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June 30, 2009

Judge Posner's Proposal: Save a Newspaper, Kill a Blog

Sure, the newspaper industry is in trouble. But not even old-guard media companies have proposed as extreme a remedy as what Judge Richard Posner recommends. In a recent blog post, Posner proposed barring online links to copyrighted materials without the consent of the copyright owners as a way to help revive the failing newspaper business.

Not surprisingly, Posner's proposal has drawn criticism from bloggers, as well as conventional media outlets. Dan Froomkin, of Discourse.net, asks: If links are banned, why not footnotes? (That should give lawyers pause!) Erick Schonfeld at The Washington Post deemed the scheme "misguided," asserting that the Web works via free and unregulated linking. Moreover, linking to a newspaper post is not all that different from engaging in conversations, Schonfeld points out. He continues:

Much of what Posner wants to outlaw is public discourse. Why is it okay for people to talk about the day's news in a bar or barber shop, but not online? People should be able to discuss the day's news on the Web without fear of violating copyright law. The natural way people discuss things on the Web is by quoting and linking to the source. (Except maybe Posner, he doesn't seem to link to much of anything in his blog posts).

David Donoghue, of Chicago IP Litigation, makes the point that newspapers in fact benefit from added links to their stories. And while Donoghue acknowledges the existence of "free-riding" aggregators that do nothing more than point to links, Donoghue argues that newspapers are free riders in a way, getting the benefit of links in the form of traffic from visitors who otherwise would not view the site.

Donoghue also emphasizes that even without a consent policy in place for linking, copyright holders have significant protection. He points out that direct copying of stories is prohibited. Moreover, Congress could choose to revisit copyright laws if it deems that additional protection is necessary.

I can't even imagine how I could possibly write Legal Blog Watch if I needed to obtain consent every time I linked to a news article. Even if requiring consent for online links would help newspapers -- and I doubt this is true -- the tradeoff would the death of blogging.

June 30, 2009 | Permalink | Comments (1)

Law Firms Not Serious About Change, Say CLOs

Law firms may be cutting salaries or creating apprentice programs, but are they really serious about change? Only 5 percent of chief legal officers at corporations believe that firms are committed to innovation, according to a new survey by Altman Weil, reports Larry Bodine. The vast majority of CLOs see these new measures as a stop-gap approach to keep revenues from flowing out, instead of representative of serious change. Bodine writes:

A full 75% rated law firms between zero and 4 on the scale, indicating little or no interest in change. “This is a dramatic vote of no confidence from Chief Legal Officers,” observed Altman Weil principal Dan DiLuccio. “Either many law firms just don’t understand that clients today expect greater value and predictability in staffing and pricing legal work, or firms are failing to adequately communicate their understanding and willingness to make real change. In either case, it’s a big problem.”

Do you think law firms will return to business as usual when the recession passes? What will happen if they don't?

June 30, 2009 | Permalink | Comments (0)

Commentary on Madoff's 150-Year Sentence

Yesterday, federal judge Denny Chin sentenced Bernie Madoff to 150 years in prison -- more than a life sentence. Though Madoff certainly wasn't popular (as blogger Scott Greenfield notes, not a single person sent the judge a letter in support of Madoff during sentencing), a 150-year sentence is still highly unusual. Several law bloggers attempt to explain the reason for the large sentence and its significance.

At his Sentencing Law Blog, Douglas Berman explains that the 150-year sentence departs from the recommended term of 50 years in the pre-sentencing report. He says the report likely recommended 50 years (a) to reflect Madoff's decision to plead guilty and avoid the cost of trial or (b) because it was double the 25 years given to Bernie Ebbers, who was involved in what was previously believed to be the biggest corporate fraud sentenced in New York. Nonetheless, the government advocated for the 150-year term -- the maximum permissible sentencing term -- and Chin apparently agreed because of the nature of Madoff's crime. As Berman notes, from Madoff's perspective, there's little practical difference between a 150-year sentence or a 25-year sentence because under either scenario, the 71-year-old Madoff will die in prison. The government has as a new benchmark for the prosecution of corporate crime, Berman says.

Ellen Podgor offers her perspective on the size of the sentence at White Collar Crime Prof Blog, suggesting it may be too harsh. Podgor writes that Madoff received no credit for remorse or pleading guilty, and that his sentence was "grounded in retribution" because Madoff was unlikely ever to exit prison as a free man, even under a shorter sentence. Finally, Podgor notes that the Madoff sentence doesn't resolve the underlying question of "How could this fraud have gone on unnoticed for so long, and why did it take government authorities 20 years to finally do something about it?"

Scott Greenfield echoes the points raised by Podgor and Berman regarding the retributive nature of the sentence and the impact it will have as benchmark in future cases. He also is critical of Madoff's lawyer, Ira Sorkin, writing:

Throughout the course of the Madoff defense, I've questioned what the heck the defense was thinking. Like most people, I would have guessed that Ike Sorkin had something up his sleeve that he would pull out at the moment it was needed. As it turns out, Sorkin came up empty. Totally, completely, utterly empty. His client copped to everything, got the max and will be remembered as one of nation's worst scoundrels.

At the risk of turning the comments section into the digitial equivalent of a prison's grafitti-flecked toilet stall, we invite your thoughts on the Madoff sentence. Please share them below.

June 30, 2009 | Permalink | Comments (4)

Lawyer Tweets Departure From Twitter

And so, the Twitter wars continue. At the beginning of the month, Larry Bodine took the first shot across the bow, denouncing Twitter as an ineffective tool for lawyer marketing. But Adrian Dayton, hosting yesterday's Blawg Review #218, sees it differently, recounting his own "I found a client on Twitter" story and referencing other similar successes at LexBlog.

Today lawyer Tom McLain, of Chorey, Taylor & Feil, weighs in, offering his reasons for departing from Twitter (which we learned of, ironically, via McLain's own tweet). McLain reports that like Dayton, he too has experienced what many observers might view as a Twitter marketing success: His Twitter presence has earned him online interviews and features in blog posts. Still, after two months, McLain is backing off from his Twitter use, largely due to time constraints and other priorities. He writes:

Of the Web 2.0 tools, my personal preference is LinkedIn, followed by Twitter. A fair assessment of my own marketing practices is that my priorities have been wrong and I was spending too much time on Twitter and not enough on higher ranking methods. In short, my balance was off or, in the words of Larry Bodine, I had allowed Twitter to become a "powerful distraction from getting real marketing work done." I simply need to create more time to focus on face-to-face marketing and blogging. In the words of my dear friend Chris Kimbel, sales director at Womble Carlyle, my marketing plan lacked proper balance and was skewed in an unhealthy degree in the direction of the least productive marketing methods.

I agree with McLain that Twitter can become a time sink. In order to make it an effective marketing tool (and I do concede its potential), a user needs to "work it," sending out tweets regularly, monitoring and re-tweeting others as useful and following up with contacts. At the same time, because it's much easier -- not to mention more addictive -- to post or read tweets than to hunker down and write a full-blown blog post or a legal article, it can readily become a distraction from real marketing work.

Having been on Twitter for nearly a year now, I've noticed that it's lost some of its shine. Many of those whom I follow regularly don't post as often and some of the banter between different groups I follow is gone. Of course, I've been busier myself so perhaps I've missed those conversations in my absence. But one of the best things about Twitter is that it's easy enough to fly the coop for a while and jump right back in.

June 30, 2009 | Permalink | Comments (2)

Will Practice Make Perfect Lawyers?

With the economy down, law firms have less work. That means they've got more time -- or at least, slightly more appetite -- for training new associates. As the National Law Journal reports, a number of firms -- most recently, 659-lawyer firm Howrey -- are moving toward an apprenticeship model, with new associates spending time attending classes and shadowing partners on client matters. Associates participating in the Howrey program are still expected to generate billable hours, though the requirements are reduced to 700 hours in their first year. And to help subsidize the costs of the $3 million training program, the firm is cutting first-year salaries from $160,000 to $100,000, with a $25,000 bonus that can be applied to repay student loans.

Several other firms have launched similar efforts, including Drinker Biddle & Reath, Dallas-based Strasberger and Price, which recently introduced apprenticeship-type programs, and Atlanta-based Ford & Harrison, whose "Year One" training program was rolled out last year.

From the law firm perspective, the programs offer significant benefits. For starters, the new training programs help soften the blow of salary cuts. Moreover, training programs are a selling point for clients, because firms can demonstrate that they're paying the cost of training, rather than subsidizing associate learning on the client's dime.

Associates potentially benefit from training also. Though they may not engage in much hands-on work, the fact of the matter is that for most associates, hands-on work consists largely of document review.
With apprenticeship programs, staff attorneys assume responsibility for document review, while full associates focus on training. Moreover, back in the boom years, new lawyers expressed their willingness to trade stratospheric salaries and the long hours of drudge work that accompanied high pay for less money and more training and flexible schedules. It seems new lawyers have finally gotten what they wished for, at least temporarily.

Reactions to the apprentice programs from around the blogosphere are decidedly mixed. At The Conglomerate, Gordon Smith views the trend as a "movement by firms to take greater responsibility for skills training, rather than blaming law schools for not doing something that we are ill-equipped to do well."Jane Genova of Law and More wonders whether the programs are intended more as a public relations tactic "to have clients know newbie associates won't be on the account and, just as importantly, they won't be paying for the perhaps inefficient work of newbies." She also writes that in law, you need to learn by doing:

Law is a "practice." It's much like learning to drive, to write for print, to blog. You learn by doing, not by sitting in a classroom. I have never learned a thing about communications by "shadowing" a higher-up in an organization. They tried that when I was employed full-time at GM and I rebelled - successfully. When you're not involved in the actual doing and responsible for the quality of the product or service, you soon enough find yourself on auto-pilot.

Meanwhile, at Adams Drafting, Ken Adams offers some suggestions for how law firms might structure the apprenticeship program. He says that firms have a choice: they can either use the program to teach associates the same-old thing, or begin to train them to adopt better practices. Adams explains:

If all you're interested in is a goosed version of your normal training, you'd dragoon a partner -- perhaps someone who otherwise would be spending much of their day gazing out the window -- to put together a training program. Odds are it would consist of a mish-mash of conventional drafting wisdom, with most of it being devoted to the structure of M&A contracts. What would be conspicuously absent is a coherent overview of the basics of contract language...

If you're interested in a game-changing training program, the first thing you'd do is adopt a style guide for contract drafting. That's something I discussed in this January 2009 blog post. Your only real choice would be to adopt MSCD by means of a short document laying out some explanatory guidelines. (Anything you try to prepare on your own would be impossibly skimpy.) The style guide should be as near to mandatory as is possible in a law firm.

Thinking back on my own experience, after spending three years in law school and two summers as an associate at both a small and large law firm, I was ready to hit the ground running on my first day of work. In fact, that's why I chose to start my legal career with a government agency, where I'd immediately have hands-on experience rather than return to the firm where I'd spent my second-year summer. Perhaps new associates will find these training programs appealing, particularly because the $100,000 salaries associated with them (albeit lower than years past) are nothing to sneeze at. However, I suspect that many will now consider judicial clerkships, the Department of Justice, States' Attorney or Public Defender jobs as a an alternative. After all, if you're going to take a pay cut to get more training, it might as well be the real thing rather than a pallid simulation.

June 30, 2009 | Permalink | Comments (2)

June 29, 2009

Elsewhere in the Legal Blogosphere ...

Among legal news from around the blogosphere today:

• In a lawsuit by "A Civil Action" lawyer Jan Schlictmann seeking $9 million in legal fees, the Massachusetts Appeals Court has tossed a motion to dismiss based on the state anti-SLAPP statute.
• MinnLawyer blog posts video interviews with the deans of the four Minnesota law schools, discussing such topics as law students' economic prospects, law school rankings and the future of legal education.
• TortsProf Blog reports that a woman hopes to collect some dough after getting sick from eating uncooked Nestle chocolate-chip cookie dough.
• Jurors in rape cases have a poor understanding of how victims might react and of the injuries they might sustain, according to Expert Witness Blog.
• The Integreon blog fills us in on what law firms think about legal outsourcing, based on a May ValueNotes report, "Legal Services Outsourcing: What Do Law Firms Think?"
• The blog On the Record reports that the first lawsuit has been filed to come out of the recent D.C. Metro crash.
• Good news for plaintiffs yet to file product liability claims against General Motors, but bad news for those who have already filed claims.

June 29, 2009 | Permalink | Comments (0)

A Little Bit Twitter, a Little Bit Morality

Over more than 200 weekly issues of Blawg Review, the one consistency is that each has a theme. But after reading several times through Adrian Dayton's Blawg Review #218, I found myself unsure whether his theme is Twitter or morality. The answer, I finally concluded, is equal bits of both.

Dayton, author of the blog Marketing Strategy and the Law, begins his Blawg Review stewardship with an homage to the microblogging platform: "I give all the thanks this week to Twitter." As well he should. Since starting to tweet, Dayton has scored a major legal client, a book publisher and the invitation to host Blawg Review that brings him to the fore today.

His planned book, however, is not about Twitter, but about virtue, and its role in helping individuals -- lawyers included -- to experience greater achievements and more fulfilling lives. Thus, having given due thanks to Twitter for leading him to the soapbox, he mounts it to promote the 12 virtues he believes "will make our world a better place to live." Even still, he sprinkles in frequent references to Twitter.

Given that Dayton cites none other than me in his section on the virtue of kindness, I would be hard pressed to say anything unkind about his post. Nor would I want to. I wholeheartedly agree with Dayton on both his themes -- the virtues of Twitter and the virtues of virtue. In addition to kindness, the other virtues he discusses are integrity, courage, gratitude, leadership, balance, endurance, forgiveness, awareness, love and passion. Find these in your life, Dayton suggests, and success will follow.

The one mystery in this week's Blawg Review is that it promises 12 virtues but delivers only 11. Are we to conclude that to tweet, in itself, is the final virtue?

June 29, 2009 | Permalink | Comments (0)

When Immigration Lawyers Make Stuff Up

From opposite U.S. coasts come disturbingly parallel stories of immigration lawyers allegedly resorting to fraud to win legal residency for untold numbers of undocumented immigrants. While one case just concluded, the other is just coming to light, leaving the legal status of dozens of the lawyer's clients in limbo.

The first case comes out of Sacramento, where the blog Legal Pad reports that three Northern California attorneys have been convicted of filing hundreds of fraudulent asylum applications. Attorneys Jagprit Singh Sekhon, 39, of Westminster, Calif.; his brother Jagdip Singh Sekhon, 42, of Salida, Calif.; and Manjit Kaur Rai, 33, of Discovery Bay, Calif., were convicted of conspiracy to defraud federal immigration agencies, the U.S. Attorney’s Office for the Eastern District announced.

In a press statement cited by Legal Pad, prosecutors said the lawyers, working for the Sacramento and San Francisco firm Sekhon & Sekhon, submitted asylum applications, primarily for Indian and Romanian nationals, "containing fictitious stories of persecution that the clients had supposedly suffered in their home countries."

The three attorneys denied making up information. They said they relied on information given to them by their clients. They are scheduled to be sentenced on Oct. 16.

Meanwhile, in Boston, federal immigration authorities have begun rejecting dozens of immigration applications filed by lawyer John K. Dvorak, The Boston Globe reports. Officials allege they have found fraud, such as fake employment letters, in a significant number of Dvorak's cases.

"The unexpected action is wreaking havoc from Maine to Cape Cod," the newspaper says. "Immigrants who plunked down hard-earned cash with high hopes of staying in America are now racing to other lawyers for help. Those lawyers say dozens of immigrants with legitimate cases have been unfairly swept up in the federal government's action."

The attorney has not been charged with any crime and remains a lawyer in good standing in Massachusetts and in the federal immigration courts, the article notes.

Word of these rejections is coming not from official sources, but from other lawyers who have taken over cases formerly handled by Dvorak. They cite rejection letters sent to clients by the U.S. Citizenship and Immigration Services. "Interviews of the beneficiaries established that many of the beneficiaries were instructed by Attorney Dvorak and his associates to obtain fraudulent employment letters," a June 2 letter said. "Several interviews confirmed the law office obtained the fraudulent letters for the beneficiaries."

Whether or not the allegations prove to be true, they are creating panic and concern among immigrants and within the Brazilian community from which many of Dvorak's clients came. "This has really affected hundreds of families," William Joyce, an immigration lawyer who now represents 40 of Dvorak’s former clients, told the Globe. "It’s a real mess. This whole thing is outrageous."

June 29, 2009 | Permalink | Comments (4)

Supreme Court Decides Ricci, Overrules Sotomayor

Today is Justice David Souter's last day on the job, and in an indication, perhaps, of how little the court's composition is likely to change if Sonia Sotomayor is confirmed as his replacement, he today sided with her position in a much-anticipated Title VII case, Ricci v. DeStefano. Souter was one of four justices who dissented from today's opinion and who would have affirmed the decision of the 2nd Circuit panel on which Sotomayor sat.

But in an opinion written by Justice Anthony M. Kennedy, who once again proved to be the decisive swing vote, the court ruled that the New Haven fire department violated Title VII of the Civil Rights Act of 1964 when it threw out the results of a promotional exam in which white candidates outperformed minority candidates. The city's act, the court concluded, discriminated against white and Hispanic firefighters based on their race.

We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.

Joining in the majority opinion were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justice Ruth Bader Ginsburg wrote the dissent in which Souter joined, along with Justices John Paul Stevens and Stephen G. Breyer:

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served -- as it was in the days of undisguised discrimination -- by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.

Justice Ginsburg's prediction that the opinion will not have staying power may someday prove true. Before that could happen, however, at least one more vacancy will need to come open on the high court -- and it will need to be within the court's conservative bloc. 

June 29, 2009 | Permalink | Comments (1)

Where Are the Lawyers With Michael Jackson Stories?

On the day that Michael Jackson died, lawyer Brian Oxman seemed to achieve cable news ubiquity. The self-described Jackson family attorney could be seen and heard on multiple channels, saying he warned that Jackson was overusing prescription drugs. Oxman had been an on-again, off-again lawyer for Jackson for some 20 years. In 2005, he very visibly either quit or was pushed off the legal team defending Jackson against molestation charges, reportedly because of a spat with lead attorney Thomas Mesereau.

To the casual TV observer on the day that Jackson died, it might seem that Oxman was Jackson's only lawyer. But Jackson was a man who, as Business Week put it, "faced a near-constant drumbeat of legal troubles in life," and who, as the National Law Journal said, leaves a legacy of litigation. And apart from lawsuits and legal woes, there was a massive business empire anchored not only by Jackson's own music but also by his ownership of The Beatles catalog.

Given all this, there must have been legions of lawyers who worked with Jackson at one point or another over the course of his too-short life. If so, where are their stories? I have seen various remembrances appearing on blogs by people in other fields about their encounters or experiences with Jackson. I have seen only a couple by lawyers. Where are the remembrances from the lawyers who worked with Jackson over the years?

One that many people saw or read about was lawyer Benjamin Brafman's conversation with CNN's Anderson Cooper about his representation of Jackson, as recounted by Brian Baxter in The Am Law Daily. In January 2004, Brafman joined the team defending Jackson against molestation charges. He lasted three months, before Jackson fired him and brought on Mesereau.

Brafman's time working with Jackson left him with a sense of foreboding that the pop star would not live to old age, he told CNN. But he also remembered Jackson's "sweet side" and that he was a "doting father" to his children.

Another Jackson story comes out of the U.S. Virgin Islands, where lawyer Adriane Dudley recounted for the Virgin Islands Daily News her work for Jackson when he considered investing in a proposed theme park and resort on the island of St. Croix in 1998. She remembered him as an intelligent man who was savvy about what he needed to know to make an informed business decision.

When Jackson visited the island to investigate the deal, Dudley was sworn to secrecy, she recalled. She arranged for his private jet to arrive after the airport closed for the night and had a hotel set aside an entire building just for him. Jackson and Dudley had dinner alone and worked late into the night, with her legal staff on call in her office to help with questions and research.

By the next day, when they visited the proposed development site, word had spread of the pop star's presence on the island. As crowds gathered around him, he was gracious in return, Dudley recalled. That night, she arranged a small reception. "It was a thrill," Dudley said of the visit. "It's one of my golden memories."

So there are two lawyers' stories of their encounters, however brief, with Michael Jackson. Surely there are many others. If you have one to share, let us know.

June 29, 2009 | Permalink | Comments (2)

June 26, 2009

China Suspends 1,000 Lawyers

When I posted about the disbarment threats to lawyers in Beijing, only 20 faced a risk of losing their livelihoods. Turns out that the situation is far worse, with the Beijing Administration of Judicial Lawyers suspending the licenses of over 1,000 lawyers and 90 law firms for failing to pass a newly concocted registration exam, reports New York-based New Tang Dynasty Television.

According to the article, Shanghai human rights lawyer Ma Tianlin believes the suspension of licenses is retaliation by the Beijing Justice Bureau over the fact that many Beijing lawyers have demanded direct election of members to the Beijing Bar Association. Some of the lawyers have appealed to the bureau and the bar association, and have tried to negotiate with officials about the cancellation and suspension of lawyers' licenses.

June 26, 2009 | Permalink | Comments (0)

Michael Jackson's Death and Malpractice Issues

Michael Jackson's death could potentially raise medical malpractice and criminal liability issues, writes Eric Turkewitz at the New York Personal Injury Attorney Blog. With speculation that prescription medications may have contributed to Jackson's death, Turkewitz explores some of the issues implicated.

First among the questions that will likely be explored is whether the medications were all provided by a single doctor. If so, Turkewitz predicts that the doctor could be exposed to criminal prosecution (though unlikely), revocation of his medical license or a civil suit. If more than one doctor was involved, a lawsuit would need to examine whether the doctors knew about each other and the medications they were prescribing. Other potential lawsuit targets include the pharmacists who prescribed the drugs, though they may have immunity for following doctors' orders.

On the damages end, there are also questions about how much Jackson's estate could recover. Turkewitz notes that "Jackson was allegedly in debt to the tune of over $300 million," and that "when you are that steeply in hock, a malpractice suit may be too insignificant to matter (assuming a limited insurance policy)."

Anyway, here are Turkewitz's predictions:

A. Criminal liability is the big concern if there was one doctor prescribing a bucket load of drugs to Jackson without having the nerve to cut off the famous patient. While prosecutors don't generally bring these kinds of actions, they also don't usually deal with such a high profile figure. That could alter the decision-making process of prosecutors. That doctor would also have separate licensing concerns.

B. Civil liability in a medical malpractice suit on behalf of the estate is not likely to garner much of a return relative to the debt. It only comes if authorities find an easy case against someone.

C. The kids will pursue a wrongful death case (via their guardian, whoever it may be) only if: Jackson failed to provide for them; there is little left in the estate after the creditors tear it to pieces; and the case is an easy one.

What do you think lawyers have in store for the King of Pop? Is it a 21st century case of "Après moi, le déluge?" Based on the track record of other star musicians who died an untimely death and the endless legal battles that follow, it's likely litigants won't stop 'til they get enough.

June 26, 2009 | Permalink | Comments (8)

Virtual Law Firms Going Viral

Nearly a year ago, I posted here about the launch of Virtual Law Partners, an 18-member corporate and transactional virtual firm of "elite" lawyers. Though some observers expressed doubt about the viability of the VLP model, today the firm has nearly 40 lawyers.

But VLP isn't alone -- more and more virtual firms are cropping up. As the National Post blog describes, there's the Rimon Law Group and Atlanta-based FSB Group. Both of these are virtual firms comprised of lawyers with at least 10 years of large firm experience; like VLP, Rimon focuses largely on transactional and corporate work, while the 50 attorney FSB Group handles a wide range of practice areas.

In addition to these large virtual firm models that serve corporate clients, there are also smaller virtual practices geared toward individuals or small entrepreneurs. Larry Bodine has a post today about Natoli-Lapin, a two-man virtual shop founded in 2008 that is building a niche in low-cost legal services for entrepreneurs, artists and others launching new business ventures. And Stephanie Kimbro's Virtual Law Practice blog lists a dozen solo and small firms operating virtually, including Kimbro herself in North Carolina. The ABA's GP Solo magazine documents the solo/small firm trend to create virtual practices, with this article by Aviva Cuyler and Niki Black.

The experiences of these virtual firms, large or small, suggest that they provide a win-win for lawyers and clients. Because the firms rely on experienced lawyers and slash overhead by eliminating large offices and administrative infrastructure, lawyers can charge substantially less for the same services provided by a large firm. For example, Rimon caps its rates at $185, while VLP partners charge around $350-$400 an hour, a huge discount off their former $700+ BigLaw rates. As for the lawyers themselves, virtual practices offer more flexibility.

The younger generation of lawyers should be following the virtual trend for several reasons. Notably, the large virtual practices do not want inexperienced attorneys, which means younger lawyers could potentially be left out in the cold. At the same time, virtual law practices make it easier for younger lawyers to go solo because they remove the cost barrier. In theory, newer attorneys could start a virtual firm by handling smaller, less complicated matters to cut their teeth, like Natoli and Lapin, and move on to more complex cases down the line. Is this something recent law graduates you know are considering?

June 26, 2009 | Permalink | Comments (2)

June 25, 2009

First Amendment Film Is Father/Daughter First

Who better to narrate a documentary about the First Amendment than Martin Garbus? Garbus, after all, is a lawyer who has defended such outspoken figures as Nelson Mandela and Lenny Bruce. Fortune Magazine called him "one of the nation's premier First Amendment attorneys" and both Time and Business Week have called him "legendary" as a trial lawyer. But in selecting Garbus to narrate her documentary, "Shouting Fire: Stories From the Edge of Free Speech," Oscar nominee Liz Garbus was not exactly objective. Martin, after all, is her father.

As Liz said this week to the U.S. News & World Report blog Washington Whispers, her own devotion to the First Amendment was instilled in utero. "From anyone else, [that] would be considered hyperbole," writes blogger Maura Judkis. "But freedom of speech, press, religion, petition, and assembly course through her veins because her father is Martin Garbus, a prominent First Amendment lawyer."

The documentary was screened in January at the Sundance Festival and makes its formal premiere on HBO June 29 at 9 p.m. ET. In the film, Liz Garbus explores the history of free speech in America and examines the balancing act between protecting civil liberties and national security, asking whether all speech is equally free. The film's guide through this perilous landscape is her father. Among the topics covered are his own work in helping to get the Pentagon Papers published and in defending the right of neo-Nazis to march in Skokie, Ill.

The film also considers the cases of:

• Ward Churchill, a tenured University of Colorado professor who was fired after he wrote in a blog post that U.S. foreign policy abuses were partially to blame for the 9/11 attacks.
• Debbie Almontaser, a Muslim-American woman who alleges she was the subject of a witch hunt and was forced to resign from her job as principal of New York City’s first dual-language Arabic/English school in part because she cited the literal definition of the word "Intifada" in a news interview.
• Chase Harper, a San Diego high school student who was thrown out of school for wearing a t-shirt proclaiming "Homosexuality is Shameful" during a gay and lesbian awareness event.

"As a filmmaker, what I do is part of free speech," Liz Garbus told the Washington Whispers blog. "I always wanted to do something about the interesting worlds that I was able to see through my father's work." As for the elder Garbus, you can hear him discuss his thoughts on the First Amendment and hate speech in an interview last week on the podcast I co-host, Lawyer2Lawyer. Also see this report of a panel discussion about the film by the First Amendment Center.

June 25, 2009 | Permalink | Comments (1)

Online Law Grad Leaps Another Hurdle

Remember Ross E. Mitchell? He is the graduate of the wholly online Concord Law School who made history last November by becoming the first graduate of an online, unaccredited law school to win permission to take the bar exam in a state outside California. Well, now he has made history again.

As we reported in November, when Mitchell first applied to take the Massachusetts exam, he was turned down, based on the state's rule that applicants be graduates of law schools accredited by the American Bar Association. He sued the state Board of Bar Examiners, contending that the rule was unconstitutional as applied to him or, alternatively, seeking waiver of the rule in his case. In a decision issued on Nov. 20, Mitchell v. Board of Bar Examiners, the state Supreme Judicial Court held that Mitchell was entitled to a waiver of the rule, clearing the way for him to take the bar exam.

Mitchell took the exam and passed it. That means, as The National Law Journal and the Boston Herald report this week, that the 57-year-old is now the first online law school graduate to be admitted to the Massachusetts bar. He was already admitted in California, which is the only state that officially permits Concord graduates to apply for admission to the bar.

When the SJC decided to allow Mitchell to sit for the bar in Mass., it emphasized that its decision to grant a waiver was confined to the unique circumstances of his case. The court cited a number of factors personal to him, including that he had been admitted to practice both in California and before the 1st U.S. Circuit Court of Appeals, had a stellar academic record and was valedictorian of his class, had scored well on the California bar exam and on the MPRE, and, through his representation of himself in his own case, had provided a "positive illustration of his skills."

"There’s an old expression that says the lawyer who represents himself has a fool for a client," Mitchell told the Boston Herald. "But the court said in its opinion that the fact that I represented myself gave them the ability to observe my skills firsthand." Having now twice made legal history, Mitchell's fledgling legal career is off to one heck of a start.

June 25, 2009 | Permalink | Comments (6)

Company Slashes Workers While Boosting Lawyer's Pay

Boston-based clothing retailer Talbots is imposing major cuts throughout its workforce -- everywhere, that is, except in the C-suite, where the company's CEO and its top legal executive are receiving sizable boosts to their incomes.

Earlier this month, the company cut 325 jobs -- some 20 percent of its workforce. Those cuts came just three months after an earlier round of layoffs in which the company slashed 370 jobs and froze its employee pension plan. The company posted a first-quarter loss of $23.6 million.

But even as Talbots was announcing this latest round of cuts, it was also announcing that it would pay an additional $1.2 million to its CEO and president, Trudy Sullivan, and increase the base salary of its top legal executive, Executive Vice President Richard T. O'Connell Jr., by 23 percent, to $500,000. Talbots also gave O'Connell an extra 50,000 shares of restricted stock and an option to buy 74,000 shares.

According to Forbes.com, O'Connell's previous base salary was $406,292. His total 2008 compensation in cash, stock and other earnings was $1.3 million. The 58-year-old O'Connell has been with Talbots since 1988. Prior to joining the company, he was vice president and group counsel of the Specialty Retailing Group at General Mills.

As for CEO Sullivan, her $1.2 million payout was mandated by her employment contract to offset recent reductions in her retirement benefits. She earns a base salary of $1 million and received a total compensation package in 2008 of $3.35 million.

Not a good time to be in the clothing business, unless you happen to run the business or its legal affairs. If the workers are being asked to tighten their belts, shouldn't the people at the top set an example?

June 25, 2009 | Permalink | Comments (2)

A Double Helping of Ridiculous Lawsuits

Lawyer haters and tort reformers, this is your lucky day. We have for you not one, but two separate lists of the most ridiculous lawsuits ever filed. Even better, there is surprisingly little overlap between them. Thus, from one top-10 list and another top-11 list, we net a grand total of the 18 most ridiculous lawsuits ever.

First up is the 10 most ridiculous lawsuits as published in The Independent and originally in the Irish Independent. The authors blame it all on that notorious cup of McDonald's coffee, writing, "Now outrageous lawsuits are a fact of life no matter how farcical." Their picks:

1. The man who sued Budweiser after drinking its beer brought him no hot babes
2. The prisoner who sued himself for violating his own civil liberties
3. The judge's pants suit. You know the one
4. The suit by Batman, the city in Turkey, against Batman, the movie
5. The 77-year-old man who sued the 19-year-old woman who said no
6. The driver who sued the family of the bicyclist he killed for damage to his car
7. The Michael Jordan lookalike who sued Nike for making Jordan too recognizable
8. The parents who sued Oliver Stone after two thugs who watched his movie went on a crime spree
9. The man who demanded his cheating wife return the kidney he'd donated to her
10. The copyright battle over two separate recordings of silence.

Next comes the list of the 11 most ridiculous lawsuits of all time as selected by the New York Daily News. Three repeats here from above, but the others are new to the ridiculous tally:

1. The woman suing Sacha Baron Cohen for offensively touching her at a bingo hall
2. The traffic cop who sued Victoria's Secret over an eye injury from her thong
3. Jordan lookalike v. Nike, supra
4. The man named "Jack Ass" who claimed the TV show "Jackass" defamed his good name
5. A man who sued the show "Fear Factor" for making him sick
6. A man who sued for emotional distress after finding women in a unisex bathroom
7. Beer drinker v. Budweiser, supra
8. The woman who sued Wendy's after planting a finger in her chili
9. Family v. Oliver Stone, supra
10. The suit over Sea World's failure to warn that killer whales kill
11. The woman who says Victoria Secret's bra violated her patent

Note to those who would say these cases prove the legal system needs reform: Virtually all of these
ridiculous cases were thrown out of court.

June 25, 2009 | Permalink | Comments (8)

June 24, 2009

Craigslist Offers Used Furniture, Casual Encounters and Lawyers

Craigslist must be turning the nearly defunct Yellow Pages green with envy. Despite its recent trouble with some lawyers, according to the July 2009 ABA Journal, hundreds of solo and small firm practitioners are turning to the online classifieds site as a low-cost, guerilla technique to advertise their services. Moreover, Craigslist isn't yielding just the tire kickers that one might expect, but bona fide, paying clients.

Consider the experience of Elk Grove, Calif., solo attorney Jon Stein. He spends 10 minutes a week putting up ads and receives five to 10 inquiries a week, with 80 percent converting to clients. In the three years that Stein has been using Craigslist, he's learned how to avoid "garbage calls" by refining his ad and focusing mostly on foreclosure clients, who tend to be more ready to hire than personal injury clients. Meanwhile, Kent, Wash., solo Susan Beecher reports success using Craiglist to build her family practice. She's brought in 25 to 30 clients through the service over the past year.

Have you ever looked for legal services on Craigslist? Would you consider using it to advertise your practice?

June 24, 2009 | Permalink | Comments (2)

Law Student Sues to Enforce Lawyer's $1 Million TV Challenge

With legal employment prospects on the decline, a new lawyer's got to find a way to make a buck somehow. In the case of South Texas College of Law graduate Dustin Kolodziej, he decided to play detective. According to the Orlando Sentinel, Kolodiziej took up a challenge issued by Orlando attorney Cheney Mason on nation television, offering $1 million to anyone who could prove that his client gunned down four people within the time frame alleged by the prosecution. And now that Mason won't make good on his offer, Kolodziej has found another job -- that of the plaintiff in a lawsuit filed against Mason, seeking $1 million.

Mason issued hi challenge during the course of this interview on MSNBC, which covered the prosecution and subsequent conviction of Mason's client, Nelson Serrano, for four murders. Mason's defense was simple: He argued that it was impossible for Serrano to have committed the murders within the prosecutors' alleged timeline. Mason explained:

In less than half an hour, Serrano would have had to get off a wide body jet, exit Atlanta airport -- one of the busiest in the world -- and arrive back at his hotel five miles away. All in time to be photographed looking up at that surveillance camera.

I challenge anybody to show me, I'll pay them a million dollars if they can do it ... 28 minutes. Can't happen. Didn't happen.

Kolodziej retraced Serrano's route and made the final leg of the journey within the required time. He taped his trip and sent the video to Mason demanding that he make good on the $1 million offer, but Mason refused.

So what are Kolodziej's chances of winning this suit? Stetson law professor James W. Fox told the Sentinel that he thinks there's enough evidence of a contract to avoid a summary dismissal. But whether Kolodziej wins or not, this newbie will have taught an older lawyer an important lesson at the outset of his career: If you make an offer on television in jest, be sure to say so.

June 24, 2009 | Permalink | Comments (0)

For West Virginia Lawyer, Blogging Isn't Just a Sport, It's a New Career

Remember the good old days when blogging opened the door to a writing career for lawyers like Melissa Lafsky of Opinonistas, or Jeremy Blachman, the Harvard law student who created the Anonymous Lawyer blog, which lead to a book deal? Well, it's been a while, but now there's another lawyer-turns-blogger-turns-professional-writer Cinderella story, this one about Clarksburg, W.Va., labor lawyer Mike Florio. As the West Virginia Record reports, Florio, who started the wildly popular ProFootballTalk.com blog, is leaving the law for the major leagues: NBC Sports will be partnering with the blog and the added exposure and licensing deal will enable Florio to turn his hobby into his livelihood.

Florio had already been cutting back on his practice as the site has grown. Even without advertising, the site is a word-of-mouth success attracting millions of views every year. And Florio anticipates that with aggressive promotion by NBC, many new readers will learn about the site.

With the NBC partnership, Florio plans to discontinue his law practice on July 1. But he still plans to keep his office open for now, just in case he decides to return to the law.

June 24, 2009 | Permalink | Comments (0)

Client Dumps Divorce Lawyer on Twitter

It's bad enough being dumped by a client. But imagine being publicly jilted on Twitter in front of your client's 19,305 followers.

That's what happened to Atlanta, Ga.-based celebrity attorney Randall Kessler, who was representing Tameka Foster-Raymond in a divorce proceeding initiated by her soon-to-be ex, R&B singer Usher. As reported at this source, just days after Kessler publicly praised his client as a faithful wife and loving mother, Raymond, who goes by @TamekaRaymond on Twitter, was tweeting her buddy, celebrity lawyer @StarJonesEsq in search of a new lawyer. Foster-Raymond's tweet, which was posted publicly, read: "My lawyer = horrible. Need the name/number of a good one in Atlanta."

But Foster-Raymond apparently never intended for her tweet to be read by her thousands of followers. She subsequently posted a comment on her page with an apology. Meanwhile, no comment yet from Kessler who has now gained celebrity in his own right -- as the first (or at least among the very first) lawyer ditched on Twitter.

June 24, 2009 | Permalink | Comments (5)

June 23, 2009

Amid Controversy, DePaul Names Interim Dean

The latest news to come out of DePaul University College of Law is that it has named a new dean, Illinois Appellate Court Judge Warren D. Wolfson. But that merely begs the question: What happened to the former dean, Glen Weissenberger?

It is a question many students, faculty, alumni and bloggers are asking in the wake of Weissenberger's hasty dismissal last week by University Provost Helmut Epp. Supporters have launched a petition drive for his reinstatement and started a Facebook group in his support. The Chicago Tribune reports that within three hours of the petition's posting, more than 200 faculty, students and and alumni had signed it.

The uproar is due not just to the former dean's popularity, but also to the circumstances of his dismissal. Law Librarian Blog summarizes what is believed to have happened:

Weissenberger was fired apparently because of a recent letter he sent to the Consultant on Legal Education for the American Bar Association, disclosing that certain information about tuition revenue sharing given to the ABA Accreditation Committee was no longer accurate. According to published reports, he sent the letter last week because the ABA Accreditation Committee is meeting this week. Should be an interesting meeting.

More details on this come from Brian Leiter, who collected several of the ABA documents and provides this summary:

I believe the following is an accurate summary: the College of Law at DePaul was entitled to 75% of its tuition revenues under an ABA-enforced agreement between the College and the University Administration; the University has repeatedly breached this agreement. Professor Weissenberger challenged the University's failure to honor the agreement. Now he's been fired.

The appointment of Wolfson as interim dean hardly seems likely to be the end of this situation. Already, it appears an associate dean will resign in protest over the appointment. To keep up with developments at DePaul, check back with the blogs mentioned above as well as others that are following this story, including Above the Law, the ABA Journal, Law Blog and The Faculty Lounge.

June 23, 2009 | Permalink | Comments (1)

PACER Is Out of Pace, Petition Says

Anyone who uses PACER knows that it has failed to keep pace with the Web 2.0 world. Its technology is outmoded and so is its cost structure. Now, some fed-up law librarians have launched a petition drive to ask the federal courts to enhance the system's authenticity, usability and availability.

PACER -- Public Access to Court Electronic Records -- is the system operated by the Administrative Office of the U.S. Courts to provide online access to case and docket information from the federal appellate, district and bankruptcy courts. To use it, one must register and set up a billing account. The billing account is required because the courts charge for access to these documents, at the rate of 8 cents per page. Even if you search PACER and find no matches for your query, you are charged 8 cents to view the page that tells you that.

The petition to improve PACER is the work of Erika V. Wayne, deputy law library director at Stanford Law School, and her law librarian colleagues. It is modest in its requests, asking the court to make three enhancements:

1. Digitally sign document put into PACER so they can be verified
2. Make it more accessible by lowering its cost and improving its Web interface
3. Provide free PACER access to depository libraries

Those who sign the petition are invited to add comments. At the blog Legal Research Plus, Wayne highlights some of these and you can read all of them at the petition site.

One who signed the petition is Carl Malamud, who has taken a different path around PACER's problems by launching his own PACER recycling site. The idea behind it is to encourage PACER users to recycle the documents they retrieve by uploading them to Malamud's site, where he hopes to build a significant database of PACER documents available to the public free of charge.

June 23, 2009 | Permalink | Comments (1)

Contest Gives Law Students Shot at $10K

If you are in law school, you could probably use an extra $10,000 right about now. Well, if you have a video camera or know where to borrow one, here is your chance to win that much money or one of five $1,500 honorable mentions. All you have to do is make a brief video that describes your inspiration for going to law school.

The My Inspiration contest is a repeat of last year's One Less Worry Contest (which we wrote about here and here). Sponsored by Access Group, a nonprofit student loan company, the contest's rules are simple: Produce a video of no more than four minutes and upload it to YouTube by July 15, 2009.

From the submitted videos, Access Group will choose 10 finalists. Starting Aug. 3, the public will be invited to vote for a winner from among the 10 finalists. One lucky and/or talented law student will win a $10,000 scholarship for law school. Up to five additional honorable mention scholarships of $1,500 each will be awarded by a panel of judges. Winners will be announced by September 1, 2009.

Last year's contest invited films depicting the worries of law school. The $10,000 winner was Steven K. Luther, a student at Washington University in St. Louis School of Law, for his video, "I Don't Know What I'll Do This Summer." The video took the form of a trailer for a feature film about a law student's struggle over which summer offer to accept -- the big-bucks New York firm or the environmental nonprofit in Oregon. Who could have guessed that the prospect of even having such a choice of offers would be novel just a year later?

June 23, 2009 | Permalink | Comments (0)

June 22, 2009

Supreme Court Upholds Voting Rights Act

By an 8-1 ruling in Northwest Austin Munic. Util. Dist. v. Holder, the Supreme Court today declined to address the constitutionality of Section 5 of the Voting Rights Act, keeping the law alive for a future challenge, reports Tony Mauro at The National Law Journal. For those who haven't followed the case, Section 5 of the Voting Rights Act requires a number of states and local governments, mostly in the South, to seek federal permission before changing their voting procedures, explains The New York Times. Although the majority decision, written by Chief Justice Roberts, identified the statute's many constitutional infirmities, the Court chose the path of "constitutional avoidance." The Court sidestepped the constitutional question because of the existence of an alternative resolution, in this case, the Texas utility district's ability to try and convince a three judge panel that it was exempt from Section 5.

The ruling came as a surprise to many Court watchers given Justice Roberts' hostility to the Voting Rights Act during questioning at oral argument. As Dahlia Lithwick commented at Slate,

If you want your brain to implode, try reading today's decision in NAMUDNO next to a transcript of the oral argument from last April. Linda, you made this observation implicitly in your last post, but let me just say it outright: What happened to the Chief Justice John Roberts who gnashed his way through that oral argument with nothing but contempt for Section 5 and those who defended it?

Here was Roberts in April, questioning Deputy Solicitor General Neal Katyal's claim that Section 5 was still necessary because it still deters racially discriminatory voting practices: "Well, that's like the old -- you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work."

Here is Roberts writing today: "These improvements [in racial conditions] are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success."

Likewise, Rick Hasen of Election Law Blog writes that the decision to uphold Section 5 was a far better result than he had expected based on the argument. Interestingly, Hasen credits Souter for the win, noting that Souter had raised the prospect of constitutional avoidance during oral argument. As for other explanations of why Justice Roberts blinked, Hasen writes:

Chief Justice Roberts was clearly hostile to the government's position during oral argument. ("Counsel, the -- the -- our -- our decision in City of Boerne said that action under section 5 has to be congruent and proportional to what it's trying to remedy. Here, as I understand it, one-twentieth of 1 percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment."). It is clear he thinks the Act is unconstitutional under the "congruence and proportional" standard, and he's on record as believing that the plain meaning of a statute (backed by a Supreme Court interpretation no less) should generally control. So what happened here? As I've repeatedly said, the Voting Rights Act is a crown jewel of the civil rights movement, and it would be symbolically monumental to strike it down. Clearly such an opinion would have been a 5-4 decision. Either the Chief wanted to avoid the political divisiveness of such a ruling (while still getting a result he wanted) or perhaps Justice Kennedy was going to go in this direction, and the Chief thought it would be more politically expedient for the entire Court (or most of the Court) to go in that same direction. That buys him judicial minimalist credibility without costing much of anything. The biggest cost is punting on the question of the standard to apply when the constitutional question reemerges in a future case.

Most observers expect the question of the constitutionality of the Voting Rights Act to return to the Court. And given that none of the more liberal justices wrote separately to defend the Voting Rights Act, it is likely that it will not survive review a second time around if the constitutional questions are reached. That is, unless Congress acts quickly to correct the constitutional deficiencies, as Tom Goldstein suggests at SCOTUS Blog.

June 22, 2009 | Permalink | Comments (1)

Five Uses for a Kindle in a Law Practice

OK, so I realize that most of you are probably coveting a Kindle, Amazon.com's digital book device. But you haven't yet figured out how to justify its cost as a business expense when you're planning on using it to read novels on the beach, right?

Thankfully, Justin Rebello of the Wisconsin Law Journal gives you five ways that you can use the Kindle for your law office. First, the Kindle can be used to read deposition transcripts and make notes on the screen via an online content manager. Second, lawyers can load documents onto the Kindle using a digital text self-publishing tool and take them home for review. Third, the Kindle's digital text platform allows attorneys to upload, format and sell books at the Kindle Store -- which can help you to establish yourself as an expert or attract clients through education-based marketing. Fourth, the Kindle lets you catch up on blogs while you're out of the office because you can download the blog content to the Kindle for review. And finally, while the Kindle isn't cheap -- $359 for the current version and $489 for the next upgrade -- in the long run, you can save money on printing costs by converting Web versions of magazines and newspapers for the Kindle.

Are you using a Kindle in your law practice yet?

June 22, 2009 | Permalink | Comments (10)

The Way of the Mastodon, Take Two

Patrick Lamb, who blogs at In Search of Perfect Client Service, reminds us that it was roughly two years ago when Sun Microsystems General Counsel Mike Dillon's post, "The Way of the Mastodon," rocked the legal blogosphere. If you don't recall, Dillon's post cautioned law firms that:

[T]he epoch of the current law firm model - which derives its profitability from growing scale and raising hourly rates - will soon be over. The firms that will survive and thrive are those that recognize this change and focus on how to maintain margins by focusing on efficiency.

Yet even now, when BigLaw is in crisis, law firms are still ignoring Dillon's advice. Writes Lamb:

Just last week, Dillon said he was shaking his head while reading a post reporting that law firms do not expect to make radical changes as a result of the economic downturn and related changes in the legal marketplace. In light of his earlier prophetic comments, his reaction that this feels "like whistling past the graveyard" should cause all but the most stubborn to at least pause. According to Dillon:

The reality is that we are in the early stages of a seismic shift in the traditional cost and delivery model for legal services. I see it every day in my interactions with the law firms that support us and in my discussions with peers at other companies. This change is the result of three major factors: the current economic downturn, the rise of alternative legal service providers and the lifestyle choices of the newest members of our profession.

Lamb acknowledges that change doesn't come easy to the legal profession. Still, he emphasizes that even if lawyers don't relish change, they need to "figure out how to at least be comfortable with it." Or else Dillon's two-year-old prophecy will indeed come true.

June 22, 2009 | Permalink | Comments (1)

Student Loan Relief, or Merely Deferral of the Problem?

Recent law graduates may now have something else to celebrate besides receiving their juris doctorates. The National Law Journal reports that a new federal program enacted as part of the College Cost Reduction & Access Act goes into effect July 1, which offers loan forgiveness for public interest employees and includes an income-based repayment option for all borrowers. Though the law applies generally to all student loans, it potentially offers benefits for law students.

The loan forgiveness features of the program apply to students who choose public interest positions. After a borrower makes payments for 10 years on government-backed student loans, the government will forgive the remaining loan balance for those who qualify. The loan forgiveness features are intended to make it more affordable to graduates to accept public-interest positions. More importantly, because of the 10 year repayment requirement, the program create incentive to remain at a public interest job for a longer term, instead of simply taking the job for a few years and bolting for the private sector.

The federal program also includes an income-based repayment option, which is available to all law graduates whether they work in public-interest jobs or not. Under income-based repayment, monthly student loan payments are capped at 15 percent of the borrower's discretionary income. After the borrower makes qualifying payments for 25 years, the federal government will forgive any remaining loan debt.

According to the article, those making as much as $60,000 to $70,000 per year could potentially qualify for the income repayment program.

These programs clearly offer some relief. But borrowers still need to ask whether they want to be making loan repayments 25 years down the line, at a time when they may need to pay for their own children's college tuition. Somehow, there's got to be a better way to alleviate the problem of debt besides spreading it out to subsequent generations.

June 22, 2009 | Permalink | Comments (3)

June 19, 2009

BigLaw Continues Its Slow Creep Toward Blogs

The number of Am Law 200 law firms with blogs more than doubled since 2007, but they still make up less than half of the nation's largest firms. This week, LexBlog released its periodic State of the AmLaw Blogosphere report. It found that 82 of these firms now have blogs. That is an increase of 110 percent over the first report in 2007, when 39 firms had blogs. In the past six months, the number of Am Law 200 blogs has risen just 15 percent.

Interestingly, those 82 BigLaw firms are responsible for 227 blogs, showing that at least some of them have multiple blogs. Of those 227, 186 are firm branded, meaning that the blog is somehow identified as a product of the firm. The "non-branded" blogs are written by individuals who work at these firms but write the blogs on their own.

Not all these BigLaw blogs are active. LexBlog describes a blog from Morris Manning & Martin that deals with the law surrounding open source software as dormant. To me, it appears dead. The link for the blog leads to an Italian-language blog about online gambling. This might suggest that even as some large law firms take small steps toward blogging, others are stepping away.

June 19, 2009 | Permalink | Comments (0)

1.92 Million Reasons Not to Download Music

Stunned. That is my reaction to the news that a Minnesota jury has ordered a 32-year-old woman to pay $1.92 million to the music industry for downloading music. That is $80,000 per song for each of the 24 songs she is said to have downloaded.

The woman's reaction: "Good luck trying to get it from me. ... It's like squeezing blood from a turnip."

This was the second trial for the woman, Jammie Thomas-Rasset, in the first downloading case to go to trial. Two years ago, a jury ordered Thomas-Rasset to pay $222,000 for downloading the songs -- $9,250 per song. The judge declared a mistrial and Thomas-Rasset opted for a second go-around.

The woman's lawyer, Kiwi Camara, told reporters that when he first heard the verdict, he was "angry about it." He had felt confident that any liability finding would be for the statutory minimum amount of $750 per song.

There remains the possibility that the parties will still reach a settlement. A spokesperson for the music industry said after the verdict, "Since day one we have been willing to settle this case ... and we remain willing to do so." The music industry has made its point with this verdict and has nothing further to gain by chasing after money it will never recover. As for Thomas-Rasset, she should be looking for a way to put this nightmare behind her. Let's hope both sides find a reasonable way to bring this case to an end.

June 19, 2009 | Permalink | Comments (2)

GAO: Coast Guard Judges Fair to Mariners

The U.S. General Accounting Office this week released the findings of its review of the U.S. Coast Guard's administrative law judge program. The GAO concludes that the ALJs are able to decide cases independently and free of undue influence from Coast Guard officials. It further finds that the ALJ program contains adequate protections to ensure the fairness of the process for mariners, such as the right to a hearing and to be represented.

The Coast Guard's ALJ program came under attack in 2007, when news reports and hearings before a U.S. House subcommittee raised concerns about whether the ALJs were able to decide cases independently. In response to those concerns, Congress asked the GAO to review the program. Two of the key issues Congress asked the GAO to look into were whether the ALJs have "decisional independence" and to what extent the ALJ program provides protections for mariners.

The mariners involved in these cases are merchant mariners working on commercial vessels at sea. To be employed as a merchant mariner, Coast Guard-issued credentials are required. If the Coast Guard believes that a mariner has failed to adhere to requirements for safety and security at sea, it initiates proceedings to suspect the mariner's credential. (Need an example? Think Exxon Valdez, the largest oil spill in U.S. history, where the skipper was found to have consumed alcohol and left the bridge.) If the mariner denies the charges, the matter goes to a hearing before an ALJ, where the Coast Guard has the burden of proving the charge.

The GAO found that the system "contains elements designed to foster the decisional independence of its judges." In particular, the GAO noted that all personnel actions involving ALJs must be conducted in accordance with independent Office of Personnel Management regulations and that personnel actions against an ALJ may be taken only through an independent agency, the Merit Systems Protection Board.

The GAO also concluded that the system contains adequate protections for mariners. In addition to providing mariners the right to a hearing and to be represented, the GAO found, the Coast Guard follows procedures designed to give mariners fair notice of the charges against them and the ALJs were following procedures regarding the elements to be addressed in their decisions.

Not surprisingly, few of these cases ever make it to a hearing before an ALJ. Of the 1,675 cases the GAO studied, only 3 percent resulted in an ALJ's issuance of a decision and order. The bulk of the cases, 62 percent, were resolved with settlement agreements.

June 19, 2009 | Permalink | Comments (1)

Law Firms Need to Keep an Eye on Lawyers Performing Pro Bono Work

Where a law firm allows an associate to handle a matter pro bono through a legal aid organization, does the firm retain an obligation to supervise the associate? Yes, said Acting Supreme Court Justice Ellen Gesmer in a domestic relations dispute where advice provided to a pro bono client by a Skadden staff attorney was so rife with errors that it justified voiding the ensuing settlement stipulation. The New York Law Journal covers the story.

Lisa Poursine, a staff attorney for Skadden volunteered through the firm's pro bono program to handle a case for inMotion, a non-profit legal group that assists low-income women in matrimonial, family and immigration law cases. Poursine inaccurately advised the client that she her divorce would go smoothly if the client signed a settlement agreement which made it more difficult for the client to relocate to another state as she hoped. Even worse, the settlement agreement forced the client to waive her rights to future claims for equitable distribution. The Poursine explained to the client that without the settlement agreement, the case would be constested and that Poursine lacked the experience or resources to handle a contested matter. 

The client sought to vacate the settlement agreement, testifying that Poursine never explained the equitable distribution waiver provisions or that the settlement would make it more difficult for the client to relocate. The Judge found that Poursine's advice was inaccurate and confusing, and resulted from lack of "appropriate training and supervision." Accordingly, she vacated the settlement.

Skadden says that it accords the same standard of care to pro bono clients as paying clients and now has an adequate system in place to assure that lawyers handling pro bono matters are properly supervised. Even so, this case is likely to make law firms with displaced associates think twice about dispatching them to legal aid organizations if the firm must retain a supervisory role. 

June 19, 2009 | Permalink | Comments (2)

June 18, 2009

Supreme Court Rejects Argument That Due Process Requires Access to DNA Testing

There is no federal constitutional right to post-conviction access to DNA evidence ruled the Supreme Court, by a 5-4 vote in Third Judicial District v. Osborne. Justice Kennedy delivered the swing vote, according to the Blog of the Legal Times. As discussed at The New York Times, the Court's decision reverses a 9th Circuit ruling, which held that the defendant, Osborne, was entitled to access DNA evidence under the Fourteenth Amendment Due Process clause, notwithstanding that his lawyer had failed to request DNA testing at trial. Ironically, Osborne's lawyer declined to seek DNA testing for strategic reasons; she feared that the results might show that Osborne was guilty. 

However, that quirky fact apparently did not play a role in the majority's ruling (though Scalia expressed some concern that Osborne did not fully and unequivocally declare his innocence in the affidavits accompanying his post-conviction request for DNA testing).  Instead, the majority, comprised of the Court's more conservative members, took a restrictive approach, choosing to not to make a "constitutional" case out of a matter that the Court believed was more appropriately resolved by the states.

Writing for the majority, Chief Justice Roberts acknowledged that “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." However the majority was reluctant to constitutionalize the right to access DNA testing, since doing so could place every conviction involving biological evidence, is suddenly in doubt.” In addition, the Court noted that most states already established procedures by which defendants could request DNA testing, and that state legislatures, not federal courts, are the more appropriate fora for establishing rules by which defendants may "harness the power" of DNA testing.

Unfortunately, for Osborne, the defendant in the case, deference to the states does not provide much relief. While most states grant some form of access to DNA testing, Alaska is one of the few states that does not.

Meanwhile, Justice Stevens, writing for the dissent, expressed exasperation at the state for failing to justify its refusal to grant Osborne to access DNA testing:

The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.

Stevens concluded that the state's failure to give any reason for denying access to DNA testing, which could exonerate Osborne, "constitutes arbitrary action that offends basic principles of due process."

June 18, 2009 | Permalink | Comments (0)

How to Lose a Career Over $1,000

Granted, Michael Gisriel did a bad, bad thing. Gisriel cashed a $1,000 check made out to his former clients by forging the client's name,  then deposited the funds into his firm bank account. That's theft, pure and simple. But does it justify disbarment?

Yes, affirmed the Maryland of Court of Appeals in Maryland Attorney Grievance Committee v. Gisriel.
As explained in Maryland's Daily Record, Gisriel had received the $1,000 check from the court after he had ended representation of his clients, at their request. During the course of Gisriel's representation, the court had entered a sanction against Gisriel and his clients, which Gisriel paid without telling them. When the $1,000 check arrived in the mail, Gisriel assumed it represented partial repayment of money for the sanctions, and with "not more than five seconds of thought" according to his attorney at the Court of Appeals, Gisriel deposited the check.

Needless to say, the "five seconds of thought" defense didn't play well with the Grievance Committee or the Court of Appeals, which found that Gisriel's lack of thought "is not mitigation -- it is aggravation." In addition, the court described Gisriel's handling of the check hubris, a final culmination of many other errors he'd made in the underlying case. Accordingly, the court agreed that disbarment was an appropriate sanction. Two judges dissented -- retired Judge Eldridge and Chief Robert Bell, who noted that Gisriel had practiced for 30 years with an unblemished record prior to this incident.

As I said at the opening, Gisriel's cashing of the check was theft pure and simple, the same as if he'd pick-pocketed $1,000 dollars in cash from his client's wallet. Still, disbarment is, in my view, overly harsh in this case. For starters, bad as Gisriel's action was, it was a one-time incident. There wasn't any evidence that Gisriel had acted dishonestly or botched other cases -- and even if there had been such evidence, only the check cashing was at issue in the case. From reading the opinion and its tone, it seemed that the Court inferred from the check cashing incident that Gisriel had been a bad actor before and just never been caught. But something as serious as disbarment should be based on fact, not speculation. 

Second, Gisriel made restitution. He returned the money to the client and apologized. The client had no interest in pursuing Gisriel further -- and that too should have served as a mitigating factor. 

Gisriel was once a lobbyist and member of the Maryland House of Delegates. My guess is that the court used him as an example, to send a signal to lobbyists and politicians that they're not above the law.  However, a suspension would have had the same effect. Disbarring Gisriel from ever practicing law crosses the line from deterrence to retribution.

What do you think?

June 18, 2009 | Permalink | Comments (5)

Does Alternative Billing Mean Lawyers Can Tear Up the Time Sheet?

This past week, both Philadelphia-based Saul Ewing and Chicago-based Kirkland & Ellis announced alternative fee arrangements (described here and here) for their respective clients. So does that mean that lawyers at those firms can toss their time sheets out the window, or clear those electronic billing programs off their hard drive? Maybe not. As discussed below, while proponents of alternative fees contend that they make time sheets irrelevant, others believe that firms still need to keep track of hours spent either to ascertain profitability or justify bills to clients.

Back in February 2008, Tom Kane endorsed alternative billing at Legal Marketing Blog, (specifically, the Jay Shepherd approach), but remarked that it seems foolhardy not to keep time records, if only to evaluate profitability of fees and levels of costs. Ron Baker, alternative-fee guru and founder of Verasage Institute heartily disagreed, asserting that many firms that employ alternative fees operate without time sheets. Miller explains that these firms know their costs up front, so they don't need to review them after the fact by looking over a time sheet. Instead of time sheets, Baker endorses fixed-price agreements and change orders, chief value offers and price-lead costing.

But what if clients don't go for that approach -- and insist on viewing a law firm's time sheets? That's the concern that Rees Morrison raises today at the Law Firm Department Management Blog. Morrison believes that corporate counsel has the right to request timekeeping records even where a firm works on a pre-agreed, set fee arrangement. Morrison addresses both sides of the records issue from the client's perspective.

If the law department decides that a fee for a service is acceptable, why should the law department be entitled to know how the sausage was made? If a law firm manages to make a big profit on the representation, having taken a risk on a set fee, that’s no client's concern. Also, part of the trade-off by a law firm for agreeing to a fixed fee is to be able to eliminate the hassle of detailed bills.

Still, if I were a general counsel, I would not want a firm to beseech me for additional money if a matter demands more work than they thought when they agreed to the fee if that firm has squirreled away some of my payments on very profitable matters. That situation assumes a portfolio of matters being handled by the firm. Additionally, I would want to know the economics of the services provided so that I can use that information if I need to find a replacement firm.

I understand Baker's point that timesheets are necessary or particularly meaningful for analyzing profitability. But if clients want to see a time sheet, are we, as attorneys obligated to provide one if a fee has been agreed to in advance? What's your view?

June 18, 2009 | Permalink | Comments (9)

June 17, 2009

Court Withdraws Ruling Over Judge's Conflict

The Washington Supreme Court has withdrawn a landmark ruling in a public records case in response to complaints that the opinion could benefit a separate lawsuit filed by one of the justices who decided the case. The court issued a one-page order withdrawing its earlier ruling and saying that the case will be scheduled for a new round of oral arguments "in due course." 

According to the Seattle Times, Supreme Court Justice Richard B. Sanders (pictured) wrote the majority opinion in a case that capped a 12-year quest by Armen Yousoufian to obtain documents from King County about public funding of Qwest Field. The opinion concluded that $124,000 in fines and $88,000 in attorneys' fees ordered against the county by a lower court were not nearly enough. Sanders said the fines against the county for withholding documents should have approached $100 a day, which could add up to as much as $900,000.

But the county's lawyers complained that Sanders had a conflict of interest. Even as he decided the case against King County, he had his own public records lawsuit pending against the state attorney general. Sanders' attorneys used the Yousoufian ruling to seek an increase in the fines awarded in his case, from $18,000 to nearly $600,000.

A lawyer for Yousoufian, Michael Brannan, told the Seattle Times that believed the Supreme Court was wrong to set aside its earlier decision and that Sanders committed no impropriety. "Five other justices signed on to the opinion," he said, "it's inconceivable that their collective critical faculties could be so flawed as to justify redoing the case."

June 17, 2009 | Permalink | Comments (1)

Cloak-and-Dagger Justice

Perhaps it was a dark and stormy night when Scott W. Stucky was sworn in as a judge of the U.S. Court of Appeals for the Armed Forces. It took place on a rain-slicked pier outside an abandoned warehouse. He wore a trenchcoat and a fedora with its brim turned down. A mysterious woman looked on, dressed all in black. The man who presided stood in a shadow, a diamond ear-stud reflecting a distant light.

Or perhaps not. But as Michael Doyle observes at the blog Suits & Sentences, Stucky is the latest federal judge to write an opinion in the hard-boiled noir style epitomized by authors such as Dashiell Hammett and Raymond Chandler. "There was something odd about the electric razor in the bathroom," the opinion begins. "[She] typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia."

It is a style other judges have attempted, Doyle notes, with mixed results. The most notable judicial stab at noir came last year from Chief Justice John Roberts, in a dissent opposing a denial of writ of certiorari in Pennsylvania v. Dunlap. His dissent begins:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

So Stucky is hardly the loner in this judicial genre. We rejoin his retelling from where the victim felt she was being watched:

But this time the circumstances were simply too odd and her suspicions too strong. [She] took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.

Her discovery of the camera resulted in the court martial of a coworker and the appeal on issues therein. But blogger Doyle wonders whether literary stylings are appropriate to judicial opinions.

Suits & Sentences is of two minds concerning these kinds of literary stylings. On the one hand, it's commendable when judges seek to write with verve. A little bit of zing can draw the reader in, which is legitimate given a judicial opinion's education function. And, besides, hard-boiled is fun.

On the other hand, these are awfully serious issues -- just ask the court-martialed Marine, or the two Armed Forces appellate judges who filed separate opinions. It can seem a little iffy to have fun with a decision whose consequences are so life-changing.

Doyle imagines how historic opinions might have read had their authors adopted this style. "William Marbury was mad. Boiling mad. He wanted his commission, and he wanted it now. But he had a problem ..." Would we view the case differently today?

So what do I think about such judicial stylings? I pour myself a bourbon and look you straight in the eye. "There's a right time and a wrong time for everything," I say. "This time, it was the wrong time."

June 17, 2009 | Permalink | Comments (0)

The One in Which Sonia Sotomayor Reverses Herself

This is a tale of two class actions filed in one court, the 2nd U.S. Circuit Court of Appeals. In the first, Judge Sonia Sotomayor wrote the opinion that set a new standard for class certification. In the second, she joined the three-judge panel that expressly disavowed her first decision.

The first case, decided in 2001, was In re Visa Check/Mastermoney Antitrust Litigation. It was an antitrust case that sought certification of a class action on behalf of merchants against Visa and MasterCard. The trial court certified the class under Rule 23 of the Federal Rules of Civil Procedure and the credit card companies appealed.

The main issue on appeal was whether the report of the plaintiffs' expert was sufficient to support class certification. The defendants said the report was flawed and they objected to its use. Writing for the two-judge majority of the three-judge panel, Sotomayor affirmed the certification, holding that the standard of expert testimony for certification of a class is less than on the merits of a case. The testimony should be admitted, she said, as long as it is not "fatally flawed."

The district court correctly noted that its function at the class certification stage was not to determine whether plaintiffs had stated a cause of action or whether they would prevail on the merits, but rather whether they had shown, based on methodology that was not fatally flawed, that the requirements of Rule 23 were met.

Five years later, the 2nd Circuit again faced the question of the correct standard to apply in certifying a class action. This time, it was a securities case, In re Initial Public Offering Securities Litigation. Sotomayor did not write the opinion this time, but participated as a member of the three-judge panel.

Finding that conflicting decisions within the 2nd Circuit had left the Rule 23 standard unsettled there, the opinion conducted an in-depth review of case law on the issue, including Sotomayor's Visa Check case. The panel concluded that the Visa Check standard was too lenient and it expressly disavowed it.

We … disavow the suggestion in Visa Check that an expert's testimony may establish a component of a Rule 23 requirement simply by being not fatally flawed. A district judge is to assess all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met, just as the judge would resolve a dispute about any other threshold prerequisite for continuing a lawsuit.

It is unusual for a court to so clearly disavow its own earlier opinion. More commonly, a court would find a way to step gingerly around it by distinguishing it in some way. Even more unusual here is that one of the three judges who disavowed that earlier decision is the very judge who wrote it. These two cases are among those I discuss in an article, "Sotomayor's Top Five Rulings on Experts."

June 17, 2009 | Permalink | Comments (1)

June 16, 2009

Shielding Doctors From Med-Mal Doesn't Help the Bottom Line on Health Care Costs

In a speech yesterday at the American Medical Association's annual meeting, President Obama told doctors that his plan to reduce medical costs and increase coverage can't succeed without tackling the problem of medical malpractice liability and out-of-control jury awards. But in truth, malpractice claims comprise only a small portion of overall healthcare costs and are not considered major drivers of those costs, reports Bloomberg.

Roughly 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers for the insurers' group America's Health Insurance Plans. A Congressional Budget Office report from 2004 found that medical malpractice costs only contributed to 2 percent of U.S. healthcare spending. In addition, medical malpractice verdicts are on the decline as too are the awards, given that 30 states now cap damages in medical malpractice suits, particularly for pain and suffering.

So why did the President mention medical malpractice liability in the context of cutting costs? Simple -- he hoped to extend an olive branch to doctors to gain their support for a universal health care plan.

And how do medical malpractice lawyers feel about the President's position? The Maryland Injury Lawyer Blog's Ronald Miller was gratified that the President explicitly rejected the notion of capping medical malpractice awards. But apparently, the President's rejection of caps was met with a chorus of boos from doctors.

June 16, 2009 | Permalink | Comments (2)

Concerns Raised About Offshoring Legal Services to India

While legal process outsourcing to India has gained traction in recent years, many firms in the United States and the U.K. still refuse to consider offshoring because of concerns over data security, reports The Times of India. Although the LPO industry grew to $225 million in revenues in 2008, that represents just 5 percent of the potential market, according to the story. In fact, a recent survey by ValueNotes Research showed that less than 3 percent of the law firm respondents had any past experience of offshoring legal services.

So what deters firms from sending work overseas? For starters, firms are apprehensive about data security and quality of work. On the other hand, firms do recognize that offshoring can result in substantial cost savings. Some firms looking to outsource are setting up joint ventures or subsidiaries to retain more safeguards over data while benefiting from a lower-priced labor pool.

Still, that may not be enough to satisfy clients hungry for savings now. Will law firms step up to the plate and embrace LPO as a way to cut costs? Gavin Birer at Slaw.ca doesn't think it's likely, unless law firms can find a way to benefit themselves in the process.

June 16, 2009 | Permalink | Comments (4)

BigLaw Reluctant to Respond to Open Casting Call

Large firms may be suffering in this economy, but apparently not so much that they're willing to respond to open casting calls. Last month, I posted about how Houston-based FMC Technologies turned to social media site Legal OnRamp to find innovative law firms willing to offer alternative billing arrangements. Now The Am Law Daily covers the results of those efforts.

Roughly 50 law firms firms downloaded FMC's application form from Legal OnRamp and 32 will proceed to the next phase of the selection process. But only 17 of the 50 firms that submitted applications are Am Law 100 firms, said Jefferey Carr, FMC's general counsel. Carr believes that firms may not have known about the competition or perhaps some were simply apathetic. But Peter Zeughauser, a law firm consultant, suggests another reason:

Big firms may be struggling, but if they're good, they can still command the same rates they always have. Big law firms just aren't interested in competing for work on that kind of pricing, he says. It's just not economical for them.

As for those firms that were rejected, some requested blanket conflict waivers, while others were too far from FMC's headquarters (which seems like an odd reason -- since presumably, the kinds of innovative firms that FMC is seeking would be accustomed to working remotely). But the most pathetic reason that some firms didn't make the cut is because they did not have an electronic billing system in place. At a time when even moms working from home-based businesses are able to set up PayPal accounts to charge for products, there's simply no excuse for the inability of some firms to remit invoices and accept payment electronically.

June 16, 2009 | Permalink | Comments (1)

June 15, 2009

Welcome to the Bay State, Judge Kent

Massachusetts gets a dubious distinction today -- it becomes the new home of the first federal judge to go to prison since 1991. Samuel Kent, who sat as a federal district judge in Galveston, Texas, before pleading guilty to obstruction of justice, has been ordered to report by 2 p.m. today to the Devens Federal Medical Center in Ayer, about 40 miles west of Boston.

Kent was sentenced to 33 months in federal prison for lying to a judicial panel about his repeated sexual molestation of two former female court employees. The Devens prison has facilities for inmates requiring long-term medical or mental health care, which Kent requested, according to the Houston Chronicle.

While serving his time, Kent will be well compensated. As a federal judge with lifetime tenure, he continues to draw his judicial salary of $174,000 a year plus benefits. He submitted his resignation from the bench but made it effective June 2010, which gets him another year's pay. That prompted the New York Times to urge in an editorial that Congress act quickly to impeach Kent and get him off the government payroll.

Meanwhile, Ashby Jones at the WSJ Law Blog finds that Kent, as someone who once was in charge of sending people to prison, is likely to be segregated from the general prisoner population at Devens. Jones also finds that Devens is known as a prison that offers a variety of indoor and outdoor recreational activities, from hobbycraft programs to music rooms.

So as Kent receives his comfortable salary and checks out the prison's various recreational programs, hard time might not sound so hard. But as a Massachusetts resident myself, I need only one word to convey my certainty that this former resident of Texas will at least partially pay for his wrongdoing: Winter. Welcome to Massachusetts, Judge Kent. I hope you brought warm clothes.

June 15, 2009 | Permalink | Comments (0)

This Law Clerk Brought to You by ...

What with all those deferred law firm associates sitting around wondering what to do with themselves, why not put them to work in the courts? Well, one obvious reason not to might be to avoid compromising judicial independence by having law firms pay the salaries of court staff. But as long as the interns keep the source of their paychecks a secret and don't mention it on Twitter, it would be OK, a judicial ethics panel has ruled in Massachusetts.

The Judicial Ethics Committee of the Supreme Judicial Court last week approved a proposal by the chief administrator of the state's trial courts that would allow deferred associates to work for the courts as "volunteer interns" while remaining on the payroll of the firms that hired them, Massachusetts Lawyers Weekly reports (Also see coverage in The Am Law Daily, via Law.com). The committee concluded that trial court judges could maintain their judicial independence and impartiality by using a "double blind" program to select and manage the law clerks.

The committee acknowledged that allowing law firms to pay the salaries of judicial law clerks would implicate judicial ethics rules that require judges to avoid impropriety and appear unbiased. The interns' services could also be seen as inappropriate gifts to the judges from the law firms, the committee said. But all this could be circumvented, the committee concluded, if the clerks are forbidden from telling anyone -- even on Facebook or Twitter -- about their connections to their law firms.

"I could not make this stuff up," writes "AmberPaw," a lawyer who contributes to the blog Blue Mass. Group. She puts forth an alternative proposal for helping the cash-strapped courts: "Judges and bailiffs could be plastered with ads for household products and chewing tobacco, like NASCAR drivers." Harvard Law ethics professor Andrew L. Kaufman tells Lawyers Weekly that the plan would raise ethics issues not just for the judges, but also for the interns. "There's a problem for the law clerks with respect to the Code of Professional Conduct governing lawyers, by reason of the fact that they are being paid by a private law firm while working in the judicial branch," he said.

The plan is not certain to move forward, a court spokesperson told Lawyers Weekly. With the go-ahead from the ethics committee, the court will now request an opinion from the State Ethics Commission. At this rate, the deferrals may well expire before the plan can ever be implemented.

June 15, 2009 | Permalink | Comments (0)

Violent Threats to One Lawyer Did Not Forfeit Right to Another

A defendant who sent a blood-smeared letter threatening to harm his court-appointed lawyer if he did not withdraw from the case did not lose his right to a new court-appointed lawyer, the Massachusetts Supreme Judicial Court has decided. While concluding that a defendant's conduct could conceivably be so serious as to forfeit the right to counsel, the court said that a judge cannot make that decision without first following certain procedural safeguards.

We recognize that threats of violence made by a defendant against his attorney or the attorney's family may constitute "extremely serious misconduct" that may justify a finding that an indigent defendant has forfeited his right to court-appointed counsel. ... In light of the fundamental constitutional rights at stake, before a judge finds that a defendant has forfeited his right to counsel and imposes the extreme sanction of denying an indigent defendant the assistance of counsel at trial or otherwise, she must first conduct a hearing at which the defendant has a full and fair opportunity to offer evidence as to the totality of the circumstances that may bear on the question of whether the sanction of forfeiture is both warranted and appropriate.

The case involved a defendant indicted for assault and battery on a correctional officer. Over the span of a year, the defendant filed several requests with the court indicating his dissatisfaction with his court-appointed attorney and requesting a new one. Shortly before he was to stand trial, he filed another such motion, this time attaching an affidavit in which he disclosed that he had sent a blood-smeared letter to his attorney threatening to harm him and his family if he did not withdraw.

The affidavit said that if the judge did not allow his motion, then he would "physically assault, spit, kick, head-butt, etc." his counsel. He added, "This isn't any joke, I'm very serious! I have major mental health deficiencies, and present very serious anger management issues."

At a hearing on the motion, the trial judge agreed to allow the attorney to withdraw. But the judge refused to appoint a new lawyer, ruling that the defendant, through his egregious misconduct and threats, had forfeited his right to court-appointed counsel. The defendant represented himself at trial and was convicted.

The SJC, in an opinion written by Chief Justice Margaret H. Marshall (pictured), said that a defendant "may engage in misconduct that is so serious that it may justify the loss of his right to counsel." But because the consequences are so severe, she wrote, the sanction of forfeiture should not be imposed until the defendant has had a full and fair opportunity at a hearing to offer evidence as to the totality of the circumstances that may bear on the question."

Finding that the hearing in this case fell short of that requirement, the SJC reversed the conviction and ordered a new trial. "The defendant must, if he so requests, be appointed counsel for his retrial," the court said.

The blog Universal Hub has the text of the ruling.

June 15, 2009 | Permalink | Comments (1)

In U.S. Territory, a Constitutional Face-Off

A lawsuit was filed Friday in U.S. District Court in the U.S. Virgin Islands seeking to compel the territory's governor to forward a draft V.I. constitution to President Barack Obama. The lawsuit is the latest salvo in a face-off between the drafters of the proposed constitution and opponents who say it is at odds with the U.S. Constitution and U.S. law.

More on this in a moment, but first some background. The U.S. acquired the V.I. from Denmark in 1917 for $25 million. It remains an unincorporated U.S. territory. It has no constitution of its own. Instead, its government is structured under an act of the U.S. Congress, the Revised Organic Act of 1954. In 1980, Congress authorized a procedure by which the V.I. and another U.S. territory, Guam, could draft constitutions providing for their own governments.

For the last year and a half, delegates to the V.I.'s Fifth Constitutional Convention have been doing just that, racing to meet a May 31 deadline to complete their work. On May 26, the convention approved a draft. On June 1, the draft was delivered to V.I. Gov. John deJongh Jr. (pictured), who had 10 days to transmit it to President Obama for his review and submission to Congress.

But rather than forward it to the president, deJongh sent it to the V.I. attorney general, Vincent Frazer, for a legal opinion. Frazer concluded that the proposed constitution did not meet the requirements set by Congress. In fact, he concluded that the proposed constitution would be unconstitutional under the U.S. Constitution. Last Thursday, the governor held a press conference to announce that he would not forward the draft to the president. Late Friday, the delegates filed suit to compel deJongh to forward the draft.

The controversy focuses on provisions in the draft that would grant special rights to "ancestral native Virgin Islanders." They would be exempt from property taxes, only they would be able to vote on constitutional amendments, and only they could run for governor and lieutenant governor. Attorney General Frazer concluded that these provisions "quite clearly violate the substantive requirements of the U.S. Constitution, and that other provisions are more likely than not, unconstitutional."

Given this, deJongh said in his statement to the press, he could not forward the document to the president.

I also at this time want to make an observation of a more personal nature. Surely no one should expect me -- one of only three African American governors in our nation -- and, by the way, a native and ancestral Virgin Islander -- to forward a proposed constitution that is clearly unconstitutional to our nation's first African American president, who happens to also be a constitutional scholar and a former law professor.

The lawsuit filed Friday claims that the governor is overreaching his authority in failing to forward the draft to the president. The suit charges that the governor has no authority to do anything but pass on the document to the White House. "Only the president can comment on the contents of the proposed constitution," the lawsuit says.

June 15, 2009 | Permalink | Comments (2)

June 12, 2009

Former BigLaw Attorney Dishes on Cravath

Bitter Lawyer carries an interview today with Pulitzer Prize finalist Gerald Posner (no relation to the other Posner), an investigative reporter and former associate at Cravath, Swaine & Moore. He's written books on Nazis and the global heroin trade, but what's most interesting about the interview is what Posner has to say about his life at Cravath. For example, Posner says the firm was a:

Sweat shop with a capital “S.” I billed over 3,300 hours the first year, and I was not the highest biller in the firm. You had no life but the firm. The partners loved their practice, but that’s the only way you can stay at a place like that. Divorce was almost viewed as though an associate had made the decision to stay with the firm rather than have a personal life.

Cravath is also where Posner had his worst experience as a lawyer, where he:

[had] to come back on a redeye flight from LA to NY and go straight to the office and work a second all-nighter on the IBM litigation for Cravath, while fighting a flu bug the whole time. Bummer.

Still, Posner says he didn't expect to leave the law when he left the firm. But during a pro bono lawsuit at Cravath for twin victims of a Nazi concentration camp, Posner became an expert on Josef Mengele. After the suit, Posner approached a publisher with a book proposal and it was accepted. Turns out, Posner enjoyed investigative journalism so much -- the tolerance for reviewing mountains of documents that he built up as a lawyer came in handy -- that he left the law and never went back.

June 12, 2009 | Permalink | Comments (1)

Lawyers Brace as Facebook Makes Usernames Available to 200 Million Users

Gentlemen, start your search engines. The race to grab your Facebook user name starts at midnight this coming Friday, reports The National Law Journal. At that time, Facebook will allow an estimated 200 million users to select their "usernames," which can include a trademark, brand name or personal name. And if the owner hasn't registered the trademark first with Facebook, it's up for grabs.

Until now, Facebook’s profile pages were delineated by an awkward string of letters and numbers. That made it difficult for users to include links to their Facebook page on a business card or in other PR. So now, as a Facebook user I can identify my page as www.facebook.com/CarolynElefant instead of typing out a string of gobbledygook.

Of course, Carolyn Elefant isn't really a particularly desirable name (except for me), so it's not likely to be snatched up. But what about "McDonald's" or "Barack Obama?" The ability to use those names, even as a sub-directory of Facebook, could carry some value.

So that's why Facebook's announcement also has lawyers racing to advise their clients of the importance of registering their trademarks at Facebook before "the land rush." Why is this so important? Brian Fergemann, a law partner at Winston & Strawn explained to the NLJ:

This is really a way for someone who has a distinct or famous trademark to let Facebook know that others should not be allowed to register that page," said Brian Fergemann, a partner and intellectual property attorney at Chicago's Winston & Strawn, which issued a Web alert to clients this week, urging them to register their trademarks with Facebook. "They can just say, 'Please don't let anyone use my registered trademark,'" Fergemann said.

Fergemann said that cybersquatters and name-squatters -- those who squat on the trademark rights of others -- are a rapidly growing problem on the Internet, where people are setting up bogus accounts under company names or celebrities' names

To prevent cybersquatting, Facebook is giving brand owners a chance to pre-emptively protect their rights and block their trademarks from being used by others by registering the trademark before Saturday. And if a company misses the deadline, Facebook will feature a grievance procedure allowing brand owners to report that someone's username infringes on their intellectual property or publicity rights.

Still, name disputes will be unavoidable. Speaking with The New York Times, Tim Cole, chief registrar liaison for ICANN (the Internet Corporation for Assigned Names and Numbers) wonders if Facebook knows what it is getting itself into. Says Cole:

This sounds like the early days when Network Solutions started doing domain registrations, and they didn’t anticipate the nature of the trademark issues that started arising and weren’t prepared for the flurry of lawsuits they started receiving,” Mr. Cole said. “It wouldn’t surprise me if the same thing happened here...Unless they have a really distinctive way to prevent abuses from arising, I have to believe disputes will arise fairly quickly as soon as people start registering names.

Seems like Facebook's announcement will also have lawyers racing to the bank. Let's see which law firm will be the first to register this address: www.facebook.com/facebooknamedisputelawyer.

June 12, 2009 | Permalink | Comments (2)

Washington Post Sues to Disqualify WSJ From Publishing Legal Notices

Even in the Internet Age, most courts require litigants in probate, foreclosure or other legal proceedings to provide notice in newspapers of "general circulation." So with commercial ad revenues on the decline, legal notices remain one of the few dependable sources of cash for newspapers -- so much so that at least one newspaper is willing to go to court to protect its legal-notice publication turf.

Courthouse News Service reports that the Washington Post is suing for a declaratory judgment that the Wall Street Journal is not a newspaper of general circulation in Prince William County, Va., and therefore does not qualify to publish legal notices. The Post's suit take issue with an April 28 circuit court order that declared the Journal eligible to publish legal notices in the county.

So is the WSJ a paper of general circulation? Here are the facts, according to the story:

The Post says it has a circulation of 22,907 in Prince William County - 17.6 percent of the households there - while the Journal has a circulation of only 911, less than 1 percent. Among the Post's claims are that the Journal does not cover local or regional news in Virginia or Prince William County unless it is of national interest. The Post says other newspapers have far greater circulation in the county than the Journal - The News and Messenger, for example, has an audited circulation of 17,966. The Post also states that according to the Journal itself, 81 percent of its readers are male, the average household income for a Journal subscriber is $253,100, and the average household net worth is $2,489,000.

While these demographics make the Wall Street Journal an attractive outlet for commercial advertisers, they also suggest that it isn't a paper of general circulation -- and thus, is ineligible for legal ads. Since the suit challenges the County order, I'm not sure whether the WSJ will respond. But it seems to me that the WSJ needs to walk a fine line to avoid downplaying its national scope and high-income demographics, whcih presumably draw far more lucrative advertising than the publication of legal notices.

June 12, 2009 | Permalink | Comments (1)

U.K. Lawyers Get the Message: 1-800-U-R-Fired

Imagine dialing into your voicemail and hearing a message that you've been terminated. That's how 14 trainee solicitors learned they wouldn't be receiving permanent offers from London-based global law firm Freshfields Bruckhaus Deringer, reports The Daily Mail. What's more, it wasn't even the partners who delivered the bad news -- they delegated the honor to human resource workers.

Not surprisingly, many criticized Freshfields' shabby treatment of the new lawyers, who spend two years in training. (Law is an undergraduate degree in the U.K. Becoming a solicitor involves a two-year traineeship with a law firm.) Said one observer quoted in the story:

Freshfields has nigh on 500 partners worldwide - it shouldn't have been beyond the firm’s wit to get a handful of them to deliver the news personally.

However, the firm defended the voicemails, saying:

Though not ideal, we were trying to get the information out as soon as possible. We did not want to take the chance of them hearing first from someone else..Those people that we have not retained received an ex-gratia payment. We feel it would not be appropriate to confirm the exact amount.

Apparently, those U.K. firms beset by hard times are responding much like their American counterparts, by offering stipends and deferred start dates. But it's hard to imagine a U.S. firm laying off lawyers by telephone. Perhaps lawyers at U.S. firms are more sensitive to laid-off lawyers' plights, but more likely, U.S. firms have become more sensitive about their reputations. After all, imagine the headlines at Above the Law.

And here's a bonus question: Do you think that a blog like Above the Law has had the effect of forcing firms to act more generously when implementing layoffs to avoid being e-shamed at the site?

June 12, 2009 | Permalink | Comments (2)

June 11, 2009

Minow Named Dean of Harvard Law

Harvard Law School announced today that it has named Martha Minow as dean to replace Elena Kagan, who left to join the Obama administration as solicitor general.

A member of the Harvard Law faculty since 1981, Minow is described in the announcement as a "distinguished legal scholar with interests that range from international human rights to equality and inequality, from religion and pluralism to managing mass tort litigation, from family law and education law to the privatization of military, schooling, and other governmental activities."

Minow chaired the law school’s curricular reform efforts of recent years and was recognized with the School’s Sacks-Freund Award for Teaching Excellence in 2005.

She is the author of five books: “Partners, Not Rivals: Privatization and the Public Good” (2002), “Breaking the Cycles of Hatred: Memory, Law, and Repair” (2002), “Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence” (1998), “Not Only for Myself: Identity, Politics, and the Law” (1997), and “Making All the Difference: Inclusion, Exclusion, and American Law” (1990). She is also co-editor of casebooks on civil procedure, women and the law and family law.

June 11, 2009 | Permalink | Comments (1)

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