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May 29, 2009

Bankruptcy Lawyers: Parasitic or Productive?

Back in the day when top bankruptcy lawyers could still be had for a mere $850 an hour, I posted about the exorbitant fees generated in large, corporate bankruptcy cases and asked why so few challenged legal fees recovered through the bankruptcy estate. Three years later, with fees up to $950/hour or more, bankruptcy attorneys continue to prosper, recovering their full rates while creditors are forced to accept the remainder to satisfy their claims.

As this recent Newsweek column comments:

But not all bankruptcies are efficient, short, and sweet. When the proceedings are contentious, or if there's a lot of financial and industrial spaghetti to be untangled, the proceedings can go on for many months, even years, in which case the system grows somewhat less efficient. The creditors and debtors are joined by a third set of wily players -- the suits, lawyers, accountants, and financing wizards required to fix, defend, wind down, and restructure a failed company.

Most of these people, of course, bill by the hour. And thanks to the transparency of our legal system, we know precisely how much they bill. Each quarter, law firms, turnaround consultants, and accountants apply to the bankruptcy court, detailing the services they rendered and precisely how much they cost. Creditors can raise objections to the fees -- after all, every penny a law firm gets is one less available for bondholders. But they usually don't object too strenuously. And the firms don't offer discounts to companies just because they are bankrupt.

The American Lawyer and The National Law Journal have been cataloging bankruptcy fees for most of the big-name corporate failures of recent months, from Lehman and IndyMac to Chrysler and General Motors.

But as bankruptcies grow increasingly complex and impact a wider number of interests, such as bondholders and investors (who, in many instances, managed portfolio money for ordinary people), should law firms and other professional service providers be entitled to be paid their full rates, while other creditors sacrifice? Or do law firms provide a valuable enough service that they deserve the fees they charge in these matters?

May 29, 2009 | Permalink | Comments (5)

Does Your Law Firm Have a Wikipedia Page?

If you thought a Wikipedia page was only for the really famous or really accomplished, think again. These days, many law firms are staking out a presence on the collaborative online encyclopedia. And as the U.K.'s Law Society Gazette suggests, a Wikipedia page, done correctly, can help enhance a law firm's brand and broaden its online visibility.

Wikipedia's reach as an encyclopedia is unparalleled, according to the Gazette:

Wikipedia is one of the largest reference websites -- 684 million visitors yearly. For a sniff of its power, whether you like it or not, cogitate on this snippet from the New York Times 'Bits' technology blog on 30 March, entitled 'Microsoft Encarta Dies After Long Battle With Wikipedia': 'Microsoft delivered the coup de grâce Monday to its dying Encarta encyclopedia, acknowledging what everyone else realised long ago: it just couldn’t compete with Wikipedia… In January, Wikipedia got 97% of the visits that web surfers in the United States made to online encyclopedias, according to the internet ratings service Hitwise. Encarta was second, with 1.27%.' That's how powerful Wikipedia is.

And as the article points out, a number of top 50 U.K. law firms have Wikipedia listings, though most are so bare bones that they hardly have an impact on the brand. These firms are "passing up a free, global promotional platform that trainees and young lawyers and clients will, for good or ill, treat as a 'go-to' source."

Simon Fodden of isn't so sure that Wikipedia listings are as indispensable as the Gazette suggests. Fodder writes:

I'm less convinced that a Wikipedia page is a necessity. After all, if your firm comes up top in a Google search for key components of the firm name, the curious will go to your firm’s website (which is another story altogether) for information. There is, however, the possibility that it won't come up first and that a Wikipedia page about the firm will be near the top. As well, some people go to Wikipedia first or right after Google to flesh out their understanding.

Even more important, though, is that if there is to be a page about your firm it be edited by your firm. Although a moment's thought will make it clear that because anyone can create and edit a page on Wikipedia (more or less) there's no necessity that any page about your firm will be written by people with the firm’s interests at heart or with the requisite knowledge, it's still likely to surprise some lawyers that there could be information out there about their firm that is wrong if only because it is outdated or insufficient.

Like the Gazette, Fodden also found that many of the Canadian sites listed on Wikipedia aren't very useful. As for sites of U.S. law firms, why don't you see for yourself?

May 29, 2009 | Permalink | Comments (3)

Law Firm Sues Google for Right to Its Name

How'd you like to advertise for your competitor? The New Haven, Conn.-based personal injury law firm of Stratton Faxon wasn't too keen on the idea. It's suing Google for selling the firm's name as a keyword ad to the site of a competitor, reports the Connecticut Law Tribune.

Stratton Faxon claims it discovered last week that Web users Googling the firm's name would find the site listed second in search results. Above it was a list -- albeit a paid one -- with the URL to Stamford, Conn.-based personal injury firm Silver, Golub and Teitell. Though it's not clear from the story whether the firm is also a party to the action, Silver Golub claims that it was unaware of any improper use of the keyword. Within a day, the issue was resolved, with Silver Golub's Web site no longer turning up in search results for Stratton.The firm has since checked with its marketing firm and instructed it to remove any other law firm references from its Google Adwords campaign.

While we don't know yet how the lawsuit will resolve, it teaches lawyers several valuable lessons. First, lawyers must be vigilant about running searches on their name and that of their firm on Google and other search engines. In my own case, I've discovered a couple of situations where competitors or providers of related services have used my Web site, in their search pages. In most cases I've resolved the matter by contacting the site owners directly, who've agreed to removal. Second, lawyers can't delegate matters -- even search engine optimization or Adwords campaigns -- to marketers, without providing some oversight. My guess is that most law firms would have instructed their marketers not to include the name of competitors as keywords for the site either as a matter of professional courtesy or to avoid the kind of deceptive practice that might draw bar scrutiny.

So what's the solution to all of this? While the courts can decide as a general matter whether Google can sell law firm names or other trademarks as keywords, I believe that the bars have a role to play here as well. Though I generally oppose expansion of bar regulatory authority, I would have no problem with state bar disciplinary proceedings banning law firms from using the name of other firms as keywords. Use of another firm name could suggest an affiliation to a consumer -- it's the kind of deceptive practice the bar would be justified in curtailing. Or is this too much of an imposition on free speech?

May 29, 2009 | Permalink | Comments (5)

Should E-Mail Be Taxed?

One would think that the idea of taxing e-mails wouldn't find much support among lawyers. After all, large law firms must send out thousands of e-mails a day, while even a solo like myself can easily dispatch two dozen or more. But one lawyer, Edward Gottesman, is speaking up in favor of the practice, as he describes in this opinion piece in the U.K.'s Prospect Magazine.

Gottesman contends that an e-mail tax would cut down on the billions of spam and junk e-mails that wreak havoc across the Internet by spreading viruses, purveying fraudulent goods and generally interfering with legitimate uses of e-mail. If e-mail were taxed at a rate of three cents per recipient, spammers might have to pay as much as $150,000 a week for the junk mail that they send, making spam a much more costly activity. Gottesman acknowledges that a tax would hit legitimate users as well, but they'd likely pay around $3.00 a day with a three-cent rate -- which would be counterbalanced by the benefits derived from a crackdown on spam:

The tax would be a tiny fraction of the salary costs incurred in composing the emails themselves. For companies the cost would be partly offset by savings in the spam war. By the same token, 40p or 50p a day will not change the life of broadband subscribers, even if they average 20 or 30 emails daily.

But Professor James Maule challenges Gottesman's e-mail taxation proposal on his blog, MauledAgain, characterizing it in two words: "what nonsense." Maule argues that spammers will simply evade the e-mail tax, leaving legitimate users holding the bag. He points out that a tax wouldn't put a large enough damper on the profits spammers make to force them out of business. Maule also expresses concerns about the slippery slope effect of Gottesman's proposals. Following an e-mail tax, authorities might try to expand it to Twitter or Facebook or bloggers. Finally, Maule doesn't believe that tax policy is the best way to deal with problems in general, and that the issue of spam is better confronted head on, through implementation of more effective filters or educational campaigns that teach users to ignore spam instead of responding to it.

Do you think a tax on e-mail would make spam go away? If not, what's your solution for dealing with it?

May 29, 2009 | Permalink | Comments (1)

Legal Blog Watch Gets a Face-Lift

As loyal Legal Blog Watch readers have surely noticed, there's something a bit different about us this week. What's that, you say? You couldn't tell? Don't be coy -- click through from your Google Reader and take a look.

After nearly five years of publishing, 5,000 posts and more than a million page views, a site tune-up was long overdue. With a few blogtox injections here, a middle column stretch there, a new logo and some rearranging of our navigation tools, the layout should be a bit more user-friendly. We're still working out the kinks and we'll be rolling out some other new features in the coming weeks, but drop us a line. We love hearing from the blawging community we cover and serve. Let us know what you think.

May 29, 2009 | Permalink | Comments (4)

May 28, 2009

And Now, Our Report From Cannes

Thebeacon What with blogging and twittering and all, we weren't able to make it to Cannes this year for the annual gathering of the film world's glitterati. One Texas lawyer did find the time to attend, and where Texas lawyers go, so goes Tex Parte Blog, in spirit if not in fact.

Jenny B. Davis posts there about Sally Helppie, a practicing lawyer in Dallas who more than moonlights as a movie producer. Of counsel to the firm Tipton Jones, where she practices entertainment law and commercial litigation, Helppie is just back from Cannes after screening her latest film, "The Beacon," at the Marché Du Film, an industry gathering that runs alongside the higher-profile Festival de Cannes. This year, Helppie tells Davis, she was selected as a member of the Producers Network, which gave her access to special conferences and cocktail parties.

In March, Texas Lawyer had a more in-depth profile of Helppie, who was a working actor in Hollywood before attending law school at UCLA. After graduating in 1985 and moving to Texas, she kept one foot in the entertainment world by representing writers, producers and others in the field. In 2006, one client approached her about starting a production company in Dallas, and her producing career was launched.

Described as a supernatural thriller, "The Beacon" is the second film her company, Sabbatical Pictures, has produced. The first, "Exit Speed," was an action film that had a limited theatrical release and is now out on DVD. The screenwriter for "Exit Speed," as it happens, is Helppie's husband, Michael Stokes, an award-winning professional writer.

And Helppie has no qualms about casting friends and family in her films. "Extras are not covered by SAG contracts, so you can let friends and relatives have walk-on parts without dealing with union contracts," she says. Not surprisingly, some of those friends also happen to be lawyers. In fact, one former colleague, Paul E. Coggins, a principal in the Dallas office of Fish & Richardson and the former U.S. attorney for the Northern District of Texas, has had plum walk-on roles in both of Helppie's films -- as a doctor, not a lawyer.

May 28, 2009 | Permalink | Comments (0)

Sotomayor: The Second 24 Hours

Sonia_Sotomayor_6_sitting,_2009 My partner-in-blog Carolyn Elefant did a great job yesterday rounding up the first 24 hours' reaction among bloggers and pundits to President Obama's nomination of 2nd Circuit Judge Sonia Sotomayor to the Supreme Court. Needless to say, the tsunami of commentary continues -- from bloggers, tweeters, columnists and YouTubers -- in what The Boston Globe today describes as a cyberspace blitzkrieg. So let us check in on what the second 24 hours has brought.

No clear pattern on First Amendment. The Reporters Committee for Freedom of the Press and the First Amendment Center say Sotomayor has attracted both praise and criticism for her rulings involving free speech and the news media. "It is surprising to see that no clear standard on First Amendment issues has emerged from her many cases," the RCFP says.

No set bias on business cases. Just as Sotomayor's rulings on First Amendment cases have varied, so her rulings in business cases have failed to define her as either pro- or anti-business, John Schwartz writes in The New York Times. "It’s impossible to look at these decisions and say, oh, all of these results clearly reflect a pre-existing, across the board bias one way or another," Supreme Court litigator Andrew J. Pincus tells Schwartz.

The nominee as legal realist. Jess Bravin writes in the Wall Street Journal that Sotomayor's 1996 talk at Suffolk University Law School in Boston may provide clues to her judicial philosophy. Citing the teachings of Judge Jerome Frank, who promoted legal realism, Sotomayor said, "The law that lawyers practice and judges declare is not a definitive, capital 'L' law that many would like to think exists."

A closet sovereigntist? At Opinio Juris, Julian Ku looks at Sotomayor's opinions involving the application of international law. "My very quick scan suggests that, whatever else her critics can say, her judicial record does not suggest she will be a particularly 'transnationalist' justice," Ku concludes.

A take-no-guff temperament. McClatchy Newspapers says Sotomayor's style could well alter the dynamics of the Supreme Court. "White House officials consider Sotomayor's take-no-guff temperament a sign that she can hold her own among the Supreme Court's aggressively conservative justices, starting with Antonin Scalia," the article reports.

Hints of her abortion stance. Charlie Savage writes in The New York Times that some abortion rights advocates fear that Sotomayor might not be a sure bet to uphold Roe v. Wade. She has never directly ruled on the issue, but some opinions that touched on it tangentially reached outcomes that were favorable to abortion opponents, Savage reports.

And so it continues and will continue still. Stay tuned for further developments.

May 28, 2009 | Permalink | Comments (3)

A Titillating Tell-All Book for Small-Firm Lawyers

So there's another BigLaw tell-all making the circuit. First there was lawyer-turned-sex-novelist Deidre Dare, whose erotic stories about a fictional BigLaw lawyer's party life in Moscow were said to be based on her real-life experiences there as a lawyer with Allen & Overy. Now comes the former Sidley Austin associate known only as ZZ and his memoir about sex, drugs and fast-living while working in Sidley's office in Beijing.

As scandalously delicious as these books may be, they leave the literary and legal worlds with the distinct misimpression that only BigLaw lawyers have libidinous tales to tell. The truth is, life is no less lascivious for lawyers in solo and small firms. Even though discretion keeps us from blasting our bawdy behavior to the world at large, do not for a nanosecond believe it's all billable time behind our closed office doors.

Hoping to help set the record straight on behalf of solo and small-firm lawyers everywhere, I've decided it's time to write a tell-all of my own. I've just started to outline all the tawdry details, but to whet readers' appetites -- and, one might hope, set the stage for phenomenal book sales -- allow me to tease you with a few tantalizing tidbits I intend to reveal in all their salacious detail:

  • How I PARTIED ON A SIX-FIGURE INCOME. (If you count the cents column.)
  • The time I SPENT A WEEKEND with my office manager. (Granted, she was my wife.)
  • My WILD RIDE IN A FAST CAR. (At least my son enjoyed Space Mountain.)
  • The time I ATE 'SHROOMS at a judicial reception. (How those caterers stuff in so many breadcrumbs, I'll never know.)
  • The object of MY SECRET LUST. (I'll get that new scanner one of these days.)
  • My SIX HOURS IN A HOTEL ROOM with opposing counsel. (I thought the deposition would never end.)
  • How I SQUANDERED MY EXPENSE ACCOUNT on a business associate. (Who knew Applebee's would cost more than $20?)
  • Why I once had a STRIPPER IN THE OFFICE. (The place looked much better once the old wallpaper was gone.)
  • The time I TOOK MONEY FROM MY TRUST ACCOUNT. (It was right after I billed the client and earned the fee.)
  • How I SECRETLY ADMIRE MY EMPLOYER. (Wait, that's weird, I am my employer.)
  • Why I decided to COME OUT OF THE CLOSET. (Once I put the broom away, what else would I do in there?)
  • The time I offered to PLEASE THE COURT. (My opponent in the appellate argument had already made the same offer.)
  • My ALL-NIGHTER ON COKE. (Diet Coke, actually, but at least I made the filing deadline.)

Not wanting to give it all away, let me stop there. No doubt, I've already revealed enough to make my point. The life of a small-firm lawyer is no less glamorous, no less scandalous, no less titillating than that of any BigLaw lawyer working in some exotic overseas city. The one place I'm stuck is on a title. Dare called her book Expat. ZZ named his China High. I'm thinking something like Solo Survivor.

May 28, 2009 | Permalink | Comments (2)

In Praise of Self-Laudatory Lawyer Ads

Bans on self-laudatory lawyer ads are paternalistic, overly broad and elitist -- not to mention unconstitutional. That is the argument made by Nat S. Stern, a professor at Florida State University College of Law, in a newly published research paper, "Commercial Speech, 'Irrational' Clients, and the Persistence of Bans on Subjective Lawyer Advertising."

It is an area in which lawyers tread carefully in their advertising and marketing materials. We avoid being subjectively boastful about ourselves or comparing ourselves to our competitors. "Just the facts, ma'am," is the mantra of lawyer advertising. Many lawyers exercise this discretion willingly, while others feel compelled by state ethics rules, both express and implied.

But to the extent states place categorical bans on self-laudatory lawyer ads, they are probably at odds with Supreme Court doctrine regarding the permissible limits on commercial speech, Stern says.

A categorical ban on such claims rests on premises at odds with the Court’s commercial speech jurisprudence. In particular, the prohibition clashes with the Court’s disapproval of sweeping restrictions rooted in paternalistic assumptions about the public’s capacity to assess commercial advertising. Admittedly, the Court has indicated some latitude for states to curb representations about legal services that are not susceptible to objective verification. Given the broader foundations of commercial speech doctrine, however, these pronouncements cannot be taken to support wholesale suppression of attorney advertising that exceeds the narrow presentation of data.

A key flaw in such bans is the belief that consumers are too gullible and naive to sort through lawyers' claims of excellence, Stern argues. Such paternalistic policies rest on shaky ground, he contends. "It seems doubtful that the public cannot place in proper perspective attorneys' claims of excellence or expertise." More to the point, such policies conflict with Supreme Court jurisprudence involving commercial speech. "In other contexts, the Court has resisted state attempts to decide which communications in the realm of opinion are worthy of expression."

State rules against subjective claims "remain one of the last bastions of restrictions on attorneys' advertising," Stern asserts. It is not, however, a bastion likely to tumble in one fell swoop. Instead, he believes such restrictions will be whittled away piece by piece. Even that, he says, "would advance the salutary notion that the profession responsible for defending First Amendment principles also enjoys their protection.

[Hat tip to Media Law Prof Blog.]

May 28, 2009 | Permalink | Comments (2)

May 27, 2009

The First 24 Hours: A Sotomayor Roundup

Update - 5/29/09 - and even more Sotomayor postings have surfaced, including Sotomayor's views on bankruptcy at the Bankruptcy Law Bloghere and  here as well as  five movies that Judge Sotomayor should watch at  AMC TV Blog.

It's been a little over 24 hours since President Obama announced his first nomination for the United States Supreme court, 2nd Circuit judge Sonia Sotomayor. And while one day may scarcely give Judge Sotomayor enough time to prepare for the numerous private meetings with Senators that lie ahead, it's more than enough time to give bloggers and commenters enough time to offer opinions and observations.  So with that said, here's a topical roundup of some of posts and other commentary on Judge Sotomayor from around the blogosphere and the Web:

Environmental Issues: Alex Kaplun of The New York Times writes that Judge Sotomayor is a popular pick with environmental groups. While on the 2nd Circuit, Sotomayor wrote an opinion agreeing with an environmental group's argument that EPA was required to choose the best technology for a cooling-water intake at a power plant without regard to balancing costs and benefits. Ultimately, however, the Supreme Court disagreed, overturning the 2nd Circuit by a 6-3 vote in Entergy v. EPA

Sotomayor and Roberts on Tax Law: At Tax Girl, Kelly Erb points out that Justice Roberts criticized a decision by Judge Sotomayor on tax law (specifically, deductibility of adviser fees for management of a trust) as "flying in the face of the statutory language." Still, the Supreme Court upheld Sotomayor's result, for different reasons.

Sotomayor's Experience in Sentencing: Sentencing guru Doug Berman points out in two posts, here and here, that Sotomayor is unique in that she has actually had experience sentencing defendants under federal guidelines, including during the time where the guidelines were mandatory. Berman is not sure how this will impact Sotomayor's decisions, but he notes that "the mere fact that she has a record as a federal sentencing judge sets her apart from every Justice to serve on the Court in my lifetime."

Sotomayor on Baseball: The WSJ Law Blog has a pretty good roundup of news stories on Judge Sotomayor, including a link to a New York Times story on Sotomayor's role in the baseball strike. (Would that mean that she'd have to recuse herself from baseball-related cases at the Court?)

Sotomayor -- Shades of Souter?: An interesting piece from Bloomberg argues that Sotomayor bears some similarity to her predecessor on the Court, Justice Souter. Apart from the obvious superficial commonalities -- he's a bachelor and she's a bachelorette -- the article  points out that Souter and Sotomayor support broad application of civil rights to protect minorities, have both voted to limit the right to bear arms and are both somewhat centrist, with left leanings.

Sotomayor and Business: Jonathan Adler at The Volokh Conspiracy considers the pros and cons of a Sotomayor confirmation for business interests, while Walter Olson of Overlawyered examines the same question in a column up at Forbes.

As the confirmation hearings get underway, there's sure to be more news regarding Judge Sotomayor's views, so stay tuned.

May 27, 2009 | Permalink | Comments (1)

Human Rights Lawyers Threatened in China

Nearly 20 lawyers in China stand in jeopardy of losing their livelihood, reports The New York Times. But in contrast to the scores of unemployed American lawyers who are victims of the economy, the lawyers in China are victims of their own government, which is taking retaliatory action to discourage them from handling certain controversial cases.

According to the report, Beijing legal authorities have threatened to hold up or outright deny law licenses of 18 of the city's best known civil rights lawyers, who have handled cases such concerning Tibetan political activism and police brutality matters or the tainted milk lawsuits. While authorities in rural China have taken these types of retaliatory actions in the past, as a general matter the Beijing renewal process has been free of this kind of controversy.

There's additional information from the Associated Press.

May 27, 2009 | Permalink | Comments (1)

GPS: A Divorce Lawyer's Best Friend

Let's say that you're a divorce lawyer and you want to help your client figure out whether her spouse is cheating. You could hire an investigator -- but that could get pricey. Or you could try to get your hands on the spouse's automated toll paying service records which would yield information on his whereabouts if he happened to drive through a toll plaza.

These days, a divorce lawyer's best friend in this kind of situation is a GPS (global positioning system), according to the Chicago Sun-Times. A spouse can legally conceal the GPS in the glove compartment or seat pocket, and depending upon the model of the GPS, track his or her partner's whereabouts in real time. With GPS units selling for less than $1,000, they're now regarded by divorce attorneys like Illinois' Enrico J. Mirabelli as "the poor man's investigator."

According to the article, Mirabelli rarely even bothers to subpoena I-Pass reports, because the GPS information is much more detailed. And he claims that GPS trackers have saved him up to 80 percent of the expense of hiring a private investigator who might sit around for 12 hours a day without witnessing any activity.

Because many jurisdictions are "no fault," evidence of infidelity won't affect division of assets. However, evidence generated by a GPS can still be used to demonstrate that a spouse is unfit where custody is an issue.

The GPS sounds like a neat trick, but how long can it work? Seems to me that as word about GPS surveillance gets out, cheating spouses will simply start checking their cars more carefully to see if a GPS is concealed.

May 27, 2009 | Permalink | Comments (19)

The Posse List Reports on the State of Contract Lawyering

BigLaw attorneys have their own annual report in the form of The Am Law 100. But analysis of profits per partner and law firm revenues aren't much use for contract attorneys, who want to know where they can find the next document review gig and whether law firms will cut their rates or send more work overseas.

Now, thanks to this exhaustive study by Greg Bufithis of The Posse List, we can track emerging trends in the contract lawyer market for 2009. The first installment of the eventual five-part series offers some general observations on opportunities for contract lawyers:

Foreign Language, FCPA and Patents -- Foreign language document reviews continue to dominate the U.S. contract attorney market, especially in D.C., L.A. and New York, according to the report. Much of the foreign language document work is driven by the growing Foreign Corrupt Practices Act work at several large firms. In fact, yesterday's Blog of the Legal Times, citing a Wall Street Journal report, noted that the Department of Justice is cracking down on alleged acts of foreign bribery and is currently investigating 120 cases, up from 100 at the end of last year. A stream of international patent litigation also accounts for growth of foreign language document review.

Pharma and Bankruptcy -- Meanwhile, for those contract lawyers who lack foreign language skills, there's a wave of pharmaceutical litigation coming in both D.C. and New York. And while the rise of prepackaged bankruptcies has shortened bankruptcy review times, demand remains for per diem bankruptcy attorneys in the Midwest, South and West.

Europe and Asia -- For contract lawyers willing to travel, there's a large uptick in document review work in Europe and Asia, Bufitihis says. This is due to again to the FCPA and patent work, but also law firm/client use of “blocking statutes” and the emergence of sophisticated European e-discovery companies such as Outindex and Trilantic, and  Asia-based companies such as CCH Workflow Solutions, all of which are developing their document review capabilities.

Future of Offshoring -- Contract lawyers concerned about losing jobs to legal process outsourcing shops in India needn't worry for now. Fewer than three percent of law firms have had any experience with offshoring legal services. Though firms are under pressure to cut costs, data security and quality of work are two key deterrents to sending projects to India. Still, Bufithis notes that "off-shoring is not going away." It's moving toward a blended approach, with a first pass at review in India followed by second review in the United States.

Competition for Placement -- Interestingly, staffing agencies, which traditionally retained a lock on placing contract attorneys, are now facing competition from e-discovery companies that have moved into the market. As Bufithis points out:

[I]t makes much more sense to have the e-discovery companies also handle the “back end” -- the review itself -- since the evolution of the technology makes it a natural progression. Why use two vendors when you can use one? This has impacted the contract attorney job market as more and more e-discovery companies and vendors build out staffing relationships or staffing units such as Merrill Brink and Catalyst.

Bufithis covers several more issues, so you should take a look at his entire post and watch for his future installments. In the meantime, what observations do you have about the contract lawyer market and do you agree with the The Posse List's assessments?

May 27, 2009 | Permalink | Comments (1)

May 26, 2009

David vs. Goliath, as Told By David

David.goliath Harvard Law Professor Charles Nesson's defense of alleged file-sharer Joel Tenenbaum against a lawsuit brought by the Recording Industry Association of America has been nothing if not controversial. This is the man, after all, who tape-recorded a telephone conference with the federal judge presiding over the case and posted it to his blog and who then posted a series of e-mails from experts explaining whey they believed his legal theories in the case to be flawed. As we noted in an earlier post, even some lawyers who are on his side of the aisle in the case consider his tactics to be crazy.

Nesson readily acknowledges this. "Academics and professionals have described my style as unconventional and have accused me of creating an unnecessary circus around this case," he writes in an op-ed published yesterday on the blog Ars Technica. "I have also raised more than a few eyebrows with my untraditional approaches in court and the openness on my blog and Twitter feed."

But this is a case of Davids vs. Goliath and, as such, it warrants risky tactics, he argues. Yes, that is Davids, plural, because Nesson believes that both he and his client are both underdogs, each in his own way. "Just as Joel is David in his battle against the recording industry's Goliath, so too am I, in the fight against traditional legal norms. Hordes of professors and professionals vehemently disagree with the position I take when it comes to 'fair use' in copyright law."

No one can disagree with Nesson when he says that this is not a fight in which the sides are evenly balanced.

The situation speaks to one basic failing of the US legal system: it treats the plaintiff and the defendant as though they are equally powerful entities, regardless of the actual resources each may have. ... In most of the cases the RIAA has filed, the matter is resolved by the powerful organization threatening to press the suit into court unless individuals agree to their terms unconditionally. The powerful crush the weak. Goliath defeats David every time. This is not the justice for which I live and fight.

So let others question his tactics, Nesson suggests. In a legal world in which Goliath has the upper hand, unconventional tactics are the only options for the Davids of that world. "After all," Nesson says, "David would never have beaten Goliath if he had not taken a chance with his slingshot."

May 26, 2009 | Permalink | Comments (0)

Supreme Court Reverses Suspect's Right

With all eyes focused today on the new nominee to the Supreme Court, Sonia Sotomayor, and how she might change its future balance, the court as it is currently constituted let slip a zinger, reversing a 23-year-old precedent that forbade police from initiating interrogation of a criminal defendant once the defendant has requested counsel at an arraignment or similar proceeding.

I'd like to say that, had Sotomayor already been confirmed, this reversal wouldn't have happened. But that is not so, given that the justice she would replace, David H. Souter, was among the dissenters in today's opinion.

The ruling, Montejo v. Louisiana, reverses Michigan v. Jackson, a 6-3 decision, written by Justice John Paul Stevens, holding that the Sixth Amendment prevents police from initiating further interrogation of a defendant who has requested but not yet had an opportunity to consult with counsel. Today's opinion was written by Justice Antonin Scalia, who reasoned that the Jackson rule provided only marginal policy benefits while posing "substantial costs to the truth-seeking process and the criminal justice system." He was joined in the opinion by Justices Roberts, Kennedy, Thomas and Alito.

Justice Stevens, the author of Jackson, dissented from today's opinion, as did Justices Souter, Ginsburg and Breyer. The majority's opinion, he writes, "rests on a misinterpretation of Jackson's rationale and a gross undervaluation of the rule of stare decisis. The police interrogation in this case clearly violated petitioner's Sixth Amendment right to counsel."

Notably on this day in which President Obama named his nominee, it was another short-lister, Solicitor General Elena Kagan, who had argued before the Supreme Court in favor of Jackson's reversal. As Lyle Denniston recounted at SCOTUSblog, Kagan had contended that the ruling was no longer needed "given the purposes of the Sixth Amendment and the existence of other strong protections against coercion."

As Denniston also reported when the case was argued in April, a group of former top Justice Department officials, ex-prosecutors at the federal and state levels, and former judges asked the court to keep the Jackson decision intact, saying it had provided a "bright-line rule" that had become "embedded in routine police practice," just as had the warnings requirement of Miranda v. Arizona.

May 26, 2009 | Permalink | Comments (2)

The Legal Twitterverse Loses a Shining Star


Twitter users have come to expect it to be a first-line source for major, world-changing news. Earthquakes rocking China. Shootings roiling Mumbai. Many people first learned of these events by way of tweets on Twitter. For many of us, such news -- major though it is -- is far removed from our day-to-day lives. But over the long Memorial Day weekend, the legal community came to grips with the realization that sometimes the news delivered via Twitter hits painfully close to home.

Securities lawyer Mark Astarita may have best summed up the sentiment of many legal tweeters when he posted late Friday, "No one told me that my twitter friends would pass away." His Twitter friend -- the Twitter friend of many legal professionals -- was known by her Twitter name lilyhill. Shortly after noon on Friday, after lilyhill had been uncharacteristically silent for several days, this brief message appeared under her Twitter name: "This is lilyhills daughter. She passed away on wednesday due to a stroke." There, in Twitter's bare-bones style, news that pierced the hearts of many legal professionals.

Her real name was Roberta Frazier. Lilyhill was the name of her Philadelphia-based consulting business. Here is how she described herself in her brief Twitter bio: "Paralegal, SOHO Consultant, Digital Coach, Trail Guide for the Techno-Paranoid. Ok, Office Goddess. My coffee mug says so." She was among JD Scoop's original list of 145 legal professionals to follow on Twitter. Those of us who did follow her quickly learned to appreciate her intelligence, insight and humor and to look forward to her tweets.

On Roberta's Facebook page, her daughter posted a note with more information about her death. Sometime on Sunday or Monday last week, she was home alone when she suffered a massive stroke. When she did not show up for work on Monday, her boss went to her house and somehow found her. She was taken to a hospital, where she died on Tuesday.

Search lilyhill on Twitter to read some of the outpouring of grief that flowed from other legal tweeters throughout the weekend and that continues today. In a post, On Missing @lilyhill, at the blog Practical Paralegalism, Lynne DeVenny remembers Roberta through some of her tweets and the direct messages that they shared on Twitter. She remembers Roberta as one of "my bright stars in the Twitterverse."

Many of us this morning share the sadness described by another tweeter and blogger, Gloria Bell. And we share also her surprise at realizing the deep sadness we can feel over the death of a person we knew only virtually. I never met lilyhill. But I feel as if I knew her. And I know for certain that the sadness I feel about her death is anything but virtual.

May 26, 2009 | Permalink | Comments (0)

So It's Sotomayor

If the Supreme Court were Churchill Downs, I'd be heading over to the pay window right now, having put my money on 2nd U.S. Circuit Court of Appeals Judge Sonia Sotomayor to be President Obama's nominee to replace Justice David H. Souter. I doubt I would've collected much, though, given that she seemed to be the odds-on favorite of just about every pundit who handicapped the field. As far back as February, CNN legal analyst Jeffrey Toobin, in a Fios-sponsored appearance at LegalTech New York, predicted Sotomayor.

So you won't need sharp ears to hear it as the blogosphere sighs a collective, "We told you so!" Still, Sotomayor was the favorite because she deserved to be. A well-qualified appellate judge, she would put another woman on the high court bench. More significantly, she would be the Supreme Court's first Hispanic justice. Given that Hispanics make up roughly 15 percent of the U.S. population but zero percent of the Supreme Court, it is high time for a Hispanic justice.

President Obama made the announcement of Sotomayor's nomination this morning. The 54-year-old jurist is the daughter of Puerto Rican parents and grew up in public housing in the Bronx. Her father died when she was 9 and her mother worked six days a week to put her through Catholic school. She went to Princeton University and then Yale Law School, where she was editor of the law journal. President Bush nominated her to the federal district court in 1991 and President Clinton named her to the appeals court in 1997.

Lawyer and blogger Elie Mystal questions whether a nominee's race or ethnicity really matter. "Why does it make people of a disaffected class feel better when one of their own reaches a position of special prominence?" he asks. Far more important than identity is a nominee's jurisprudential ideology, Mystal argues. "It doesn’t make me feel better to have a person that looks like me on the Court. It makes me feel better to have a person that can match wits with Scalia and Roberts for the next generation."

If considered in a vacuum apart from ideology, race, ethnicity or gender should not decide a nomination. But I agree with the New York Times when it says that Sotomayor "would add a different complexion to the panel, fulfilling the president's stated desire to add diversity of background to the nation's highest tribunal." That is not a complexion defined by skin color but by life experiences -- and the life experiences of a Hispanic woman who grew up poor in the Bronx would add a dimension to the court it sorely lacks and has never had before.

And then there is the simple matter of symbolism. The Supreme Court is our nation's final arbiter of justice. It will never be and should never be a representative cross section of the population. But when a significant portion of the population is at last able to see itself reflected by someone who sits on the court, they are, perhaps, reassured that the court is a place where, even for them, justice does prevail.

May 26, 2009 | Permalink | Comments (2)

May 22, 2009

Chew on This: $10.6M for Chaw

In a victory sure to be hailed by professional baseball players everywhere, a Massachusetts judge is expected to give his approval today to a $10.65 million settlement of a class action lawsuit involving smokeless tobacco, the Boston Herald reports. Notably, the settlement represents a win not for health advocates but for consumer advocates, given that the lawsuit was for price fixing.

"This is the largest settlement per consumer in the country in a case involving price fixing for smokeless tobacco," Robert Bonsignore of Bonsignore & Brewer, the attorney who represented the plaintiffs, told the Herald. "It wasn’t bad enough that they have more than 80 percent of the market share on a product that is more addictive than heroin, they also fixed the price."

Under the terms of the proposed settlement with U.S. Smokeless Tobacco Co., consumers could receive cash payments of $25 to $700 after filing claims. The company, a subsidiary of tobacco giant Altria, sells the brands Copenhagen, Skoal, Red Seal and Husky.

In other tobacco-litigation news, Reuters reports today that the D.C. Circuit Court of Appeals has upheld a lower court ruling that cigarette companies, including Altria, violated federal racketeering laws by conspiring to lie about the dangers of smoking. The full 92-page ruling is here: U.S. v. Philip Morris USA Inc.

May 22, 2009 | Permalink | Comments (2)

The Best Weapon Against Pirates? Lawyers.

Blackbeard Call it Blackbeard meets Blackacre. In the early part of the 18th century, in the glory days of peg-legged, hook-handed pirates, it was not naval prowess that sunk their ships so much as the threat of lawyers nipping at their heels. "Most important in bringing pirates to their end was a series of early 18th-century legal changes that made it possible to effectively prosecute pirates," writes Peter T. Leeson in a fascinating guest post at The Volokh Conspiracy.

Leeson is an economics professor at George Mason University in Fairfax, Va., and author of the book, The Invisible Hook: The Hidden Economics of Pirates. At a time when piracy appears to be on the upswing, his post -- and, no doubt, his book -- provides interesting perspective on how best to battle piracy on the high seas.

Well before the 1700s, England tried siccing lawyers on pirates, but with limited success. Before 1536, England tried pirates in admiralty courts under civil law. But convictions proved hard to come by, given the law's requirement that the accused either confess guilt or be identified by two eyewitnesses. A 1536 law loosened the elements of proof and was moderately more successful in obtaining convictions. But colonial governments were uncooperative in paying the costs to ship captured pirates back to England for trial.

All that changed in 1700, with a law that permitted colonial governments to try and execute pirates on location. "No longer constrained by the need to send pirates to England for trial, the 1700 law proved to be a critically important legal change for bringing pirates to justice," Leeson writes. What is most interesting is why this law was effective and how pirates tried to exploit a loophole.

The "why" might not be a total surprise, given that Leeson is an economist, not a lawyer. The law did not so much scare pirates into going straight as it did increase the booty required to operate their unlawful enterprises. Pirates were forced to spend more money on the legal defense of their crew members while also finding it more and more difficult to recruit new crew.

Somewhere along the line, some clever pirate lawyer lifted his looking glass and spotted a loophole in all this. No man could be convicted who could show that he was forced into piracy. How might they show this? Why, take out an ad, of course.

An ad of force was a newspaper ad, published by an allegedly conscripted sailor’s released captain or fellow seamen on behalf of their forced compatriot, publicly certifying that the sailor had been "forced against his will" to join so-and-so’s pirate crew on this such-and-such date, etc. If this pirate crew was ever captured ... the ostensibly forced sailor could point to his ad in his defense at his trial and the court might consider this evidence for his claim, thus increasing his chances of being let off.

These ads resulted in at least some pirates getting off the hook, so to speak. The lesson for modern times, Leeson suggests, is that if lawyers come after pirates, pirates may fight back with lawyers of their own, "manipulating the law as the law seeks to manipulate them." Leaving lawyers to shiver in their timbers.

May 22, 2009 | Permalink | Comments (1)

When the FCC Visits, It Doesn't Bother to Knock

If you have a wireless router, a cellphone or a cordless phone in your office or home, the Federal Communications Commission says it has the right to walk right in without a warrant at any time of the day or night in order to inspect it.

That news comes via Wired's Threat Level blog. It quotes FCC spokesman David Fiske, who says, "Anything using RF energy -- we have the right to inspect it to make sure it is not causing interference." That includes devices such as Wi-Fi routers that use unlicensed spectrum, he says.

In fact, the FCC explicitly spells out this policy with a handy FAQ on its own Web site.

Q: Why must operators of radio frequency devices allow the FCC to inspect their equipment?

A: The Commission must ascertain essential facts pertaining to the operation of a station which may be vital to the resolution of a number of questions, including interference problems involving public safety. For this reason, the FCC must be able to check all covered equipment that have the potential to emit radio frequencies. Section 303(n) of the Communications Act gives the FCC this authority.

Q: The FCC Agent standing at my door does not have a search warrant, so I don't have to let him in, right?

A: Wrong. Search warrants are needed for entry involving criminal matters. One of the requirements as a licensee, or non-licensee subject to the Commission's Rules, is to allow inspection of your radio equipment by FCC personnel. Whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection. Even radio stations licensed under a "blanket" rule or approval, such as Citizen's Band (CB) Radio, are subject to the Commission's inspection requirement.

Not surprisingly, some lawyers question the FCC on this. "It is a major stretch beyond case law to assert that authority with respect to a private home, which is at the heart of the Fourth Amendment’s protection against unreasonable search and seizure," Electronic Frontier Foundation lawyer Lee Tien tells Threat Level. "When it is a private home and when you are talking about an over-powered Wi-Fi antenna -- the idea they could just go in is honestly quite bizarre."

Constitutional law expert, George Washington University professor and blogger Orin Kerr also has his doubts. "The Supreme Court has said that the government can’t make warrantless entries into homes for administrative inspections,” Kerr said.

The FCC's questionable policy made the blogosphere airwaves after an FCC agent investigating a pirate radio station in Boulder, Colo., left a copy of the policy on the door of a residence hosting the unlicensed 100-watt transmitter. "Whether you operate an amateur station or any other radio device, your authorization from the Commission comes with the obligation to allow inspection," the statement said.

The policy is silent on whether you are also obliged to serve the FCC agents coffee.

May 22, 2009 | Permalink | Comments (2)

Friday Oddities

Is it that these things happen more frequently as the week rolls on or that I'm more in the mood to read them?

May 22, 2009 | Permalink | Comments (0)

May 21, 2009

More on Legal Issues Related to Twitter and Other Social Media

Who ever thought that a 140 character tweet could get you into so much trouble? If you haven't given the issue thought, fear not -- San Francisco-based Howard Rice Nemerovski Cannady Falk & Rabkin has done the work for you, with this fairly extensive parade of horrors that may result from an innocent little tweet.

By now, most of us are familiar with the potential for committing defamation through Twitter. But Howard Rice points out that if it's not just individuals who face liability; companies may be liable as well if an employee circulates defamatory content on a corporate blog or Twitter account. The speed and fluidity of media like Twitter can also invite inadvertent disclosure of trade secrets or nonpublic information about a publicly traded company.

Companies can also face securities fraud if they use Twitter or other social media to make misstatements about a publicly traded company. Here, the SEC has provided some guidance with Release No. 34-58288, which makes clear that a company employee "speaking" in a company-sponsored interactive forum may never be deemed to be acting in an individual capacity. Thus, a company could not disclaim liability by arguing that the employee's communications were unauthorized.

Does your company -- or your client's company -- have a policy on social media? After reading the client alert from Howard Rice, it's clear that everyone should.

May 21, 2009 | Permalink | Comments (6)

Law Firm Sets Up Niche Practice to Dispute Other Lawyers' Fees

Manchester, England-based law firm Boote Edgar Esterkin has figured out a novel way to generate more revenue. Instead of charging clients more for the firm's services, Boote Edgar has created a new practice specialty going after other law firms for overcharging, reports Crain's Manchester Business. The service, which is called ab8, will help clients either by opening formal negotiations on behalf of customers who believe they’ve been overcharged by their law firms or, in some cases, issuing proceedings against firms.

Marc Yaffe, the associate who will run the new service, describes its origins:

“We found that as law firms battled for new instructions, a pattern emerged of solicitors providing low quotes to clients at the outset of a matter, only to bill far more than that quote when the work was completed. We realised that there was a definite market for advice in this area,” he said.

“There are strict rules governing how solicitors provide information to their clients, especially in relation to costs. Solicitors have a duty to provide their clients with the ‘best information possible’ at the outset of any matter, and this ought to include a clear and concise explanation of the total costs involved.”

Yaffe plans on taking a hard line to keep other lawyers' fees in check. For example, he described a recent case in which a client was initially quoted an £8,000 fee by a solicitor, only to receive a final bill for £26,000. Though Yaffe notes that it was clear that the solicitor had done more work than the original estimate reflected, he was bound by the £8,000 quote and wasn't entitled to recover any more.

Boote's concept sounds like a great practice niche for firms in the U.S. as well. At present, the only similar U.S. practice I'm aware of that deals with excess legal fees is The Devil's Advocate, which according to its Web site, focuses more on non-litigation-related fee issues such as review and audit of law firm bills for large corporate clients or negotiation of retainer fees.

What do you think? Could fighting excess legal fees be a viable practice niche here?

May 21, 2009 | Permalink | Comments (7)

Lawyer on the Lam With Her Clients

It seems that Minnesota mom Colleen Hauser and her lawyer, Susan Daya prefer flight over fight -- fighting cancer, that is. The pair took to the road along with Hauser's cancer-stricken 13-yea-old son in defiance of a court ruling by a Minnesota court issued Monday ordering Hauser to allow her son to undergo chemotherapy, according to Associated Press. Hauser had refused to consent to chemotherapy because she favors the "natural healing methods" espoused by an American Indian religious group -- even though doctors testified that her son's tumor had grown and that he would probably die without conventional medical treatment.

So who is this lawyer, Susan Daya, who's come along for the ride? According to the Minnesota Star Tribune, Daya has an interesting history:

[Daya] according to court testimony, accompanied Colleen and Daniel to a doctor's appointment in Sleepy Eye on Monday[. She] is a California attorney with a tiny law firm that specializes in resolving family disputes. Daya and a partner operate the business, called Settlement Works , out of a 57-foot yacht named Concordance in Marina del Rey, according to the company's website. Daya is also known as Susan Hamwi. Calls to the firm were not returned Wednesday. A call to her home office yielded a "Memory full" recording for voicemail. Settlement Works charges $400 an hour to help divorcing couples work out issues such as child support and custody through mediation "while addressing and healing the unresolved emotional issues of divorce." According to the website, Daya holds a law degree from Loyola Law School and a Bachelor of Arts from the University of California, Santa Barbara. She has been a member of the State Bar of California since 1989.

Why would Daya risk her law license to help clients evade a court order? Even if Daya didn't formally represent Hauser in court (Daya's actual role isn't clear from the story), any lawyer who assists a litigant in evading a court order would be subject to bar sanction in my view. Zealous representation is one thing, but Daya seems to have crossed the line.

May 21, 2009 | Permalink | Comments (0)

Bloggers May Be Shielded in New York

Bloggers in New York may soon be treated on par with other journalists, at least when it comes to receiving protection under New York State's shield laws, reports the New York Times City Blog. Shield laws protect journalists from being compelled to disclose their sources or testify about information obtained during news gathering. But in many states the law hasn't kept pace with technology, so most shield laws don't apply to bloggers.

For example, the current New York law protects "professional journalists involved with newspapers, magazines, news agencies, press associations, wire services, radio and television." The proposed bill would expand New York's shield law to include "journalist bloggers." Further, the bill even defines the term "blog" as “a Web site or Web page that contains an online journal containing news, comments and offers hyperlinks provided by the writer.”

Some have suggested that the current law already covers bloggers who practice journalism since it defines news media as “any professional medium or agency which has one of its regular functions the processing and researching of news intended for dissemination to the public.” However, current law only protects journalists who gather news for "gain or livelihood," thus excluding the many bloggers who aren't compensated.

May 21, 2009 | Permalink | Comments (1)

May 20, 2009

Craigslist Sues and AG Backs Off

Craigslist CEO Jim Buckmaster announced on his blog this morning that he has filed a lawsuit against South Carolina Attorney General Henry McMaster over his repeated threats to file criminal charges against the company. "Mr. McMaster’s repeated threats of criminal prosecution should we refuse to shut down craigslist for South Carolina have left us little choice but to seek declaratory relief before the court," Buckmaster said.

Earlier this month, McMaster sent Buckmaster a letter threatening criminal prosecution if "the portions of the Internet site dedicated to South Carolina and its municipal regions and which contain categories for and functions allowing for the solicitation of prostitution and the dissemination and posting of graphic pornographic material are not permanently removed" by the close of business on May 15. On Friday, McMaster's Web site posted a notice saying that Craigslist had not complied. "We have no alternative but to move forward with criminal investigation and potential prosecution."

Buckmaster's post says that the AG's threats ignore the fact that Craigslist "is operating in full compliance with all applicable laws," has eliminated its "erotic services" category and has adopted stricter screening measures. He goes on to say:

Interestingly, if you read Mr McMaster’s ultimatum carefully, you’ll note that the only way to definitively comply with it is to take down the craigslist sites for South Carolina in their entirety. The open architecture of craigslist, quintessential to the value it provides for users, simply does not allow for the absolute prevention of solicitation or pornography, with respect to any of its categories and functions.

The blog post does not include the court documents but says that is based on the grounds that the AG's threats "represent an unconstitutional prior restraint on free speech and are clearly barred by federal law," to wit, Section 230 of the Communications Decency Act.

McMaster responds to the lawsuit on his site as "good news. It shows that craigslist is taking the matter seriously for the first time." His response suggests he is backing off any criminal prosecution. "Unfortunately, we had to inform them of possible state criminal violations concerning their past practices to produce a serious response," he says. "We trust they will now adhere to the higher standards they have promised. This office and the law enforcement agencies of South Carolina will continue to monitor the site to make certain that our laws are respected."

May 20, 2009 | Permalink | Comments (2)

Study: British Lawyers Get No Respect

Legal and other professionals play vital roles in supporting Britain's economic, political and social structures. Yet they don't get the respect they deserve, from either the government or the general public. That is the conclusion of a research report released today, British Professions Today: The State of the Sector. The report was prepared by Spada Research, a branch of the U.K. professional-services consulting firm Spada, on behalf of three major professional organizations, The Law Society, the Royal Institution of Chartered Surveyors and the Chartered Institute of Management Accountants.

Professionals in the UK form part of the backbone of the services-based economy, play key roles in the political process, and, perhaps most importantly, provide vital services in our day-to-day lives. Yet, the professions have come under attack from dual fronts: from government, which often fails to consider professional expertise in relevant policy areas; and from the general public, which has come to view professionals suspiciously in an era of declining deference to authority.

The report is described as "a first attempt to set forth a condensed overview of the value and scope of British professions -- historical, regulatory, economic, social and political." It sets the stage for a broader discussion of the professions by tracing their history -- from their rise to prominence in the 19th century to their more recent decline in the perception of the general public. "Trends ... chart a slow but sure fall in the percentage of people who are very or fairly satisfied with the way that accountants and lawyers do their jobs."

While the report is heavy on reporting the sorry state of the professions, it is somewhat light on offering solutions. Its overarching recommendation is that the professions should not be taken for granted -- and that the professions should take the lead in ensuring that doesn't happen. To that end, it suggests:

  • Formulation of new methodologies and metrics for analyzing the professions as well as greater transparency and consistency in their reporting.
  • Cooperation among the professions in working together and speaking with a single voice to government and the general public.
  • Strengthening of professional standards, including rigorous qualifications, high-quality codes of practice, sufficient monitoring and appropriate disciplinary mechanisms.

Although the report's focus is the U.K., some of the research it draws on comes from the United States and a number of its findings are as fitting to professionals here as in Britain. Clearly, its central point -- that lawyers and other professionals need to address their decline in the public's esteem -- sounds resoundingly close to home.

May 20, 2009 | Permalink | Comments (0)

Juror du Jour: Boredom His Downfall

Grant Michael Faber Lesson to jurors: You can run, but you can't hide. Witness this item from today's news:

A Hillsboro, Ore., man who left jury duty after lunch because he was "extremely bored" was due back at the courthouse Tuesday to be arraigned on a charge of contempt of court.

A police report says officers found 25-year-old Grant Faber near his home earlier this month and asked why he skipped out. He said he was bored, and "just couldn't take it" anymore.

Washington County Judge Gayle Nachtigal issued a warrant for his arrest.

In a report about Faber's arrest in The Oregonian, Judge Nachtigal emphasized the importance of jury duty. "I think it is one of the most important civil responsibilities that citizens ... have," she said.

News reports do not say whether Faber was on a panel and sitting through a trial or merely enduring the seemingly endless wait to find out if he would be on a panel. If the former, then perhaps charges should also be brought against the trial lawyers for their roles in aiding and abetting the juror's boredom.

May 20, 2009 | Permalink | Comments (0)

Court OKs Service of Summons on Facebook

In the latest twist involving the interface of law and social media, a court in New Zealand has given lawyers the go-ahead to serve process on a defendant in Britain by way of the social-networking site Facebook. A High Court judge issued the order after lawyers for the plaintiff said they did not know the defendant's precise whereabouts but were able to confirm that he has a Facebook page.

"Justice Gendall did not bat an eyelid in the court room when approving the order after being assured that newspaper adverts could not be effectively targeted," the New Zealand Press Association reports. The lawsuit, brought by New Zealand company Axe Market Garden, alleges that the owner's son, Craig Axe, took $241,000 (around $126,000 in U.S. dollars) from a company bank account.

The lawyer for the company, Daniel Vincent, told reporters that he believed the case to be the first in New Zealand to allow service of court papers using Facebook. He was inspired to make the request, he said, by a recent court case in Australia where the Australian Capital Territory Supreme Court approved an application to use Facebook to notify a couple that they had lost their home after defaulting on a loan.

The Australian ruling even elicited a statement of praise from none other than Facebook itself. "We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives."

The New Zealand order was issued in March -- but, hey, these things take time to filter up from down under. I offer a hat tip to Julius Melnitzer for picking it up this week at FP Legal Post, where I first heard about it.

May 20, 2009 | Permalink | Comments (5)

It's Official: Nominee Is a Hispanic Woman

CarmenOrtiz For all you out there who have been making short lists and debating the relative merits of the potential nominees, the wait is over. The nominee's name has been announced and, if approved, the female lawyer who has been selected would become the first Hispanic to fill the seat.

That's right. We now know that Carmen M. Ortiz, 53, has been selected to become U.S. attorney for the district of Massachusetts. (What? You thought I was referring to a different vacancy?) U.S. Senators Edward M. Kennedy and John F. Kerry yesterday recommended that President Obama nominate Ortiz to fill the highest federal law enforcement position in the state, The Boston Globe reports today.

The daughter of Puerto Rico natives, Ortiz grew up poor in New York City's Spanish Harlem. She has worked in the U.S. attorney's office in Massachusetts for 12 years and spent another 10 years as a state prosecutor. In 1990, while working at the Center for Criminal Justice at Harvard Law School, she served on a commission appointed by the National Football League to investigate sexual harassment allegations by a Boston Herald reporter against members of the New England Patriots.

In 1992, as legal counsel to the U.S. Senate Committee on Foreign Relations, she was part of a six-member team that investigated allegations that campaign workers for Ronald Reagan and George H.W. Bush tried to undermine the 1980 re-election prospects of President Carter by delaying the release of the Iranian hostages, according to the Boston Herald. She is a 1981 graduate of George Washington University Law School.

Ortiz would be not only the first Hispanic but also the first female U.S. attorney in Massachusetts. She was chosen over two other finalists, Michael B. Keating and Martin F. Murphy, both partners at the law firm Foley Hoag. "We believe that her prosecutorial experience, commitment to public service, and insight into criminal justice issues will make her an exceptional United States Attorney," the two senators said in a statement announcing her selection.

The National Law Journal has an update on U.S. attorney nominees in other jurisdictions.

May 20, 2009 | Permalink | Comments (2)

May 19, 2009

What Is the Million Dollar Advocates Forum?

Have you ever heard of, or been invited to join the Million Dollar Advocates Forum and wondered exactly what it is? So did Eric Turkewitz, who addresses that million dollar question at his New York Personal Injury Law Blog. Here's what he learned.

According to Turkewitz, the Million Dollar Advocates Forum is a "prestigious" group that is "limited" to those who have "won" million dollar settlements or verdicts. It's also a rather exclusive group, at least according to the promotional hype on the Web site, which claims that the forum has 3,000 members -- fewer than one percent of all U.S. lawyers.

Turkewitz poses some hard questions about the value of membership in the group, which incidentally costs $1,200. First, he notes that if a lawyer has already won a few million-dollar verdicts, he can list them on his own Web site. Why pay $1,200 for this "faux honor?"

Second, the forum isn't as exclusive as the organizers would like it to seem. The 3,000 members aren't the only lawyers who have handled million-dollar cases. Instead, it represents the number of lawyers who have handled million-dollar cases and paid $1,200 for the privilege of forum membership.

Turkewitz concludes by noting that, in part, his post stems from a feeling of sour grapes. It's not that Turkewitz isn't eligible to join the forum -- his law firm Web site confirms that he is. Instead, Turkewitz writes that he's envious because:

I didn't think of this first. Who needs to work when you can get, according the web site, over 3,000 people to pony up that kind of cash for a piece of paper? Who knew there were thousands of lawyers out there so willing to part with their cash for this token?

As for you, how would you prefer to earn your millions? Through million-dollar cases, or million-dollar schemes?

May 19, 2009 | Permalink | Comments (6)

Corporations Turning to Social Networking to Find Lawyers

Maybe social networking for lawyers isn't a waste of time after all. The Am Law Daily carries an article by Amy Miller of Corporate Counsel Magazine describing how FMC Technologies, a Houston-based manufacturer, is bypassing conventional options for updating a roster of outside counsel like auctions or requests for proposals. Instead, FMC relies on Legal OnRamp, a social networking site for lawyers,
to find new counsel.

FMC developed a three-step process, the first of which requires completion of a questionnaire that's posted on Legal OnRamp. Lawyers who don't participate in Legal OnRamp miss out. FMC then screens the applications and selects lawyers with whom they'll talk numbers. But FMC is clear: Lawyers must be willing to embrace alternative billing arrangements to stand a chance of being hired.

Will more companies and corporate clients start looking for lawyers online through social media? That's not yet clear. But what I do know for sure is that if social media starts generating business for lawyers, those sites will explode.

May 19, 2009 | Permalink | Comments (3)

Are Younger Workers More Vulnerable to Layoffs?

With a slumping economy forcing more companies to lay off employees, you might think that it's the higher-paid, older workers who are bearing the brunt of the terminations. But as Jane Genova points out at Law and More, millennials are actually more vulnerable to being cut.

Genova cites an article from The Wall Street Journal Online, which notes that the unemployment rate for those between the ages of 25 and 34 was 9.6 percent in April 2009, up from 4.9 percent a year earlier. By contrast, the unemployment rate for the 55-and-older crowd was 6.2 percent in April 2009, versus 3.3 percent a year earlier.

Why are younger employees -- those in their 20s and 30s -- finding themselves the targets of layoffs? In part, they have lawyers to thank. Employers seeking to avoid age-discrimination lawsuits are adopting "last one in, first one out" policies. And at least anecdotally, it seems employers are focusing on young, childless professionals rather than those with families, also to avoid claims of discrimination based on family situations.

So what does all of this mean for lawyers? Genova argues that discrimination against younger workers could potentially become a niche practice area. From the WSJ Online article:

Gerald Maatman, co-chairman of the class-action litigation practice at Seyfarth Shaw LLP, which represents employers, says he has been fielding more inquiries about laying off younger workers than in years past, especially from companies in states like New Jersey and Michigan that have laws to protect workers as young as 18.

On the other hand, it's also easier for companies to defend a decision to let younger workers go, particularly if they have a bona fide seniority system in place. In addition, some younger workers have "high-maintenance" attitudes, which can also justify a termination.

Even though younger workers may not be able to invoke discrimination laws to protect their jobs, they still have more practical options available, says Bruce Tulgan, author of Not Everyone Gets A Trophy: "Come in early, stay late, dot your i's and cross your t's."

May 19, 2009 | Permalink | Comments (5)

Can You Ask Clients for Business?

Can -- and should -- lawyers ask prospective clients for business? That's the question Roy Ginsburg tackles today over at The Lawyerist.

Ginsburg begins by noting that most states' ethics rules prohibit direct solicitation of business from prospective clients. That's why lawyers can't, for instance, go door to door in an elderly community asking residents if they'd like a will prepared.

But while most lawyers are familiar with the ban on direct solicitation, many assume that the rule doesn't apply where business is sought from a "sophisticated" client, such as a company CEO. Ginsburg doesn't agree, pointing out that ethics rules generally "do not contain any such qualifying language." Still, even if ethics were not a bar to seeking work from corporate clients (and I don't believe that they are), Ginsburg says there are other reasons lawyers shouldn't ask for business. He writes:

When I was an in-house lawyer (about a dozen years), I was constantly solicited and hated when “asked for the business.”

First, it insulted my intelligence. When networking and trying to develop relationships with potential clients, one should confidently and enthusiastically tell the person what they do, they love what they do and get great results when they do it. Period. Whenever I heard that, I could certainly connect the dots that this person wanted my business in whatever area talked about; I didn’t have to be hit on the head.

But more importantly, I hated it because it placed me in the uncomfortable position of having to say no. I liked most of the people who were trying to get my business and never appreciated having to be the bad guy telling them that the timing was not right or whatever reason I came up with.

On the other hand, Dan Hull, of What About Clients?, has no compunction about asking clients how he can earn their business. And when Hull asks for business, he claims the response of prospective clients is generally the same:

The client rep laughs and says something like, "That's refreshing -- because I can't tell you how many times I have dined, gone to sporting events or played golf with lawyers and they never ask me for my business. Sometimes this goes on for years. I know that's why they are there -- but they won't ever get to the point."

"So what's up with that?" he or she continues, often openly amused. "Are most lawyers shy or something? Why would I want to hire a law firm not aggressive enough, direct enough or business-oriented enough to just ask for the work?"

I side with Hull's approach over Ginsburg. First, Hull's open ended way of asking business -- by seeking input on how he can help them -- allows him to steer clear of ethics violations because he's not selling a specific, he's asking how he can be most useful were he to represent the company. Second, Hull's approach is proactive -- and I would think that most clients would prefer lawyers with initiative. Finally, though asking for business seems scary because of the possibility of rejection, the alternative is worse. After all, in these economic times, what could be scarier than leaving your future in someone else's hands?

Which approach do you prefer?

May 19, 2009 | Permalink | Comments (0)

May 18, 2009

Two Blawger Transitions to Note

What makes a blog worth reading? A distinctive voice. A unique topic. Smarts and savvy. Fearlessness. Those characteristics describe two legal blogs that are no more thanks to their writers moving on to other things.

In writing Law Beat, Mark Obbie stood out for all of those reasons and more. Law Beat was, to my knowledge, the only blog devoted to criticism of the legal media. It is a topic Obbie is uniquely qualified to cover. He is a veteran reporter and editor who has devoted much of his career to covering law. (He and I formerly worked together.) And in his coverage of the people and periodicals on the law beat, he was fearless in his willingness to point out shortcomings as well as strengths.

After a couple weeks without posting, Obbie announced that the blog would be on hiatus, its return contingent on someone else taking it over. "I'd rather be doing journalism than commenting on it," explains Obbie, who left his job as executive editor of The American Lawyer to teach journalism at the S.I. Newhouse School of Public Communications and run its Carnegie Legal Reporting Program. To free up time to focus on his own journalism, he is giving up his oversight of the legal reporting program, and with it, the blog.

By contrast, it was two years ago that Jordan Barab gave up his blog, Confined Space, where he wrote about workplace health and safety. He gave it up, he explained at the time, to take a job that made it impossible for him to continue blogging, as counsel to the House of Representatives Committee on Education and Labor, working on OSHA-related matters. You know a worker-friendly blog must be good when its closing is mourned by an employers' lawyer, but that was exactly what happened when Michael Fox wrote at Jottings By an Employer's Lawyer that he was sorry to see the blog go.

Well, now this former blogger has made good with another career move, as Walter Olson notes at Last month, Barab was named deputy assistant secretary for the Occupational Health and Safety Administration and is also serving as OSHA's acting director until a permanent director is named.

May 18, 2009 | Permalink | Comments (0)

Nominees' Secrets and Secret Nominees

As the watch continues for who President Obama will nominate to fill the soon-to-be vacated Supreme Court seat of Justice David Souter, two stories in today's news explore the secret sides of the candidate short list.

First up is Tony Mauro in The National Law Journal, who asks, "What old sin will haunt the next Supreme Court nominee?" For Samuel Alito Jr., it was his long-ago membership in a group that wanted Princeton University to remain all male. For John Roberts Jr., it was his earlier ruling upholding the arrest of a 12-year-old girl for eating a french fry in a subway station. Even Souter's nomination was met with speculation surrounding his lifelong bachelor status.

So what will be the next nominee's Achilles' heel? Mauro rifles through the closets of some of the short-listers and finds nunchakus, YouTube videos, Solomon-ic declarations, and anti-abortion racketeers. Yet even as he does so, he illustrates how this go-around will differ from earlier nominations. By the time the nominee is named, Mauro notes, "the accelerated, intense glare of bloggers and bloviators" will have picked over whatever skeletons may be in the nominee's closet.

But even as bloggers and pundits swarm over the usual suspects, we are well aware that nothing requires President Obama to choose from the list we've presented him. In fact, as NPR legal affairs reporter Nina Totenberg points out, "White House officials are gleefully telling reporters the president's list includes people who are not often mentioned in the media." So who, she asks, are the Supreme Court choices you haven't heard of?

Totenberg offers what might be called her secondary short list of potential nominees. It includes Christine Arguello, a Mexican-American appointed a U.S. district judge by President Bush last year; Ruben Castillo, a Mexican-American who has been a federal district judge for 15 years; Nora Demleitner, Hofstra Law dean; JoAnne Epps, Temple Law dean; Caitlin Halligan, former solicitor general of New York, now in private practice; Johnnie Rawlinson, 9th Circuit judge; and Patricia Timmons-Goodson, North Carolina Supreme Court justice.

But even with this secondary short list, Totenberg is hedging her bets. She offers it, she explains, "with the understanding that there are yet more names we haven't included." And so the nominee watch continues. In fact, the NLJ devotes an entire section of coverage and commentary this week to the question of who will succeed Souter. It includes Marcia Coyle's report on some of the other names that are making the secondary short list.

May 18, 2009 | Permalink | Comments (0)

Lawyer Urges Officials: Keep Off Facebook

The law sometimes lags behind technology. One area where this is much apparent is in the law of public access. Many states' public records and open meeting laws were enacted years ago -- in some cases even before the Internet came about, let alone Facebook or Twitter. These aging laws struggle to fit emerging technologies, raising any number of thorny issues as they do.

An intriguing example of this arose last week in Fort Lauderdale, Fla., where City Attorney Harry Stewart issued a memorandum to the mayor and elected officials last Thursday telling them in no uncertain terms: Stay off Facebook. For that matter, avoid having any form of Web site, if at all possible.

It is a simple fact that the state of the law is lagging woefully behind the state of the art in communications technology. This presents unique challenges in following the intent and the letter of these laws regulating public meetings and communications of local government.

For this reason, this office discourages the City’s participation in a Facebook page or any similar interactive communication technology. The current City website is not interactive and offers the ability to post information for the public. Facebook pages or websites for individual Commissioners are also discouraged. If individual Commissioners wish to have their own website, they should be used for informational purposes only or to solicit constituent opinions, however care should be taken to avoid posting position statements held by Commissioners on issues that may come before the Commission. It should also be noted that even on personal websites, retention schedules for public records must be followed.

Stewart's memorandum came on the heels of an April 23 Florida attorney general opinion addressing whether the city of Coral Springs, Fla., could establish a Facebook page. It certainly may do so, Attorney General Bill McCollum opined, provided it adheres to all of the requirements of the state's Sunshine Law. That means that everything placed on the page becomes a public record subject to public disclosure -- and that even the pages of the city's Facebook "friends" could become public records.

The Sun Sentinel blog Broward Politics, which reported Stewart's memo, says that Fort Lauderdale Mayor John P. Seiler already has a Facebook page that he created for his campaign but no longer maintains. Meanwhile, Coral Gables plans to forge ahead with its Facebook page, despite the concerns raised in the AG's opinion. Florida residents who'd rather not have their Facebook photos show up on the public docket are advised not to "friend" Coral Gables -- or any other government entity.  

May 18, 2009 | Permalink | Comments (3)

Group Seeks Disbarment of 'Torture Lawyers'

A group of antiwar activists is filing a series of legal ethics complaints today seeking the disbarment of 12 Bush-administration lawyers for their alleged roles in condoning torture. The complaints target a sitting federal circuit judge, Jay S. Bybee; three former attorneys general, Alberto Gonzales, John Ashcroft and Michael Mukasey; and eight others, including John Yoo and Stephen Bradbury, the authors with Bybee of the so-called torture memoranda.

"These lawyers misused their license to practice law to provide legal cover for the war crime of torture," said an e-mail from Kevin B. Zeese, a lawyer who is executive director of VotersForPeace.US and a board member of VelvetRevolution.US, the organizations that filed the complaints. "This misuse of their license requires the bar association to disbar them or the bar will become complicit in torture."

Detailed complaints, including more than 500 pages of supporting exhibits, have been filed with the bar-oversight organizations in the District of Columbia, New York, California, Texas and Pennsylvania, Zeese's statement says. Copies of the complaints and exhibits are posted online at

We have asked the respective state bars to revoke the licenses of these attorneys for moral turpitude. They failed to show “respect for and obedience to the law, and respect for the rights of others,” and intentionally or recklessly failed to act competently, all in violation of legal Rules of Professional Conduct. Several attorneys failed to adequately supervise the work of subordinate attorneys and forwarded shoddy legal memoranda regarding the definition of torture to the White House and Department of Defense. These lawyers further acted incompetently by advising superiors to approve interrogation techniques that were in violation of U.S. and international law. They failed to support or uphold the U.S. Constitution, and the laws of the United States, and to maintain the respect due to the courts of justice and judicial officers, all in violation state bar rules.

VotersForPeace describes itself an organization devoted to "educating, organizing and activating voters to end the occupation of Iraq and prevent future wars of agression." Zeese, its executive director, was the Green Party candidate for a Maryland U.S. Senate seat in 2006. An activist against the war and in favor of drug-policy reform, he was executive director of the National Organization for the Reform of Marijuana Laws from 1983 to 1986 and of the Ralph Nader-connected group Democracy Rising, which opposed the 2003 Iraq war. The other group that filed the complaints, Velvet Revolution, says it is a network of more than 120 progressive organizations devoted to "the peaceful road to change."

[For more details and copies of the complaints, see The BLT: "Coalition Seeks Disbarment of Bush Lawyers"]

May 18, 2009 | Permalink | Comments (1)

May 15, 2009

Supermarket Legal Services Coming to the U.K.

Five apples, a dozen eggs, a liter of milk, two wills and a lease. That's what a grocery list could look like in supermarkets in England and Wales by the middle of 2011, according to the BBC. Under the Legal Services Act of 2007, non-lawyer entities, including shops and grocery stores, will be able to sell legal services, or at least retain an ownership interest in those firms providing services.

As the date for implementation of the Legal Services Act draws closer, some lawyers have concerns about their future. Barrister Craig Holt, chief executive of, says that "the solicitor profession faces being all but wiped out by a government seemingly intent on robbing the public of access to good quality, local legal advice."

But others regard the new system as a way to offer more competition and benefits to consumers. There's discussion of outsourcing legal services overseas and providing advice by phone and over Internet sites, once rules are more relaxed.

Question for readers: Do you think we'll ever see this kind of loosening on lawyers' monopolies here in the U.S.?

May 15, 2009 | Permalink | Comments (2)

Law Firm Markup of Research Costs: Annoying or Unlawful?

Virtually every law firm that subscribes to commercial, computerized legal research providers like LexisNexis or Westlaw pays a flat rate for unlimited searches. Even so, the companies will ordinarily provide a breakdown of the per-minute cost of each individual search, which collectively would total far more than the cost of the flat fee.

So can a law firm that pays a flat fee subscription service -- let's say, hypothetically, $1,000/month -- charge the client for the per diem or hourly cost -- probably around $150 to $200 of each individual search? If the firm ran 10 searches for a client, the cost to the client would well exceed the subscription price.

That question lies at the crux of Texas businessman Virgil Waggoner's recent lawsuit against Chadbourne & Parke for overcharging him for legal research costs. According to The National Law Journal, Waggoner claims that that Chadbourne charged him $20,000 for computerized legal research services that actually cost the firm only $5,000. The suit, filed by Patricia Meyer, of San Diego's Patricia Meyer & Associates, alleges that the overcharges constitute unfair business practices, unjust enrichment, fraud and deceit.

A couple of other blogs are discussing the story, and so far I haven't found much support for the law firm's position. In a post at BNET Technology, author Eric Sherman sought comment from Roy Simon, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University School of Law, who responded that:

Bottom line: Lawyers can mark up expenses beyond cost plus overhead if the client agrees after full disclosure. A client might agree if the product (Lexis, or a court reporter) is one that the client really isn't in a position to buy directly.

However, as Sherman points out, the Chadbourne retainer apparently did not include this disclosure. Moreover, even if it did, Sherman doesn't believe it would justify markups:

But with flat rate pricing, suddenly the costs rapidly drop because the subscriptions can be amortized across all the clients of a firm. That means online research has the potential to become a major profit center, but only if clients don’t insist on cutting the rates, and as I've learned in covering the legal industry for other outlets, controlling outside counsel expenses is a major area of interest for most corporations.

National legal research and writing expert Lisa Solomon takes the rationale a step further, arguing at Legal Research and Writing Pro that firms should treat online legal research costs as ordinary overhead expenses, which are typically rolled into an hourly rate or flat fee, rather than passed through to clients as disbursements. Solomon recommends:

Still, cost recovery should be the exception, not the rule. Don’t nickel and dime your clients: when setting your rates -- whether you bill by the hour, charge a flat fee, or use any other billing arrangement -- take into account all of your overhead -- including the cost of your online legal research subscription.

I think most of us would agree that firms shouldn't be marking up the cost of legal research. But should they recover the costs as a separate line item expense on their bill, or as Solomon suggests, treat the cost as overhead and roll it into an hourly rate? Post your thoughts below.

May 15, 2009 | Permalink | Comments (8)

For Expat Lawyers, a Return Passage to India

Roughly a year ago, I posted about law firms in India boosting salaries to retain talented lawyers who might be lured by firms from abroad. But with the economy down, Indian lawyers who joined U.K. firms during the boom periods are being sent home, reports ALB Legal News. According to the article, several Indian law firms are in the process of recruiting or have already made significant hires of such lawyers. Moreover, many applicants are those who've obtained LLM degrees abroad, who in better economic times would ordinarily work overseas.

The need for more Indian lawyers grows, both to handle the growing number of American and British law firms offshoring work to India and to support the country's own burgeoning economy. Unfortunately, Indian restrictions on foreign law firms prevent American firms from setting up shop and directly capitalizing on emerging opportunities.

May 15, 2009 | Permalink | Comments (1)

May 14, 2009

Rules of Conduct for Social Networking

Earlier this week, The Wall Street Journal gave its editorial staffers a set of rules for how to conduct themselves online and, in particular, on social networking sites such as Facebook and Twitter. The news got me to thinking about the kinds of policies law firms should adopt for social networking. The WSJ's new rules include various do's and don'ts, such as:

  • Consult your editor before "connecting" to or "friending" any reporting contacts who may need to be treated as confidential sources. Openly "friending" sources is akin to publicly publishing your Rolodex.
  • Don't disparage the work of colleagues or competitors or aggressively promote your coverage.
  • Don't engage in any impolite dialogue with those who may challenge your work -- no matter how rude or provocative they may seem.
  • Avoid giving highly-tailored, specific advice to any individual on Dow Jones sites. ... Giving generalized advice is the best approach.
  • All postings on Dow Jones sites that may be controversial or that deal with sensitive subjects need to be cleared with your editor before posting.
  • Business and pleasure should not be mixed on services like Twitter. Common sense should prevail, but if you are in doubt about the appropriateness of a Tweet or posting, discuss it with your editor before sending.

With a few word changes -- substitute "managing partner" for "editor," for example -- several of the WSJ's rules could make sense for law firms. Firms would be well advised to encourage lawyers to avoid giving "highly tailored" advice, to clear potentially controversial posts, and to avoid mixing business and pleasure. What else should a law firm social-media policy include?

Doug Cornelius took at stab at framing a law firm social media policy in a post he wrote last November. "Statements in public forums may inadvertently create an attorney-client relationship, and may also violate the rules prohibiting law firm advertising," he correctly noted. He offered a concise set of sensible guidelines that emphasized the importance of maintaining client confidentiality and avoiding the inadvertent creation of an attorney-client relationship, all tempered by the number one rule of online posting: Think first.

Jay M. Jaffe also recently considered the parameters of a law firm social-media policy in an article he wrote for the newsletter Internet Law & Strategy. (Disclosure: I am a former VP of Jaffe's consulting firm, Jaffe Associates.) His advice is that policies should be designed so as to encourage employees to participate in social media. That means keep them simple and follow common sense, he says, by focusing on four points:

  • Don’t post anything that’s confidential.
  • Avoid the appearance of establishing a client-attorney relationship.
  • Don’t get into an argument with anyone.
  • Be polite and avoid sensitive subjects.

Jaffe shares the full version of his firm's social media policy and points to samples of other policies compiled by 1 2 3 Social Media. Has your firm adopted a social media policy? If so, let us hear about it. Feel free to add a comment below describing your policy's key points.

May 14, 2009 | Permalink | Comments (3)

New York AG Appears Miffed at Craigslist

The attorneys general of Illinois, Connecticut and Missouri were claiming victory yesterday in the wake of the announcement by Craigslist that it would eliminate its Erotic Services ads and replace that section of its site with a yet-to-be-named adult category in which all listings will be reviewed by Craigslist staff. Illinois AG Lisa Madigan announced the development yesterday after she and the AGs for Connecticut and Missouri met with Craigslist officials last week seeking an end to the ads that they consider to be for illegal sexual activities.

But it appears that at least one AG was miffed at the announcement. New York AG Andrew M. Cuomo posted a terse statement that can only be described as odd:

Several weeks ago, we informed Craigslist of an impending criminal case that implicated its website. Rather than work with this office to prevent further abuses, in the middle of the night, Craigslist took unilateral action which we suspect will prove to be half-baked.

Thomas O'Toole, author of BNA's E-Commerce and Tech Law Blog, pointed attention to Cuomo's statement through a Twitter post in which he succinctly summarized it as saying, "Curses, you stole my photo op!"

In the long run, the news is likely to prove little more than a photo op. As David Ardia observes at the Citizen Media Law Project, it is unlikely that Craigslist's removal of the erotic services section will eliminate ads for erotic services. "After all, it is not illegal for consenting adults to post ads seeking sexual trysts," Ardia writes. "If sex is provided in exchange for money it's a different story, of course, but how will Craigslist be in a position to know that someone has crossed that line?" Mike Masnick at Techdirt puts it this way:

It's difficult to see how this ends well. Prostitution will continue. It will just move to other websites, where it will be that much more difficult for law enforcement to track it and respond to it. This move will also -- unfortunately -- empower AGs to once again abuse their public platform to pressure companies into doing things with absolutely no legal basis whatsoever.

As Masnick suggests, this latest news shows that fighting illegality can come dangerously close to policing morality. I agree with Ardia when he asks, "Do we really want Craigslist, or the state attorneys general for that matter, enforcing sexual morality?" In that sense, at least, Cuomo is right to call the action half-baked.

May 14, 2009 | Permalink | Comments (2)

A Milestone for This Blog's Founder

Long, long, long-time readers of Legal Blog Watch will remember that its original writer -- and still its inspiring voice -- was Lisa Stone. She launched this blog way back in November 2004 and in February 2006 handed over its reins to Carolyn Elefant and me. She left to devote herself full time to a little side project she had started called BlogHer, a community for women who blog.

Turns out not to have been a bad move. BlogHer has grown by leaps and bounds. Today, it serves as the hub to more than 18,000 blogs written by women, produces highly regarded conferences and operates a network of targeted blog advertising. The Web site reaches more than 14 million unique visitors a month and the company now has 30 employees.

As the CEO of this ever-expanding empire, Stone was in the news this week for a significant milestone -- she secured $7 million in new funding for BlogHer, bringing the total investment in the company to $15.5 million. Kara Swisher of BoomTown reports that the new round is funded by two existing investors, Venrock and the Peacock Fund, joined by a new investor, Azure Capital.

"This is a true grassroots effort that shows the growing influence of women in social media," Stone told Swisher. "We want to focus on taking advantage of that growth and momentum with this new funding." Although BlogHer is not yet profitable, Stone added, she hopes that by next year "I can raise a glass of champagne to meeting that goal." Meanwhile, allow me to toast our predecessor's significant achievements so far.

May 14, 2009 | Permalink | Comments (0)

Law Firm 'Pyramid' Sees Thinning at Base

Take a pyramid, squeeze in its base, and what are you left with? A diamond. The model will no doubt need polishing, but the diamond may come to better represent the structure of law firm staffing than the pyramid, suggests Gina Passarella, a reporter for The Legal Intelligencer in Philadelphia, in her piece, Diamonds May Be a Law Firm's Best Friend in Economic Downturn.

In the first installment of a new weekly series examining the lasting effects of the current economy on the legal industry, Passarella sees a long-term squeeze on first-year associates. "In response to the current economy and a clear shift to a buyer's market, firms are moving from the pyramid model of a few partners at the top and hordes of associates at the bottom to a diamond shape in which several senior associates and junior partners make up the bulk in the middle in an effort to maximize value for the client," she writes.

An early adopter of this model was Eckert Seamans Cherin & Mellot. Fed up with soaring starting salaries, it decided five years ago to cut the firm's summer program and hire associates only in their second year or above. The firm benefits by having other firms train new lawyers, maintaining a more reasonable starting salary and avoiding costly attrition. The latest example is Drinker Biddle & Reath, which announced last week it would cut first-year salaries to $105,000 for the first six months, eliminating billing requirements for that period but requiring them to go through a more formal training process (as Carolyn Elefant noted here yesterday).

This tightening up on first-year associates is likely to be more than a temporary market correction, several industry observers predict. "Even for very robust firms that continue to have profitable work flowing in the door, there is a marked shortage of work for newly made lawyers," Drinker Biddle Chairman Alfred Putnam Jr. wrote in a letter to associates explaining the change. "In addition, the days of large law firms assigning (and clients paying for) 'armies' of very junior lawyers to large-scale litigation or transactions are over -- likely never to return."

As law firms tighten their bottoms and move to a diamond-shaped structure that is thicker with mid-level associates, that could mean bling-bling for contract lawyers. If law firms no longer maintain massive armies of low-level associates, then they will have to turn elsewhere for reinforcements, says Ward Bower of consulting firm Altman Weil. When large matters come up, he tells Passarella, firms will increasingly turn to outsourcing through contract attorneys or even to offshoring the work.

The proof of the diamond model will be in whether it dazzles clients by cutting costs. If it does, then the diamond could be forever, at least among larger law firms.

May 14, 2009 | Permalink | Comments (2)

May 13, 2009

More Commentary on How to Judge a Justice

As suspense grows over the naming of President Obama's Supreme Court nominee, so too does discussion in the blogosphere about how to judge the future Justice. For all the talk of nominating a woman, a recent Gallup poll shows that only 38 percent of women surveyed believed that appointing a woman to the bench appointment is "essential" or "a good idea." Anne Skove, of Court-O-Rama, ponders the reasons for the low percentage. Sure, women are more likely than men to want another woman on the bench -- only 24 percent of men polled thought appointing a woman was "essential" or "a good idea" -- but it's still a surprisingly low number.

But what else do folks want to see in a Justice? Anne mentions one commentator at Salon who argues that empathy is most important quality in a candidate. Eric Turkewitz agrees, though he's got a better name for this metric: "the tissue box test." He writes:

I want a nominee that knows what it's like to have someone cry in their office. I want a nominee that has been there when someone tells them that their mother/father/brother/daughter was arrested/injured/killed and that they are desperate for help.

I want a nominee to know what it's like to see real people -- not political philosophies or corporate giants trying to add a few cents per share to their earnings -- in their office in distress, and to represent them. I want a nominee that has experienced being the last, best hope for a downtrodden individual and the problem brought in the door. I want someone who knows what it's like to be the underdog against corporate or government interests.

I want a nominee to know what it's like to make the rent. To pay an employee. From their own pocket and not someone else's. To answer the phones. To argue the case. To battle against deception. To actually practice law in the real world instead of in the ivory tower under the protective wings of others.

Similar to the tissue box test, Scott Greenfield of Simple Justice offers up the "trench lawyers" test, endorsing those candidates who know about "raw human need and the law's rough edges":

In the trenches, we experience life, along with the huddled masses who care far less about whether a judge is a constructionist or originalist or texturalist. We know the consequences of decisions, together with the consequences of delayed decisions. Our view is ground level, and our understanding of how badly the law can hurt comes from holding the hands of the maimed. We know that people lie, cheat and steal, but we know that isn't limited to the defendants. We have philosophies, but we live realities.

And by the way, if the President or his advisers believe that trench lawyers or "tissue box lawyers" don't have the analytical skills or writing ability to pass muster on the bench, Turkewitz and Greenfield prove them wrong with their posts. Don't miss them.

May 13, 2009 | Permalink | Comments (3)

Philadelphia Law Firms Making 'Market Corrections'

Yesterday, The Am Law Daily reported that large law firms don't expect to make any radical changes in response to the economic downturn. Instead, firms are making modest "market corrections" such as cutting attorneys (both associates and partners), and relying more heavily on contract lawyers and experimenting with alternatives to the billable hour.

In this context, recent reforms at two Philadelphia-based firms seem downright revolutionary. Over at Dechert, law firm chairman and CEO Barton Winokur announced that he will take a $1 million pay cut, reports While Winokur's self-imposed reduction in his draw from law firm profits wasn't enough to spare associates and staff from recent layoffs, it's a small gesture of solidarity and an acknowledgment of the current situation that, to date, few other law firm partners have displayed. Still, giving up $1 million in salary won't send Winokur to the poor house by any means; it's reported that he earned nearly $8 million in 2007.

Meanwhile, according to the Philadelphia Business Journal, Drinker Biddle & Reath plans to welcome 37 first-year associates on schedule, in contrast to other firms that are deferring start dates. But there's a catch. The firm is capping first year salaries at $105,000, a $40,000 reduction from previous years. Moreover, the firm will institute a more formalized training program, where new lawyers will shadow partners, spend time in class and be freed from billable hours. The firm will also reduce its rates for work by first year associates on client matters.

May 13, 2009 | Permalink | Comments (0)

Study Shows Female Lawyers Willing to Leave Firms to Get a Life

Female lawyers are willing to leave law firms to get a life, concluded a recent study by Rutgers University's Center for Women and Work, "Legal Talent at the Crossroads: Why Women Lawyers Leave Firms and Why They Choose to Stay." Teresa Boyer, lead author of the study, explains her team's research in this press release:

One of the study’s key findings is that women are now willing to leave an employer to seek a more flexible work environment ... It appears that women no longer feel trapped or helpless in their pursuit of a successful career in the law.

The study also suggests, however, that leaving a firm isn't necessarily the answer. Of respondents who changed employers in the last five years, 30 percent remained dissatisfied with their current employer's level of flexibility. While that's a significant drop from the 70 percent dissatisfaction levels indicated before women changed jobs, having a full third of female lawyers unhappy at their firms isn't a figure worth celebrating in my book.

Of course, this report was prepared before major law firm cutbacks, at a time when women actually could leave and find options at other firms. With fewer options, women unhappy at work will either have to tolerate it or hope that their firms adopt the report's recommendations on how to create more family-friendly environments.

May 13, 2009 | Permalink | Comments (0)

Recession Sends Lawyers Into the Clouds

For years, the legal profession lagged behind other industries in adopting cloud computing technologies, which encompass a range of services -- platforms, infrastructure and software -- delivered over the Internet, instead of residing on local computers. It's not clear whether lawyers stayed out of the clouds due to legitimate concerns about the security of these systems (after all, we lawyers have an ethical obligation to protect client confidentiality and safeguard these data) or because of the natural tendency to adhere to precedent and "the way it's always been done." For whatever reason, cloud computing made little headway within the legal industry -- until now.

According to MSP Mentor, the current downturn is forcing lawyers to outsource in order to trim costs, which has created an opening for cloud-based offerings. The article summarizes some of the cloud-related activity that's taken place over just the past two weeks, including Dublin, Ireland-based Servecentric's $1.36 million managed hosting deal with a U.S. law firm and California-based Legal Cloud's announcement of a virtual server beta program being tested by several international law firms. In addition, Azaleos which offers Sharepoint (a collaborative platform), had few legal customers just a few months ago, but in the most recent quarter claims to have gained ground among the larger mid-sized law firms up to “mega firms” with 1,000-plus attorneys.

In particular, large firms are most interested in outsourcing e-mail and in identifying "single-source" applications that can provide both e-mail services and archiving.

Are you or your firm using cloud computing? What kinds of law firm technologies are most likely to get cloudy, and which should remain firmly on the ground?

May 13, 2009 | Permalink | Comments (0)

May 12, 2009

Gitmo Litigation: More Kafka Than Kafka

This Sunday magazine piece from The Chicago Tribune, The Guantanamo Labyrinth, by Tom Hundley, is the best description I've read of what it is like to be a lawyer representing a Guantanamo detainee. The story focuses on Candace Gorman, a Chicago lawyer with "a pronounced soft spot for underdogs and seemingly hopeless causes," who shut down her regular law practice two years ago to devote all her attention to two clients, both Guantanamo detainees. She makes no money from these cases, incurs enormous out-of-pocket expenses, and "knows there is no pot-of-gold settlement waiting at the end."

But she carries on. Last year, she took a temporary position with the International Criminal Court in The Hague to earn some income and lives there still as she continues to fight for her two clients. When she first took on the two cases, "the task ahead of her seemed pretty cut and dried," Hundley writes. "After all, the Supreme Court, in the 2004 Rasul decision, had firmly rejected the Bush administration's claim that U.S. courts did not have jurisdiction to hear cases against the Guantanamo detainees." Five years later, Gorman is still trying to get the two their day in court.

One obstacle blocking the way of Gorman and every other Guantanamo lawyer is the "byzantine thicket of rules and procedural dead ends that would have impressed Franz Kafka."

The typical drill goes like this: After meeting with clients in Guantanamo, lawyers are obliged to immediately turn over all of their notes to the government for inspection. The inspection can take weeks, and when copies of the notes are finally returned to the lawyer, large sections often are blacked out. The unredacted originals are kept at a secret "secure facility" outside Washington where they can be viewed by defense counsel but not removed. Government lawyers' briefs are deposited at the secure facility, and defense attorneys have to travel to Washington to see them (lawyers are not allowed to reveal the precise location of the facility). For a storefront attorney such as Gorman, travel costs can add up fast.

Let's say Gorman wants to review the written record of accusations against her clients. She must again travel to the secure facility. If she wants to use this material in preparing a defense for her clients, she must do all her work on secure government computers at the facility and use the facility's secure printer. If she uses her own computer at the facility, that computer becomes "tainted" and is subject to confiscation. Defense lawyers are not permitted to file any document with the court without first submitting it to the Court Security Office, which then shares the document with the government's lawyers. At times, the government's obsession with security borders on the absurd: When defense lawyers work on detainee cases in their own offices, they are supposed to draw the shades.

Gorman tells Hundley that, yes, she re-read Kafka during the course of her work on these cases. "Guantanamo is more Kafka than Kafka," she said. I've talked to several lawyers who represent detainees or who have been to Guantanamo for other reasons. But this article gave me a better sense of what it is actually like to be fighting in those trenches than conversations with any of them ever did. 

May 12, 2009 | Permalink | Comments (1)

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