poker is primarily a game of chance.

Sexton recognized that he'd need to prove that poker relies on skill, he'd need to show more than just the fact that better people have an edge and the same people win year after year in tournaments. So Sexton tried to identify each component of the poker game in which a player has full control over a decision.

In my testimony, I listed ten points that I felt were vital to becoming a successful poker player and stressed that there is so much more to playing poker than just the cards you get. I brought footage of actual hands that were played on the World Poker Tour to use for demonstration. They showed bluffing (where the guy won the pot, not because of his cards, but because of his skill), amateurs making mistakes, tells that were read properly by an opponent, someone making a tough call, and someone making a good laydown. These visual aids were very impressive in demonstrating that skill predominates over chance in No Limit Hold'em.

Ultimately, the judge held that poker is a game of skill, but he ruled against the defendants because he found that they still ran a gambling house.

Finally, if you're wondering, the defendants in this case didn't pay Sexton's fees (as well as those of several other gaming experts) out of their winnings. The nonprofit Poker Players Alliance helped fund the attorneys and the expert witnesses to stand up for the rights of poker players.

March 30, 2009 | Permalink | Comments (23)

March 27, 2009

Lawyers, Dominatrix Whip Up Mortgage Scam

Three Long Island lawyers stand accused of teaming up with a Manhattan dominatrix and a Manhattan fetish club to run a $50 million mortgage scam. Prosecutors allege the lawyers were part of a scheme that took out mortgages on more than 50 homes in the exclusive Long Island town of Southampton on behalf of fake buyers. Prosecutors say the schemers pocketed the mortgage money and left the houses without owners and in foreclosure.

Prosecutors allege that George O. Guldi, a lawyer in private practice in Westhampton Beach and former member of the Suffolk County Legislature, handled the legal work in dozens of fraudulent transactions that made him millions. A second lawyer, Ethan E. Ellner of Plainview, is alleged to have used his title company to create fake titles used in the scam. A third lawyer, Dustin J. Dente of Roslyn, is also alleged to have participated in the scheme.

The fake buyers were recruited from among the clients of Arena Studios, a sexual fetish fantasy business owned by dominatrix Carrie Coakley and her husband, Donald MacPherson, prosecutors charge. The business provides a "beautifully decorated and fully equipped private dungeon" where clients and dominatrixes can meet.

At a news conference this week, Suffolk District Attorney Thomas J. Spota said that clients of the dungeon were recruited to take part in the scheme as straw buyers in exchange for payments of $5,000 to $10,000. Mortgage documents would grossly overstate their income and employment information so that they would qualify for millions of dollars in mortgage loans.

March 26, 2009

Law Student Organizing Loan Forgiveness Drive

Student loan forgiveness is a familiar concept for lawyers. As I've written before, many law schools and even Congress have devised loan forgiveness programs to ease the debt burden for graduates working in low paying public interest or government jobs. But Robert Appelbaum, a 1998 Fordham Law school graduate who currently works in the Brooklyn District Attorney's office has a new approach to loan forgiveness. According to Business Week, Appelbaum started a Facebook group back in January that advocates for cancellation of student loan debt to stimulate the economy. Just two short months later, Appelbaum's group has more than 138,500 members, many of whom are urging their representatives in Congress for new laws that would cancel student debt.

Appelbaum left law school with $80,000 in debt and a starting salary of $36,000 a year. He put his loans in forbearance for five years (which increased his debt to $100,000) As a result, more than a decade out of law school, Appelbaum is still paying off his education. Though I appreciate Appelbaum's dedication to the DA, at the same time, it might have made more sense, financially for him to have gone to the private sector -- or perhaps into a federal office (where the pay is higher) to pay off some of his loans. Of course, in this economy, that's no longer an option.

So what's your view? Should everyone shoulder the debt when lawyers can't repay their loans?

March 26, 2009 | Permalink | Comments (20)

Talk About Turnover

Many of us have grown immune to the daily layoff announcements. Still, we tend to forget that even before the economy tanked, law firms fired associates, many times for merit-based reasons rather than financial necessity. This advice column from The Washington Post reminded me that firms can still let people go when they're not up to snuff -- though the firm that's the subject of this piece presents an awfully extreme case.

The column responds to a letter from a manager at a small law firm who writes that despite the firm's best efforts, "inevitably, out of every 3 associates we hire, we end up parting with 2 of them within a year of hiring for performance reasons." Why the bad luck? The advice-seeker describes the pattern:

the associate is hired on, struggles with his hours for the first few months, then over a few more months develops problems maintaining a responsible level of contact with clients, next they struggle with deadlines, and finally when the partners and I are at wits end the associate pretty much stops working, stops billing, and becomes a professional liability. We've offered training and performance plans, we have regularly scheduled weekly meetings with the associates, and we're small so someone is always available for guidance. The folks that have lasted through and past a year are, admittedly, rock stars. We're looking at letting go an associate this week. Is firing people just the way it is? I absolutely hate it. And is it common to be fired? I worry about them, even when they've totally dropped the ball and should probably seek another line of work. And I keep wondering where I've screwed up?

In response, columnist Lily Garza advises the firm to spend more time during the screening process to ensure that the associates who are hired are those who are a fit for the firm, not just socially but also who have the competence to do the job. Still, even with a good hiring decision, there's no guarantee that an associate will work out. Here, Garza advises the firm to offer more effective organized training programs and try to build mentor relationships with employees. Finally, Garza suggests that the firm elicit feedback from the associates who were let go and try to understand from their perspective why the job didn't work out.

All good advice, but unless the firm takes it, I'm sure that it's a place I'd ever want to work. Have you ever worked for a place like this? And to your knowledge, did it succeed in changing its ways?

March 26, 2009 | Permalink | Comments (3)

Law Suit Against Data Storage Company

As data storage and security moves online, expect to see more lawsuits like this one, by online storage service provider Carbonite, against a storage vendor. Carbonite contends that the vendor's $3 million hardware package did not perform as specified, causing data loss due to "physical drive errors and array errors." As a result, Carbonite claims that it lost backups of more than 7,500 customers in multiple incidents that caused serious damage to Carbonite. The company sued both the developer of the hardware system as well as the solution provider who sold the defective hardware.

With many online storage companies or software-as-a-service providers still in their nascence, one small incident could severely damage their reputation and perhaps even shut them down permanently. Lawsuits such as those by Carbonite may enable companies to recover their damages, but restoring reputation is much more difficult.

March 26, 2009 | Permalink | Comments (3)

Going Green to Make More Green

For lawyers seeking to establish or retain an edge in a green-building practice, LEED (Leadership in Energy and Environmental Design) makes the perfect accessory by demonstrating to clients a deep understanding of green building best practices and principles established by the United States Green Building Council. Unfortunately, obtaining LEED certification doesn't come easily. Most lawyers who've gone through the LEED certification process liken the rigorous process to the bar exam, according to Green-Buildings.com. As with the bar, a cottage industry of prep courses have cropped up to help aspiring LEED applicants pass the exam, which among other things, requires familiarity with the entire LEED building-certification process.

Still, despite the difficulties, is pursuing LEED certification a worthwhile endeavor, particularly for recently laid off lawyers who have time, and in some instances, generous severance packages on their hands? According to Green-Buildings.com, the sustainability industry has been relatively recession-proof and is expected to grow even more when the real estate industry rebounds. Indeed, a recent study by McGraw Hill predicts that the green-building market, both residential and commercial will double from $36-$49 billion to $96-$140 billion by 2013, with some of that money flowing from the $83 billion targeted for green jobs in the stimulus bill.

March 26, 2009 | Permalink | Comments (1)

March 25, 2009

Flipping 'the Bird' Is Protected Speech

A Pittsburgh motorist was exercising his constitutional right of free speech when he gave the finger to a police officer and another driver during an argument over a parking space. U.S. District Judge David S. Cercone ruled this week that David Hackbart's display of his middle finger was a non-verbal gesture protected by the First Amendment, according to a report in the Pittsburgh Tribune-Review.

"Hackbart, in this instance, was expressing his frustration and anger when he gestured with his middle finger to both the driver behind him and to [the officer]," Cercone wrote. "Both gestures are protected expressions under the First Amendment, unless they fall within a narrowly limited category of unprotected speech such as obscene speech or fighting words."

The 34-year-old was attempting to parallel park when another driver pulled behind him and blocked the space. As Hackbart raised his middle finger at the other driver, he heard someone say, "Don't flip him off," so he turned and made the same gesture in the direction of the voice. Turned out the voice was that of Pittsburgh Police Officer Brian Elledge, who promptly cited Hackbart for disorderly conduct.

A state judge later ruled Hackbart guilty and fined him $119.75. When Hackbart appealed, the district attorney withdrew the charges against him. That might have been the end of the story, except that Hackbart -- with the help of the ACLU -- then sued the police officer and the city for violation of his civil rights. The incident, he claimed in his lawsuit, caused him "physical pain and suffering, emotional trauma, humiliation and distress."

Judge Cercone's ruling allows Hackbart's lawsuit to proceed against the officer but not against the city. "The traffic stop was in retaliation for Hackbart's hand gesture toward Elledge," the judge reasoned. "Elledge admitted, however, that the hand gesture was neither illegal nor obscene."

March 25, 2009 | Permalink | Comments (26)

WIPO Rules in Fight Over 'Virtual Sex'

It was the battle of the Internet porn sites at the World Intellectual Property Organization as two California companies sparred for rights to the domain name "virtualsex.com." In one corner was the company that claimed to have coined the term "virtual sex." In the other was the company that first registered the domain. In a decision issued this week, a WIPO arbitrator let the company that registered the domain hold onto it.

The arbitration followed from a complaint filed by Digital Playground Inc. of Chatsworth, Calif. The decision describes Digital as a leading producer of adult films with more than 40 percent share of the adult DVD market. It claimed to have coined the term virtual sex in 1994 in connection with a series of films released then as the "Virtual Sex Series." In 2000, it applied for a trademark on the term virtual sex, which it received in 2005.

Meanwhile, another California company, Network Telephone Services, registered the domain in 1995. Later that year, it set up a Web site using the domain at which it sells adult DVDs and access to adult webcams and chat rooms. Its principals said they had no knowledge of the other company's use of the term and considered it generic.

The arbitrator sided with Network Telephone, concluding that it did not register the domain in bad faith. "The diverse offerings available on the web site to which the domain name at issue resolves suggest that Respondent is trading on the descriptiveness of the term 'virtual sex,' rather than on the goodwill attached to Complainant’s mark," the arbitrator wrote. He also cited Digital's delay in challenging the domain as an additional ground for dismissing its complaint. "The fact that Complainant did not bring this action until 14 years after Respondent had registered the domain name at issue and more than 13 years after Respondent had used the domain name at issue to resolve to a web site at which products competitive to those offered by Complainant, as well as products entirely different from those offered by Complainant, is not explained by Complainant."

[Hat tip to Threat Level.]

March 25, 2009 | Permalink | Comments (3)

From Law School to Solo: Is it Criminal?

An interesting discussion is going on among the blogosphere's criminal defense bar. The question under debate is whether someone straight out of law school should go directly into a solo criminal defense practice.

New York criminal defense lawyer Scott Greenfield kicked off the conversation when he wrote a post addressed to law students who ask him this question. "Whereas once I argued that the notion of flying solo straight out of law school was decidedly wrong, the new reality is that many law students will have no choice," he wrote. "Solo practice is the alternative to sitting at home playing Wii. The latter is not an option." Greenfield suggested two options for how to go about it. Option A is to establish an apprentice-like relationship with an established criminal defense lawyer. Option B is to find a mentor.

Greenfield's post prompted a follow-up by Ken Lammers, a Virginia prosecutor who formerly had his own criminal defense practice. He suggested an Option C -- nose to the grindstone. "I started out with three Sears' suits, a computer, printer, dial-up internet, subscription to VersusLaw (along with the free use of FindLaw and All Law), a folding table, folding chair, cardboard file boxes, one phone line, fax/answering machine, and business cards," he writes, adding that it was all set up in his living room. "Work hard, work smart, be frugal, and you can get there."

Next to weigh in was Miami criminal defense lawyer Brian Tannebaum, who says going straight to solo is a dumb ass idea. "I believe to practice criminal defense a newly minted law student should be required to do one of three things: be a prosecutor, be a public defender, 'clerk' with a practicing criminal defense lawyer who's been practicing criminal defense at least five years," he writes.

Arizona lawyer Matt Brown is one who actually went straight into solo criminal defense work out of law school. He sees no reason why others shouldn't do the same. He sought out advice and training and says he got it from some of the best criminal defense lawyers in his area. "If you make competence top priority and lay the proper groundwork, there’s no reason not to go right into solo practice criminal defense."

The next blogger to speak up was Bobby G. Frederick, whose opinion was that the opinions of those who preceded him were all correct, "depending on who we are talking about." This South Carolina lawyer says he envies lawyers who started their criminal defense practice right out of law school. "I would recommend spending a couple of years at a public defender office or as an associate with a more established defense attorney, but if you are dedicated I have no doubt that you will gain the same experience learning from your fellow members of the bar, you need only reach out to enough of them."

Last but not least comes Mark Bennett from Houston, who sees a gap in representation that the newly minted solo would be perfect to fill. The indigent get appointed counsel and the well-off hire counsel of their choosing. But people in between, he says, are stuck. "This is the niche in which the newly-minted criminal defense lawyer on her own can do the most good: representing zealously those who would otherwise hire a quick-plea specialist."

But would the barely trained criminal defense lawyer have the competence of one who first works as a public defender or prosecutor? Doesn't matter, Bennett says. "The new lawyer taking a case for $500 doesn't have to be as competent as the ten-year lawyer. She just has to be more competent than the other lawyers taking cases for $500."

March 25, 2009 | Permalink | Comments (4)

Privilege Withstands Client's Threats to Judge

Here is a scenario that sounds like a law school exam question.

It was after midnight when the client began to leave a series of six messages on the lawyer's answering machine. In the first, the client said that he knew the home address of the Juvenile Court judge hearing his care and protection case and that she had two children. In the fourth message, the client's wife could be heard saying she and the client were going to "raise some hell." In the fifth, the client said, "some people need to be exterminated with prejudice." Over the next week, the lawyer saw the client become increasingly angry. The lawyer asked to withdraw from the case and then told the judge of the client's threats against her.

After investigating, prosecutors initiated grand jury proceedings against the former client and subpoenaed the lawyer to testify. The lawyer moved to quash, citing attorney-client privilege. The trial court judge denied the motion, reasoning that the client's threatening messages were not privileged because they had nothing to do with obtaining legal services. The lawyer appealed. How should the appeals court rule?

That was exactly the case decided this week by the Supreme Judicial Court in Massachusetts. Its conclusion was that the messages were privileged communications and that the lawyer could not be compelled to testify. The court reasoned that clients must have "breathing room to express frustration and dissatisfaction with the legal system and its participants."

The expression of such sentiments is a not uncommon incident of the attorney-client relationship, particularly in an adversarial context, and may serve as a springboard for further discussion regarding a client's legal options. If a lawyer suspects that the client intends to act on an expressed intent to commit a crime, the lawyer may attempt to dissuade the client from such action, and failing that, may make a limited disclosure to protect the likely targets. ... Requiring the privilege to yield for purposes of a criminal prosecution would not only hamper attorney-client discourse, but also would discourage lawyers from exercising their discretion to make such disclosures, as occurred here.

To lift the privilege here, the opinion continued, would be to leave lawyers and clients without a bright-line rule. "Warning clients that communications deemed irrelevant to the matter for which they have retained counsel will not be protected may not only discourage clients from disclosing germane information, but also may disincline clients to share their intentions to engage in criminal behavior," the SJC said. There is only one set of circumstances in which a client's communications regarding criminal behavior would waive the privilege, the SJC concluded. That is when the client's communication to the lawyer "sought assistance in or furtherance of future criminal conduct."

The decision, which was issued on Monday, is In the Matter of a Grand Jury Investigation. Had it been on an exam, how would you have scored?

March 25, 2009 | Permalink | Comments (1)

March 24, 2009

The Wolf Block Postmortem

Looks like it's déjà vu all over again with yesterday's collapse of mid-size Philadelphia-based law firm Wolf Block. As with last year's demise of firms like Thacher Profitt, Thelen and Heller Ehrman, Wolf Block's failure, as described by The Legal Intelligencer, follows the same pattern: failed merger attempts, rainmaking partners jumping ship and a primary practice area (real estate) that suffered in the economic downturn.

The only remaining question is how many times this fact pattern will repeat itself in 2009. Is Wolf Block the start of another scary year, or by dumping associates and cutting partner salaries, will firms spare themselves from this fate? Send your comments below.

March 24, 2009 | Permalink | Comments (2)

Aren't Students Doing Cost-Benefit Analyses of Law School?

Even before the economy took a turn for the worse, many law students had trouble finding employment after graduation. Recall, for example, Kirsten Wolf, the Boston University Law School grad who couldn't find a job and made it her one-woman mission to talk people out of law school. Wolf hoped to show that law school doesn't provide the level of job security that many students believe; indeed, large numbers of graduates aren't able to find employment -- and that was back in 2007.

Wolf's story gained exposure on high-profile sites like the WSJ Law Blog, spawning nearly 300 comments. So after all of that coverage, I was surprised to see that graduates still aren't engaging in the sort of cost-benefit analysis they should when considering law school. At Veritas Blog, Adam Hoff comments on this Wall Street Journal piece about how college grads are looking to law school (and business school) to ride out the current recession. Hoff emphasizes that law school is not a panacea and that in this economy, lawyers who want to work in highly coveted positions are going to have to hustle; perhaps spending summers or internships working for free. Hoff also advises students that they must put cost first and foremost atop the list of criteria that they evaluate in selecting a law school. Hoff's piece will hopefully remind students of the importance of doing a return-on-investment analysis of their time in law school and for that, it's valuable. But still, I can't believe that after all that's happened with the economy and layoffs that students still need to hear this.

March 24, 2009 | Permalink | Comments (13)

Another Lucrative Practice Area: Britney Spears

So, maybe your firm hasn't gotten a piece the Bernie Madoff work, which has spawned a practice area unto itself. No worries, there's always Britney Spears. Today's Los Angeles Times carries a story devoted to Spears' extensive legal team, showing that the paparazzi aren't the only ones swarming the mercurial star. According to the Times, at least 17 lawyers and firms "have had a hand in Spears' personal or business matters in the 14 months since a judge determined that Spears was not competent to manage her life and music empire herself." Not surprisingly, Spears' legal matters are lucrative business for the lawyers involved, with court records showing payments of at least $2.7 million in lawyers' fees and costs from Spears' estate for the first 11 months of the court-ordered conservatorship.

The legal matters generated by Spears run the gamut, encompassing:

Spears' divorce and custody proceedings with Kevin Federline ($460,000 in total fees and costs), a Florida civil suit brought by a former manager ($113,000), a driving-without-a-license trial ($26,000) and a dispute over mold in a Malibu property leased by Spears ($7,000).

On top of that, Spears' father's attorneys billed $102,000 fighting attempts to end his conservatorship.

March 24, 2009 | Permalink | Comments (1)

Electronic Discovery and Facebook

In responding to discovery requests, must clients disclose information posted on Facebook, Flickr, Twitter and other similar social media sites, even where they've blocked their accounts from public access? Absolutely, says Canadian decision Leduc v. Roman, 2009 CanLII 6838 (ON S.C.), a case out of the Superior Court of Justice in Ontario, which discusses the issue in great detail. (H/T Simon Chester, Slaw)

Leduc involved a personal injury case in which the plaintiff claimed damages for loss of enjoyment as a result of defendant's negligence. At some point in discovery, the defendant learned that Leduc maintained a Facebook account and sought production of Leduc's Facebook pages. The discovery master denied the motion, finding that the defendant failed to establish the relevance of the Facebook pages to the question of whether Leduc's enjoyment of life had been diminished. In addition, the master expressed some concerns regarding Leduc's privacy.

On review, Judge Brown disagreed. First, the judge disposed of the privacy issues:

A party who maintains a private or limited access Facebook profile stands in no different position than one who sets up a publicly available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action.

The judge also found that while Facebook profiles were not presumptively relevant, the defendant should have been given an opportunity to inquire further on this point:

[M]ere proof of the existence of a Facebook profile does not entitle a party to gain access to all materials placed on that site. Some material may relate to matters in issue; some may not...Most often [relevant] evidence will emerge from questions asked on a party's examination for discovery about the existence and content of the person's Facebook profile. Where the party's answers reveal that his Facebook profile contains content that may relate to issues in an action, production can be ordered of that relevant content.

Finally, given the ruling, the court cautioned lawyers to put their clients on notice:

Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on the party’s Facebook profile may be relevant to allegations made in the pleadings.

Though this decision comes from a Canadian court, my guess is that U.S. courts (state and federal) would adopt a similar approach. Are you familiar with any American cases that address the issue of Facebook in discovery? And how are you advising your clients about use of social media while a case is ongoing?

March 24, 2009 | Permalink | Comments (5)

So Much for the End of the Billable Hour

So much for the death of the billable hour. When it comes to Madoff-related litigation, lawyers across the pond are still commanding the $1,000+/hour billable rates that I'd thought were so two years ago. According to Bloomberg, clients are paying a premium of 1,000 pounds ($1,440) an hour for financial regulatory advice, even while law firms are suffering the consequences of the credit crisis.

So why can firms bill those kinds of rates? For starters, the bigger the problem, the more willing people are to accept fees, says Michael O'Kane, a criminal and regulatory specialist at Peters & Peters. Second, regulatory work is typically partner-intensive, which means that the firm can't profit from associate leverage. As a result, regulatory lawyers are billed out at a higher rate to stay on par with the more leveraged transactional teams.

For other matters at least, many still question the sustainability of hourly rates. Legal commentators -- and plenty of big firm lawyers themselves -- believe that in this climate, in-house lawyers want law firm discounts and won't agree to these rates, no matter the complexity of the problem.

March 24, 2009 | Permalink | Comments (2)

March 23, 2009

Blawg Review Goes Above the Law

What's next? Will Page Six take over Washington Week? So I wondered when I saw that the "legal tabloid" blog Above the Law had taken on responsibility for this week's Blawg Review. It was to be an installment of Blawg Review, promised Above the Law editor Elie Mystal, that would "make hamburger of the legal profession's sacred cows." And it would come hot on the tail of GeekLawyer's controversial and NSFW Blawg Review #203, replete as it was with Victorian pornography and tales of raucous drunkenness.

As it turned out, the sacred cows could also be called the usual suspects. The Above the Law edition of Blawg Review lassos AIG, Congress, the citizens of the United States, and the lawyers of the United States. But a good chunk of this Blawg Review #204 is given over to a defense of Blawg Review #203, which had prompted blawger Diane Levin to propose a no-asshole rule for future Blawg Reviews. The range of reactions to GeekLawyer's blog bacchanalia led Mystal to ask, What is the point of legal blogging anyway?

Are people creating business? Are we advancing the public's understanding of important legal issues? Are we journalists or writers or are most of us engaged in vanity projects?
Everybody's answer to these questions is going to be different, but it seems to me that the one constant should be: are you having fun? Because I am, and I think most of the bloggers I've had the pleasure of meeting or corresponding with are having fun too. And if Geeklawyer didn't have fun writing that last week, well then dear God somebody needs to get that man a Valium and a hooker before he kills somebody.

Of course, Levin's objection was not to anyone having fun. In fact, she later explained in a comment to her post, her proposal for a no-asshole rule was made with her tongue planted firmly in her cheek. As for myself, I will fully endorse Mystal's idea that, if nothing else, we should be having fun in what we do.

March 23, 2009 | Permalink | Comments (2)

U.S. Sides with RIAA in Filesharing Case

Purchase a song online and it will cost you, at most, 99 cents. Download the song via filesharing and it can cost you anywhere from $750 to $30,000. That is the range of statutory damages allowed under federal law for copyright infringement. Can so disproportionate a penalty be constitutional? In a brief filed yesterday in a filesharing case pending in U.S. District Court in Boston, the U.S. Justice Department says yes.

The Justice Department brief accompanies its request to intervene in the music industry case against Joel Tenenbaum. Tenenbaum's lawyer, Harvard Law School Professor Charles Nesson, has filed a counterclaim against the music-industry plaintiffs and a motion to dismiss. He contends that the copyright law's statutory damages provision is unconstitutional in that it authorizes damages that are grossly in excess of any actual damages to the copyright holder.

But the brief by Justice Department lawyer Michelle R. Bennett argues that the law is constitutional. Relying on a 1919 Supreme Court case, St. Louis, I.M. & S. Railway Co. v. Williams, she argues that the statute should be upheld because it does not meet the standard of being "so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable."

Also weighing in on the case is the Free Software Foundation, which filed a brief Friday as amicus curiae in support of Tenenbaum's motion to dismiss. One of the authors of that brief is Ray Beckerman, who writes the blog Recording Industry vs. The People. He says in a post there that the government's brief ignored many of the authorities cited in his brief. The government's brief is also a disappointment to the folks at the blog Blown to Bits. "We might have hoped for better from the new administration. But previous Justice Departments had sided with the recording industries, so perhaps this should have come as no surprise -- even with the enlightened Elena Kagan as the government's top lawyer."

March 23, 2009 | Permalink | Comments (1)

Torture in Our Nation's Prisons

Setting aside Jack Bauer, the United States does not engage in torture, right? Just last night on "60 Minutes," President Obama reaffirmed that. "I think that Vice President Cheney has been at the head of a movement whose notion is somehow that we can't reconcile our core values, our Constitution, our belief that we don't torture, with our national security interests," Obama said. "I think he's drawing the wrong lesson from history." Our new attorney general, Eric Holder, has said the same: The United States does not condone torture.

Surgeon and writer Atul Gawande might beg to differ. The torture Obama and Holder condemned was of terrorists and took place, if anywhere, in foreign locations. But thousands of prisoners are subjected to torture daily in prisons throughout the United States, Gawande suggests. What torture? The torture of solitary confinement. In an article that appears in the March 30 issue of The New Yorker, Gawande's article, "Hellhole," examines the routine and rampant use of solitary confinement in U.S. prisons and concludes, "all human beings experience isolation as torture."

In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door.

We are, after all, social creatures. To be deprived of society is to be deprived of our humanity, Gawande suggests. We know this from the stories of long-distance sailors and of hostages held in foreign prisons in solitary confinement. The former AP correspondent Terry Anderson detailed this in his memoir, "Den of Lions," recounting seven years as a hostage of Hezbollah in Lebanon. "I find myself trembling sometimes for no reason," Anderson wrote. "I’m afraid I’m beginning to lose my mind, to lose control completely." John McCain had similar memories of his two years of solitary confinement as a prisoner of war in Vietnam. "It's an awful thing, solitary," McCain said. "It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment."

We understand the horror of isolation when it happens outside our borders but we routinely overlook its horror here at home, Gawande argues. He tells the stories of several inmates who were confined to solitary, such as Bobby Dellelo. Captured after an escape from a Massachusetts prison, Dellelo was ordered to spend five years in solitary confinement. After just a few months, he began to lose his mind.

He talked to himself. He paced back and forth compulsively, shuffling along the same six-foot path for hours on end. Soon, he was having panic attacks, screaming for help. He hallucinated that the colors on the walls were changing. He became enraged by routine noises—the sound of doors opening as the guards made their hourly checks, the sounds of inmates in nearby cells. After a year or so, he was hearing voices on the television talking directly to him. He put the television under his bed, and rarely took it out again.

If isolation is, indeed, torture, then its victims are many. U.S. prisons now house at least 25,000 inmates in isolation, Gawande says, and another 50,000 to 80,000 are in restrictive segregation units that include isolation. The argument for its widespread use is to reduce prison violence. But Gawande contends that most inmates in isolation are not dangerous and that it fails that purpose in any event. He points to the U.K. model as an effective alternative, where dangerous prisoners are pushed into enhanced social settings rather than be deprived of society. "The results have been impressive," he says. "The use of long-term isolation in England is now negligible."

March 23, 2009 | Permalink | Comments (6)

U.K. Legal Publisher Shutters Journal, Awards

The U.K. legal publisher Legalease Ltd. will no longer hand out annual awards in legal technology and legal marketing and will discontinue its quarterly magazine Legal Technology Journal and the magazine's Legal Technology Update e-mail alert. A notice on the Legal Technology Journal Web site today says that the publication will end "due to current market conditions." Both the Legal Technology Awards and Legal Marketing Awards sites carry similar notices. The technology awards site has this:

JWH Events Ltd has decided not go ahead with the Legal Technology Awards 2010. Having consulted with senior IT and supplier representatives from various firms and suppliers, the market consensus is that at a time when firms are scaling back and/or redirecting their efforts, participation in the LTAs would be inappropriate. Regrettably, therefore, we have concluded that the 2010 event should not proceed.

The notice says that the awards might return in 2011 "once the market has turned up." The notice on the marketing site is almost identical, except that it says the decision was made after having "consulted with senior marketing and PR representatives." It, too, indicates that the awards might return.

The journal featured articles on the role of technology within law firm practice management and business development. Many of its authors were IT directors and CIOs at major law firms. The legal technology and legal marketing awards recognized excellence in those fields.

It is not clear whether JWH Events is a business unit of Legalease or a separate company. JWH is run by Jeremy Hill, who describes himself on LinkedIn as holding the position of new projects director at Legalease and as publisher of the journal and organizer of the two awards events. The blog The Orange Rag published an e-mail sent by Hill last week in which he said:

I have had to cease publishing the Legal Technology Journal, the Legal Technology Update and Legal Technology Awards. The downturn has hit my business much harder than I had expected and as a result the products are no longer commercially viable. I am hoping this will change in the not too distant future.

And so the economy takes another victim. While the loss of two awards programs may leave the legal profession no worse for wear, the technology journal was well regarded among IT types and is sure to be missed.

March 23, 2009 | Permalink | Comments (3)

March 20, 2009

Friday Law Link Roundup

-- What's the worst part of being the other B. Madoff? It's not just the lawyer ads that pop up on Google under the headline "Madoff Ponzi Victim?" when you do a Google search for Madoff Productions, owned by Ben Madoff. [via The New York Times]

-- Meet "Monday Beam," unassuming Chicago criminal defense attorney by day, hotshot Second Life lawyer after hours. [via Chicago Lawyer]

-- A lawyer as the new Citibank chief financial officer? Bad idea, says a veteran banking analyst. [via Reuters]

-- Former Rhode Island Bar Association president Richard Pacia was forced to give up his license following a series of malpractice actions and unpaid loans. [via ABA Journal]

March 20, 2009 | Permalink | Comments (1)

Skadden Lawyers Jump on the Startup Law Firm Bandwagon

Two weeks back, my colleague Bob Ambrogi wrote that "solo is the new SoHo,"arguing that solo practice is fast becoming a top career option for laid-off lawyers. It seems that two Skadden, Arps, Slate, Meagher & Flom litigators, Andrew Sandler and Benjamin Klubes, took Ambrogi's trendspotting to heart. Yesterday they announced to the firm's associates that they're jumping ship to form their own law firm, BuckleySandler, reports Above the Law. Of course, make no mistake, Sandler and Klubes are off to a flashier start than their humble predecessors Marshall, John and Les, the trio of lawyers who started Skadden back in the day along with associate Joe Flom. By contrast, BuckleySandler will include 36 lawyers from the firm Buckley Kolar, a D.C.-based boutique focusing on regulatory issues. And Sandler will also become CEO of Corporate Risk Advisors, a multidisciplinary consulting firm providing catering to the financial services industry.

Sandler assured associates that his exit was motivated by a desire for change rather than concern about the firm's stability. But Professor Larry Ribstein isn't so sure. He writes:

I don’t know about Skadden in particular, but this move has significant implications for Big Law. As I've been saying, here, the model of law firm as worker coop highly leveraged by the inverted pyramid of associate leverage is doomed. The associates no longer can pay the stars enough to make them stay.

When it starts happening even at a firm like Skadden, you know, notwithstanding comforting noises by law firm managers, and deep in your heart, that I'm right.

Will we be seeing more big firm spin-offs like BuckleySandler in the future? Share your thoughts below.

March 20, 2009 | Permalink | Comments (6)

Collection Lawsuits on the Rise

With the economy down, lawsuits against collection agencies in the Northern District of Alabama almost quadrupled, reports The Birmingham News. This past year, 158 lawsuits were filed against collection agencies and credit bureaus for violations of the Fair Debt Collection Practices Act, up from a scant 40 suits filed the year before. Moreover, the lawsuits aren't for technicalities such as giving a few days less notice than required by law. A large percentage of the disputes involve cases of mistaken identity or consumers who paid the debt but can't prove it.

But bill collecting seems to be a growth industry these days, with the collection division of Encore Capital reporting a 12 percent increase in collections for last year as well as a 26 percent increase in profits, according to the story. And as collection agencies thrive, so too do the lawyers who sue them, collecting attorney fees and costs when they prove FDCPA violations.

In spite of the increase in debt lawsuits, they account for just a tiny fraction of the 1 billion collection matters handled annually, the story says. Is that because collection agencies are getting it right -- or are consumers simply not aware of their rights against a collection agency that overreaches?

March 20, 2009 | Permalink | Comments (2)

March 19, 2009

An Old-School Approach to Social Networking

If you are an old-school lawyer who remains undecided about whether to belly up to social networking, then Evan Schaeffer may have just the networking recipe you've been waiting for. He was reluctant himself to try yet another network, he readily admits on his blog The Legal Underground, what with his Twitter habit already sapping his time. But after hearing rave reviews of one particular network from technologically clueless acquaintances of his and then trying it for three weeks, he is now an evangelist.

You may already have heard of this network. It is called TheBarAfterWork. Schaeffer describes how it operates:

TheBarAfterWork is not a blog or a microblog, but really more of a big room. The idea of a "big room" is not just a metaphor, since TheBarAfterWork really is a big room. For those who are more comfortable with metaphors, however, it is also possible to think of TheBarAfterWork as a "party in a meeting place" or a "recreation and socializing spot."
Whatever the metaphor, TheBarAfterWork is all about participation and interaction. Like many social networks, TheBarAfterWork comes with its own brand of language. When you want to contact someone directly, you "talk" or "whisper" to them while making "eye contact." When you decide to broadcast your message to many people at once, you "shout," which is a little like using ALL CAPITALS in a Twitter post but which is still generally okay, since TheBarAfterWork is all about interacting and making new connections.
Although there is no limit on the length of your sentences, you should generally try to maintain your followers' interest in what you are saying, since you will also be developing your personal and professional brand at TheBarAfterWork and no one likes a bore.

As with other social networks, participants in the TheBarAfterWork strive to expand their numbers of friends and followers. One way of doing this, Schaeffer suggests, is a technique known as "picking up the check." This is but one trick he picked up while researching TheBarAfterWork. He also spent a good deal of time interviewing other lawyers who participate in this network about how it benefits their practices. "TheBarAfterWork can be a tremendous resource for not only connecting with potential clients, but connecting with their influencers," one told him. "TheBarAfterWork has an astonishing value," said another. "Used well (and relatively soberly), it is a powerful tool for building reputation, leadership, trust and influence."

Schaeffer does not say what is on tap for the future development of TheBarAfterWork. But his not-so-sober assessment is sure to elicit a toast from old-school lawyers everywhere.

March 19, 2009 | Permalink | Comments (1)

Wikipedian Justice in India's Courts

Intrigued by an article in The New York Times about the increasing citation of Wikipedia by judges in the United States, Raghav Sharma wondered whether judges in India were also increasing their use of this collaboratively edited encyclopedia. Sharma, a student at the National Law University in Jodhpur, looked into it and found that Indian courts are not only using Wikipedia, but do so "copiously."

"Though the winds of change can be said to have begun only in 2005, the numbers are rising fast with numerous examples of court cases from all over India in 2008," Sharma writes. He recently detailed his findings in Wikipedian Justice, an article available through the Social Science Research Network. Calling Wikipedia the "ultimate saviour (literally the Bible) for the present generation of law students," he nevertheless found it interesting, even humorous, to discover so much use of it by judges.

Sharma details a number of decisions from administrative tribunals and lower courts that cite Wikipedia as a source for definitions of various terms and concepts. But he was somewhat surprised to find conflicting mentions of it by India's highest court, the Supreme Court of India. In a 2007 case, the court cited Wikipedia for the definition of the term "decoder." But then, in a 2008, the court quoted extensively from Wikipedia and just as extensively seemed to disclaim its reliability. The court quoted it, Sharma explains, because counsel had cited it in arguments. But the court went on to add that an online encyclopedia may not necessarily be reliable or admissible in court.

He goes on to find several other cases in which the Supreme Court appears to rely on passages from Wikipedia, including one in which the court said, "Wikipedia, like all other external aids to construction, like dictionaries etc., is not an authentic source, although the same may be looked at for the purpose of gathering information." All of this, he concludes, sends a confusing message about the use of Wikipedia.

Though these references are not determinative in the above cited decisions and may have been used for "soft facts," the "signaling value" for lower courts and law students is going to be tremendous. Will not they be prodded to copiously use an unreliable source of information in face of the fact that the Constitutional Courts are mindlessly relying on it? Should not the superior courts discourage the practice explicitly?

It is an interesting question he raises -- one not likely to be answered anywhere on Wikipedia. Thanks to Media Law Prof Blog for pointing out the article.

March 19, 2009 | Permalink | Comments (1)

Good News for Court-Appointed Lawyers

Yesterday was the 46th anniversary of Gideon v. Wainwright, the Supreme Court's 1963 decision holding that states have a constitutional obligation to provide court-appointed lawyers for indigent criminal defendants. "In our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him," Justice Hugo L. Black wrote for the court. "This seems to us to be an obvious truth."

Gideon spawned systems for court appointment of criminal defense lawyers in every state and in the federal courts. But those systems are not without problems. At the state level, ensuring adequate funding is an ongoing battle. And for the lawyers who take court-appointed cases, ensuring adequate compensation is a whole other battle. Hourly rates paid to court-appointed lawyers remain well below private-market rates.

That said, private lawyers who take court-appointed cases in the federal system just got a pay raise. Last week, James C. Duff, director of the Administrative Office of the United States Courts, issued a memorandum directing the federal courts to increase the hourly rates and case maximums. As of March 11, the hourly rate for non-capital cases went from $100 to $110. For capital cases, the hourly rate went from $170 to $175. The maximum that a lawyer can bill for a case went from $7,800 for a felony trial to $8,600 and from $2,200 for a misdemeanor trial to $2,400. The maximum for a felony appeal is now $6,100, up from $5,600, and for a misdemeanor appeal $6,100, up from $5,600.

The federal Office of Defender Services has detailed information about the new rates and maximums.

March 19, 2009 | Permalink | Comments (2)

Divorce as a Networking Opportunity

With social networking all the rage, the latest such site to launch seeks to unite the worldwide community of spurned spouses. Divorce Network launched yesterday as a social networking platform for anyone affected by, contemplating or going through a divorce. Not surprisingly, the site has its share of both love and hate for divorce lawyers and family court judges.

A prominent feature of the site is I Got Screwed By ..., a forum in which members can post how they "got screwed" by their lawyer, judge, former spouse or anyone else associated with the divorce. One member wrote there, "The lawyer did not call the one witness I needed to get more time with my children. I am so disappointed as I really trusted him." Another wrote: "One of the things I noticed with lawyers is that they have trouble following directions. They don't want to be told what to do." And then there was Barbara, who said of her divorce lawyer, "Mine was so horrible that I am still married."

Forum members are no kinder to judges. "I've been screwed over by lawyers and judges more ways than I can even count," said someone named John. "The biggest screw over was that my judge worked only 3 hours per day, so he let the lawyers run wild." Another, named Preston, replied, "The system is indeed the cesspool of law! The judges 'work' 3 hours a day, the magistrates are civil appointees with little (if any) legal knowledge, and the lawyers are parasites."

But the site also acknowledges lawyers as perhaps a necessary evil in the divorce process. It includes articles on how to choose a divorce lawyer and what to expect in the legal process. It also includes what it describes as a nationwide directory of divorce lawyers, although it so far lists fewer than a dozen lawyers. I could find no information on how a lawyer gets listed here.

"We designed DivorceNetwork.com to be the best combination of Google and Facebook -- an online resource and community where people can turn for just about everything related to divorce," COO Mike Zimmerman said in announcing the new site. "For anyone dealing with a break-up, battling with lawyers or coping with children affected by a divorce, the site not only offers a wide range of resources, but features a social community where people can share their stories and relate to others in similar circumstances."

A social community for those battling with lawyers. Now that should have wide appeal!

March 19, 2009 | Permalink | Comments (9)

March 18, 2009

BigLaw Partners Duke It Out Over the Billable Hour

Back in December, Cravath Swaine & Moore head partner Evan Chesler fired the legal profession's equivalent of the shot heard 'round the world when he called for the end of the billable hour. Now, U.K.-based publication The Lawyer is reporting that managing partner Peter Kalis of K&L Gates is firing back, suggesting that Chesler's remarks were reactionary, rather than revolutionary. Said Kalis in an interview with The Lawyer:

Enlightened law firms for years have been offering alternative fee arrangements to clients. To hear a leader of a Wall Street firm recently issue a clarion call for alternative fees was amusing.

One wonders whether his call to action might have something to do with preserving margins in an era in which they are severely threatened.

Chesler rejected Kalis' comments as unfair, explaining that he had long been a proponent of alternative billing even before the economy declined. Chesler explained that his remarks were intended to reinforce for all lawyers what clients have wanted for a long time -- the ability to control costs and match costs against value received.

So who's right? You'll have to wait for the full-length feature article, due out on March 30, to judge. In the meantime, we'll note that according to The American Lawyer's Layoff List, K&L Gates cut 36 associates last week (H/T Above the Law) while Cravath still hasn't officially downsized. Based on this evidence, it appears that perhaps Kalis' implications about Cravath's declining margins may be misplaced.

March 18, 2009 | Permalink | Comments (3)

Should Empathy Be a Standard for Judging a Judge?

When it comes to evaluating nominees to the federal bench -- particularly to appellate courts and the Supreme Court -- presidents typically focus on the candidates' legal skills and intellectual acumen. And indeed, the public has come to expect stellar academic and intellectual credentials from nominees. Recall, for example, the criticisms from liberals and conservatives alike in response to Bush's nomination of relatively undistinguished Harriet Miers to the Supreme Court.

So do any factors other than brains and biases (as in political biases) come into play when nominating a judicial appointment? President Obama seems to think so, at least as indicated by the White House statement that accompanied yesterday's announcement of David Hamilton as the president's first judicial nominee.

Hamilton, a federal district court judge in Indiana, was appointed to a seat on the 7th Circuit. When asked about the reason for Hamilton's selection, press secretary Robert Gibbs reiterated the president's intent to choose federal judges who "will value a wide variety of past experience and having the ability to empathize and walk in someone's shoes,” reports The Blog of Legal Times.

As the BLT points out, Obama's desire to consider a judge's life experiences and ability to empathize is controversial. In particular, many fear that an empathetic judge may be inclined to ignore the law to reach a desired result. I disagree. To me, empathy means a willingness to listen and that's often what litigants care about even more than the actual result.

March 18, 2009 | Permalink | Comments (3)

Some Lawyers Enjoying Unemployment

While some newly unemployed lawyers are frantically scrambling to find any job, even if it means working for free, others are using their newfound free time and generous severance pay to party the night away, according to Charlotte, N.C.-based radio station, WFAE 90.7 FM.

The WFAE report focuses on comments from Jeff Steiner, recently laid off from a Charlotte firm in August. Though Steiner is diligently volunteering and considering his next career steps, he notes that many of his similarly situated colleagues are simply frittering away their time:

"I know people who haven't done a thing literally since August and that will go out drinking seven nights a week til two a.m. every night," says Steiner. "You know? I mean it's dumb."

Jeff may be a little more careful, but he's also not hurting as much as some. With a nice severance package, he has the luxury of taking a little time to decide what comes next:

In your experience, are the majority of laid-off associates you know acting a little too laid back when it comes to thinking about their future? Send your comments below.

March 18, 2009 | Permalink | Comments (4)

Some Firms Still Finding an Upside in the Downturn

Over at the Law Marketing Blog, Larry Bodine writes that in spite of the economic downturn, some firms are still doing quite well, thank you very much. But how are they doing it? For that, Bodine turns to an analysis by Robert Denney, a marketing and strategic planning expert.

For starters, those firms staying busy during the downturn are focusing on still-hot practice areas such as litigation, intellectual property and one we've mentioned before: bankruptcy. Mid-sized firms are also taking advantage of clients' desire for lower rates and alternative billing by opening offices in other cities to meet the ever-growing demand for innovative or flexible fee structures. Successful firms are also taking the time to strengthen client relationships and to ramp up productive marketing measures while jettisoning costly methods that don't generate return on investment. Finally, firms are firing slow-paying clients, realizing that they're costing the firm more money than they're worth.

Bodine isn't sure how long the growth trend will continue for these firms, but at least for now they appear to be successfully riding out the economic storm.

March 18, 2009 | Permalink | Comments (3)

March 17, 2009

Twittering on the Brink of Mistrial

We knew this would happen. It was only a matter of time before a juror would get caught tweeting. But twice in the same week?

First came the news, reported yesterday on Law.com (via AP), that a defendant hit with a $12.6 million verdict is seeking a new trial, arguing that a juror posted tweets to Twitter that show he was biased. The defendant in the Arkansas case, the building materials company Stoam Holdings, filed a motion for a new trial last week claiming that juror Jonathan Powell posted eight tweets during the trial using his cell phone. One boasted, "I just gave away TWELVE MILLION DOLLARS of somebody else's money." Stoam's lawyer, Drew Ledbetter, contends that the juror's tweets show he "was predisposed toward giving a verdict that would impress his audience."

Even as the Arkansas story broke, the Philadelphia Inquirer reported that defense lawyers for former Pennsylvania Sen. Vincent J. Fumo moved to halt jury deliberations in his trial on federal corruption charges, contending that a juror posted messages to Twitter and Facebook, including one that said, "Stay tuned for a big announcement on Monday everyone!" The post provided "substantial evidence," the lawyers argued, that the juror had violated the judge's admonitions not to disclose the status of deliberations. (The motion is posted at How Appealing.) The judge in the case questioned the juror and allowed him to stay. Not long after, the jurors returned a verdict convicting Fumo of all counts. The tweeting juror is sure to be an issue if there is an appeal.

At the blog Litigation & Trial, Maxwell S. Kennerly concludes as to the Fumo case that the Twitter-ing juror is no grounds for a mistrial. "Sure, the jury is instructed to keep the content of deliberations secret," he writes, "but it doesn't seem the juror revealed any content, other than the cryptic reference to a 'big announcement' on Monday, which itself doesn't reveal any content other than the jury being close to a resolution." Perhaps, but if the tweets from Philly could be characterized as innocuous, those in the Arkansas case give the judge and lawyers there much more to chirp about.

March 17, 2009 | Permalink | Comments (2)

In Search of Sunshine in Government

It is Sunshine Week, a national initiative focused on the importance of open government and freedom of information. Sunshine Week is led by the American Society of Newspaper Editors and its participants include the news media, civic groups, libraries, schools and individuals interested in promoting the public's right to know.

To mark the event, the Scripps Howard News Service and Ohio University conducted a survey of public opinion about government secrecy, as they have done for the last few years. Notably, for the first time in four years, the public's perception of government secrecy has leveled off. Since 2006, the percentage of adults who believe the federal government to be somewhat or very secretive has been on the rise -- from 62 percent in 2006 to 74 percent in 2008. In this year's survey, the percentage drops slightly to 73.

So, while more than seven in 10 adults still see government as secret, the survey suggests that a new administration in Washington could change that perception. It found that some 80 percent of adults are encouraged by President Obama's FOI directive calling for a presumption of openness within government. Other interesting findings of the survey include:

67 percent say they've heard of the federal Freedom of Information Act and even more, when reminded of it, think it's a good law. But only six percent have ever used it.
43 percent of adults say their local government is somewhat or very secretive and 57 percent say it is somewhat or very open.

Notably, the number of adults who believe the federal government is somewhat secretive has declined, from 40 percent in 2006 to 33 percent this year, while the number who say it is very secretive has gone up, from 22 percent in 2006 to 40 percent this year. Only 5 percent describe the federal government as very open.

March 17, 2009 | Permalink | Comments (1)

Former Law Dean is Headed to Paradise

David Hall, the former dean of Northeastern University School of Law in Boston and still a professor of law there, is on his way to Paradise -- America's Paradise, that is, aka the U.S. Virgin Islands. On Saturday, the board of trustees of the University of the Virgin Islands approved a five-year contract for Hall to become the school's president starting Aug. 1.

We reported here in January that Hall was under consideration for the job. After Hall and another candidate visited the university's campuses on St. Thomas and St. Croix in January, the university entered into contract negotiations with Hall, the Virgin Islands Daily News reports. Terms of the contract were agreed to last Friday and approved by the trustees on Saturday. No details were provided.

A native of Savannah, Ga., 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.

March 17, 2009 | Permalink | Comments (1)

Thoughts on NLJ/Legal Times Merger

Several blogs commented yesterday on Incisive Media's announcement that it will merge The National Law Journal and Legal Times. Having served a stint as the NLJ's editor-in-chief, I was on the fence about expressing my opinion about the merger. However, I am spurred to comment after reading Mark Obbie's assertion that the NLJ's broad focus "is a prescription for blandness" that lacks "market-driven editorial sense."

I first read the news, ironically, at The BLT, the blog of Legal Times, where writer David Ingram reported on the statement made by David Brown, the Legal Times editor and publisher who will become editor of the combined publication. "This effort is going to create a single publication that will have greater editorial scope and reporting strength," Brown said. "It's going to give our readers more of everything: More columns, more features, and more context from Washington and throughout the nation."

Bill Pollak, Incisive's CEO for North America, underscores Brown's statement on his own blog. Sure, the economy played a part in the merger decision, he says, but it also makes editorial sense.

More and more, that DC legal story -- particularly as it relates to the major law firms, courts and legislative branch -- is really a national story. Yes, readers inside-the-beltway may be interested in goings on in the Justice Department, but so are readers in California and Florida. Enhancing its Washington coverage will benefit the NLJ's readers and make that a significantly better newspaper.

Obbie's response, in so many words, is to call this editorial positioning bunk. "To spin it as an enhanced product for D.C. lawyers is disingenuous by half," he writes. While Legal Times makes editorial sense as a "well defined product for an audience of narrowly defined shared interests," he argues, the NLJ is a newspaper in search of definition. "It has lurched from strategy to strategy, and aimed itself at any lawyer who would have it."

Let me stop right here and emphasize that this blog is owned by Incisive and I receive compensation from Incisive for contributing to it. As I noted above, I was editor of the NLJ and worked for the company at the same time as Obbie, who was then executive editor of The American Lawyer. I've known Obbie a long time and can't remember ever before disagreeing with him. So whatever opinions I have come under those clouds, but they are my opinions and no one else's.

If Obbie and I were judges, then I would concur in part and dissent in part with what he wrote. I agree with him that Legal Times makes sense editorially and I share his dismay to see it go. My own editorial philosophy long stuck to the notion that all law is local. Legal journalism, I have always said, is community journalism. The trick is defining the community -- and increasingly that community is national.

Yes, lawyers care first and foremost about legal news in their own states. I learned that years ago as editor of the statewide legal newspaper in Massachusetts. But I disagree with Obbie on the editorial sense of a broader, national newspaper. "The Des Moines commercial litigator has little in common with the Newark criminal defense lawyer or Austin divorce lawyer or Boston patent lawyer," he contends. I see it otherwise. Over the last 20 years, the community of lawyers has become less provincial and more national. This is partly a matter of technology but very much a matter of law. More and more, the law we practice is becoming homogenized. Bill Pollak is right when he suggests that what happens in Washington no longer stays in Washington. But it is even broader than Washington. Astute lawyers these days need to track legal news and trends nationwide, because soon those developments will be coming to a city near them.

To me, that suggests a very clear editorial purpose for a national newspaper such as the NLJ. It should, in effect, serve as a kind of national radar, as lawyers' eyes and ears, scanning the national landscape for developments that may sooner or later affect lawyers everywhere. That means it should be among the first to report on significant legal developments that will trickle down to courts throughout the country, be first to identify trends and patterns in the law, and be first to identity emerging causes of action.

A national paper can also serve other important and well-defined editorial roles. On a practical level, it can be a sort of practice-management adviser. It can report on how lawyers can improve their skills, improve their bottom line, market themselves and make better use of technology. On a less practical level, it can be a sort of advocate for the legal profession, recognizing them as consumers of goods and services and as professionals with legislative and policy agendas and reporting in depth on these issues. Finally, it can be a kind of conscience and forum for the profession, speaking with a strong editorial voice about social and public-policy issues and enabling conversations about those issues within the profession.

So I concur with Obbie that the loss of Legal Times is a loss to the D.C. legal community. But I also believe that this combined editorial product could be even stronger than the sum of its parts and that there is a clear editorial need for a strong national legal newspaper.

March 17, 2009 | Permalink | Comments (1)

March 16, 2009

Is the President Powerless to Stop AIG Bonus Payouts?

Yesterday The New York Times reported that AIG, which received more than $170 billion in taxpayer bailout money, planned to pay $165 million in bonuses to executives who worked in the AIG business unit responsible for the company's financial collapse. But while Obama has instructed the treasury secretary to "pursue every single legal avenue to block these bonuses," AIG insists that it is contractually obligated to make these payments. In addition, AIG claims that the bonuses are necessary to retain "the best and brightest talent to lead and staff the AIG business."

So which superpower prevails -- the power of the President or the sanctity of contract? Lawrence Cunningham spots the issues for us at Concurring Opinions. Cunningham looks first to the terms of the contract itself. After all, AIG's interpretation of its contractual obligation may be erroneous. Cunningham notes that the contract may contain provisions that suggest the bonuses are gifts subject to revocation rather than binding obligations. And even if the contract specified conditions that executives must meet to qualify for a bonus, it is possible that those conditions were not satisfied. There's also the issue of fraud, and if employees acted fraudulently, that would excuse AIG's duty to pay the bonuses.

For now, the administration is not satisfied with AIG's invocation of contract law without any additional support. By 4pm today, AIG must turn over the contracts that purport to require payment of bonuses as well as the names of those slated to receive bonuses or face a subpoena for this information, says ABC News.

March 16, 2009 | Permalink | Comments (4)

Lawyers Can't Even Find Work for Free

Pity poor Jeremy Dyme, a former fourth-year law firm associate. Dyme's New York firm shut its doors at the end of 2008 and he's not been able to find a job since -- even though he's ready, willing and able to work as a volunteer, according to this New York Times piece. (H/T ABA Journal).

Part of the problem is that Dyme, who is hoping to transition from a legal career to one in economic development, lacks expertise in microfinance, which is an important qualification for many of the positions to which he's applied. But the other problem is Dyme's timing. With so many layoffs, volunteer groups and nonprofits are now flooded with applicants willing to work without pay. Yet nonprofit groups are also struggling in this economy; some lack staff to train and manage volunteers, while others are suspicious of whether applicants are genuinely committed or are simply biding their time until a paid gig comes along.

Lawyers in particular face an extra hurdle. As The Recorder reports, many large firms are paying laid-off lawyers a stipend so that they can work for legal services or pro bono organizations. In fact, a CNN report on the topic features former Foley Hoag associate Dave Dineen who is now working at the Greater Boston Legal Services. Rather than offer straight severance pay, Foley gave Dineen the option of accepting 25 percent of his salary to spend a year working for legal aid, which Dineen accepted. Of course, for every lawyer like Dave Dineen taking a fully-subsidized slot in a legal aid clinic, there's another lawyer like Jeremy Dyme who's displaced.

Today on the blog Adam Smith, Esq., Bruce MacEwen notes that working for a volunteer group can give displaced lawyers a reason to get up in the morning as they figure out what step to take next. Though formal volunteer positions may no longer be an option, those of us who are still employed can reach out a hand to our colleagues as well, and offer them opportunities.

March 16, 2009 | Permalink | Comments (5)

Business School Comes Under Criticism

Looks like law schools aren't the only institutions of higher education to come under criticism for failing to prepare lawyers for the real world. Now, via Wired GC, comes a link to this New York Times piece that discusses whether shortcomings in business school MBA programs have left graduates unprepared "to make decisions that might have mitigated the financial crisis."

Many of the criticisms about business school that the Times piece recounts resemble those levied against law schools, centered on a lack of practical training and inadequate discussion of ethics:

Critics of business education have many complaints. Some say the schools have become too scientific, too detached from real-world issues. Others say students are taught to come up with hasty solutions to complicated problems. Another group contends that schools give students a limited and distorted view of their role — that they graduate with a focus on maximizing shareholder value and only a limited understanding of ethical and social considerations essential to business leadership [...]

Henry Mintzberg, a professor of management studies at McGill University in Montreal, also argues that because students spend so much time developing quick responses to packaged versions of business problems, they do not learn enough about real-world experiences.

At the same time, just as many lawyers criticize legal education for failing to acknowledge that law is a business, some experts lament that business schools fail to train MBAs as professionals, with a code of conduct and philosophical ideology about their role in society. Says Rakesh Khurana, a professor at Harvard Business School and author of “From Higher Aims to Hired Hands,” a historical analysis of business education:

Business schools ... never really taught their students that, like doctors and lawyers, they were part of a profession. And in the 1970s, he said, the idea took hold that a company’s stock price was the primary barometer of success, which changed the schools’ concept of proper management techniques.

Instead of being viewed as long-term economic stewards, he said, managers came to be seen as mainly as the agents of the owners — the shareholders — and responsible for maximizing shareholder wealth.

Business schools are examining a variety of approaches to make MBA degrees more meaningful. Though there still isn't a strong push to professionalize MBAs, increasingly, business schools are incorporating discussion of social issues and ethics into their programs.

For those of you who have joint JDs and MBAs, how would you compare your legal education to B-school education? Which better prepared you for your current job, and if you had to choose one degree -- JD or MBA -- which would it be?

March 16, 2009 | Permalink | Comments (5)

Do We Pay Partners Less Than Associates? Dewey Does

Even as associate layoffs at top law firms have become a near-daily occurrence, most partners have avoided the fate of their underlings. But how much longer can partners insulate themselves from the impacts of the economic downturn? Not much longer -- at least for partners at Dewey & LeBoeuf. Today, The American Lawyer reports that over the past 15 months, Dewey has cut compensation for 66 partners -- roughly 20 percent of the firm's 350 partners -- by as much as 80 percent. From the article:

Of the 66, the more fortunate are now taking home $25,000/month, the standard draw for partners. Lower-tier partners have faced more drastic reductions, with monthly draws of as little as $10,000, or an annual total of $120,000 -- $40,000 less than the starting salary for a 2008 incoming first-year.

According to Dewey, the cuts are part of the firm's long-term strategy of "replacing poor performers with higher-producing laterals."

Still, the partners are better off than the few dozen associates who've lost their jobs, either due to the firm's financial problems or performance-based culling. Dewey does not plan to force the partners out, and many have stayed on even after learning of changes in compensation.

That the partners have stayed on is no surprise. At the end of the day, earning $120,000 a year sure beats earning nothing at all.

March 16, 2009 | Permalink | Comments (2)

March 13, 2009

The First Amendment's Fair Weather Friends

Kristen Juras, the University of Montana law professor who is trying to shut down a student-written sex column (see here) would do well to read an opinion piece published this week by one of the nation's preeminent First Amendment lawyers, Floyd Abrams. In the piece, "First Amendment Deserves More than Fleeting Friends," published by The Media Institute, Abrams critiques those who raise the flag of the First Amendment when it serves their ends but who are just as quick to hoist it down when it gets in their way.

Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN-sponsored efforts to ban the supposed "defamation" of Islam. Conservatives care deeply about such efforts to stifle speech, but offer little if any protection to American students when they mouth off outside of their schools.

Abrams offers the Fairness Doctrine as a case in point. For years, the conservative organization Accuracy in Media patrolled the airwaves with eagle eyes, looking for -- and complaining about -- broadcasts that failed to present its viewpoint sufficiently. The FCC abolished the Fairness Doctrine more than a decade ago, but now some on the left are urging its reinstatement out of angst over right-wing talk radio commentators and conservatives are opposing them.

"One of the oldest of all political observations is that where you stand depends upon where you sit," Abrams concludes. "Is it really too much to ask that those who claim that they care about the First Amendment -- everybody, that is -- stand in favor of free speech even when the speech at issue pains them ideologically?" Maybe the editors at the Montana Kaimin should ask Abrams about reprinting his piece on their opinion page, right next to the column that has the law professor up in arms.

March 13, 2009 | Permalink | Comments (3)

Law Prof Battles Student Sex Column

Just a few days ago, I was praising the University of Montana for its innovative Grace Case Project teaming law and journalism students to cover the conspiracy prosecution of W.R. Grace & Co. Now from the same school comes a troubling story of a law professor who is trying to shut down a weekly student-written sex column published in the university's student newspaper, the Kaimin. The professor is threatening to take her fight all the way to the state legislature.

The law professor, Kristen Juras, teaches property and business transactions law, so perhaps she is a bit rusty on the First Amendment. She tells the Kaiman that she respects freedom of speech, but she then appears to suggest that free speech stops short of protecting material she finds to be inappropriate and unprofessional. She insists that the material in the column is inappropriate for college students and reflects poorly on the journalism school and the university as a whole. "It affects my reputation as a member of the faculty," she said.

Juras wrote to the Kaiman's editor Bill Oram and then met with him about the column, "Bess Sex Column," written by senior Bess Davis. According to the Kaimin, Davis has written five columns so far, dealing with such topics as sex toys, virginity and Facebook relationship statuses. This recent column discusses the shockingly verboten topic of massage. Davis does not claim to be a "sexpert," but says she has "been at this for awhile now." The newspaper runs the columns on its opinion page.

Juras contends -- if I understand this correctly from the news report -- that it is not the column's subject that offends her. Rather, it is the newspaper's lack of standards in allowing Davis to write about a subject on which she is not an expert. If the newspaper would adopt policies that would require a sex columnist to have a background in sexology, Juras would be satisfied. Her argument did not convince the newspaper's editor, so now she will take it to the student publication board. If she fails there, she will go to the university's Board of Regents and, if need be, to the legislature.

So here we have a law professor who appears to believe that the First Amendment does not apply to material that she finds inappropriate and unprofessional. Further, she appears to believe that freedom of speech does not condone the expression of opinions about topics by people not formally trained in those topics. Thankfully, others do not share her view. Clem Work, a UM journalism professor, told the Kaimin that the First Amendment most certainly protects the student editors' decision to publish this column. And Adam Goldstein, an attorney with the Student Press Law Center, offers this reminder of why we need the First Amendment: "Speech that everyone thinks is appropriate doesn't need protection."

[Hat tips to How Appealing and Romenesko.]

March 13, 2009 | Permalink | Comments (6)

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