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April 30, 2009

A Noteworthy Blog From an Unlikely Lawyer

We here at Legal Blog Watch are always on the lookout for new blogs from high-profile lawyers and law firms. But one recently launched blog written by a long-time lawyer strikes us as particularly noteworthy, if for no other reason than the unlikeliness that it would ever exist.

The blogger in question is Dmitry Medvedev, who besides being a lawyer just happens to be president of the Russian Federation. As the leader of a country not historically known for its embrace of transparency, Medvedev might seem an unlikely blogger. But in both a Live Journal blog, Dmitry Medvedev's Blog, and in a video blog, Dmitry Medvedev's Videoblog, the Russian president is joining the world of social media.

Medvedev established the blog, reports The Christian Science Monitor, to bypass bureaucratic barriers and engage Russian citizens in direct and uncensored conversation. Whether there is a conversation taking place remains to be seen, but the blog has attracted thousands of comments from anonymous Russian readers. Even some old-line Kremlin observers are praising Medvedev for the blog, the Monitor says, while others say it is nothing more than a PR stunt.

For those of you who, like me, do not read Russian, you can follow Medvedev's blog through Google Reader. Simply subscribe to its feed and then click on the button in Google Reader labeled "Feed settings." There you'll find an option to "translate into my language." Yes, the translations are a bit rough, but you'll get the sense of Medvedev's posts. Perhaps you'll even want to comment on one yourself.

April 30, 2009 | Permalink | Comments (5)

How to Really Get in an Adversary's Face

Any lawyer in any city or town can always point to that one local lawyer who is a real pain in the you-know-what. But what is one to do about such a lawyer? We are lawyers, after all, bound by codes of ethics and principles of civility. Alas, our usual response is simply to grit our teeth and bear the annoyance.

But when one local firm continued to be a perpetual source of annoyance to Enrico Schaefer, founder of Traverse Legal in Traverse City, Mich., he decided his approach of simply ignoring them would no longer suffice. After considering other options, he settled on one sure way to get in the other firm's face -- he erected a billboard advertising his firm just outside the other firm's office. (Click on the image for a better view.)

He would never otherwise have considered a billboard, he explains on his blog The Greatest American Lawyer. His business is largely national and international, so he rarely advertises locally, and his primary vehicle for advertising has always been the Web. But he erected it nonetheless, directly adjacent to the annoying law firm's office.

The billboard shows the Traverse Legal name in a banner across the top with the tag line, "We protect the intellectual property of TC's coolest companies." Below that are arrayed the logos of several of the companies Schaefer's firm represents. Knowing that the lawyers at the other firm have to look at this every day gives Schaefer a certain satisfaction. "I get to smile thinking about them looking at it and knowing that, even after it comes down someday, 'it can always go back up.'"

April 30, 2009 | Permalink | Comments (2)

Judge's Suicide Leaves Only Questions

The Facebook page for Judge Francis J. D'Eramo shows a man with a vibrant smile and many friends. But with the judge's apparent suicide this week, his family is asking those friends to make his Facebook page a memorial for their memories and stories about him.

A Superior Court judge in the U.S. Virgin Islands, D'Eramo, 49, was found hanging in his St. Croix condominium Monday morning, just minutes before he was to begin jury selection and trial in a high-profile murder case in which one defendant is a former police sergeant. Initial news reports said the judge had been shot, but police later said there was no evidence of foul play. A medical examiner ruled Monday that D'Eramo hanged himself sometime over the weekend.

The Pennsylvania native moved to the U.S.V.I. in 1985 after graduating from the University of Pittsburgh School of Law, where he was a member of the law review. He intended to stay just a short time, he later told a Pennsylvania newspaper, but soon decided to remain. He was a partner in two prominent V.I. firms and president of the Virgin Islands Legal Assistance Foundation before his appointment to the bench in 2006.

D'Eramo's death sent shockwaves through the territory's close-knit legal community. "He was a great lawyer, a great guy and a great judge," one lawyer told the Virgin Islands Daily News. "The legal community is numb right now and we will certainly miss him," said another. Meanwhile, his sister, who remains in Pennsylvania, circulated an e-mail urging friends to celebrate his life. "He touched so many. If his friends would be willing to share a story on Francis' Facebook and with his family we would very much appreciate it."

April 30, 2009 | Permalink | Comments (2)

Was Lawyer Fired in Cover-Up of Client's Child Porn?

A former associate with Hinckley, Allen & Snyder in Boston claims he was fired from the firm after refusing to destroy child pornography found on a client's computer hard drive. This week, the former associate, Kevin M. Plante, won a decision from the Massachusetts Appeals Court reinstating his wrongful-termination lawsuit against the firm, after a trial court judge had dismissed his suit for the reason that it would expose client confidences.

You will not be able to read the opinion for yourself. The Appeals Court impounded the opinion and issued it with a pseudonymous caption. But David E. Frank, a reporter for Massachusetts Lawyers Weekly in Boston, obtained a copy of it and confirmed the identities of the former associate and the firm. In a story published on MLW's Web site yesterday, Frank provides details of the case.

Plante would not disclose where he now works and was reluctant to discuss the case, Frank writes, but he did provide some details. Plante does not say how the illegal images were discovered. Once they were, he tells Frank, he advised the partners that they were legally obligated to report the materials to law enforcement. He explains:

If a person came to you as a lawyer and said, "Here is the illegally possessed gun that I killed so and so with," you can't just put it in your desk and call it privileged. It couldn't be clearer under federal and state law that you cannot possess those kinds of images. By doing so, the client and the firm would be guilty of possessing child pornography.

The firm sought advice from outside counsel, who concurred with Plante, he says. Even so, the partners instructed him to find a company that could permanently erase the images from the computer, he maintains. When the partners discovered in 2006 that Plante did not do as he was told, they fired him, he contends. Plante answered his termination by reporting the firm to the FBI and then, in 2007, filing this lawsuit.

In reversing the dismissal of Plante's lawsuit, the Appeals Court concluded that the suit could go forward without the need to reveal client confidences. "To the extent that the case does revolve around the details of the images, we note that to a large degree, protective orders already in place serve to safeguard the law firm's client," the court said. "No business information, trade secrets, or other information from which it could be possible to identify the client need be revealed in order to proceed with the plaintiff's claim."

April 30, 2009 | Permalink | Comments (2)

April 29, 2009

No Surprise: Profits Per Partner Decline for 2008

At this time last year we observed that 2007 was a banner year for partner profits, but asked whether the feast was a prelude to a famine. It turns out that the answer is yes. According to the results of  The American Lawyer's 23rd annual Am Law 100 report, as summarized by Editor-in-Chief Aric Press and Am Law Data Analyst John O'Connor:

for the first time since 1991, both average profits per partner and revenue per lawyer dipped last year among the Am Law 100 firms, the top-grossing firms in the nation. And, given the weakness in the market thus far in 2009, another decline seems likely this year.

The news for 2008 wasn't entirely bleak, with overall gross revenue growing by 4.1 percent, to $67 billion, a new record. But because of growth in head count and a drop in demand, particularly in the corporate and finance sectors, profits per partner (PPP) fell by 4.3 percent, to an average of $1.26 million, and revenue per lawyer (RPL) dropped 1.2 percent, to $818,000. Moreover, firms haven't hit rock bottom yet -- indeed, at the end of 2008, The Am Law 100 was essentially still a bit ahead of where it was in fiscal year 2006, which, was also considered a record year. Trouble is, growth is a matter of perspective and lawyers accustomed to seeing steady growth for 17 years simply can't recall a time when business didn't do anything other than increase.

So what accounts for the downturn? The first explanation is fairly obvious: Demand for legal services has dropped largely due to an economic downturn. But there's a second factor: Not only did demand drop but firms failed to adjust their hiring policies, resulting in a surge in head count which couldn't be sustained without partner profits taking a hit. In addition, firms made more non-equity partners (NEP) last year than equity partners and many NEPs received raises while full owners took a hit on profits. At Adam Smith, Esq., Bruce MacEwen has long contended that non-equity partners are costlier than equity partners or associates. Will this year's Am Law 100 results lead to reconsideration of the role of non-equity partners?

Press and O'Connor aren't willing to declare the death of BigLaw. But at the same time, they don't see 2008 as a single aberration.

What's your prediction? Will profits at large firms continue to slide and what can firms do to get back on track?

For more discussion, see WSJ Law Blog coverage.

April 29, 2009 | Permalink | Comments (2)

Why Lawyers Rule the U.S. and What It Says About Our Culture

As far back as the 1830s, French historian Alexis de Toqueville observed the prevalence of lawyers in America's ruling elite. Now, a century and a half later, nothing's changed. If anything, lawyers holding public office are more prominent than ever in the Obama administration, with both the president, the vice president and many top cabinet members holding JDs.

So what is it about the American culture that attracts lawyers to politics and accounts for their ascendancy? That's one of the topics considered in this fascinating piece, "There was a lawyer, an engineer, a politician," from The Economist (April 16, 2009), which examines professional paths to the top and how they vary by country.

As the article describes, some of the findings are predictable. In developing countries in Africa, the ruling classes are dominated by military leaders or guerilla chiefs who won power by overthrowing their predecessors by force. By contrast, in democracies, lawyers dominate, which isn't surprising either:

The law deals with the same sort of questions as politics: what makes a just society; the balance between liberty and security, and so on. Lawyerly skills -- marshalling evidence, appealing to juries, command of procedure -- transfer well to the political stage. So, sadly, does an obsession with process and a tendency to see things in partisan terms -- us or them, guilty or not guilty -- albeit in a spirit of loyalty to a system to which all defer. In common-law countries, the battleground of the court is of a piece with the adversarial, yet rule-bound, spirit of politics. Even in places with a Napoleonic code, lawyers abound. In Germany, a third of the Bundestag's members are lawyers. In France, nine of Nicolas Sarkozy's first cabinet of 16 were lawyers or law graduates, including the president, the prime minister and the finance minister, an ex-chairman of Baker & McKenzie, an American law firm.

By contrast, in communist countries, engineers are frequently prominent. In a country where education is controlled by the state, an objective discipline like engineering is less risky than political science. Moreover, as the article notes, "communist regimes of all stripes have long had a weakness for grandiose engineering projects." China is a prime example.

The former Soviet Union was also governed largely by engineers. But with its dissolution and the rise of independent republics with new democracies, businessmen are rising to power. According to a recent study, three factors have influenced businessmen to go into politics in post-Soviet countries:

Politics helps [businessmen] harm competitors; in new democracies, robber barons are often the only ones rich enough to finance election campaigns; and business people do not trust politicians to keep campaign promises because there is no real party discipline, so they go into politics themselves.

Finally, in mature democracies like Great Britain or the United States, politics itself is emerging as a career choice. For example, consider a lawyer like Bill Clinton who spent most of his post-law school career holding political office prior to becoming President.

So doctor, lawyer or chief -- which profession do you think is best suited to lead the country? Or does it matter?

April 29, 2009 | Permalink | Comments (8)

Judge Tosses Discrimination Suit Against Columbia for Lack of Men's Studies Program

Last August, I posted about lawyer Roy Den Hollander's lawsuit against Columbia University, charging that the school had "thrown its influence and prestige into violating the rights of men by offering a women's studies program but no men's studies program." Seems that Den Hollander won't find vindication for men's rights any time soon because last week, Judge Lewis Kaplan of the United States District Court in Manhattan summarily dismissed Den Hollander's case, reports the New York Times City Room Blog.

Judge Kaplan rejected all of Den Hollander's claims, including a novel argument that Columbia violated Hollander's First Amendment rights by promoting the religion of feminism. Judge Kaplan found that "feminism is no more a religion than physics," concluding that the core of the complaint was frivolous. Kaplan also disagreed with Den Hollander's argument that the judge should recuse himself because he is a Columbia graduate.

The Columbia case might not have generated the legal outcome Den Hollander was looking for, but it did prompt student journalists to dig into the lawyer's background for clues that might help explain his anti-feminist legal crusade. According to The Columbia Daily Spectator:

Hollander, who now devotes his full time to men's rights, worked for ABC News, several law firms, and the Russian branch of security firm Kroll Associates. Through Kroll, Hollander said he learned that the wife he brought to the U.S. from Russia was a prostitute allied with the Chechen mafia. A scuffle with her -- including a brush with the Violence Against Women Act -- sparked Hollander’s activism, which has included a case against women's nights in bars.

He might have lost yet another battle, but Den Hollander has vowed to appeal Judge Kaplan's decision to the 2nd Circuit.

April 29, 2009 | Permalink | Comments (2)

Waste of Taxpayer Dollars on Misdemeanors Is Criminal, New Study Says

Prosecution of petty misdemeanor cases such as curfew violations or turnstile jumping is robbing taxpayers of millions of dollars each year, concludes the National Association of Criminal Defense Lawyers in its latest report, "Minor Crimes, Massive Waste." According to this press release summarizing the report, misdemeanor prosecutions are costing taxpayers and compromising defendants' Sixth Amendment right to effective assistance of counsel:

Misdemeanors -- infractions such as curfew violations, loitering and open container laws -- lead to expensive prosecutions on the taxpayers’ dime. The volume of cases is staggering. A median state misdemeanor rate of 3,544 cases per 100,000 citizens indicates that taxpayers are burdened with paying the costs of more than 10 million misdemeanor prosecutions per year, the report said.

With courts this clogged, public defenders and probation officers are forced to handle hundreds more cases than they can ethically manage, spending just minutes preparing for each case. And some defendants are completely deprived of their constitutional right to counsel, putting states at risk for expensive lawsuits on top of the heavy financial burden of unnecessary incarceration costs.

The NADCL report also found a sharp increase in the number of prosecutions of misdemeanor cases over the past three decades. Based on an estimated 12-state median misdemeanor rate of 3,544 per 100,000 residents by the National Center for State Courts in 2006, misdemeanor prosecutions more than doubled from 5 million in 1972 to 10.5 million in 2006. (According to InfoPlease.com, the U.S. population increased by less than 50 percent between 1972 and 2006.)

The NADCL report recommends that states treat non-violent misdemeanors as infractions which are diverted from the criminal system remedied through payment of fines or restitution to victims. Robert C. Boruchowitz, a law professor and lead researcher for the project told the Associated Press that the recommended changes will not require new legislation. In most cases they can be accomplished through education, as well as exercise of prosecutorial or judicial discretion, he says.

I have some qualms about Boruchowitz's willingness to leave reforms to the discretion of those within the criminal system. For starters, wasn't it abuse of prosecutorial discretion that created this problem to begin with? More importantly, in an economic downturn, with so many lawyers unable to find work, I doubt that prosecutors' offices would willingly scale back prosecutions, since that would reduce workload and potentially lead to layoffs. I'm not sure of the right solution but there's sure to be additional discussion on Capitol Hill: the NADCL will present the study's findings to a House Judiciary Committee hearing on June 4.

April 29, 2009 | Permalink | Comments (1)

April 28, 2009

Free Speech at Core of Apple Suit

Something seems rotten when a company like Apple threatens legal action to shut down public discussions of its products. This week, the recipient of such a threat made a pre-emptive strike, filing a lawsuit in a federal court in California seeking a declaratory judgment that the First Amendment applies even to the almighty iPhone.

The lawsuit was filed by lawyers from the Electronic Frontier Foundation and the law firm Keker & Van Nest in San Francisco on behalf of OdioWorks LLC, operator of BluWiki, a public wiki site, after Apple's lawyers demanded it take down pages that described how to use third-party software on iPhones and iPods. Apple claimed the postings were unlawful under the Digital Millennium Copyright Act because they enabled circumvention of the company's digital rights management system.

OdioWorks complied with Apple's request to take down some of the information. It nevertheless decided to file this lawsuit for reasons explained in a post at Ars Technica:

OdioWorks ... says that it takes the First Amendment rights of its users very seriously. "Companies like Apple should not be able to censor online discussions by making baseless legal threats against services like BluWiki that host the discussion," OdioWorks owner Sam Odio said in a statement. "Wikis and other community sites are home to many vibrant discussions among hobbyists and tinkerers," added EFF Senior Staff Attorney Fred von Lohmann. "It's legal to engage in reverse engineering in order to create a competing product, it's legal to talk about reverse engineering, and it's legal for a public wiki to host those discussions."

EFF's Web site has the text of the complaint and more information about the lawsuit.

April 28, 2009 | Permalink | Comments (2)

Deidre Makes Good on Her Dare to Sue

Lawyer-turned-sex-novelist Deidre Dare vowed she would not take her firing lying down. Now she has made good on that vow. The U.S. lawyer has sued London firm Allen & Overy for £3.45 million over its discharge of her from its Moscow office.

Lest you've forgotten our earlier posts about Dare, she was a senior lawyer in the Moscow office when the firm ordered her to stop publishing erotic fiction on her personal Web site, DeidreDare.com. Even though she thereafter discontinued posting new chapters, the firm nonetheless gave her the boot on Jan. 30.

The firm said it fired her because her behavior "was unacceptable and totally at odds with the standards of behavior that we expect from all of our people." But Dare alleged that was a subterfuge to mask the real reason for her firing -- her complaints about sexual harassment by a male boss.

In an e-mail to the blog Above the Law, Dare provides some background on the lawsuit:

I filed in the UK at their employment tribunal but my lawyer (who is a plaintiff contingency dude) says that we are also going to high court. I'll take this to the European Commission on Human Rights if I have to. I mean, it still boggles my mind: fired for writing a book? Ridiculous. I'd have preferred to sue in States but there were too many jurisdictional questions. I guess we'll find out about UK but with the sexual obsession/love triangle bit and then they fire me: I'm pretty confident even the UK (which is very establishment, obviously) will see how unfair it all was.

When Above the Law asked about her reference to sexual obsession and a love triangle, she responded:

Oh. I fooled around with [important person at A&O] and then he got all upset b/c I started dating a younger Russian guy and then he told me to get another job and then I filed a grievance against him (b/c I was a big rainmaker and it was ridiculous of him to get rid of me) and then he complained about the website to London (it had been up FOREVER and read by everyone) and then they fired me. All reeks of witch hunt/retaliation.

Who needs steamy fiction when real life is so much saucier? Stay tuned for the continuing adventures of Deidre Dare, who continues to prove that truth is always more fascinating than fiction.

April 28, 2009 | Permalink | Comments (3)

Real Judges for Fantasy Sports Cases

On first glance, the decision of the court sounds eminently authoritative: "This dispute involves whether the Commissioner of the Hampshire Baseball League was within his rights to allow one of its teams, the Cedarburg Tigers, to submit a late bid for free agent second baseman Emilio Bonifacio," Chief Justice Marc Edelman begins. "Based upon a review of the facts, this court rules that it was not proper for the Commissioner to extend the bidding period beyond the stated 24-hour period. Therefore, the court orders the rights to Emilio Bonifacio to revert to the Philadelphia Freedoms -- the team that had submitted the highest bid at the time the player auction officially expired."

But wait? Does Emilio Bonifacio no longer play for the Florida Marlins? Where in the world is this Hampshire Baseball League? And who the heck are the Cedarburg Tigers? Welcome to the world of fantasy baseball -- a world that, despite its make-believe nature, apparently has very real disputes. And where there are disputes, there are lawyers. And where there are lawyers, there are judges. Thus the very real "fantasy dispute resolution" service, SportsJudge.com.

SportsJudge is the not-so-idle fantasy of its self-appointed chief justice, Marc Edelman, a visiting assistant professor at Rutgers School of Law in Camden, N.J., and former associate at Skadden Arps and Dewey Ballantine. Edelman describes himself as a "pioneer in the field of fantasy sports dispute resolution" who has played fantasy sports for some two decades.

SportsJudge "brings the principles of dispute resolution into the realm of fantasy sports." Having a fantasy league dispute with another owner? SportsJudge will resolve it within 48 hours for just $15. For fantasy owners prone to a history of disputes, SportsJudge offers a seasonal, 10-dispute package for $100. The site also sells a "certified" fantasy league constitution for $50 and will even manage a fantasy owner's live draft.

Apparently, SportsJudge is not the only dispute resolution service serving fantasy sports. But it is the only one where disputes are decided by lawyers "who've worked in litigation at major firms and are professors at major law schools," Edelman tells David Frank at Massachusetts Lawyers Weekly.

The reason my site is so popular with the intellectual segment of our population that has some background in the law is that, unlike every other site that has since popped up, we use actual legal principles to create results, and we have that precedent bank that ensures each result is the same time after time.

Noting that more than 5 million people a year play fantasy baseball, Frank writes that Edelman may be onto something. Still, when Frank mentioned SportsJudge to his lawyer-wife, her response was somewhat different: "It's kind of pathetic." Maybe so, but not if you're the commissioner of the Hampshire Baseball League.

April 28, 2009 | Permalink | Comments (1)

Magistrate Quits Over Twitter Posts

A magistrate in the English town of Telford maintains he did nothing wrong when he mentioned cases in posts to Twitter. Even so, he resigned from the bench after a fellow magistrate discovered the tweets and complained.

Steve Molyneux -- who posts to Twitter under the name ProfOnTheProwl -- has been a magistrate for 16 years and is the former mayor of the town of Oakengates. He found himself in hot water over four items he posted Feb. 7 concerning a bail application for three men accused of robbery. In a podcast interview with the U.K. law blog Charon QC, Molyneux recounts that he had been called in to serve on a Saturday court. Over the course of the day, he made four posts:

Called into Court today to deal with those arrested last night and held in custody. I guess they will be mostly drunks but you never know.

Just about to hear application from 3 robbers from Manchster as to whether to remand or not.

1st defendant. Conspiricy to rob TSB of £500,000. Good start - wrong previous convictions presented.

Finished hearing bail. 3 refused for planning robbery of £480,000 from Tsb in Dawley, Telford.

He later received a telephone call from Glyn Parry, chairman of the Telford bench, advising him that a fellow magistrate had complained about his use of Twitter. Molyneux met with the chairman Feb. 20 and had what he describes as an "open and frank discussion" that was "amicable and supportive." Soon after that meeting, Molyneux left for a two-week lecture tour in the United States.

Even before he left, he tells Charon QC, he was thinking about resigning from the bench. His concern was not Twitter, he said, but the lack of trust suggested by the colleague's complaint. When he returned from the tour, a letter awaited informing him that the complaint had been referred to the Shropshire Justices Advisory Committee. That, he said, was the last straw and solidified his decision to resign.

Still, Molyneux maintains he did nothing wrong. "I did nothing wrong, I did nothing illegal. I didn’t mention any names or write about anything in the retiring room. All I wrote was in the public domain already," he later said. And on Twitter, he wrote, "I didnt tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing." His one slip-up, he tells Charon QC, was in referring to the three men brought into his court as "robbers" instead of as "defendants." "It was a wording issue," he concedes.

While Charon QC seems sympathetic to Molyneux, Scott H. Greenfield at Simple Justice believes the magistrate exceeded the bounds of propriety:

Much as I realize that testing the parameters of new technologies is something of an article of faith for many, Molyneux pushed the envelope too far when he failed to distinguish the difference between his twitting his thoughts as a Magistrate versus his other roles. Whether there is, should be, will be parameters for the appropriate use of twitter by a judge has yet to be seen, and is certainly subject to worthy debate. But the unilateral decision to do so demonstrated poor judgment and reflected a fundamental misunderstanding of the obligations inherent in his judicial role as opposed to just a guy who likes to twit.

To my mind, Greenfield has it exactly right. Judges should be free to blog and tweet about whatever they like, provided they do not write specifics about cases pending before them. Molyneux did not need to resign over this -- that was his decision and is to be respected. But as always on Twitter, one should think twice before posting, especially when the twitterer sits on the bench.

April 28, 2009 | Permalink | Comments (2)

April 27, 2009

Does the Bar Need Policies on Web 2.0?

A Connecticut Law Blog author Ryan McKeen has a problem: He's a stickler for rules. Ordinarily a love of rules isn't a problem for lawyers, who thrive on analyzing, dissecting and generally finding ways to follow (or lawfully circumvent) rules, but what's a good lawyer to do if there aren't any rules at all?

That's precisely the situation in which McKeen finds himself. An avid Web 2.0 user, McKeen can't seem to figure out or make much sense of the Connecticut Bar's policy -- or lack thereof -- on lawyer use of social media tools like Facebook or Twitter. Technically, there is a rule requiring registration of communications made by a lawyer about legal services, but the rule applies to conventional forms of advertising such as phone directories, lawyer listings and announcements. There's nothing that governs communications made, for example, to a group of Facebook friends or on Twitter. McKeen explains:

I have a Facebook page and have several hundred “friends.” Most of them are former classmates, co-workers, family, and friends with pretty much the sole exception being that I’m “friends” with Red Sox pitcher Justin Masterson, who pitched well last night in leading the Red Sox to their 10th straight win and completing the sweep over the Yankees. I digress.

My facebook page lists my occupation and describes a little of what I do. It’s not all that different than my bio page on this site, less words but the same idea.

My profile can only be seen by people that I’m “friends” with.

Sometimes, I write about law. Again not a whole lot different that what I do on this site. Sometimes, I’ll post a link on my profile page and embed an article or blog post that catches my eye. Sometimes, I’ll update my status and it will include something law related such as “off to court” or some such useless nonsense.

McKeen received some informal guidance from the bar, which suggested that "It may be best to separate [his] personal life from [his] professional life online by creating some sort of a net wall." McKeen objects to that resolution and I agree. After all, where to draw the line -- many of my personal friends are interested in my legal cases -- so shouldn't I have the right to post about them (provided that I don't otherwise violate client confidentiality)? Moreover, as McKeen points out, friends and family are for many lawyers a source of business. Those lawyers seeking to generate referrals from their personal contacts need the ability to inform them about legal issues.

So what's the upshot for Facebook? Is a Facebook page with personal information and legal commentary more like a Web site or ad (which must be registered with the Connecticut bar) or a completely personal matter, in which case registration isn't required. McKeen believes that the bar should clarify that Facebook pages are exempt from any advertising registration requirements. McKeen concludes that:

The SGC shouldn’t wait around to enact such a policy either. Failing to have a policy in place has a chilling effect on speech. I shouldn’t be left wondering if updating my status to read “busy today, last day of the month, lots of closings” or “proud of legislature for enacting Kerrigan legislation” is a violation of my ethical duties as an attorney.

As a practicing attorney myself, I understand the desire for certainty. At the same time, I'm not sure that I want any of my bars' grievance committees drafting policies just yet. Social media is still gaining traction amongst lawyers and my fear is that those lawyers presently on grievance committees don't use social media or understand it sufficiently to regulate it. As a result, asking the bars to step in and develop social media policies now could lead to an overly restrictive outcome. I'd rather continue to take risks now than push for a ridiculous policy that might require me to register Facebook pages or seek review of tweets prior to posting them.

At some point the bars will catch on to Web 2.0 and be able to make rational policy. Of course by that time we might have already moved on to Web 3.0.

April 27, 2009 | Permalink | Comments (5)

A Second Wind for Second Life, and Its Lawyers

It's been more than a year since I last posted about lawyers using Second Life and for a while I thought the site might be on the decline, not just for lawyers, but for all users. Apparently I was mistaken because, as the San Francisco Chronicle reports, life for lawyers in Second Life is as bustling and bizarre as ever.

Consider a dispute last year over an interactive bed designed to facilitate digital dalliance between avatars online. Second Life user Kevin Alderman created the bed and when another user started selling copies, Alderman hired real-life lawyer Francis Taney of the Philadelphia office of Buchanan, Ingersoll & Rooney who successfully enjoined the competing sales. Taney tells the Chronicle he now devotes 20 to 30 percent of his practice to virtual law issues.

Even though the initial media buzz that once surrounded Second Life has subsided, the reality is the virtual world continues to grow, according to the Chronicle, with monthly transactions between users increasing about 30 percent in the past year to 25 million in March compared with 19 million a year ago. In fact, I'd venture to guess that the downturn is further fueling growth: Unemployed folks have more time on their hands to venture into Second Life, while those stressed out by the economy might welcome the escape to a fantasy world. As transactions grow, so too does the possibility for disputes -- both in real-world courts and before judges and mediators within Second Life.

Because most bar associations haven't created virtual world counterparts (though the State Bar of California last year allowed lawyers to earn CLE credits via a course put together by the Second Life Bar Association), there aren't any rules on unauthorized practice of law. While some real-life lawyers have set up offices in Second Life, there are also those who market themselves as lawyers even though they haven't passed the real-world bar exam. Still, as one lawyer cautions in the Chronicle, lawyers don't leave their professional obligations at the door when they enter Second Life. Conversations with clients in Second Life aren't confidential because Linden Lab, which developed Second Life, has access to all of the communication. So to the extent that a Second Life attorney is dispensing real-life advice to a Second Life client, he'd be best off taking the conversation offline.

April 27, 2009 | Permalink | Comments (1)

The Benefits of Video Conferencing

Over at the Law Department Management blog, Rees Morrison shares some reasons why law firms should consider video conferencing, particularly in a down economy where clients are looking for ways to cut fat out of the budget. For starters, video conferencing saves money. As Morrison describes, several large corporations report cutting travel expenses considerably by using video conferencing.

But cost isn't the sole return. As Morrison writes:

Reductions in the wear and tear from travel counts for something. Further, with the ability to see people, lawyers and clients can get to know each other more quickly; familiarity breeds content. Aside from the vexations of travel, the ease of a phone-plus-visual meeting enables more frequent meetings so there is a quality improvement.

A second point regarding teleconferencing, oriented externally instead of internally, is that it improves screening interviews of candidates and law firms. Nothing surpasses an in-person meeting, but for reasons of cost, burden, and expediency, an on-screen presence may suffice.

Increasingly, I've been using Skype to conduct video conversations with colleagues and vendors. Like Morrison, I find that it injects a personal element into relationships that can't be matched by e-mail, Twitter or the ability to post photos on Facebook. The only drawback that I've found has nothing to do with technology: I need to make sure that my office is always tidy in the event that a Skype call comes through.

Is your law firm or in-house office using video conferencing? Do you find that it enhances the attorney-client relationship or doesn't make much of a difference?

April 27, 2009 | Permalink | Comments (7)

Felon Teaches CLE on Criminal Sentencing

Granted, first-hand experience is an important quality in a continuing legal education instructor, but it's possible to go too far. That was the case at a recent Milwaukee CLE program where 50 lawyers were treated to a program on criminal sentencing that, unbeknownst to them, was taught by a convicted felon, according to Daniel Bice's column in the Milwaukee Journal Sentinel. Instructor Howard O. Kieffer's criminal background -- not to mention his lack of a law degree -- came as a surprise to the Federal Defender Services of Milwaukee, which arranged the CLE program back in November 2007 believing Kieffer to be a legitimate expert on sentencing law.

And why not? Kieffer's bio portrayed him as a sentencing expert who ran Legal Defense Associates, a one-man Santa Ana, Calif.-based law firm, a 1992 graduate of Antioch Law School and an adviser to several members of Congress. It turns out that during the time frame that Kieffer claimed he attended law school, he was actually doing time for grand theft and filing false tax returns. Of course, Kieffer did get some legal training in prison (indeed, perhaps more than some students receive in law school) by handling his appeal and a subsequent civil suit against the United States government.

Kieffer's past finally came to light when a disgruntled client investigated Kieffer and learned that he wasn't licensed to practice. Earlier this month, Kieffer was convicted on federal charges of mail fraud and impersonating a lawyer. He faces up to 25 years in prison and a $500,000 fine.

As for the lawyers who attended the CLE, not to worry. Wisconsin will still count the credits, concluding that the course offered some "useful information."

Update - looks like Scott Greenfield of Simple Justice caught this story and blogged about it  two weeks ago.

April 27, 2009 | Permalink | Comments (1)

April 24, 2009

Quoteable Quotes from the World of Law

The news today seems chock full of notable quotes:

• "It is axiomatic that 'Judge' and 'Stripper' showing up in a headline is never a good thing, especially if you happen to be the 'Judge.'" Tampa Tribune columnist Daniel Ruth on former Florida appellate judge Thomas E. Stringer.

• "A lawyer doesn’t need to believe. He goes by what he is told." Kenyan lawyer Francis Kadima on his representation of suspected pirates who maintain they were innocent fishermen.

• "I start thinking about the closing argument the day I'm assigned to a case." Morrison & Foerster partner Arturo Gonzalez after winning a $36.3 million verdict in a trade secrets case this week.

• "It reinforces the ideas of teamwork, cohesion and consistency across the firm that we need to serve our clients in the best way." Linklaters managing partner Simon Davies, on the firm's decision to convert salaried partners to equity status.

• "It seems clear that plaintiffs have established a right to some form of remedy -- damages to reputation come to mind -- but it would seem that the harm has already been done." U.S. District Judge John P. Fullam, declining to issue an injunction in the defamation suit by two law professors against West Publishing.

• "The fact that a court divides 5-4 on the most difficult cases tells you really nothing of interest. What really matters is where on some spectrum the midpoint of the court really is." University of Chicago Law School Professor Geoffrey Stone in an April 14 talk about the Supreme Court.

• "I mean, here they just released all of these CIA files regarding interrogation, and ... the optic of us trying to tell people they can't have information about birds flying around airports, I don't think that really quite comports with the policies of the administration." Transportation Secretary Ray LaHood, rejecting an FAA proposal to keep reports of bird strikes secret.

April 24, 2009 | Permalink | Comments (2)

File-Sharing Judge Accused of Conflicts

The Swedish judge who last week sentenced four men to prison in the high-profile Pirate Bay file-sharing case is being accused by the lawyer for one of the four of having conflicts of interest that should compel a new trial. Just as Stockholm district court judge Tomas Norström found the four men guilty on Friday and sentenced each to a year in jail, it was revealed that he is a member of two pro-copyright groups, including one whose members include three of the lawyers who represented the plaintiffs in the trial.

The four defendants -- Peter Sunde, Gottfrid Svartholm Warg, Fredrik Neij and Carl Lundström -- were found guilty of having assisted in making 33 copyright-protected files available for sharing on the BitTorrent site The Pirate Bay. Sunde is seeking to have his conviction thrown out based on Norström's membership in the Swedish Copyright Association and the Swedish Association for Industrial Legal Protection. Three of the plaintiffs' lawyers in the trial -- Henrik Pontén, Peter Danowsky and Monique Wadsted -- are members of the Swedish Copyright Association.

The judge maintains that his memberships in the organizations do not make him biased. "Every time I take a case, I evaluate if I consider myself having a conflict of interest. In this case I didn't find to have one," he told Sveriges Radio, the national Swedish radio network that broke the story of his memberships in the two groups.

The blog Threat Level quotes Eric Bylander, senior lecturer in procedure law at Gothenburg University, as saying that it was not appropriate for the judge to preside over this case. "There are several circumstances which individually don't constitute partiality, but that put together can form a quite different picture. It's also a matter of what signal this sends to the citizens. Anyone who, on reasonable grounds, can be appear biased in a case should not judge that case."

The four defendants have also appealed on other grounds. Their fate now rests with the Svea Hovrätt, Sweden's high court of justice.

April 24, 2009 | Permalink | Comments (2)

Cameras in Courts: Bad News, Good News

I took a few days off last week and was disappointed to return and find that the 1st U.S. Circuit Court of Appeals had issued a decision barring the webcasting of a hearing in a recording industry file-sharing case pending in federal court in Boston. Writing for the three-judge panel, Circuit Judge Bruce M. Selya concluded:

We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information -- including information about court cases -- historically has been imparted. Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule.

On the heels of that disappointing decision, I had the hop put back in my step by Tony Mauro's account at The BLT of yesterday's House appropriations subcommittee hearing on the Supreme Court budget, where Justices Clarence Thomas and Stephen Breyer appeared to make the case for the court. Mauro relates what transpired:

The hearing proceeded in the same vein for a while, full of blandishments and collegiality. But then a Texas congressman decided to test just how well the justices were listening and whether they would take his heartfelt message to heart -- a strong plea to the Court to ramp up its transparency and public face. Other committee members proceeded to pile on, telling the Court that the momentum toward openness that the Internet has created is so strong that the Court would be wise not to resist it. By the end of it Breyer and Thomas could have been forgiven if they started to think they'd been hit by a coordinated attack from wild-eyed techies.

The exchange was kicked off by conservative Rep. John Culberson (R-Tex.), who urged the court to use technology to enhance its transparency. There is "no logical distinction" between the court's current practice of occasionally releasing oral argument audiotapes and the streaming of oral-argument video on the court's Web site, he asserted.

"It is a very easy matter on the Internet," Culberson said, and to prove his point, he pulled out a small digital camera, aimed it at the justices, and began streaming their images live on the Internet. You can see the video for yourself at this link. That prompted subcommittee chair Rep. Jose Serrano (D-N.Y.) to chime in and urge the court to allow in cameras. "That train has left the station to keep the people informed."

Not surprisingly, the justices defended the court's ban on cameras. Breyer said that more social science research is needed before deciding if the gains are worth the risk. Thomas likewise urged caution, while also admitting "there has been quite a bit of discussion" about the issue at the court, especially since legislation was introduced in Congress that would require the court to allow cameras.

Will yesterday's hearing be the turning point for cameras in the federal courts? "If the Court eventually, finally, says yes sometime in this century," Mauro concludes, "today's hearing of the financial services and general government subcommittee of the House Appropriations Committee will have played a significant part." Meanwhile, we are prompted to remark, "Smile, justices, you're on Culberson camera!"

April 24, 2009 | Permalink | Comments (1)

The World's Most Ethical Companies

The Ethisphere Institute -- a think-tank that ponders best practices in business ethics and corporate responsibility -- recently came out with its 2009 list of the World’s Most Ethical Companies. The list recognizes enterprises that promote ethical business standards and practices by going beyond legal minimums, introducing innovative ideas benefiting the public and forcing their competitors to follow suit. The 99 companies were selected based on a review of 10,000 companies, looking at their codes of ethics, litigation and regulatory histories, investment in innovation and sustainable business practices, activities designed to improve corporate citizenship and other factors.

This is the third year the institute is publishing the list. Forty-four companies have appeared all three years, including General Electric, American Express, PepsiCo, McDonalds, Starbucks and IKEA. Twenty-two companies appear on the list for the first time this year, including publishing giant Thomson Reuters.

In preparing the list, Ethisphere asked executives, general counsel and compliance officers at some of the selected companies to comment on how they promote ethics within their organizations. Among the tips offered by in-house counsel who responded were these:

• Douglas G. Scrivner, general counsel, secretary and compliance officer at Accenture: "We aim to put ethics and compliance into the way our people work and lead. We seek to leverage existing processes, procedures, structures and functions to ensure the outcomes we are expecting and alignment with the goals of the organization."

• Roderick A. Palmore, executive V.P, general counsel and chief compliance officer at General Mills: "A strong ethics and compliance program must feel culturally relevant to employees. A program that genuinely reflects the culture and values of a company helps employees understand and incorporate the messages of the program into their daily decisions. Employees experience them as part of the very fabric of the company’s culture."

• Iskah C. Singh, deputy global code and compliance officer and associate general counsel at Unilever: "Our employee training and education program raises awareness and reinforces the values of the Code of Business Principles. Also, employees annually acknowledge understanding and compliance with our Code of Business Principles. In addition to traditional training modules, we have utilized smaller ‘Ethical Moments’ -- 3 to 5 minute clips -- to raise awareness and strengthen the open ethics and compliance environment."

More of their comments along with the full list of the selected companies can be seen at Ethisphere. For an earlier report on this blog about Ethisphere, see "The Business World's Most Ethical Lawyers."

April 24, 2009 | Permalink | Comments (1)

April 23, 2009

Ohio Supreme Court Asks Lawyers to Pitch Its Web Site

Courts don't often encourage advertising by the legal profession. But the Supreme Court of Ohio may be an exception. As this article reports, the Ohio Supreme Court justices are urging members of the bar to actively promote the court's Web site to the public.

Based on the account in the article, the Ohio Supreme Court is a poster child for public outreach and an open judicial system. The site includes streaming video of oral arguments, with all oral argument sessions since March 2004 archived and viewable. Copies of past decisions along with documents from current cases can also be viewed on the Web site.

But the public can't enjoy the benefits of the Court's Web site unless they know how to use it, so the Justices are encouraging lawyers to show their clients how to access the site and learn more about the court process.

April 23, 2009 | Permalink | Comments (2)

Lawyer Arrested for Evicting Her Own Children -- From Her Car

Talk about Kafka-esque. That's what Sunday must have felt like for high-powered Kaye Scholer partner Madlyn Primoff, who spent the night in lock-up after being arrested for kicking her bickering 10- and 12-year-old daughters out of her car in downtown White Plains, N.Y., and leaving them on the street, as reported in The New York Times. Primoff is free on $1,500 bail and due back in court on May 21.

The story went viral this week (The New York Post called Primoff a "Mother Chucker"), with thousands dissecting her conduct at various blogs and online fora. While most criticize Primoff for losing her cool, many felt that her arrest was unjustified. Social worker Cheryl Kessner told the Times that Primoff is a victim of today's safety-obsessed standards of suburbia. After all, two decades ago, 10- and 12-year-olds often roamed the same types of neighborhood where Primoff left her daughters on their own. Others were less forgiving. Remarked one commenter: "She's a lawyer; she wouldn’t act that way in the courtroom.”

Ah, but is that a fair analogy? I have two daughters, 9 and 12, and I've spent ample time in the courtroom before hostile judges and against nasty opposing counsel. Even so, I can personally attest that no communication in the courtroom has ever riled me in the same way as when my girls bicker, particularly in close quarters like a car, where I'm a captive audience. And though I've never kicked my daughters out of the car, believe me, the thought has occurred to me more than I'm willing to admit.

I also wonder what kind of reaction Primoff's story will receive from the legal community. Clearly she was stressed out by more than her daughters' arguments. Could the rigors of work or perhaps the economic downturn have taken a toll? Hopefully Primoff's colleagues treat her with sympathy rather than view her actions as a character flaw that could impact her abilities as an attorney.

What do you think?

April 23, 2009 | Permalink | Comments (11)

The End of Law Schools?

We've heard a good deal about legal futurist Richard Susskind's predictions for the future of the legal profession. But what about the future of legal education? Turns out that Susskind has some thoughts on that topic too, which he shared during yesterday's lecture at Harvard's Berkman Center for Internet and Society. Gene Koo, of Law School Innovation, live-blogged the event.

As we all know by know, Susskind believes that the law is headed away from customized service and toward commoditization, much of which Susskind believes will take place online. Firms will transition from using junior lawyers as profit centers and instead begin to outsource, offshore or automate many tasks previously performed by associates. (Koo wonders who will hire or train new lawyers under Susskind's model.)

So what does this mean for law schools? Already, law schools are the subject of much criticism for failing to provide students with practical experience in counseling clients or running a practice. But in Susskind's view, legal education is even less effective because it trains lawyers to be craftsmen at a time when that role is being phased out. Instead, to prepare students for the future, Susskind argues that law schools must focus on globalization and technology, and train students in other disciplines such as risk management, project management, legal knowledge management and "disruptive legal technologies."

Susskind's model sounds an awful lot like business school rather than law school. Or is that the point? After all, if we cede to business schools and MBAs responsibility for those tasks that will be important to our profession in the future, will we lawyers merely hasten our own demise?

April 23, 2009 | Permalink | Comments (4)

Law Firm Replacing Itself With Free Term Sheet Generator

At a time when law firms are scrambling to hang on to every piece of paid business that they can, Palo Alto, Calif.-based Wilson Sonsini Goodrich & Rosati is giving away services for free. According to CenterNetworks, the firm has launched a free term sheet generator, a computerized service that walks users through about 100 questions to create a term sheet, a business document that outlines the financing terms and conditions of a business agreement or deal.

A site called Altgate.com previewed the Wilson Sonsini product, finding it "really impressive." From the post:

The way the tool works is that you answer a bunch of questions (north of 100) and then when you are complete it gives you a perfectly formatted Word file term sheet. Most of the questions are structured as "select from" several options often with an optional to "write your own." The beauty of having the option to select from "standard" options is that [Wilson Sonsini] has included some market data, e.g. what percent of term sheets in up rounds in 2008 included this term. Last year, I spent a lot of time attempting to reverse engineer this data based on a small personal sample size. Obviously, the firm has a much larger sample size and the fact that they make it public (in aggregate) is impressive.

The Term Sheet Generator originated as an internal tool for Wilson Sonsini lawyers to rapidly generate draft term sheets, which they would polish up and then deliver to their clients. Wilson Sonsini expects to make more online document generator tools available relating to startups, equity financing and bridge loans.

Will Wilson Sonsini lose business by giving away the term generator for free? From my perspective, it's hard to say. Most clients will find that they still require legal expertise in dealmaking and that the automatically generated term sheet is just one component of a deal. So even though these clients may generate the form themselves, they may still decide to retain Wilson Sonsini. Where I'd have concerns are those situations in which other lawyers are using the tool, then billing their own clients for work they created for free. Perhaps those are clients that Wilson Sonsini never would have captured in the first place. Even so, is it comfortable with other law firms using its product?

What's your view? And would you use this term sheet generator in your practice for your clients?

April 23, 2009 | Permalink | Comments (7)

April 22, 2009

Incisive Media's Twitter Scorecard

Ashton Kutcher, who recently passed 1 million followers on Twitter, has no fear of losing his standing to anyone in legal publishing. Still, it is interesting to note this Bill's blog post from William L. Pollak, CEO of legal publisher Incisive Media's operations in North America, in which he lists the Incisive people and publications with Twitter accounts and their respective numbers of followers.

I am happy to report that Legal Blog Watch is second among publications, with 1,216 followers, behind Legal Times, which has 1,341 followers. Among individual employees, ClickZ publisher Matt McGowan is listed as having the most followers, with 2,066. Third among individuals is none other than Pollak himself, with 810 followers.

April 22, 2009 | Permalink | Comments (1)

Hoping to Revitalize Legal Scholarship

Is legal scholarship on its death bed? The current and former editors of several law reviews suggest it is and they believe they have a way to revitalize it. In what they are calling an unprecedented online collaboration, seven of the most influential U.S. law reviews are collaborating to launch The Legal Workshop, an online magazine featuring plain-English articles based on scholarly counterparts published in traditional law journals. Here is how they describe it:

The Legal Workshop features short, plain-English articles about legal issues and ideas, written by an author whose related, full-length work of scholarship is forthcoming in one of the participating law reviews. But The Legal Workshop does not house a collection of abstracts. Instead, it offers an engaging alternative to traditional academic articles that run 30,000 words with footnotes, enabling scholars to present their well-formulated opinions and their research to a wider audience. In addition to making legal ideas understandable, The Legal Workshop seeks to house the best of legal scholarship in one place—making it easier for readers to find the best writing about all areas of law.

The seven participating law reviews are Stanford Law Review, New York University Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Journal, Northwestern Law Review and University of Chicago Law Review.

In announcing their non-profit venture, the editors say that law reviews have been losing influence and readership in recent years. "The problem is that most law reviews make little effort to reach non-academic audiences," said Michael Montaño, a Stanford Law Review editor and one of the developers of the new magazine. "And because they still effectively help professors gain tenure -- 'publish or perish' is here to stay -- there is little incentive to innovate. But as a profession we owe it to the public to produce work that is relevant to society as a whole."

The announcement includes praise for the venture from Slate legal columnist Dahlia Lithwick. "It's really the best of both worlds," Lithwick says. "The general public can be better engaged with the latest thinking about the law while knowing that what they’re reading is serious scholarship; not just fad or opinion." And a University of Chicago Law School item about the new publication quotes a member of its faculty, Richard Epstein, offering this scholarly sounding endorsement: "The migration of knowledge from paper to cyberspace is an inescapable part of our intellectual culture. The appearance of the legalworkshop.org is yet another indicator of that inexorable transition. And it is a benevolent one."

The concept certainly warrants praise. But with introductory articles on such topics as textualism in statutory interpretation, Kelo and private takings, and the public forum doctrine, it seems unlikely that the site will engage any appreciable segment of the general public. What it will do, I suspect, is make some current scholarship more accessible to the general population of lawyers. That, alone, is worth the effort.

April 22, 2009 | Permalink | Comments (4)

Law Professor Wins Pulitzer Prize

The 2009 Pulitzer Prize for history was awarded this week to Annette Gordon-Reed, a professor of law at New York Law School. Gordon-Reed won the $10,000 prize for her book, The Hemingses of Monticello: An American Family, which the prize committee described as "a painstaking exploration of a sprawling multi-generation slave family that casts provocative new light on the relationship between Sally Hemings and her master, Thomas Jefferson."

The Harvard Law School graduate also won the 2008 National Book Award for the book, her second on the relationship between Hemings and Jefferson. Her first book, Thomas Jefferson and Sally Hemings: An American Controversy, published in 1997, explored the possibility of their relationship without taking a definitive position on whether it was true. When DNA tests later confirmed a genetic link between Jefferson and Hemings' youngest child, Gordon-Reed rewrote the first book's introduction.

Also a professor of history at Rutgers University in Newark, Gordon-Reed is now working on a third volume in this series, according to the Star-Ledger. It traces the Hemings family history into the 20th century. She has published two other books, Vernon Can Read!: A Memoir, a profile of civil rights leader Vernon Jordan written together with him, and Race on Trial: Law and Justice in American History, in which she edits 12 original essays that illustrate how race determined the outcome of trials.

Gordon-Reed started her career as an associate at Cahill Gordon & Reindel and as counsel to the New York City Board of Corrections. She is a 1981 graduate of Dartmouth College and was a member of the Law Review at Harvard.

April 22, 2009 | Permalink | Comments (3)

Law Blogger Runs Marathon, Finds Beer and Kisses

I missed watching the running of the 113th Boston Marathon this year. For many years, standing along the marathon route was a rite of spring for me. I went to Boston College Law School, just down the street from the marathon route, and later lived in Wellesley, a town the route passes through. My favorite place to watch was near the top of the notorious Heartbreak Hill, where I could help cheer the runners on with the encouragement that they were almost over the worst of it.

Had I been there this year, I would have been able to watch fellow legal blogger Eric Turkewitz tackle the grueling route from Hopkinton to Boston. But Turkewitz, blogger that he is, offers the next best thing to being there, as he recounts his run in a lengthy post at his New York Personal Injury Law Blog. Although he has run in marathons since 1994, this was the first time he qualified for the Boston Marathon, which is the only public marathon that requires a qualifying time.

It is an accomplishment Turkewitz relishes. "When I was a kid, I suffered repeated injuries in 7th, 8th and 9th grades," he writes. "While everyone else moved forward athletically, I went backwards. I strove to be mediocre." Now he finds himself among "the largest and most concentrated collection of physically fit people on the planet."

Early on, the going is easy. "The hard part is qualifying," he writes. "The race is dessert." At mile 8.2, he watches for but misses a former blogger he knows who is supposed to pass him a beer from along the sidelines. Shortly afterwards, he finds another group handing beer to the runners and he grabs a few ounces. Soon after the beer came the kisses:

The Wellesley College "scream tunnel" near the 13 mile mark can be heard 1/4 mile away. The women are standing on the barricades, cheek to jowl,leaning into the race, screaming for kisses and holding up imploring signs. Who am I to disappoint them? Was it six that I kissed? Eight? Ten? Another runner and I contemplate circling back for more.

Fueled by kisses and even more beer, Turkewitz ascends Heartbreak Hill. As he makes it over the hump and begins the final leg towards Boston, "the crowds thicken more as the terrain turns definitively urban." Then he approaches the finish line:

I turn from Commonwealth Avenue onto Hereford Street and then onto Boylston, thick with Bostonians several people deep on both sides of the road. I see the finish line ahead, with a temporary bridge over the street to hold the cameras and press. Through the exhaustion I ham it up once more for the crowds, again waving in an up swept motion to get them louder and louder. I raise my arms up in advance of the finish line.

He ended with an official time of 3:36:43. For Turkewitz, this was a marathon -- and an achievement -- on many levels:

In one sense this was a 26.2 mile journey. In another it was a three-day weekend. In yet another sense it started in 1994 when I finished my first marathon and I realized that I had never tested the limits of what I was capable of. And in another sense the journey started in 7th grade when I ground to a halt athletically while my peers surged forward.

But after long efforts I finally qualified for one of the most prestigious races in the world. And I toed the line at Hopkinton and arrived on Boylston Street. I ran Boston.

This post took me an hour or two to write, but it took years to get here.

And all I can add to that is: Congratulations Eric!

April 22, 2009 | Permalink | Comments (1)

Help Wanted: MoFo CMO

At a time when some law firms are paring back their marketing departments, at least one firm is hiring. The international law firm Morrison & Foerster has posted a help-wanted ad for a chief marketing officer at the Web site of the Legal Marketing Association.

The firm is looking for someone who is a "natural strategist who has solid business acumen, strong operational talents, and a passion for delivering results." The person should be a "confident executive" with "emotional intelligence" and "a willingness to roll up one's sleeves to get the job done." No salary is specified, but a job such as this at a firm such as this no doubt commands a handsome compensation package.

Sounds like an appealing job. Candidates even have their choice of two prime locations -- San Francisco or New York. But before you rush to polish and send off your résumé, consider that the last person who held the job lasted less than eight months. In this volatile economy, one benefit no CMO job offers is long-term security.

It was a year ago this month that MoFo announced its hiring of Susan Klein as its new CMO. Klein represented a break from tradition in the world of legal marketing, in that she had never worked in legal marketing. Her marketing background was in the financial services industry. Her most recent job had been as CMO of the Consumer Lending Group at Citibank. She had also worked at Bank of America, Charles Schwab, MasterCard International and Morgan Stanley.

"Having spent what seems a lifetime in financial services, I was ready to apply my experience to a new area of professional services," Klein said at the time. But just eight months later, The Am Law Daily was reporting that Klein was no longer working at MoFo. "Sources with knowledge of the move say the decision was Klein's, noting that a law firm's culture and structure can require more adjustment than someone arriving from corporate America may expect," the report said.

The successful candidate will be offered relocation assistance, the help-wanted ad says. Even so, the new CMO may be well advised to rent, not buy.

April 22, 2009 | Permalink | Comments (1)

April 21, 2009

Will Bush Lawyers Face Jail Time for Legal Advice on Torture?

By now, most agree that John Yoo and other former Justice Department attorneys gave the Bush administration shoddy advice on the legality of torturing suspected terrorists. But was their advice criminal? As Bloomberg reports, President Obama is now saying that it's up to Attorney General Eric Holder and the current Justice Department to decide whether to prosecute Bush administration officials, including the lawyers, for authorizing the CIA's use of aggressive interrogation techniques. At the same time, Obama affirmed that he would not seek prosecution against the rank and file agents who relied on faulty legal advice.

I don't envy Holder's task. If he chooses to prosecute, he's basically putting in place a precedent for prosecuting government lawyers -- himself included -- down the line. Moreover, what's the standard for prosecuting lawyers for faulty legal advice? Is it gross negligence? Or would one need to prove collusion with the client's criminal intent to commit torture and violate international law?

From a political perspective, I see the need to prosecute Bush officials to make clear to the world that this chapter of our history is behind us. But as a lawyer myself, the idea of prosecuting lawyers and making them political scapegoats terrifies me. We lawyers are often called upon to advise unpopular clients. Sometimes we make mistakes in the advice that we give. I can live with a grievance on my record. But I'd hate to face jail time for faulty advice just because someone didn't like what my client did.

What's your view on this issue? How would you make the decision if you were in Holder's shoes?

April 21, 2009 | Permalink | Comments (6)

Bloggers Don't Outnumber Lawyers, Yet

Though blogging came on the scene just a decade ago, a recent survey claims that 452,000 people say blogging serves as their primary source of revenue, according to a recent Wall Street Journal story, posted in its entirety at Media Channel. By comparison, that same survey shows that lawyers account for 555,770 jobs within the United States.

So what makes blogging so popular? For starters, the barriers to entry are low. In contrast to lawyers, who must toil three long years for a degree, anyone can start blogging with an Internet account and access to a blogging service. Of course, not all of these bloggers are actually making money at it -- and those who do earn the larger amounts often aren't freelancing. According to the article, professional bloggers who work for companies are typically paid between $45,000 and $90,000 a year. Bloggers who freelance may get $75 to $200 per post or can serve as "spokesbloggers" who are paid by advertisers to blog about a product (thought the FTC may soon be cracking down on that spokesblogging practices). Some bloggers earn ad revenue from their sites, though it takes about 100,000 unique visitors a month to generate an income of $75,000 a year.

Though the story is intriguing, I have some questions about how the survey categorizes "paid" bloggers. For example, let's say that a mom stays home but runs a hobby blog and earns a few bucks a month through affiliate deals. Would she be classified as a blogger whose sole source of revenue comes from blogging? Likewise, is a college student who gets paid $25 for a few blog posts also considered a "paid" blogger? In short, the category of what constitutes paid blogging seems awfully broad. At the same time, the figure for lawyers -- 550,770 seems quite low. The figures I've seen show that there are over 1 million lawyers in the United States and even accounting for those who are retired, in academia or judgeships, 550,770 seems on the low side for the number of currently practicing attorneys.

The Wall Street Journal piece concludes with this commentary:

It is hard to think of another job category that has grown so quickly and become such a force in society without having any tests, degrees, or regulation of virtually any kind. Courses on blogging are now cropping up, and we can’t be far away from the Columbia School of Bloggerism. There is a lot of interest now in Twittering and Facebooking -- but those venues don’t offer the career opportunities of blogging. Not since eBay opened its doors have so many been able to sit at their computer screens and make some money, or even make a whole living.

Will the number of bloggers and blogs continue to grow in coming years? I don't think so. Instead, I see a move toward consolidation of quality blogs, with smaller, less-original blogs (the "me too" blogs or reference-type blogs that merely echo content from other bloggers) falling out of favor or displaced by Twitter. Though there will always be a place for small niche blogs with unique audiences, I think that opportunities to blog for profit will decline.

April 21, 2009 | Permalink | Comments (1)

Can Using E-Mail Place Lawyers at Risk of Ethics Violations?

Generally distrustful of new technology, the legal profession has -- for at least a decade -- embraced e-mail as a secure means for communicating with clients. Indeed, even the ABA thinks nothing of letting lawyers have unencrypted e-mail communications with clients. But could the profession be in for a backlash? Ethics expert Eric Cooperstein examines that question over at The Lawyerist.

Cooperstein highlights some of the potential security issues that arise when lawyers communicate with clients who are checking e-mail via their employer's e-mail account. Essentially, employees have no expectation of privacy when using a work e-mail account and may be considered to have waived their rights of confidentiality in communicating with their lawyers. Moreover, even when clients use a work-based computer to access Web-based e-mail accounts like Yahoo or Gmail (as opposed to an employer-owned account), at least one New Jersey court has held that the company could still access the employee's e-mail, which resided on the laptop hard drive.

Cooperstein cautions that as a result of these decisions, attorneys may be curtailed in their ability to communicate with clients during the work day -- though it won't eliminate communications entirely:

Of course, a rule like this need not act as a total bar on emailing clients at work but lawyers should have a heightened awareness of the privacy (or lack thereof) that will be accorded to emails that need to be kept confidential, such as settlement discussions, case strategies, discussions of client wrongdoing, etc. In some situations, lawyers may have to forsake email in favor of -- gasp! -- the telephone!

Do you have any concerns about security when communicating with clients by e-mail? What are you doing to address those issues?

April 21, 2009 | Permalink | Comments (3)

How Will the Law Firm of the Future Look?

From ongoing associate layoffs to cuts in partner pay to jiltings by major corporate clients, the future of BigLaw seems bleak indeed. So what better way to spring BigLaw attorneys from all of the doom and gloom than to appeal to their competitive instincts with a contest that challenges them to create a law firm of the future?

That was the idea behind this past weekend's day-and-a-half FutureFirm competition, conceived by Indiana University law professor William Henderson and Anthony Kearns, the lead risk manager for an Australian insurance operation. As American Lawyer editor-in-chief Aric Press reports:

In all, 44 players, 14 judges and assorted hangers-on participated in the game last weekend at Indiana's Maurer School of Law. What emerged from the exercise was a surprising convergence of strategies that gave an outline to what a new model might look like. These strategies were not radical, and they attempted to address a variety of much-brooded-about problems among the big firms, including client billing revolts, associate dissatisfaction, peripatetic partners and an unsustainable economic model. What emerged, of course, was governed by the choice of the participants. Included on the roster were members of experimental law firms -- both the Summit and Valorem Law Groups -- various refugees from big firms, clients with a record of welcoming or demanding different approaches and a variety of agitators for change, most of whom are my friends. But in an era when the heads of major firms talk openly about abandoning the billable hour, and others admit that they've never embraced it, it's getting harder to identify the radicals by their pinstripes.

The competition was more than a game. Hildebrandt, the consulting firm, put up $15,000 in prize money (to be divided among the participating law students) and attached a consultant to each team.

So what did the teams foresee for the future?  Most of the ideas are fairly obvious -- lower starting salaries for new associates combined with increased training, a menu of alternative billing arrangements for clients, creation of client-centric practices such as frequent evaluations and client wikis to keep clients informed. Participants also recognized that these changes would entail at least an initial drop in revenues, which would required partners to take a hit in profits to subsidize an effective transition.

While it's easy to cheer the proposed changes, Press also raised several important questions:

Who would train [associates]; could the firms afford even these reduced pay packages; how would the loan payoffs work; and what would happen to firm structure if the associates, having found an office paradise, chose never to leave?

Law firms weren't the only beneficiaries of the brainstorming at the FutureFirm competition. According to this press release, Allyson Bouldon, president-elect of the Association of Corporate Counsel's Chicago chapter and a member of the winning team, said FutureFirm 1.0 allowed her to think about the way she'll approach her job going forward. And Scott Flanders, an Indiana University graduate and CEO who participated, commented that he plans to consolidate the number of firms he works with in the future and build more meaningful relationships with them.

Was the FutureFirm game was just a bunch of legal nerds rolling around a 12-sided die all weekend, or might some of the ideas generated at the conference actually help change the profession for the better? Only time will tell.

April 21, 2009 | Permalink | Comments (2)

April 20, 2009

Lawyer Owes Ethics Duty to Non-Client

Hat tip to the blog The Ethical Quandary for pointing out this potential ethical pitfall. The D.C. Bar Legal Ethics Committee has issued an opinion finding that a lawyer owes a duty to maintain the confidences of someone who never hired him and never spoke to him. Here is the scenario as set out in the opinion:

A would-be client comes to Lawyer A to speak with her about taking on his case. After listening to the prospective client’s story, Lawyer A determines that she is not in a position to be of assistance. However, Lawyer A believes that a different lawyer would be better suited to meet the prospective client’s needs. Lawyer A asks the prospective client whether he would like her to call Lawyer B on his behalf to discuss the possibility of Lawyer B taking on the representation, and the prospective client says “yes.” Lawyer A calls Lawyer B, who works at a different firm, and explains the person’s predicament. After hearing the story from Lawyer A, Lawyer B determines that he has a conflict of interest and cannot represent the person.

Based on those facts, the question for the ethics committee was whether Lawyer B had a duty to safeguard the client information relayed by Lawyer A. Here is how the bar answered:

When a prospective client consents to having a lawyer speak to a second lawyer on his behalf regarding the possibility of establishing an attorney-client relationship, the second lawyer has an obligation under Rules 1.6 and 1.18 to treat the communication as confidential, even if the second lawyer never speaks directly with the prospective client.

Given the importance of maintaining confidentiality of any information received by the first lawyer, it is advisable that the first lawyer disclose at the outset of the conversation with the second lawyer that the purpose of the discussion is to consider taking on a new case for someone, and to limit initial disclosures to the essential facts until it can be determined whether the second lawyer has a conflict of interest.

The decision is based on D.C. rules that track the ABA model rules. So next time a colleague calls to ask about a potential referral, consider the implications of this opinion.

April 20, 2009 | Permalink | Comments (1)

Webby Awards Announces Nominees for Law

Nominees were announced last week for the 13th annual Webby Awards, called by The New York Times the "Oscars of the Internet." The awards honor excellence in Web sites in more than 100 categories -- among them, law. The awards are presented by the International Academy of Digital Arts and Sciences, a 550-member group that includes Internet innovator Vinton Cerf, Huffington Post founder Arianna Huffington, "Simpsons" creator Matt Groening and media mogul Harvey Weinstein. Through its People's Voice Awards, the Webbys also allow voting by the Web community at large.

In the law category, five sites are nominated:

• GetLegal
• Immigration Advocates Network
• JURIST
• WomensLaw.org
• Workplace Fairness

The blog technola points out something interesting about this year's law nominees: three of the five focus on public interest topics. Voting for the People's Voice awards ends April 30. Winners will be announced May 5.

April 20, 2009 | Permalink | Comments (0)

The Things Lawyers Do to Get Disbarred

I am an unabashed fan of Legal Profession Blog for its never-ceases-to-amaze chronicles of lawyer discipline from around the country. It's not that I take some perverse joy in seeing lawyers get disciplined -- I don't. It is just that I find so many of the stories of what led to the discipline to be right out of the legal-affairs edition of "Believe it or Not." I mean, aren't lawyers supposed to be smart? Consider these two recent examples:

Drunk drag racing results in death, bar resignation. This Oklahoma lawyer resigned from the bar after his foolish prank ended up killing his law partner. Here is an excerpt from the Oklahoma Supreme Court opinion accepting the resignation: "The charges in Tulsa County District Court Case No. CF-2008-1108, stemmed from occurrences on December 22, 2007, when Respondent was drag racing another vehicle on a public road while under the influence of alcohol. The Information in the criminal case sets out that the driver of the other vehicle swerved into Respondent's lane, Respondent lost control of his vehicle and it struck a third vehicle. As a result of the collision a passenger in Respondent's car was killed and two other people were injured."

Disbarment for bank robbery. This was no sophisticated bank fraud, but a good old-fashioned robbery: "On March 27, 2007, respondent entered the bank and requested to open a new account and rent a safety deposit box. After respondent waited a few moments for assistance, a bank employee took him into the vault to see the safety deposit boxes. Once in the vault, respondent revealed a handgun in a holster under his suit jacket and ordered the employee to open the bank’s safe. He then removed the currency from the safe and fled the bank." In ordering the lawyer's permanent disbarment, the Louisiana Supreme Court noted that the lawyer had confessed to committing "a string of bank robberies."

April 20, 2009 | Permalink | Comments (3)

April 17, 2009

We Caught a Pirate, Now What?

We've been hearing about those pesky Somali pirates for some time, but now that the United States has actually caught one red-handed, we're going to have to start dusting off old laws to figure out what to do with these guys. A story from the Associated Press this morning sums up the situation:

As the international community grapples with the question of how and where to try captured pirates, the Netherlands and France have led the way by prosecuting them in their own courts. However, other countries are wary of hauling in pirates for trial for fear of being saddled with them after they serve out prison terms.

Several countries are now calling for piracy cases to be prosecuted in the Kenyan port city of Mombasa; there is even talk of setting up a special piracy tribunal there akin to the International Criminal Court in the Hague.

The sole surviving pirate from Sunday's dramatic rescue of an American ship captain (three U.S. Navy snipers took out three of the four Somali pirates, each using night-vision scopes to fire a single shot in the dark) will be tried in New York, according to the story. Officials say they chose New York because the FBI office there has experience with crimes against Americans committed in Africa -- its agents investigated the 1998 al-Qaida bombings of U.S. embassies in Kenya and Tanzania.

But hundreds of ships from dozens of countries have been attacked by pirates in the Gulf of Aden in recent years, and there's no sign of them slowing down. The day after the American rescue there were four more sea hijackings. Reportedly, most of the Somali pirates treat their captives relatively well and float away with multi-million-dollar ransoms. Those who are caught are often just turned loose on or close to shore, according to The Christian Science Monitor. But some legal experts in the U.S. and Europe hope that Kenya, Somalia's neighbor to the south, will create an international tribunal that can try these pirates. From the CSM:

Britain, the US, and the European Union have signed memorandums of understanding with Nairobi in recent months. Legal action is underway in Kenya for several Somali pirates already turned over by the US and Germany, in a pre-trial phase being closely watched for its legal acuity. [...]

Yet it is not clear – and now with Somali pirate lords talking about retaliation -- that Kenya is entirely keen to be the world's judicial dumping ground for marauders of the high seas. Nor is it clear that Kenya's fragile politics can support a potentially controversial initiative on piracy, or that its troubled judicial system can deliver the quality of justice that many European nations, such as Germany, say they require in turning over the accused.

And it isn't simply a question of which court system is best-equipped to handle these cases. The AP article says legal experts are worried about what happens to the pirates once they've served their sentences in another country. Can we send them back to Somalia -- an anarchic corner of East Africa that hasn't had a functioning central government since 1991 -- or do they become wards of the state that imprisoned them?

So, all you Patrick O'Brian fans out there, how should we handle all these bilge-sucking buccaneers? Julian Ku at Opinio Juris suggests that in the case of the pirate captured by Americans, a Kenyan court would probably end up giving a light sentence, while a U.S. court would provide him with constitutional rights -- but neither option will create much deterrence of future piracy. Over at The Volokh Conspiracy, Eric Posner weighs the possibilities and decides we're probably best off just paying the ransom. Any lawyers in need of advice on how exactly you deliver a few million dollars in cash to a small boat in the middle of the Arabian Sea (and avoid tripping over the Foreign Corrupt Practices Act) might want to see this interview with Seward & Kissel lawyer Lawrence Rutkowski, who helped negotiate the release of a hijacked cargo ship for his Stamford, Conn.-based shipping client a few months ago.

[Hat tip to Georgetown Law's Center on National Security and the Law]

April 17, 2009 | Permalink | Comments (2)

Friday Law Link Roundup

-- The U.S. News law school rankings will be published next week, on April 23, unless they're leaked early (like last year). Last week, law professor and prolific blawger Brian Leiter wrote an open letter to law bloggers asking them not to publish the overall rankings because they're "meaningless, often perniciously so." [via The Shark]

-- MSNBC.com gives the backstory on one of Skadden, Arps, Slate, Meagher & Flom's recently jettisoned staff attorneys. On Jan. 15, 48-year-old Frank Scudere got on a US Airways flight bound for North Carolina and ended up treading water in the Hudson River instead. On Jan. 16, Skadden called Scudere into its New York office to tell him he was on a list of lawyers to be cut that day, but because of the plane crash he wouldn't be let go right away (they waited until March). A few days later, his 77-year-old father died. Bad news is only supposed to come in threes, right? [via The Am Law Daily]

-- The "street view" tool on Google Maps is endlessly fascinating. Specially outfitted Google cars like this one (note the donut tire in front) cruise the streets taking photos in every direction, creating an entirely new kind of 3-D map. Along the way, they've managed to catch some potentially criminal behavior. [via The Blotter]

-- The saga of California money manager Danny Pang continues. Yesterday we discussed The Wall Street Journal's intriguing stories on Pang, who has been accused of several shady business dealings, including setting up a Ponzi scheme. Pang had his lawyer at Fulbright & Jaworski draft a letter offering his former business partner $500,000 to stop the WSJ from publishing its story, to no effect. Now federal civil and criminal officials are looking into the allegations, while the board of Pang's company, PEMGroup, has brought on Gibson, Dunn & Crutcher. [via Columbia Journalism Review]

-- Morgan, Lewis & Bockius chairman Francis Milone tells the Philadelphia Inquirer that some clients are demanding the firm not use first-year associates on their matters. Does anybody want young lawyers these days? [via ABA Journal]

April 17, 2009 | Permalink | Comments (1)

April 16, 2009

Alleged Fraudster Used Law Firms to Cover His Tracks

The Wall Street Journal went whaling on Thursday, and it looks like it speared a big one (even if the paper missed Moby Dick himself). A fascinating front-page story digs into the details of Private Equity Management Group CEO Danny Pang, who has been accused of defrauding investors, running a Ponzi scheme and was once a suspect in the 1997 unsolved murder of his ex-stripper wife, among other unsavory details. Reporter Mark Maremont offers details of Pang's phony résumé, his gambling debts, his shady investments and even his attempt to pay off his former business partner in order to keep the story out of the Journal. The paper reprints a letter that Pang's lawyer, Fulbright & Jaworski partner Charles Schmerler, sent Nasar Aboubakare offering him $500,000 if he could convince the WSJ to kill the story.

Other documents mentioned in the story suggest that Pang was double-billing his private-equity clients for $1 million to pay his Fulbright legal fees. But that's not the only law firm-related chicanery going on here. A follow-up piece in today's WSJ notes that some of the investment funds that Pang oversees are unaudited, "and the trustee assigned to keep track of investors' assets is a two-partner law office that includes one partner with ties to Mr. Pang and his firm." Daily & Knudson, based in Irvine, Calif., is a bit too small for this kind of work, suggests a hedge-fund attorney quoted in the story. Unfortunately the one guy who could help unravel the growing number of accusations and shady details, Danny Pang, is in China at the moment, where he's attending "an annual religious pilgrimage," according to a company spokesman.

This is likely just the beginning of a series of revelations about Pang and his enterprises as investors scramble to figure out what exactly Pang did with their funds. But what has been revealed so far brings up some uncomfortable questions for the law firms involved. So far it sounds like two-partner Daily & Knudson has more than a few questions to answer about its relationship with PEMGroup. But what about Fulbright & Jaworski? There's no indication the firm was ever aware of or involved in Pang's alleged frauds. For all he knew, Schmerler was simply helping a client maintain his privacy -- his letter to the WSJ was odd but not necessarily unethical. But at what point dose a hush-money letter like this raise a red flag?

April 16, 2009 | Permalink | Comments (0)

No Spanish Inquisition After All, and No American One Either

On Tuesday we relayed a story from The Daily Beast claiming that "The Bush Six" -- the Bush administration lawyers accused of greenlighting the use of torture in America's war on terror -- were about to be indicted by Spanish prosecutors for their role in the torture of five Spanish citizens held at Guantanamo. Now it's clear that "several reliable sources" were a bit hasty in their assumptions. Spanish Attorney General Candido Conde-Pumpio said today that he would not be moving ahead with the prosecution. "If there is a reason to file a complaint against these people, it should be done before local courts with jurisdiction, in other words in the United States," he told journalists, according to The Associated Press.

Scott Horton, who originally reported the tips about the indictment, noted on Monday that some critics were upset the Obama administration wasn't conducting its own investigation. Well, those critics received some good news and some bad news today. The bad: Attorney General Eric Holder announced this afternoon that the CIA officials who used waterboarding on three "high-level detainees" in 2002 and 2003 will not be prosecuted. As President Obama's aides signaled back in January, before he took office, the new administration was unlikely to press charges because these actions were deemed legal at the time -- by former Attorney General Alberto Gonzales and the five other former officials who were singled out by the Spanish. Holder has since let it be known that those legal opinions are now considered void, and today (the good news), he formally revoked "every legal opinion or memo issued during Bush's presidency that justified interrogation programs," according to the AP. He released "four significant Bush-era legal opinions governing -- in graphic and extensive detail -- the interrogation of terror detainees." The memos were released as part of a lawsuit against the government by the American Civil Liberties Union.

April 16, 2009 | Permalink | Comments (3)

Legal Blog Watch Is Looking for Guest Bloggers

Legal Blog Watch has been humming along since 2004 (we're almost ancient in blawg years!) with only a handful of authors churning out daily reports on the latest issues and ideas in the legal blogosphere. For much of that time, Robert Ambrogi and Carolyn Elefant have been holding down the fort, but even these tireless chroniclers need a day off every once in a while. That's why we're putting up a help wanted sign for a few good guest bloggers. Whether you've already got a blog or not; whether you're in BigLaw, solo practice, law school or somewhere in between; if you were blogging here you'd be home by now.

We're looking for a handful of go-to bloggers we can turn to for a few posts whenever Bob and Carolyn are away. If you think you've got what it takes, or you'd like to nominate someone else who does, drop me a line at [email protected]. Take a look at these handy guest-blogging guidelines first for an idea of what you're getting into and what we'll expect from you. We need folks who can turn around a couple of thoughtful posts on the legal news of the day for us every once in a while -- a little like Blawg Review, but more sporadic and without the need for a highbrow theme, like Victorian porn or Dante's "Divine Comedy."

And while we're taking care of a little housekeeping, I should mention that Legal Blog Watch is getting a face lift. We'll be unveiling a fresh look in the coming weeks, but until then I'd like to hear suggestions for other tweaks, changes or updates from you, our readers. Do you like us? Do you really like us? Are you being served? Or are there other blogs, topics, widgets or tools you'd like to see more of here? Feel free to leave your suggestions in the comments or send us an e-mail.

April 16, 2009 | Permalink | Comments (1)

April 15, 2009

Law Firms Liable for Defective Process Servers

United Press International reports that New York Attorney General Andrew Cuomo has filed criminal charges against American Legal Process of Long Island, a process service company that failed to provide notice of debt-related lawsuits to consumers. As a result, consumers unknowingly defaulted in thousands of collection actions -- and indeed, did not even learn of the judgments until they found bank accounts frozen or assets garnished. According to the criminal charges, ALP filed false affidavits swearing that it had effected service when it did not.

But the damage won't end with ALP. Cuomo also intends to sue Forster and Garbus, which used ALP to serve more than 28,000 summons and complaints. Cuomo contends that the firm had an obligation to supervise its process server and further stated that he was "putting all law firms on notice that they are responsible for the conduct of the companies they use to serve complaints and other legal documents."

Is Cuomo's attempt to pursue law firms that used ALP reasonable or is he just looking for a deep pocket? After all, the process servers were signing the affidavits, why would the law firm have reason to believe that service was not effected? I suppose that if ALP was the only company that Forster & Garbus used and debtors routinely failed to show up in court, perhaps the firm should have been suspicious. But my guess is that the firm used dozens of process servers to handle hundreds of cases where parties frequently fail to show up. In that case, I'm not sure why the firm would have had any reason to suspect that ALP wasn't doing its job.

What's your view? Who should be liable here and what are the appropriate damages?

April 15, 2009 | Permalink | Comments (3)

Online Social Networking Tied to Lower GPA, Ohio Study Says

It probably comes as no surprise, but Facebook use has a negative impact on academic performance, according to a recent study done by The Ohio State University, which comes courtesy of John Wallbillich of the Wired GC. According to the study, Facebook users in the study had GPAs between 3.0 and 3.5, while non-users had GPAs between 3.5 and 4.0. The study authors aren't ready to say that using Facebook necessarily leads to less studying and hence, lower grades, just that there is a relationship between the two.

Wallbillich suspects further scrutiny of the study might reveal some flaws, or even a trait unique to the Buckeyes that's to blame for the results. Either way, he says the correlation between Facebook and grades doesn't matter much in the greater scheme of things. He writes:

Maybe the students using Facebook as undergrads will get lower grades, and therefore pass on law school. And then they will be forced to go out in the world and make something, of themselves or otherwise.

And then they will become clients, get huge bills, and scrutinize them for any sign that esteemed counsel is using social networking sites on their dime.

Any thoughts on how Facebook use in law school impacts grades? Post your comments below.

April 15, 2009 | Permalink | Comments (0)

Northwestern Bridges the Gap for Unemployed Law Grads

In a down economy, law schools are having a tough time helping students find employment. Ever resourceful, Northwestern Law School (which last year proposed a two-year JD program) has found a way to assist students and alumni while they're on the hunt for a job. As the Chicago Tribune reports, Northwestern recently informed students that they can postpone monthly loan payments until they start working and apply for short-term medical insurance to bridge the gap between graduation and their start dates. Laid-off alumni can also seek deferred loan payments.

It's not clear how long Northwestern intends to keep this program in place. From the description in the article, it seems that the loan deferral and insurance benefits are geared to help those large-firm associates whose start dates have been deferred for six or eight months. But what about those graduates who don't find employment and eventually start their own law firms or take on contract work, which typically doesn't cover health benefits? They may need even more time to start earning enough to repay loans or afford decent medical benefits.

Northwestern's recent decision raises a larger question as well: Should law schools be pitching in at all? On the one hand, law schools didn't create the financial crisis and could not have foreseen this economic climate when this May's graduates matriculated back in 2006. But on the other, to the extent that law schools lead students to believe that earning a JD can help them find jobs, they bear some responsibility for helping out when those jobs don't materialize, for whatever reason.

April 15, 2009 | Permalink | Comments (0)

April 14, 2009

'Bush Six' Lawyers Await Their Spanish Inquisition

New York lawyer, law professor and American Lawyer contributor Scott Horton brings us an update on the Spanish case against former Attorney General Alberto Gonzales and five other former Bush Administration officials over their role in the so-called "torture memo" authorizing the use of extreme interrogation techniques at Guantanamo. In an article published Monday night on The Daily Beast, Horton says "several reliable sources close to the investigation" claim Spanish prosecutors are going forward with their criminal investigation. The decision was expected on Tuesday, though there's no word from Madrid just yet.

The case against "The Bush Six" has so far divided opinion on American editorial pages, Horton writes, with:

some questioning sharply why the Obama administration is not conducting an investigation, which is implicitly the question raised by the Spanish prosecutors. Publications loyal to the Bush team argue that the Spanish investigation is an “intrusion” into American affairs, even when those affairs involve the torture of five Spaniards on Cuba.

It's too early to know yet whether the Americans under investigation -- who also include Federal Appeals Court Judge Jay Bybee, University of California law professor John Yoo, Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington, and former Undersecretary of Defense Douglas J. Feith -- have canceled vacation plans for Ibiza, and it's hard to say whether the case has affected them yet, at least a little bit. Last week in The Recorder, reporter Dan Levine's in-depth profile of Judge Bybee and his role in crafting the memos revealed a man who might not have been entirely comfortable with his former work, but who hasn't let it slow his current work as a 9th Circuit judge. Bybee signed off on the memos, which were actually authored by Yoo, but so far he's avoiding any finger-pointing. "'You can either stew about it and drown in bitterness, or move on and do the best you can. That's what Jay is trying to do,' said one longtime friend. 'Some people get over it and have a good life. Some people don't.'"

Perhaps by going after his lawyers instead of Bush himself, the Spanish court system will be able to accomplish what the Massachusetts School of Law at Andover could not.

April 14, 2009 | Permalink | Comments (1)

El Rushbo Opines on the Lawyers of Silicone Valley

It's not that we avoid the purely scandalous stories here at Legal Blog Watch, but the dictates of good taste and editorial relevance sometimes keep us from mentioning certain stories about lawyers out there in the vastness of the Internet. That's why we originally skipped this item from BitterLawyer.com last week: "The Real Story On Fake Boobs."

Based on the results of a survey of the site's readers (the survey itself might be accurate, but a true sampling of the general population this was not):

58 percent of those asked said that implants could only help a woman's career, the remainder of respondents were split on the matter. Just over 23 percent of those polled said such cosmetic changes were "irrelevant;" nearly 20 percent thought it was "career suicide."

The story grabbed some attention from legal bloggers -- Ann Althouse simply posted a hyperlink under the heading "Breast implants. The career move.", but has had more than 60 comments added so far. Still, it was only after Rush Limbaugh decided to weigh in on this pressing matter in the legal profession that we thought it worth pointing out. During his radio show on Friday, El Rushbo declared that the story, "if it gets wide distribution, will set feminism back 50 years."

Can I redirect you to feminist truth number 24, Undeniable Truth of Life Number 24, written by me in the mid-eighties: Feminism was established so as to allow unattractive women easier access to the mainstream of society. It's proved practically every day in our modern culture. This is a five-page story at BitterLawyer.com. If you're a woman, you want to be a successful attorney you better go get a boob job before you finish school 'cause in this tight job market it might be the ticket to a job at a law firm. It will enhance your self-esteem, confidence in and out of the bedroom, in the boardroom.

BitterLawyer's Michael Estrin posted his response here, giving him the chance to fill a few more digital inches with a meditation on mammaries (which, granted, we're doing too) and debunk Limbaugh's bloviations. "With the exception of those courting sexual harassment suits, male lawyers aren’t likely to assign interesting work, give credit or pay large bonuses to a woman just because she has a great rack."

The economy is tough, law firm layoffs have become epidemic and we all need to do what we can to avoid the ax, but the idea of an uptick in implants as a result of the recession is more likely a sign of bored associate speculation than a real phenomenon. Somehow we think feminism will survive, while law office conversations about breast implants will continue to be legitimate, at least for plaintiffs lawyers.

April 14, 2009 | Permalink | Comments (1)

April 13, 2009

What Would You Do With $80,000?

What would you do if your law firm handed you $80,000 and said that you could do whatever you wanted for the year? Would you turn down the cash and stay put at your law firm job, earning triple that amount? Would you try to find meaningful legal work, such as working for a pro bono foundation or legal aid group? Or would you simply put your career on hold for a year and follow your heart around the world?

Tough questions, perhaps, but wouldn't we all want those choices? Thanks to Skadden, Arps, Slate, Meagher & Flom playing the role of fairy-godmother and benefactor, all 1,300 of the mega-firm's associates now have a chance to answer that question, according to this New York Times piece.

So far, 125 associates have taken Skadden up on its offer. The level of interest exceeded the firm's expectations, according to the piece,  though what surprises me is that the numbers were so low. Even factoring in associates with family obligations or severe debt, as well as the minority who love their jobs too much to leave, one would think that a couple of hundred associates would seek out this opportunity -- particularly because they've been assured that their jobs will be secure upon their return.

Of course, the Times piece doesn't cover the lawyers who turned down the offer and instead focuses on an associate who's opted to claim her prize. Heather Eisenlord hasn't pinned down all the details of her year off, but she has some thoughts. From the article:

She would like to teach English to monks in Sri Lanka and possibly help bring solar power to remote parts of the Himalayas. She’ll probably hit 10 to 15 destinations around the world, most likely practicing not-for-profit law wherever she can be helpful.

At least one other lawyer/blogger is rooting for Eisenlord. That would be New York Personal Injury Law Blog's Eric Turkewitz, who took his own (self-funded) sabbatical 20 years ago to travel around the world. "Do it!!" he says, particularly if "there is no spouse, kids or mortgage that you need to worry about - no keys that you need to take with you."

So what would you do?

April 13, 2009 | Permalink | Comments (3)

Juries Threatened by Sinking Economy

The economy is making it harder for the courts to find willing jurors, reports the Connecticut Law Tribune. Increasingly, prospective jurors are expressing concern that taking too much time off from work for jury duty might mean losing their jobs. And even where potential jurors are unemployed, they're still worried that jury duty could interfere with their job search.

In most cases, both plaintiff and defense attorneys who learn of juror concern over jobs voluntarily excuse them without question. After all, having a juror who's preoccupied with other matters or who's so eager to finish a case that he won't seriously deliberate can prove damaging to both plaintiffs and defendants alike. But because fewer individuals are willing to serve as jurors, jury selection is taking longer. Growing juror impatience may also lead lawyers to try cases differently. For example, the article notes that many jurors aren't willing to sit through four- or five-hour direct examinations, so in order to hold their attention, lawyers will need to come up with a more efficient approach to elicit evidence. But that's not such a bad thing, is it?

In the meantime, the courts are trying to get the word out to prospective jurors that employers are not allowed to fire them for attending jury duty and are required by Connecticut law to pay an employee for the first five days he or she serves on a jury. After the five days, jurors are paid $50 per day by the state, if employed full-time. If a juror is unemployed or working part-time, the state pays between $20 and $50 per day.

What's your experience? Have you noticed that fewer people are willing to serve on your juries in this economy?

April 13, 2009 | Permalink | Comments (0)

Blawg Review #207 -- All the News That Fits

Perhaps if today's traditional newspapers took a virtual page from Jordan Furlong at Law 21, they wouldn't find themselves in such a sorry state. Furlong's Blawg Review #207 is structured to resemble your local newspaper, complete with sections like News, Business, Sports and even Comics.

Coverage of the ABA Tech Show was a big story of the week, with a summary of highlights from Reid Trautz (who shares his favorite tips), coverage of Richard Susskind's keynote talk from Allison Shields and Lisa Solomon, among others, and a general overview from Rex Gradeless. But there was also plenty of talk of innovation on the law school front, with an extensive call for change at MauledAgain and a "radical" proposal to make law schools compete on price at MinnLawyer Blog.

Finally, Furlong reminds us that Blawg Review #207 falls on the fourth anniversary of the original launch of Blawg Review. Perhaps the future of conventional media isn't bright, but Blawg Review continues to thrive.

April 13, 2009 | Permalink | Comments (0)

Patent Application Filings Decline, but Why?

Isn't innovation supposed to be recession-proof? Apparently not, at least if the number of patent filings for fiscal year 2009 is any indication. According to Dennis Crouch at Patently-O, original utility application patent filings have slowed in 2009. Extrapolating partial 2009 data from the U.S. Patent and Trademark Office, Crouch predicts that original filings for 2009 will decline by 10 percent over 2008 while continuation filings will be down by over 20 percent.

Crouch suggested that the economic downturn may account for the downturn in patent filings. But he also notes that the drop may relate to recent decisions in cases like Bilski (which held that pure business methods can't be patented), the prospect of patent reform and the backlog of 750,000 unexamined patent applications. The many comments on the post discuss different reasons for the decline as well as whether it warrants concern. Some commenters argue that the length of the patent vetting process has created so much frustration that some inventors aren't even bothering to file while others opine that companies are cutting IP budgets due to the economy, so they aren't filing as much. Still others contend that the number of filings hasn't declined enough and that the patent system would work better and be more meaningful if far fewer applications were filed and granted.

So, patent gurus, what do you think? You can file your comments below.

April 13, 2009 | Permalink | Comments (1)

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