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July 31, 2009

For Tenenbaum, It's All Over But the Damages

Following up on my post earlier this week about the music-downloading trial of Joel Tenenbaum underway in federal court in Boston, there has been a major development. Late last night, U.S. District Judge Nancy Gertner said she would order a directed verdict against Tenenbaum on his liability for copyright infringement. That leaves the jury to decide only the amount of damages he will have to pay and whether his infringement was willful.

Her decision came after Tenenbaum's direct examination by the record companies' lawyer. Asked whether he was admitting liability for downloading and distributing all 30 songs at issue in the case, he answered "yes." Even though Tenenbaum's lawyers argued that he did not understand the implications of his answer, Gertner wrote: "Notwithstanding the protestations of Tenenbaum's counsel, Tenenbaum's statement plainly admits liability on both downloading and distributing, does so in the very language of the statute (no 'making available' ambiguity) and does so with respect to each and every sound recording at issue here."

Read more:

July 31, 2009 | Permalink | Comments (1)

Israeli Group Honored for Legal Innovation

The College of Law Practice Management this week named Israel's New Family Organization as winner of its 2009 InnovAction Award. This year for the first time, the COLPM also named the winner of an Honorable Mention, the New York-based legal services provider Practical Law Company.

(By way of disclaimer, I should mention here that I was recently elected a fellow in the COLPM and am slated to be inducted as such at its annual meeting in September, where these award winners will also be recognized.)

The InnovAction awards recognize outstanding innovation in the delivery of legal services. COLPM's blog explains why it selected New Family Organization for the award:

Irit Rosenblum broke fresh ground defending a universal right to family as intrinsic to the practice of law. Rosenblum pioneered a new sphere of legal rights surrounding the family based on the conviction that the rights to marry, divorce, have children, bequeath and inherit assets, and conduct family life are human rights and must be attainable to all regardless of faith, nationality, sexual orientation or status. She founded New Family to fill a critical gap in the practice of law in Israel: to attain the right of every individual to establish a family and to exercise equal rights within it. For the 2 million people in Israel who are subject to discrimination due to family status, New Family’s achievements have been invaluable.

Of its Honorable Mention awarded to Practical Law Company, COLPM's blog said:

Practical Law Company (PLC) is changing the way business lawyers work. It employ attorneys with significant experience practicing with the world’s leading law firms and legal departments (e.g. Davis Polk, Skadden, Pfizer, Sullivan & Cromwell) to provide practical, up-to-date resources that help business lawyers practice more efficiently and provide greater value to clients. PLC provides the practical, generic level of information needed by all business lawyers that allows them to get up to speed quickly, stop reinventing the wheel and focus on client and firm specific work. It launched its first US services in December 2008 to wide market acceptance. PLC began in the UK in 1990.

This year's award committee is chaired by Jordan Furlong, editor of the Canadian Bar Association magazine National and author of the blog Law21. While these two top winners deserve congratulations, it is worth reading the descriptions of all the award entries. (The COLPM blog has descriptions of them all but only some are tagged as award entries, meaning you'll have to scroll through recent posts to find the others.) They demonstrate in a variety of ways that innovation is alive and well within the legal profession.

July 31, 2009 | Permalink | Comments (1)

At ABA, Whole Lotta Tweeting Going On

The American Bar Association annual meeting is underway in Chicago, where it runs through Tuesday. You need not be anywhere near the Windy City to follow what is happening there, thanks to an array of Twitter-ers and bloggers who are in attendance. These include three "official" Twitter feeds:

  • ABAChicago, the official feed for the annual meeting. 
  • ABAJournal, the ABA Journal's live coverage of the meeting. 
  • TommyWellsABA, the feed of ABA President Tommy Wells.

You can follow other tweets from and about the annual meeting through the hashtag #abachicago. In addition, the ABA has set up a social media page for the meeting that tracks tweets and blog posts from attendees. The ABA Journal also has its own page devoted to coverage of the meeting, as does The National Law Journal, where reporter Lynne Marek is covering the event via a dedicated ABA meeting blog.

If you are tweeting or blogging from the annual meeting, let us know by posting a comment below.

July 31, 2009 | Permalink | Comments (1)

The Top-Rated Lawyers in Corporate Compliance

Att-logo As a think-tank that studies best practices in business ethics and corporate responsibility, the Ethisphere Institute likes to do good for those who do good by shining a spotlight on them. In past posts here, I've written about its list of the 100 most influential people in business ethics, among whom were 19 lawyers, and its list of the world's most ethical companies, which highlighted the roles played by key in-house counsel.

Now Ethisphere is out with a new list and for the first time it focuses exclusively on Attorneys Who Matter, more than 100 lawyers selected as the "best and brightest" in the areas of ethics and compliance. This list is divided into five general categories -- Hall of Fame, Top Guns, Up and Comers/Rising Starts, Government Stars, Top General Counsel/In-House Counsel and Top Ethics and Compliance Officers -- and then also another nine categories focused on compliance specialties such as antitrust, government contracting and securities.

Five attorneys made the Hall of Fame list. Ethisphere describes them as the "best of the best." They are the lawyers who scored the highest in nine criteria that included their recognized expertise, peer and client endorsements, their high-profile clients and cases, public service and more. They are:

While the Hall of Fame is composed entirely of men, the list of 15 lawyers named as Top Guns includes three women who are singled out for their experience and leadership:

Ethisphere's ranking names 11 in-house lawyers as the top ethics and compliance officers. They include Andy Hinton of Google, Odell Guyton of Microsoft, David Landau of Starbucks, Wendy Hallgren of Fluor and Chad Fentress of Accenture. The full list of lawyers in all categories can be seen at Ethisphere.

July 31, 2009 | Permalink | Comments (0)

Made-Up Lawyers Try Real World Networking

Among the lawyers flocking to contribute their tweets to the microblogging site Twitter are the two name partners in the law firm Bitcher & Prickman, Beatrice Bitcher and Richard Prickman. Those who follow their tweets may well have raised an eyebrow or two over some of what they say there.

Twitter.bitcher.100 Bitcher posted this, for example: "I'm giving Edward, an associate, choice. 1. Work on brief all weekend. 2. Be my weekend servant. He's thinking." Soon after came this: "Associate chose being my servant over working on brief. Damn. Knows how to get partnership track, after all." As for Prickman, here is a recent tweet of his: "Law and morality go hand in hand. And money? Morality...Money. Both begin 'Mo' and end with 'y.'"

Frankly, given what some lawyers post on Twitter, neither Bitcher nor Prickman stood out as exceedingly outrageous. In fact, Bitcher's tweets prompted another tweeter to invite her to join an online networking site, the Professional Women's Network of Southern California, which she readily did. As for Prickman, he found himself in an exchange of tweets with none other than lawyer-turned-celebrity Star Jones.

But something seemed not right about these two Twittering lawyers to journalist and true crime author Cathy Scott. When she first started to follow Bitcher, Scott wrote on her blog, "I thought her name was a little odd, but that was about it. She had a lively banter going on with her tweets. Her avatar looked like a cartoon rendition of her photo."

Twitter.prickman.100 The more Scott followed Bitcher, however, the more suspicious she became. When she also found out about Prickman, she looked into this firm of Bitcher & Prickman. What she found was a cartoon, Bitcher & Prickman, drawn by lawyer and cartoonist Charles Pugsley Fincher. "Now, it seems, they'd jumped off the cartoon page and into Twitterland, where they were -- and still are -- being taken seriously some of the time," Scott wrote. "I'd been snookered, at least for a tweet or two."

So Scott outed the lawyers for the cartoons they were, posting a tweet, "Meet & enjoy comic characters @BeatriceBitcher, her law partner @RichardPrickman & their creator @LawComix." When that was seen by legal blogger Victoria Pynchon, who had exchanged tweets with Bitcher, she tweeted, "I'm tweeting 2 a cartoon character -- someone slap a 72 hour hold on me!" Bitcher tweeted back, "Sometimes, dear Victoria, fantasy is more real. 24-hour hold...DENIED."

One blogger who caught on to the comic nature of these two twitterers was Lynne Devenny of Practical Paralegalism. Devenny particularly likes Prickman's pandering to his paralegal, at least since the paralegal discovered romantic e-mails between him and Sarah Palin.

July 31, 2009 | Permalink | Comments (1)

July 30, 2009

Thursday Legal News Link Roundup

-- As if it weren't bad enough that Stroock & Stroock & Lavan's typo in a contract for a developer may cost its client $100 million, it now seems that Stroock's malpractice insurance may not cover the damages. [New York Post via Above the Law]

-- Will the blawgosphere's pervasive criticism of the 2nd Circuit's decision in Dorozhko v. SEC spur further review? In Dorozhko, the 2nd Circuit held that the SEC can proceed with fraud charges against a hacker for engaging in insider trading even though he owed no fiduciary duty to the company whose shares he traded. [For a roundup of the criticisms, see The Am Law Litigation Daily]

-- Interesting factoid from Rees Morrison at Law Department Management: Just a scant 8 to 12 percent of lawyers within a firm are responsible for client development efforts.

-- File this one under stupid lawyer tricks: A lawyer was arrested for trying to smuggle cocaine concealed in a one-dollar bill into an Allegheny County Court house. [Pittsburgh Tribune-Review].

July 30, 2009 | Permalink | Comments (0)

Court Hears Challenges to Louisiana Lawyer Advertising Rules

Yesterday, a federal district court in Louisiana held oral argument on First Amendment challenges to Louisiana's proposed advertising rules filed by a group of attorneys, reports The Associated Press. If the article's summary of oral argument is any indication, the state seems poised to lose this case.

Consider this colloquy between U.S. District Judge Martin Feldman and one of the lawyers challenging the rules:

Morris Bart's New Orleans-based firm has spent millions of dollars on television ads featuring his trademark "one call, that's all" motto.

"'One call, that's all' is arguably prohibited by the rules," Garner [lawyer for Bart] said.

"How is that misleading?" Feldman asked.

"It's not," Garner replied.

Likewise, one of the state's strongest arguments seems to be that the lawsuit is premature, because the rules haven't yet taken effect and thus, the lawyers can't prove harm. Phillip Wittmann, lawyer for the disciplinary board told the court "We don't have a specific, concrete example of what [the petitioners] are complaining about."

Public Citizen, one of the groups that succeeded in overturning many of New York's advertising regulations, is also participating in the suit. In a motion for summary judgment, Public Citizen argued that Louisiana's rules mirrored many of the New York rules which had successfully been challenged. And it also pointed out the confusion created by similarly vague rules in Florida. For example, in Florida:

"People make mistakes, I help fix them” improperly promises results, but that “People make mistakes, I help them” is permissible; the statement “We’ll help you get a positive perspective on your case and get your defense off on the right foot quickly” promises results, but “If an accident has put your dreams on hold we are here to help you get back on track” is permissible; the phrase “[Y]our lawyer’s knowledge of the law and talents in the courtroom can mean the difference between a criminal conviction and your freedom” promises results, but “The lawyer you choose can help make the difference between a substantial award and a meager settlement” is permissible; and the statement “Hiring an attorney experienced in DUI law is an efficient and effective way to ensure that all possible measures are taken to protect your legal rights” promises results, but “Hiring an attorney experienced in DUI law is an efficient and effective way to protect your legal rights” is permissible.

Scott Wolfe of Wolfe Law Group, another lawyer challenging the suit (his firm's filings are available on JD Supra), made the point that compliance with Louisiana's proposed rules could be cost-prohibitive and further, that the rules do not reflect the reality of the Internet. Wolfe explained that a Google ad campaign that had cost him about $160 would have cost an additional $2,900 to get all 17 variations of the ad reviewed by a bar committee.

July 30, 2009 | Permalink | Comments (2)

Litigants in Bronx Court Have Clothes Encounter With Judge

A Bronx Supreme Court judge reprimanded several litigants for showing up to court in slovenly or casual attire, reports the New York Daily News. According to the story, Bronx Judge Joseph Dawson admonished a man wearing a T-shirt and shorts, asserting "I'm not saying you have to wear a suit ... Just wear something appropriate." And the judge also seemed to criticize at least one lawyer whose client showed up under-dressed:

"Your client comes up in a T-shirt and sweatpants, chewing gum?" Dawson chided lawyer Edward McGowan. "This court deserves more respect than that."

Though McGowan did not disagree with the judge, he explained that sometimes clients simply do not have better clothes or the money to buy them.

Eric Turkewitz offers some succinct fashion advice at New York Personal Injury Law Blog:

It boils down to one rule, and one rule only: Wear the clothes you would wear to a house of worship. No slob clothes, no heavy jewelry, and ladies, no plunging necklines.

Turkewitz says that suits aren't necessary if clients are uncomfortable in them, but even so, there are many other respectable wardrobe options. What kind of advice do you give to your clients on how to dress for court?

July 30, 2009 | Permalink | Comments (2)

Recession May Be Kryptonite for BigLaw

Today's prediction of the end of BigLaw (and in the past few months there have been many) comes from Douglas McCollam in the op-ed pages of The Wall Street Journal. McCollam summarizes the evidence of demise -- declining profits for partners and the massive layoffs -- and notes that in contrast to days of yore when lawyers found a way to make money in boom times or bust, the prolonged recession combined with the unsustainable growth of law firms has forced them up against a wall:

When times were good, lawyers earned enormous fees engineering mergers and takeovers. When things were bad, they earned enormous fees fending off angry shareholders and breaking up the conglomerates that they had helped put together. When things turned really ugly, they made a fortune carving up the bankrupt carcasses of their former clients and toiling to keep top management out of federal prison. And when questioned whether they bore some measure of responsibility for the malfeasance that felled their erstwhile patrons, lawyers typically answered with a “hey, we just work here” shrug.

It seems plain that a great many members of the American bar fell prey to the same strain of hubris that infected their clients. They embarked on empire building -- opening offices from Beijing to Bucharest -- and snapping up smaller rivals, confident that the future belonged not so much to the best and the brightest as to the biggest. The movement toward gigantism was virtually uniform across the legal industry.

McCollam writes that in the past, the large-firm, highly leveraged business model survived despite pervasive criticism.  But it seems that the economy just may be the Kryptonite that fells the super-firm:

Numerous studies have documented the deleterious impact this model has had upon the legal profession and clients. To date, nothing has been able to kill it. It would be ironic indeed if the economic downturn that has cost lawyers so much ended up being the very thing that saved the legal profession from its own excess.

At Ideoblog, Professor Larry Ribstein agrees with McCollam, but adds that large firms suffer from other problems beyond leverage. He asks:

Where is the glue that is supposed to hold large firms together? Turns out maybe it was simply faith that the money would keep pouring in in large enough quantities to support the current business plan. Sounds a bit like a Ponzi scheme. The real problem is that large firms don’t really own anything but faith, which is fine for religion, but not much of a glue for a business.

Ribstein writes that he'll be coming out with an article describing how to fix the large firm model. Do you have any suggestions?

July 30, 2009 | Permalink | Comments (4)

July 29, 2009

Cheerleader Sues School Over Facebook Snooping

Early in the 2007 school year at Pearl High School in Pearl, Miss., cheerleading coach Tommie Hill demanded that each member of the cheerleading squad give him the passwords to their Facebook accounts. No sooner did the students hand over their passwords than most deleted their accounts. But Mandi Jackson, then 14, did not delete hers. The coach logged into her account and then disseminated private messages between her and another student to teachers, coaches, the principal and the superintendent.

The messages, described as "profanity-laced," were between Jackson and the cheerleading captain and involved Jackson's asking the captain to "stop harassing" several other cheerleaders. But after the messages were circulated by the coach, Jackson was banned from attending cheerleading practices, participating in football games and participating in other school events.

Jackson, through her parents, has now filed a lawsuit in federal court in Mississippi alleging that the school violated the girl's constitutional rights. "There was a blatant violation of her right to privacy, her right to free speech, her right to free association and her right to due process," the girl's lawyer, Rita Nahlik Silin, told the Student Press Law Center. "It's egregious to me that a 14-year-old girl is essentially told you can't speak your mind, can't publish anything, can't be honest or have an open discussion with someone without someone else essentially eavesdropping."

At the Citizen Media Law Project, Harvard Law student Lee Baker writes that the case illustrates a disturbing trend among educators to disregard students' constitutional rights. "It boggles my mind that ... school officials ... believe they have the right to invade others’ privacy and eavesdrop on private or semi-private conversations merely because these conversations take place online. Asking for a student’s Facebook password in order to read private messages is akin to asking the student's permission to install a wiretap on his or her phone, something even the most unscrupulous educator (or employer) would hopefully never request."

We do not know whether the Pearl incident occurred out of defiance or ignorance of the constitution. But the case should serve as a warning, writes John Timmer at Ars Technica. "Either through malice or cluelessness, people in positions of authority are increasingly demanding complete access to users' personal accounts and, in moments of weakness, many users appear to be giving it to them," Timmer says. "If there's information you're not comfortable sharing with the world, Facebook, Twitter, and similar services aren't the place for it." 

July 29, 2009 | Permalink | Comments (3)

Ropes & Gray Wins Lien Against Patents

Ropes gray logo The Boston law firm Ropes & Gray has won a key victory in an attempt to collect unpaid legal fees and has set new precedent in the process. In a case of first impression, Massachusetts' highest court ruled this week that the firm is entitled to an attorney's lien on patents and patent applications, as well as on the proceeds from the sales of those patents.

"A patent attorney who successfully secures a patent for his client in proceedings before the USPTO is entitled to the same protection under [the lien statute] as an attorney who obtains a favorable judgment for his client in court," the Supreme Judicial Court decided in the case, Ropes & Gray LLP v. Jalbert.

The firm is owed some $109,000 for patent prosecution work performed in 2002 and 2003 on behalf of Engage Inc., an advertising software company. When Engage filed for bankruptcy in 2003, the law firm asserted that the amount it was owed was secured by an attorney's lien filed under Massachusetts law. By that time, Engage had sold the patents but agreed to maintain a cash reserve from the sale proceeds sufficient to pay the firm's lien.

In the bankruptcy proceedings, Engage's liquidating supervisor, Craig Jalbert, contended that the attorney's lien did not apply to patents and that the debt owed to Ropes & Gray was therefore unsecured. When the bankruptcy court agreed with the supervisor, the firm appealed first to the U.S. District Court, which affirmed the bankruptcy court, and then to the 1st U.S. Circuit Court of Appeals, which decided to certify the questions to the SJC for its interpretation of Massachusetts law.

The SJC had little difficulty deciding that the attorney's lien statute applied to patent prosecutions. "When rendering legal services to a client to secure a patent, an attorney can assert a lien on the patent application when it is filed with the USPTO, and the lien necessarily remains attached to the subsequently issued patent, protecting the attorney's right to compensation," the court said.

That still left the question of whether the lien carried over to proceeds from the sales of the patents. Again, however, the SJC was quick to conclude that it did. "The purpose of the lien statute would be eviscerated if an inventor could just sell a valuable property right, one that was obtained by the attorney's work in the first instance, and pocket the proceeds. This construction of the lien statute is entirely consistent with what occurs when other types of property are sold subject to a commercial lien."

The SJC's opinion sends the matter back to the 1st Circuit. Given the opinion's outcome, Ropes & Gray appears to be on track to recover its unpaid fees.

July 29, 2009 | Permalink | Comments (4)

Lawyer's Ad Tacky, Perhaps, but Unethical?

Is it ethical for a lawyer to solicit a rape victim by leaving a leaflet on her windshield? That is the question to be decided by New Jersey's Committee on Attorney Advertising, according to the New Jersey Law Journal. It seems beyond debate that such a solicitation would be in bad taste, but distasteful is not necessarily synonymous with unethical. In a nutshell, here is what is alleged, according to the NJLJ report:

The victim, known in court papers as K.D., claims an orange flyer from Fred Zemel's Newark firm appeared on her car on or about Feb. 19, 2007 -- two months after the sexual assault occurred. It touted the firm's services to anyone who had been the victim of "rape and assault in your building or apartment." No other car parked nearby had such a flyer on it, leading K.D. to assume the flyer was directed at her, she says.

Based on that allegation, the Committee on Attorney Advertising filed a formal complaint against Zemel, charging him with violating the ethical prohibitions against direct client solicitation and against communicating with someone whose physical, emotional or mental state might impair the decision to hire a lawyer.

Of course, there are two sides to every story and Zemel's side is that he never deliberately targeted K.D. or even knew about her case. He admits that he hired someone to distribute his leaflets but says he gave the person no directions about specific areas in which to do so. His lack of intent to target K.D. is shown by the fact that "similar flyers had been circulated in the same format long prior to the alleged crime," he contends.

After Monday's hearing, it will now be for the advertising committee to sort out whether the lawyer's brochure appeared on the rape victim's windshield deliberately or by happenstance and whether the brochure violated any ethics rules.

July 29, 2009 | Permalink | Comments (4)

Nesson Tries the 'Sins of a Generation' Defense

Observers who attended yesterday's start of the music-downloading trial of Joel Tenenbaum seemed to be scratching their heads in bewilderment over the defense. Admittedly, Tenenbaum's defense lawyer, Harvard Law Professor Charles Nesson, has his hands somewhat tied, given that Tenenbaum admitted in his deposition to downloading the songs and given the 11th-hour ruling by U.S. District Judge Nancy Gertner that Tenenbaum could not use a fair use defense.

So Nesson's defense appears to be that Tenenbaum should not be held accountable for the sins of his generation. "Everyone could download for free," he said in his opening statement. "And millions and millions did. Joel was one of those millions. In this way he's like every other kid. There's nothing that distinctive about Joel."

That quote from Nesson's opening statement came from a report on Ars Technica written by copyright lawyer Ben Sheffner, author of the blog Copyrights & Campaigns, who is covering the trial. He describes Nesson's opening as telling the story "of a digital generation that embraced peer-to-peer networks when they arrived on the scene and shouldn't be punished for sticking with them even as iTunes and numerous other legal, paid alternatives became available."

In contrast, music industry lawyer Timothy M. Reynolds, a partner in the Boulder, Colo., office of Holme, Roberts & Owen, told the jury that Tenenbaum downloaded and distributed thousands of songs without paying for them and continued to do so for years even after he was sued. "We are here to ask you to hold the defendant responsible for his actions," he argued. "File sharing isn't like sharing that we teach our children. This isn't sharing with your friends."

The contrast between the opposing lawyers was not only in their legal arguments. As The Boston Globe describes it, the case "pits Nesson, a self-avowed marijuana user who has tried only four cases (one was the Pentagon Papers case in which he defended Daniel Ellsberg) against a team of battle-tested lawyers for the recording industry." And the Boston Herald adds that Nesson was the only attorney in the courtroom to wear casual clothes and had his opening statement cut off when the trial judge angrily told him he was out of time.

Sheffner describes Nesson's cross-examination of Wade Leak, deputy general counsel for Sony Music Entertainment, as lengthy and interrupted by frequent objections, most of which were sustained.

Indeed, on several occasions "sustained" escaped from Judge Gertner’s lips before Oppenheim even had the chance to object. Chiding Nesson on his frequently unorthodox questions, Judge Gertner at one point told the evidence professor, "I'm just trying to translate this into the Federal Rules of Evidence." And when Nesson, reacting to a sustained objection, explained what he was trying to "say," Gertner cut him off: "You're not supposed to be saying anything. You're supposed to be asking questions."

Sam Bayard, assistant director of the Citizen Media Law Project at the Berkman Center for Internet & Society (which Nesson founded), sat in on yesterday's opening statements and told The Boston Globe that Nesson appeared to be encouraging jurors to engage in a form of nullification. "I think he's arguing [Tenenbaum] did it, [the record companies] are right, but this isn't morally blameworthy; he's just a kid."

The goal of such a defense would be not to avoid a plaintiffs' verdict, but to keep damages to a minimum and steer clear of the fate that befell Jammie Thomas-Rasset in Minnesota, when a jury assessed damages against her of $80,000 per song, for a total of $1.92 million. It may be unorthodox from a legal point of view, but its efficacy will be for the jury to decide.

July 29, 2009 | Permalink | Comments (1)

July 28, 2009

Starting a Law Firm Using Craigslist

Back in the olden days, when lawyers sought to start or expand a law practice they'd place a pricey advertisement in a hard-copy legal trade publication or retain a placement firm as a matchmaker. Lawyers would have to be fairly committed to expanding their practice, given the upfront costs involved in finding a potential partner.

But now it's possible to build a new law firm much more cheaply by using Craigslist. That's how former BigLaw associate Afif Ghannoum, founder of the Ghannoum Law Firm, did it, drawing on pool of close to 500 respondents to staff his new firm's life-science and bio-technology practice. According to a recent story in MedCity News, Cleveland-based Ghannoum identified a need for high-quality, competitively priced legal services for new bio-tech companies. So he posted a request on Craigslist for partner-level attorneys with bio-tech experience and chose nine lawyers from among the hundreds who responded. Some of the lawyers come from impressive backgrounds, including a former senior patent attorney at Bristol-Myers Squibb and a venture capitalist who worked at GE Asset Management. Lawyers work on a project basis, with compensation for hours spent on a particular matter.

The firm is still growing; Ghannoum has since placed two more ads on Craigslist and hopes to grow his firm to 50 attorneys over the next two to three years. In four months alone, the firm has attracted 20 clients, ranging from a lone scientist to a publicly traded company in San Francisco.

Though the growth of virtual law firms is an emerging trend, from what I can tell, Ghannoum's firm is the first to focus exclusively on life sciences. What's more interesting to me, however is Ghannoum's ability to attract talent on Craigslist. Back in the pre-recession days, I used Craigslist every so often to find contract attorneys or paralegals to assist with overflow work in my law practice. But even after sorting through a dozen or so "auto-responses," I found the quality of the résumés and writing samples to be so poor that I never ended up hiring anyone through the site, relying instead on personal recommendations. Apparently the quality of lawyers seeking work through Craigslist has improved substantially, at least if Ghannoum's experience is any indication.

In many ways, firms like Ghannoum's -- including Axiom and Virtual Law Partners -- resemble a high-end contract firm, outsourcing work to contract attorneys. But in this case the work is far more sophisticated than document review and, naturally, far better compensated. Is working for these firms a desirable alternative to life as a BigLaw partner or in-house counsel? The high-quality lawyers named in the article suggest that it might be, but the rest of those 500 respondents could encompass a wide range of experience, from laid-off associates to low-quality lawyers who would have trouble finding work in any economy. Have you ever hired anyone via Craigslist?

[Also see coverage on ABA Journal and The Young Texas Lawyer]

July 28, 2009 | Permalink | Comments (1)

Is the Economy Turning Around for Law Firms?

Larry Bodine has some positive news for law firms: Recovery may be just around the corner. Bodine writes that a new forecast by First Research Inc. shows 3 percent growth is on the way for law firms, and firm layoffs are dwindling.

Bodine writes that layoffs have slowed since April and May, when more than 1,000 people were laid off each month, and have dipped further this summer. Moreover, according to recent reports in the business press, the recession may be nearing an end. The index of leading indicators is rising at the same rate that has indicated the end of every recession since 1959.

But do the positive economic signals mean law firms will go back to business as usual? Or are recession-induced changes like practical associate training programs here to stay? Feel free to weigh in below.

July 28, 2009 | Permalink | Comments (1)

U.K. Law Society Warns Students Away From a Legal Career

Concerned about the shrinking number of available jobs in the legal profession, the Law Society of England and Wales is warning potential law students to proceed with caution before signing up for law school, advising that they may want to consider alternative careers. As The Lawyer reports, 7,000 people completed the U.K.'s Legal Practice Course in 2008, but there are only 6,000 training contracts available. In addition, taking the LPC costs 10,000 pounds ($16,400).

Eleanor Pallot, a law student quoted in the article, says that she would have welcomed the Law Society's campaign before matriculating. Pallot recently completed the LPC at the University of Plymouth and so far the best law-related position she's been offered is that of a receptionist at a firm.

But one commenter on the article asserted that the Law Society's program shouldn't be necessary:

What a complete waste of money - if a student can't figure out these risks on their own then you have to question whether they will ever cut it as a solicitor. This problem needs a much more radical solution similar to the BSB's BVC aptitude test.

It's hard to imagine the American Bar Association advising students to think twice about a career in the law. And I'm not so sure it would make a difference. As I posted here a few months ago, even in the midst of the layoffs, college students were considering law school as a way to ride out the economic downturn. And just today, Mississippi's Clarion-Ledger confirms that law school applications are on the rise despite declining job opportunities. If layoffs aren't deterring students from law school, I'm not sure what would.

July 28, 2009 | Permalink | Comments (2)

The AAJ Explains Its Media Ban

In response to my post, The AAJ's Misguided Media Ban, I received an e-mail from Ray De Lorenzi, the AAJ's associate director of communications, who I mentioned in the post. He invited me to republish his e-mail here, so here it is:


I saw your blog item and wanted to clarify a few things:

First, my statement that AAJ has never allowed media at our convention was overly broad. However, we have not allowed media at our last several conventions - this is not a recent change in policy. If we received an influx of media requests to attend our convention, this would have led us to reconsider our current policy; however, this has not been the case.

This particular reporter who attempted to attend our convention is from a publication called Legal Newsline. Legal Newsline is owned by the U.S. Chamber of Commerce's Institute for Legal Reform and continually distorts and misrepresents the civil justice system and the work plaintiffs' attorneys do.

While you may disagree with our decision to close this event to press, we continually communicate with the media and general public about our legislative agenda and other priorities. We disagree with your claim that our decision to close this one event, which is staged specifically for our members, is evidence of lack of transparency on our part.

Feel free to post this directly to your blog or update the older post. Please let me know of any other questions.

Ray De Lorenzi
Associate Director, Communications
American Association for Justice

July 28, 2009 | Permalink | Comments (2)

July 27, 2009

Gates-gate: Caller Disputes Account

Wendy_Murphy The woman who called the police in Cambridge, Mass., to report a possible break-in at the home of Harvard professor Henry Louis Gates Jr. is now talking to the public -- through her attorney, at least. The woman, Lucia Whalen, has hired high-profile lawyer and TV commentator Wendy Murphy (pictured). Through Murphy, the woman issued a statement disputing the police account that she said two "black" men were breaking into the house, according to a report today in the Boston Herald.

"This woman is 100 percent clear on what she said," Murphy said. "She never said she saw two black men. She said, 'It never crossed my mind that there were two black men.'" The woman wants the world to know that she is not a racist and is not even white -- she has "olive-colored skin and is of Portuguese descent," Murphy said.

Whalen's account is at odds with the police report of the incident filed by Officer James Crowley. The report recounts that when Crowley arrived at the scene Whalen called out to him and identified herself as the person who had reported the possible break-in. "She went on to tell me that she observed what appeared to be two black males with backpacks on the porch," he wrote.

Last night, Cambridge Police Commissioner Robert C. Haas told The Boston Globe that Whalen was correct to say that she never mentioned race in her call. The reference to race is in the police report, he explained, because the report represents a summary of information collected during the course of the investigation, not just from the initial call. Haas said that he expects to release some version of the tapes of the 911 call within the next few days.

Murphy said that her client is "personally devastated" by media reports suggesting she called police because of the men's race. "People are making their own judgments about the case and assuming that she called police because they were black," Murphy told The Boston Globe. "That sentiment is permeating the stories, and it ties directly to her involvement, even though the truth is she didn’t report seeing black men and she didn’t know the men’s race when she called 911."

July 27, 2009 | Permalink | Comments (1)

The Future of the Law Library (and How to Stop It)

Zittrain Harvard Law Professor Jonathan Zittrain, author of the book, "The Future of the Internet -- and How to Stop It," was the keynote speaker yesterday kicking off the annual meeting of the American Association of Law Libraries in Washington, D.C. I was not there to hear his speech, but Georgetown Law Professor Rebecca Tushnet was and she reported on it on her blog, Rebecca Tushnet's 43(B)log.

Just last week, Zittrain caused somewhat of a stir with an op-ed he published in the New York Times, Lost in the Cloud, in which he discusses the dangers of cloud computing and how the law might help minimize them. Based on Tushnet's recounting of his talk, Zittrain also sees danger in the library -- not in the library as we traditionally imagine it, "a fortress, protecting books against people who might mess them up," but in the library as it is more frequently becoming, "a place to go to get on the Internet." (I am quoting Tushnet there, who I assume was paraphrasing Zittrain, not precisely quoting him.)

The danger for libraries is precisely the danger he warned of in his New York Times op-oed. As library archives move more and more into the cloud, the cloud can endanger researchers' access to and use of information. Zittrain spelled out some of these dangers in his op-ed and reiterated them in his AALL speech. A key danger lies in the ownership and control of data in the cloud. The most Orwellian example of this is's recent decision to remotely erase Orwell's "1984" from the Kindles of readers who had purchased the book. Another danger is in the federal government snooping into your online activities, without ever telling you about it.

So how can these dangers be alleviated and the core purpose of the library be protected? As I understand the speech, Zittrain's point is that we need not protect the library, per se, but the librarian. As we put more and more data online, what we risk losing is the librarian's understanding of how to search and make sense of that data. As Tushnet recounts his speech, Zittrain said that the most important help he has gotten from a library has been face-to-face. "That relationship is most at risk when we turn our libraries into pneumatic tubes -- queries go in, answers come out."

The notion of the library as a physical fortress designed to protect books may stand in the way of innovation among librarians, Zittrain seems to suggest. He points to the Internet's noncommercial success stories -- Wikipedia and the Internet Archive -- as models of sharing at its most basic. And he suggests that the future of libraries may lie in a similar distributive approach. Librarians should not be hindered by their sense of stewardship, he says. "The perfect should not be the enemy of the good."

July 27, 2009 | Permalink | Comments (0)

At Last We Know: 'Hotel' Is Generic

Attention all ye who think the legal system has run amok: It took six years, two appeals and who-knows-how-many lawyers to arrive at the legal conclusion that the word "hotel" is generic. In fact, the word is "a prima facie case of genericness," said the Court of Appeals for the Federal Circuit. That is an appeal court judge's way of saying that the answer was obvious from the get-go.

Hotels dot com The question arose in the context of the application of to register its name as a service mark. The trademark examining attorney refused the registration for the reason that the proposed mark is generic and therefore ineligible for protection. appealed to the Trademark Trial and Appeal Board. In March 2008, it issued a decision affirming the refusal of the registration, likewise concluding that the term was generic. then appealed to the Federal Circuit, which issued its decision, In Re, this week.

In its decision, the Federal Circuit summarized the TTAB's analysis. The TTAB reviewed dictionary definitions, Web sites and other hotel-related domain names to conclude, not surprisingly, that hotel is a generic word used to refer to "temporary lodging."

On this much, great legal minds can agree. But's argument was that the word hotel somehow lost its generic nature when it became attached to the ".com" suffix. At that point, it contended, it became identified with a particular company that served as an information source and travel agency. The Federal Circuit didn't buy it. "The generic term 'hotels' did not lose its generic character by placement in the domain name," the court said.

At The TTABlog, John L. Welch points to an interesting subsidiary issue in the case. At the TTAB, submitted a survey that polled consumers on whether they considered to be a brand name or a generic name. Seventy-six percent said they considered it a brand name. Welch explains how the TTAB handled this:

The TTAB was "skeptical" of the survey, reasoning that "consumers may automatically equate a domain name with a brand name." It concluded that the survey questions "radically skew[ed] the results of the survey in applicant's favor" and "did not adequately reflect the difference between a brand name and a domain name."

The Federal Circuit found no error in the TTAB's decision to disregard this survey and decide in favor of the common usage of the word hotel. So all that lawyering over a generic word led to a predictable result. But even if the case had been decided in favor of, what would the company have gained? Welch wonders. "As a practical matter," he asks, "what would a service mark registration give the Applicant that ownership of the domain name does not?"A free night at a hotel in Vegas, perhaps?

July 27, 2009 | Permalink | Comments (3)

The AAJ's Misguided Media Ban

Light-bulb-ban When news media showed up this weekend to cover House Speaker Nancy Pelosi's speech at the annual convention of the American Association for Justice in San Francisco, they were turned away. Ray De Lorenzi, the AAJ's associate director of communications, said the event was open only to members of the national plaintiff-lawyers' group, according to Legal Newsline. "No media have ever been allowed at our conventions," he said. "This is for members only."

Unfortunately for Mr. De Lorenzi, it is simply not true to say that media have never been allowed at AAJ's conventions. I can say that unequivocally because I attended a number of the organization's conventions as a credentialed member of the news media and also arranged for other reporters at my publications to attend. On more than one occasion, I conducted face-to-face interviews with the association's president during the annual convention, usually with the organization's director of media relations sitting in, so I have no doubt they knew I was there.

Mr. De Lorenzi joined the AAJ only last year, according to his LinkedIn profile, so I have to assume he was misinformed about the association's past practice. Regardless, for a major professional organization such as the AAJ to maintain a strict policy of excluding the news media from its annual convention is just stupid (to borrow a word from President Obama). I do not know how far its policy goes, but I could not find even blog posts coming out of the convention this weekend. The official AAJ convention blog went silent a week before the convention got underway.(Its last media-sensitive post: announcement of a new speaker on the topic, "Your Summer Beach Body.")

The AAJ has always been skittish about the news media. I remember an incident years ago in which a reporter working for me sat through and wrote about a meeting that was supposed to be a top-secret strategy meeting off-limits to the press. No one at the meeting said it was closed and no one noticed the reporter sitting in. The incident caused an uproar within the organization's higher echelons but was hardly noticed by anyone else.

In this day and age, any organization that considers itself smart to shut out the media is seriously misguided in its policy. The smart approach is to develop a policy that welcomes and encourages media of all kinds -- traditional media and new media. A smart media strategy does not require complete transparency. The AAJ is involved in coordinating national litigation and has every right to expect and maintain confidentiality in this work. But to distrust the media so thoroughly as to shut it out entirely serves only to breed reciprocal distrust, by the media and by the public at large. If the AAJ wants to enhance the image of trial lawyers in this country, it had better start by enhancing its transparency.

July 27, 2009 | Permalink | Comments (3)

Watching the Blawgs: Lesbian Sex and Other Legal Links

Other posts worth your attention today:

July 27, 2009 | Permalink | Comments (1)

July 24, 2009

Bitter Lawyer Quizzes Elizabeth Wurtzel

A few months ago, author-turned-lawyer Elizabeth Wurtzel stirred up some controversy with an op-ed in The Wall Street Journal arguing that perhaps time spent working at BigLaw was just one big waste. Now Bitter Lawyer throws a few questions Wurtzel's way in hopes of catching a little more controversy.

Wurtzel says she decided to go to Yale Law even though it was a crazy idea -- she already had a successful career as a writer. Though Wurtzel thought she might want to teach, she eventually decided that she wanted to use her law degree in practice. However, she also wanted to continue to write, and WilmerHale, the firm where Wurtzel spent her first summer after law school, couldn't accommodate that goal.

So Wurtzel wrote to fellow Yale alum David Boies, telling him that she wanted to practice law and write. Boies offered her a position at his firm, Boies, Schiller & Flexner -- though she soon learned that "part time at Boies, Schiller is like fulltime by anyone else's reckoning ... I work five days a week, but most people here work seven, so I guess that's part-time. I suppose you can think of my schedule as being something closer to flextime."

In the second part of the interview, Wurtzel reveals another big secret: She's not much of a blog reader and doesn't really even follow Above the Law (probably one of only a handful of associates in that category!) Hopefully she has managed to miss the latest commentary about her on Gawker, too.

July 24, 2009 | Permalink | Comments (2)

Another Example of the Cover-Up Being Worse Than the Crime

In politics, the cover-up is generally worse than the crime. The same is true in the practice of law, where a lawyer's efforts to cover up a not-so-horrible act of neglect eventually landed him in even more hot water.

Michael Frisch, an adjunct professor at Georgetown Law, posts about an example of this phenomenon at the Legal Profession Blog. As described in this New York Appellate Court decision, the lawyer in question was an associate at Weinberg & Kert who prepared a summons and complaint on behalf of a client who was ostensibly proceeding pro se. A few months later, the client advised the firm that the defendant had not answered the summons and complaint so the firm directed the associate to serve the papers seeking a default. The associate prepared the papers but never filed them. A year later, the client contacted the firm for a status report, at which time the associate began creating fictitious court documents including:

(a) a short form order dated April 23, 2003, issued and signed by the Honorable M. Ritholtz, granting Mr. Kaufman's motion for a default judgment and referring the issue of damages to an inquest, (b) the defendant's order to show cause, signed by the Honorable M. Ritholtz on September 12, 2003, seeking to set aside the default judgment, accompanied by defense counsel's signed affirmation and the defendant's signed, but not notarized, affidavit, (c) the respondent's affirmation in opposition to the defendant's order to show cause, dated October 8, 2003, (d) a preliminary conference stipulation and order dated March 17, 2004, signed by the respondent and defense counsel, and (e) a notice of compliance/settlement conference scheduled for October 21, 2004, before the Honorable M. Ritholtz.

Needless to say, the associate was eventually caught and despite alleging mitigating factors -- such as anxiety disorder and youth and inexperience -- he was suspended from the practice of law for three years. All for a claim that was eventually settled for $7,500.

July 24, 2009 | Permalink | Comments (2)

Is Marking Up Contract Lawyer Costs Worse When Plaintiffs Lawyers Do It?

The practice of law firms marking up the cost of contract lawyers has been around for ages. Nearly two years ago, I posted that bar rules allowing firms to mark up the cost of U.S.-based contract lawyers without disclosure gave firms incentive to treat contract lawyers as profit centers, and discouraged them from offshoring document review, because in that situation firms would be required to disclose their markup to clients.

Notwithstanding the general recognition that contract lawyers provided a profit center for law firms, I rarely saw any criticism of the practice. To the contrary, use of contract lawyers was touted as a cost-saving tool for clients, since even with the hefty markups, firms claimed that contract lawyers still cost less than full-fledged associates.

But now that plaintiffs firms are using contract lawyers too, someone is voicing opposition to the practice. In this week's issue of Forbes, Cardozo Law Professor Lester Brickman asserts that plaintiffs firms' use of contract lawyers and markup of their fees has "turned [shareholder] suits into ATM machines." Brickman explains that plaintiffs firms use contract lawyers to tag, code and sort documents, tags that could be accomplished more affordably and efficiently through use of technology and administrative staff. He elaborates:

As part of [the discovery process], each document is coded as to document type, author, recipients, date, subject and other bibliographical data and put into a searchable data base. The coding is largely done electronically by data processors or paralegals. Documents that exist in paper form are converted to electronic form so that they can be electronically searched as well using "optical character recognition." In addition to this objective coding, the documents are also searched to determine relevancy, whether they are protected by the attorney-client privilege or whether they involve sensitive business information that may call for a protective order to maintain some degree of confidentiality. Initially, this subjective search is usually performed by contract lawyers working either for the vendor or the law firm. Law firm associates then do additional review as required.

In securities class actions, document review is done differently on the plaintiffs' side. Instead of using electronic means and clerical personnel to objectively code documents, the lawyers use contract lawyers to do this task, document by document. In the Tyco securities litigation, of the 423,380 hours that the lawyers for the class claimed to have worked (not including clerical staff), 290,552 hours (69%) were accounted for by contract lawyers reviewing 83.5 million documents. In the Xerox securities litigation, 201,506 of the 290,759 hours claimed to have been worked by class counsel were run up by contract lawyers reviewing 4 million pages of documents.

Brickman acknowledges that defense firms once added a profit margin on these expenses, but he says that clients and competition "drove out much of the profit." Yet Brickman never criticizes those firms for introducing the practice of markups in the first place. Nor does he address one of the points raised by commenters -- that firms continue to charge upwards of $300/hour for junior associates whose salaries translate into $50-$80 an hour.

Brickman gets other fact wrong as well. He writes:

Though contract lawyers are paid about $35 to $40 an hour, plaintiffs' firms "bill" this time to the class at $300 an hour or more, sometimes without disclosing that work was not done by the firm's lawyers.

While it's true that contract lawyers only get $35 or $40 an hour, that's different from what the law firms pay for them. For most large projects, firms use staffing agencies that also mark up the cost of contract attorneys, frequently close to double the amount that the attorney is paid. So though an attorney may only earn $35/hour as a contract lawyer, chances are, the law firm is paying his or her staffing agency between $60 and $70. In addition, Brickman seems to suggest that plaintiffs lawyers' failure to disclose that work was done by contract attorneys is somehow wrong. But many ethics rules do not require such disclosure, just as they don't require lawyers to disclose how much profit they earn off of full-time associates. Perhaps the rules governing recovery of fees in class action suits require this disclosure, but if they do not, then lawyers aren't doing anything wrong by not revealing who did the work.

Don't get me wrong. Though I don't take issue with marking up contract lawyer fees, I do think that some rule of reason should apply and that firms shouldn't be able to pass on to clients three or four times a contract lawyer's hourly rate. But I disagree with that practice for any law firm, regardless of which side of the case they're on.

What do you think? Are plaintiffs firm markups worse than those of defense firms? Or is Brickman holding them up to a double standard?

July 24, 2009 | Permalink | Comments (3)

ABA Journal Names Top 25 Greatest Legal Shows

The jury is back from its flat-panel bedecked deliberation room, and the verdict for the greatest legal television show of all time is... "L.A. Law," according to a panel of 12 "experts" (including nine lawyers) selected by the ABA Journal. The rest of the list shows a mixed affinity for the classic (#2 -- "Perry Mason"), the perennial (#4 -- "Law & Order," not to be confused with its spinoffs, two of which also make the list) and the cartoonish (#16 -- "Harvey Birdman, Attorney at Law").

The online blurb at the ABA Journal Web site doesn't offer much information about the selection process, and having watched only a handful of the top shows myself, I don't have much insight either. But feel free to cast your own vote or to post a comment below on your favorites.

July 24, 2009 | Permalink | Comments (1)

July 23, 2009

The Joke's on Yoo: Law Prof Pranked

As an attorney in the Justice Department's Office of Legal Counsel during the administration of President George W. Bush, John Yoo helped write the so-called torture memos, justifying the use of "enhanced interrogation techniques" against "enemy combatants." Among the iconic images to come out of that era were the photographs of black-hooded prisoners at Abu Ghraib prison taken by their military handlers.

Yoo went on to become a professor of law at the University of California's Berkeley School of Law, and is currently a visiting professor at Chapman University School of Law in Orange, Calif. But his role in writing those memos remains very much in the news. And even in the seeming safety of a Chapman law school classroom, Yoo is not safe from criticism -- or from being punked. Wired's Threat Level blog tells what happened to Yoo during a lecture last week on international law.

After Yoo mentions the Constitution during his lecture, and asks the students if they have any questions, an Australian comedian from the show Chaser’s War on Everything is seen wearing a black-hooded robe and standing on top of his desk with his arms outstretched, recalling one of the most iconic images of U.S. torture captured in the now-infamous Abu Ghraib photos.

The comedian says, “Actually, professor, I’ve got one question. Uhm, how long can I be required to stand here ’til it counts as torture?”

Yoo cuts his lecture short and replies, “Unfortunately, I’m going to have to end class,” as he packs up his lecture notes.

As Yoo apologizes to the class for the interruption, the comedian replies, “If this is awkward for you, it’s very uncomfortable for me, I can tell you…. I’d love to move but every time I do my balls get buzzed.”

You can see the confrontation for yourself in the video below.

July 23, 2009 | Permalink | Comments (3)

A First Amendment Right to Play Online Games?

A California man who suffers from agoraphobia is suing Sony after it banned him from participating in multiplayer games on its PlayStation Network. The man, Erik Estavillo, claims Sony has violated his right to free speech by removing his only form of socialization. He is asking the federal court to issue an injunction preventing Sony from banning him and to award him monetary damages of $55,000. His complaint alleges:

Sony Computer Entertainment America has caused pain and suffering to an already disabled plaintiff, whom suffers from Obsessive-Compulsive Disorder, Panic Disorder, Major Depression, and Crohn's Disease. The pain and suffering was caused by the defendant, Sony, banning the plaintiff's account on the PlayStation 3 Network, in which the plaintiff relies on to socialize with other people, since it's the only way the plaintiff can truly socialize since he also suffers from Agoraphobia.

Think it sounds like a frivolous lawsuit? Think again, says Annie Lin, a lawyer who is director of licensing at The Rights Workshop. Writing at VentureBeat, she says she initially considered the suit meritless. On further thought, however, she says there may be at least a colorable basis for the case and that it could have even broader implications for virtual communities in general.

To make a First Amendment claim, there needs to be some kind of "state action." One way to establish this, she says, would be to convince the court that the multiplayer game environment could be considered a sort of "company town" for First Amendment purposes:

If Estavillo can show that MMOG communities and virtual worlds have replaced the traditional (physical) places where the public can congregate, then the community element of Sony’s game will satisfy the public function exception. However, it seems that the plaintiff will probably have a difficult time establishing that the limited features of RFoM, given the game seems to only provide some limited social functionalities to supplement the primary activity of killing aliens. ...

Estavillo will need to convince the court that this is a public place where the community at large congregates and communicates, rather than a game played by a subset of the community that happens to provide a means of communication. Are game-playing community members from abroad considered members of this company “town”, and if so, can they also claim First Amendment protection too?

How the court answers these issues, Lin says, could "pose interesting and important constitutional implications for products such as Second Life and Facebook." In other words, a seemingly meritless lawsuit by an agoraphobic who depends on the game, "Resistance: Fall of Man," for his socialization could conceivably end up charting new legal ground.

July 23, 2009 | Permalink | Comments (5)

Gates-gate: What's the Law Say?

As if the controversy surrounding the arrest of Harvard Professor Henry Louis Gates wasn't sufficiently swirling through the media and the blogsophere, the president of the United States had to weigh in, saying during a press conference last night that Cambridge police "acted stupidly" when they put Gates in handcuffs even after he showed proof that he lived in the home where police had come to investigate a report of a burglary.

Of course, Gates was arrested not for suspicion of breaking and entering, but for disorderly conduct after he and a police officer engaged in a confrontation at his home. The district attorney later agreed to drop the charges against Gates after the city of Cambridge, Mass., and its police department jointly recommended the DA not pursue the matter.

Clearly, dropping the charges was the right move politically. But was it the right move legally? David E. Frank, a former prosecutor who is now a reporter for Massachusetts Lawyers Weekly, says it was, given that the charge against Gates was unlikely to hold up under the Massachusetts disorderly conduct statute.

In a 1976 decision, Commonwealth v. Richards, 369 Mass. 443, the Supreme Judicial Court of Massachusetts held that the First Amendment prevents application of the disorderly conduct law to language and expressive conduct, even when it is offensive and abusive. The one exception would be language that falls outside the protection of the First Amendment, "fighting words which by their very utterance tend to incite an immediate breach of the peace."

Jury instructions used by the Massachusetts courts spell out three elements that must be proved beyond a reasonable doubt to convict someone of disorderly conduct:

1. The defendant engaged in fighting or threatening, or engaged in violent or tumultuous behavior, or created a hazardous or physically offensive condition by an act that served no legitimate purpose.

2. The defendant’s actions were reasonably likely to affect the public.

3. The defendant either intended to cause public inconvenience, annoyance or alarm, or recklessly created a risk of public inconvenience, annoyance or alarm.

There are at least two different versions of what happened at Gates' house -- his and that of the arresting officer. But even if one were to assume the accuracy of the police version -- that Gates called the officer a racist and warned him that he had no idea who he was dealing with -- there is no basis for prosecution, Frank concludes.

While the report refers to Gates’ conduct as "loud and tumultuous," there does not appear to be anything there that would allow for a conclusion that they were "fighting words."

The SJC has also said that for a defendant in Gates’ situation to be found guilty, his actions must have been reasonably likely to affect the public in a place to which the public had access. Where much, if not all, of the alleged conduct occurred on Gates’ property, it appears that legal requirement would prove fatal to the DA’s case.

The controversy over Gates' arrest is unlikely to die down anytime soon. But one conclusion seems clear -- the legal ground for his arrest was shaky from the start.

July 23, 2009 | Permalink | Comments (31)

The End of Compelled Consumer Arbitration?

Even the Manhattan Institute-sponsored blog is conceding the future looks bleak for mandatory consumer arbitration. Three major developments this week, capped by a congressional hearing yesterday, throw into question the fairness of the process and the neutrality of at least one group of supposed neutrals.

Let's recap the week's events:

  • On Monday, Minnesota Attorney General Lori Swanson announced that she had reached an agreement with the National Arbitration Forum by which it would immediately get out of the business of arbitrating credit card and other consumer collection disputes. A week earlier, Swanson had filed a lawsuit against the NAF -- the largest arbitration company in the country handling consumer credit disputes -- alleging that the company had hid from the public its extensive financial ties to the collection industry.
  • On Tuesday, fresh on the heels of Swanson's announcement, the American Arbitration Association announced that it would stop participating in consumer debt-collection disputes until new guidelines are established. The AAA's decision was first reported by the Wall Street Journal and then confirmed yesterday in testimony before a subcommittee of the U.S. House Committee on Oversight and Government Reform.
  • At yesterday's hearing in Congress, U.S. Rep. Dennis Kucinich, D-Ohio, the committee chair, released a report showing what he called "deeply disturbing" abuses in consumer debt-collection arbitration. The report, based on a congressional staff investigation, reached a conclusion similar to that alleged by Swanson -- that NAF misled consumers and hid ties to debt-collection firms.

The NAF defended the integrity of its arbitrations, issuing a statement this week saying that it "provides fair and affordable access to justice to American consumers regardless of size of their claims." Its agreement to get out of the consumer-arbitration business was driven by economics, said CEO Mike Kelly. "Mounting legal costs, a challenging economic climate, and increased legislative uncertainty surrounding the future of arbitration have prompted the Forum to exit the consumer arbitration arena. At this time, the costs of providing consumer arbitration services far exceed the revenue generated."

One of the most intriguing aspects of all this is the role of the law firm Mann Bracken. This firm is the result of the recent merger of three debt-collection firms: Mann Bracken, based in Atlanta, Wolpoff & Abramson, based in Washington, D.C., and Eskanos & Adler, based in California. Mann Bracken is what might be called a "captive" firm, in that it works exclusively for one client, the debt-collection company Axiant LLC. Swanson's complaint against NAF alleges that, before their merger, these firms represented the credit-card companies in 60 percent of the arbitration cases heard by the NAF.

But here's the rub, according to Swanson: The majority owner of Axiant is Accretive, a New York private equity fund that operates under the control of investment manager J. Michael Cline. Accretive is also the parent of Agora, an entity created to invest in the NAF. Accretive then created Axiant to acquire the assets of the three law firms that merged into Mann Bracken. Together, Swanson alleges, "Accretive, Agora, Axiant, the Forum, and Mann Bracken form a complex web of companies that compose some of the largest debt collectors and arbitrators of consumer credit card debt in the country." One document describing the business plan for Accretive's investment in the Forum describes the goal as placing the Forum "at the center of a broad arbitration ecosystem."

The impact of all this remains to be seen. Alan Kaplinsky, a banking and financial services attorney at Ballard Spahr Andrews & Ingersoll, called the week's developments "devastating news for consumers and the banking industry." He predicted that the NAF's withdrawal from these cases "will place a staggering burden on the courts, which will have to absorb thousands and thousands of cases that had been diverted to arbitration." One other arbitration company, JAMS, continues to handle consumer debt cases. It may be the only one doing so on a national basis, according to Consumer Law & Policy Blog. But JAMS may be unlikely to fill the void, the blog says, and may feel pressure to follow the lead of the NAF and the AAA.

There is reasonable ground to debate the merits of mandatory binding arbitration in any circumstance. The American Association for Justice has long maintained that mandatory arbitration is one-sided and unfair. But whatever one thinks of mandatory arbitration, the allegations concerning NAF take the debate to a whole other level. One fundamental precept of arbitration is that the arbitrator be independent and neutral. Arbitrators are expected to disclose not just possible conflicts of interest, but even relationships that may create the appearance of a conflict. If NAF indeed had financial ties, however removed, to the very law firms that were appearing as advocates in its cases, then it violated a standard that underlies the very foundation of ADR.

July 23, 2009 | Permalink | Comments (4)

July 22, 2009

ABA to Take On the FTC Over Red Flag Regulations

With the Aug. 1 effective date for the Federal Trade Commission's "Red Flags Rule" on identity theft fast approaching, the ABA is girding for battle, reports the Blog of the Legal Times. That's because the FTC continues to refuse to exempt lawyers from the new regulations, which are designed to ensure that all entities that act as "creditors" implement certain procedures to safeguard customer and client data. Under the rules, most law firms meet the technical definition of "creditor," because they extend credit to clients by rendering services first and issuing fees after the work is completed.

The ABA argues that the regulations were never intended to apply to law firms. In addition, the ABA views the FTC's efforts to regulate lawyers as an intrusion on the tradition of self-regulation that the profession has always enjoyed. There's precedent for keeping the FTC out of the business of lawyer regulations; back in 2005, the D.C. Circuit held that lawyers were exempt from a privacy notice requirement implemented by the FTC in American Bar Association v. Federal Trade Commission.

The Bars are readying for legal challenges, but they are also hoping that Congress will intervene. In the meantime, there's not much time left until these rules take effect. Are you ready if they do?

July 22, 2009 | Permalink | Comments (1)

Doctors Don't Like Ratings Systems Any More Than Lawyers

Doctors and lawyers may go head to head when it comes to the debate over medical malpractice, but they stand united in one regard: Neither profession is all that receptive toward client or patient ratings systems. But whereas lawyers responded to Avvo's proposed rating system with lawsuits alleging violations of consumer protection laws, doctors are using intimidation. According to the Washington Post, some doctors are requiring patients to sign broad agreements that prohibit online postings or commentary in any media outlet without prior written consent.

Ron Miller of the The Maryland Injury Lawyer Blog doubts that such agreements would be enforceable. But legal issues aside, Miller doesn't see these agreements as a very wise practice since they raise questions about a doctor's conduct (as in, "Why wouldn't this doctor want to be rated?") as soon as the patient sets foot in the office. On the other hand, Miller is also disconcerted by the fact that commenters can post about a service provider with limited accountability, anywhere across the Internet.

For John Bratt of Baltimore Injury Lawyer Blog, ratings systems are part and parcel of being in a customer service profession. He writes:

The problem here is that all professionals, including doctors and lawyers, are in a customer service industry. It's true that a layperson may not really have the knowledge to asses the quality of medical or legal services. On the other hand, it is easy for the average person to judge whether the staff is friendly or rude, wait times are unreasonable, if phone calls are returned promptly, or if facilities are clean and well-kept.

As with lawyers, it seems that doctors can't stymie the emergence of ratings systems. A post today on The Wall Street Journal's Health Blog reports that a nonprofit called Consumers' Checkbook is launching the latest effort to let patients rate their doctors. According to the group's founder, the site is trying to distinguish itself from other ratings systems by, among other things, surveying patients and allowing doctors to review results before they are publicly posted.

July 22, 2009 | Permalink | Comments (0)

Lawyer Proves the Other Side's Case in a Disciplinary Proceeding

Over at my home blog, My Shingle, I've posted on an interesting disciplinary matter unfolding in Colorado. According to the Denver Post, back in 2007 attorney Mark Brennan won a substantial verdict for his client in an employment matter in federal court, only to have it snatched away by the judge as sanction for Brennan's inappropriate conduct during the trial. Brennan's client eventually settled the case for $850,000 with the defendant, but the bar brought ethics charges against Brennan.

Understandably, Brennan is frustrated -- he got a good result for his client and now he's being taken to task. Unfortunately, Brennan's frustration shows at the ethics proceedings in videos like this one, where Brennan shoved, cursed and glowered at ethics counsel. As a result of that action, the bar is now apparently thinking about referring the case to criminal prosecutors to consider charges.

I get that Brennan feels he's being targeted, but as I describe in more detail in my post, why Brennan chose to represent himself is beyond me. All Brennan is accomplishing is proving the other side's case -- and the old adage that the lawyer who represents himself has a fool for a client.

July 22, 2009 | Permalink | Comments (5)

Can Lawyers Be Rebels?

Has the revolution been co-opted? That was my first thought when I read that the ABA Journal, one of the most mainstream of all legal industry publications, is sponsoring the Legal Rebels project in an effort to remake the legal profession.

So who are the legal rebels? According to Ed Adams, ABA Journal editor-in-chief, the rebels encompass:

Dozens of lawyers nationwide [who] aren't waiting for change. Day by day, they're remaking their corners of the profession. These mavericks are finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers. Most are leveraging the power of the Internet to help them work better, faster and different.

The Legal Rebels project will profile these innovators and describe the changes they are making. It will tell their stories in the ABA Journal, on this website and through a variety of social media channels using text, pictures, audio and video. The first of these profiles will appear here on August 25. Several will be added weekly through the end of November.

The Legal Rebels project seeks wide participation. Lawyers are invited to nominate "rebels," and according to recent tweets listed at the site, the nominations are rolling in. In addition, there's a Legal Rebels Manifesto posted at the site wiki so that lawyers can make their own edits.

I've not seen much buzz about the Legal Rebels project just yet. But at least one site -- the perpetually disgruntled Temporary Attorney -- isn't impressed. Citing a commenter, Temporary Attorney writes that:

[T]he REAL online rebel movement among lawyers online is the movement to expose the law school scam and how the legal establishment such as the bar associations are enabling the law school industry to lure hundreds of thousands of law students into 6 figure debt when there is a huge oversupply of lawyers already.

For years, the legal elites have benefited from this drastic oversupply and the cheap labor generated by these nasty unsanitary debt repayment mills. But now, however, even a shitty benefitless secretarial wage is too much for them to handle. Hence, this year we have seen the devastation unleashed by the ABA's opening of the floodgates to a massive wave of foreign outsourcing.

So who owns the revolution and what does it mean in the context of the law? Are legal rebels those who, as the ABA project suggests, innovate with technology to bring down costs and better serve clients, even if it means the elimination of traditional jobs? What about the hordes who read and comment on sites like Temporary Attorney, waging their online battle against what they see as the legal profession's race to the bottom?

July 22, 2009 | Permalink | Comments (2)

July 21, 2009

Economy Hits GC Pay, Too

In good times or bad, general counsel compensation has tended to drift upward, notes the introduction to Corporate Counsel magazine's 2009 GC Compensation Survey. But this year, even GC were not immune to market forces, the survey finds. While some indexes of GC pay rose, the basic trend was nearly flat, it concludes.

But let's not shed tears for our brothers and sisters who work in-house. Overall, the general counsel of the nation's largest companies still managed to get a modest raise. "Modest" is Corporate Counsel's descriptor, not mine. When one starts from an average earning base of over $1 million, modesty is a matter of perspective. Consider that the year's average bonus was $1.16 million and the average salary was $596,393. That means GC earned a total average cash payout of $1.8 million. Certainly, that would be enough to make me blush.

Notably, the year's top earner -- at $9.7 million -- was not a top legal officer. In fact, he no longer even works for the company that so richly rewarded him. He is Gregory Doody, an expert in bankruptcy law hired by the Calpine Corp. in 2006 as its chief restructuring officer tasked with leading the company out of bankruptcy. His efforts earned him a cash bonus this year of $9.4 million. But Doody left Calpine after a new CEO came on board.

Other richly rewarded GC at the top of this year's chart include Donald Rosenberg of Qualcomm, whose salary and bonus added up to $9.68 million; Brackett Denniston III of General Electric Co., who received a $5.9 million bonus and earned $121,000 from stock on top of his $1.2 million salary; Charles Wall of Philip Morris International, who took home $8.4 million; and Alan Braverman of The Walt Disney Co., with salary and bonus totaling $4 million.

So if it was not the best of years for general counsel, it certainly was not the worst of years. Did the economy pinch their paychecks? Sure, but with that much fat in their pay, they probably never felt a thing.

July 21, 2009 | Permalink | Comments (0)

Misbehaving Lawyers

In England, a solicitor is a lawyer. In La Jolla, Calif., a lawyer is alleged to be a solicitor, not in the legal sense, but in the decidedly illegal sense. Lawyer Steven R. Liss, 53, has been arrested on suspicion of trying to hire someone to kill his wife, the San Diego Union-Tribune reports. The family-law practitioner apparently decided that divorce court was not his best option and instead sought the help of others to have his wife killed, police said. The newspaper reports that Liss has twice had his law license suspended and has had numerous complaints filed against him by clients.

Up the California coast in Santa Ana, bankruptcy lawyer Ralph Gibson Pagter Jr., 49, was arrested after he allegedly tried to use a large hunting knife to stab a process server, the Los Angeles Times reports. When the process server came to Pagter's home, the lawyer allegedly confronted the man, threatened him and tried to stab him. The man fled and called police, who arrested Pagter on suspicion of assault with a deadly weapon. He was later released on $25,000 bail.

Meanwhile, in Minneapolis, 42-year-old lawyer Johann Scott Scrimshire was taking advantage of the summer weather to get in some bike riding. Only problem was, his parts were exposed -- and I don't mean bike parts. Police arrested Scrimshire and cited him for indecent exposure after someone called 911 and reported a man on a bicycle exposing himself to walkers and joggers, according to the Star-Tribune (via MinnLawyer Blog). They found Scrimshire "wearing a skirt-like garment or a pair of shorts with the crotch area removed." Scrimshire offered police a perfectly reasonable explanation for his attire: he was training for a naked bicycle race.

In St. Joseph County, Indiana, Judge Roger L. Huizenga has been publicly admonished by the Indiana Commission on Judicial Qualifications, Legal Profession Blog reports. The judge was cited for various instances of ethical wrongdoing. Of particular note was the judge's choice of court clerk -- his wife. He employed her as such from 1995 to 2009. "However, after the initiation of the Commission's investigation," the announcement explains, Judge Huizenga did cooperate with the Commission by encouraging his wife to resign, which she ultimately did." Must have made for interesting dinner conversation at the Huizenga household.

July 21, 2009 | Permalink | Comments (1)

Top Eight Reasons Not to Go to Law School

[Update: H. Luiz is not in law school, he says in an e-mail.]

As far as I can tell from reading his blog, H. Luiz is currently in law school. That does not mean, however, that he is happy there (even if "happy law student" is an oxymoron). Luiz has compiled a list of the top eight reasons not to go to law school. Were it not far too late for me to reconsider, his list might well scare me away.

Consider his top reason -- law school is "financial suicide." "F*ck what you heard about how much money you’re going to make when you pass the bar in 3 to 4 years -- you’re going to need at least 12 years of paying off that loan," he warns. His advice for those electing to forge ahead: "If you have a house - sell it; if you have children - sell them (but try to buy them back later)."

And then there is this encouraging observation about law school's effect on the psyche:

Law School will suck the creativity out of you. Law school is designed to make you a logical, stringent person who can quickly analyze any situation. There’s no room for creativity. Imagination? Imagination is for artists, chefs, bloggers, children, writers, Entrepreneurs, happy people -- not lawyers.

OK, so law school empties your wallet and shuts down the right side of your brain. But the bad news does not end there, according to Luiz. What else can the aspiring lawyer look forward to?

  • The loss of your significant other. Law students have a break-up rate of nearly 80 percent, he says. (I would love to know who compiled that stat.)
  • A brutal, multi-day bar exam. "You will study like an animal for three months, only surfacing from your dungeon to eat and feel some sunlight on your face for one insane exam."
  • Future unemployment. Hoping to land a job after graduation? Good luck, says Luiz.
  • Insane hours. Those fortunate enough to land jobs soon grasp their misfortune -- a life of 70-hour workweeks.
  • Law professors. "Law school professors are some of the most pretentious and arrogant people on earth," Luiz reports -- as if we needed to be told.
  • Harassment. Not of the sexual kind, but of the bothersome kind, as family and friends pester you for free advice.

I read Luiz's post certain there would be at least some glimmer of light at the end, but I was wrong. For anyone considering law school, he cautions, "Think twice, then think again."

July 21, 2009 | Permalink | Comments (25)

Web Video Series Shows Drama in the Courts

Attention Silver Gavel Awards judges: I have your next award winner. If the purpose of these ABA awards is to recognize those in the media who have been exemplary in helping to foster public understanding of the legal system, then give Ron Sylvester his due.

Ron_Sylvester Sylvester is a reporter who covers courts and legal affairs for The Wichita Eagle. Readers of this blog may remember him as possibly the first news reporter to cover a capital murder trial via Twitter. Even before that, he was already a journalistic innovator in his use of live-blogging to cover trials. He continues both to tweet and to blog regularly from the courts.

Beginning today, he is once again blazing a new path in legal journalism, launching Common Law, a Web video series that aims to show the human drama in the day-to-day workings of Wichita's courts. His focus will not be on the sensational cases the media typically cover, but on the routine cases that come before the courts and the impact they have on people's lives.

I’ll keep covering the high-profile crimes that hit our city, including our live Twitter updates. But we hope that with this series, you’ll learn more from those inside the criminal justice system about the cases that fill the dockets of a courthouse in middle America every day.

The series will begin by focusing on a judge, a lawyer and two sheriffs' deputies who agreed to be videotaped. The judge is Sedgwick County District Judge David Kaufman, who was both a public defender and a prosecutor before going on the bench. The lawyer is Lacy Gilmour, a public defender since graduating from law school three years ago. Also in the cast, Sylvester writes, will be "the people accused of, and touched by, crimes in Wichita."

Sylvester says that he has not found any other series quite like this on the Web. Inspiration for the series came from two sources. One was Steve Bogira’s book, "Courtroom 302," about a year inside a courtroom in Chicago. The other was Courthouse Confessions, the blog by photographer Steven Hirsch, who stands outside Manhattan criminal court and captures the stories of those who pass through its doors.

Ron Sylvester and the editors and others he works with at are ahead of the curve in showing how the Internet can help promote public understanding of the legal system. Gavel judges, are you paying attention?

July 21, 2009 | Permalink | Comments (1)

Tom Watson's Lessons for Lawyers

Tom Watson In the Boston area where I live, we pounce on beautiful days like someone wandering the desert does a sudden oasis. But on the particularly bright and sunny Sunday that just passed, I could not tear myself away from the TV, mesmerized as I was by the drama of 59-year-old golfer Tom Watson's drive toward possible victory in the British Open. It was not to be, the world now knows, but this year's Open championship will forever be remembered not for the winner, but for the improbable story of the man who almost won.

We can all find lessons and inspiration in Watson's story. But are there lessons of particular applicability to the legal profession? Wondering this, I turned to the blawgs in search of answers. Somewhat surprisingly, I actually found some.

One thoughtful post, What Tom Watson Teaches Us About Business and Practicing Law, comes from John L. Watkins, a partner with Chorey, Taylor & Feil in Atlanta. Watkins finds several lessons for lawyers. One is that doing what you do, and doing it well, can sometimes be reward enough. "Watson has reminded us to stay in the game, to enjoy what we do, and to relish the chances -- few as they may be -- to do something really special in our chosen business or profession."

Another is that experience counts:

Watching Watson hit smart shot after smart shot in difficult and differing conditions -- taking his medicine when necessary -- shows the advantage of over 30 years of experience in playing links golf. Even in athletics -- where youth must be served -- experience still counts for something. This is even more so in business and law.

Another rumination on Watson comes from Mark Wahlstrom, president of a structured settlement company, writing at The Settlement Channel. For Wahlstrom, a key lesson is not to give up on opportunity and hope. "Take a tip from Tom Watson, who whether he wins or loses, will have set an example that age, physical limitations and the expectations of others are no excuse for just showing up and mailing it in," he writes. "Develop a plan. Expect it to work. Execute the plan and get up on the leader board instead of showing up for the free sleeve of golf balls and a couple of drinks in life."

The only other legal blog post I found about Watson came from Tom Kirkendall at Houston's Clear Thinkers. He was less philosophical, choosing instead to quote the tweet of Golf Digest writer Dan Jenkins, who looked at Watson's feat from a different perspective: "I was Watson's age 20 years ago -- still drinking a lot, practically buying Elaine's. I thought I was immortal. What's the big deal about 59?"

Heck, if Watson were a Supreme Court justice instead of a pro golfer, we'd consider him a kid. Still, it was less his age than his drive that I found inspiring -- his belief coming into the championship that he could win and his presence of mind to make it happen -- almost. Watson gives new meaning to that old saying, "It doesn't matter whether you win or lose, it's how you play the game." And that is a lesson worth remembering for lawyers as much as for athletes.

[Photo source: / CC BY 2.0]

July 21, 2009 | Permalink | Comments (3)

July 20, 2009

In-House GCs Can't Afford to Manage Outside Counsel

As a general matter, companies bring in outside help when they're too short-staffed to handle matters in-house. But corporate legal departments are so understaffed these days they can't even hire reinforcements or outsource the work because they don't have the time to manage outside firms, reports The National Law Journal.

According to a study by BTI Consulting Group, in-house counsel are cutting down on the number of outside firms they work with because they just don't have the time to manage them. Of the 550 companies surveyed, the majority expect to use an average of two primary law firms by 2012 and six secondary firms. By contrast, in 2007, companies on average worked with two primary firms and 10 secondary firms. Companies also indicated that they lacked patience for law firms that are not flexible in billing.

In addition, the survey showed that large companies aren't limiting their options to Am Law 100 firms. In 2007, 64 percent of the firms retained by the companies surveyed were in the Am Law 100; in 2008, that number dropped to 36 percent. And in 2008, 38 percent of companies used firms outside of Am Law 200, an increase over the 25 percent that went outside in 2007.

Should top firms be worried? Or is it just smaller matters being outsourced outside Am Law 200 while the top firms are still keeping the largest, most lucrative matters?

July 20, 2009 | Permalink | Comments (0)

Can 'Food Addiction' Be Fodder for Lawsuits?

There's a really interesting new post by Jane Genova over at Law And More predicting a possible resurrection of the obesity class action lawsuits against fast food companies. The first round of lawsuits never gained traction. Judges dismissed the suits claiming that fast food products are inherently dangerous, finding that plaintiffs could not prove that eating fast food caused their poor health. Likewise, suits targeting companies' advertising practices -- either claiming that ads disproportionately focused on "heavy users" of food and or deceptively claimed that fast food could be nutritious -- also flunked the causation test.

But will new research change that? Genova cites a recent New Yorker piece by Elizabeth Kolbert on emerging evidence of a "deliberate effort by the food industry to create cravings for substances that have low nutrition values." The concept is called "eatertainment." As with tobacco suits, it wasn't until litigants began targeting tobacco companies' failure to disclose nicotine's addictive qualities that their suits finally stuck, overcoming tobacco companies' argument that warnings on cigarette boxes shielded them from liability. Moreover, as Genova explains, there are also political reasons that can make "eatertainment" lawsuits more appealing, with the growing national focus on health care costs.

What do you think? The "inherently defective" argument didn't work for food lawsuits, and neither did "deceptive advertising." Is the third time -- addiction-based lawsuits -- the charm for the plaintiffs' bar?

July 20, 2009 | Permalink | Comments (2)

Blogging Forces Change in Law Firm Layoff Policies

Companies are fast learning that in an Internet Age, there's no such thing as a "confidential" memo. As the Wall Street Journal explains today (and as has previously been discussed here by The National Law Journal), employees are leaking confidential company information about layoffs to blogs and Internet news sites nearly as quickly as those memos are issued. And it's not just businesses that are impacted. Increasingly, law firms are finding that the "thick gray (suited) wall of silence" that once protected internal communications and law firm decisions has been penetrated by the power of the Internet.

Call it the ATL (Above the Law) effect. Indeed, the WSJ recognizes that ATL has become the number one repository of law firm leaks. From the article:

In June, leaders of Portland, Ore.-based law firm Schwabe, Williamson & Wyatt told only three or four people internally about plans to lay off 19 of its 400 employees and cut the salaries of associates. Still, at 9:11 a.m. on June 15, just 41 minutes after the first employees were notified of the layoffs, the law firm received an email from, a legal Web site.

"We had gone to extraordinary lengths to contain this because the people involved have been here for a very long time," says Mark Long, managing partner. He says the firm is reevaluating how it manages communications in an era of blogs and social media.

A week earlier, AboveTheLaw disclosed salary cuts at law firm Pillsbury Winthrop Shaw Pittman LLP before some associates had been told by managers, a spokeswoman confirms. The spokeswoman says the firm doesn't know who gave the information to the blog.

So what can law firms do to cure data breaches? One firm, Neal, Gerber & Eisenberg in Chicago, avoided a company-wide memo on layoffs back in February, opting instead to break the news to individuals personally. Jerry Biederman, managing partner of the firm, says that "If you send an electronic communication to more than a small group of people there is a substantial possibility it will turn up on a site."

The article notes that some companies are trying to crack down on those who leak information -- but in the case of layoffs, that idea seems futile. After all, what's a company going to do, fire an employee who's just been laid off?

July 20, 2009 | Permalink | Comments (4)

Blawg Review #221 Gets Complex

You wouldn't expect a simple Blawg Review from a site with a name like The Complex Litigator, and this week's Blawg Review #221 doesn't disappoint. It's anything but a simple summary of this week's past posts. Covering a wide swath of the blogosphere, this edition of the weekly "blog carnival" includes topics like the potential for Europe to adopt class action litigation; enforcement of contracts in China from the China Law Blog; the impact on health care providers of the FTC's latest red flag rules to combatt identity theft, posted at HealthBlawg (and also important for lawyers to understand); and a roundup of posts on the Sotomayor confirmation hearings, including a link to Volokh blogger Ilya Somin who gave testimony on Sotomayor's position on property rights.

Next week, Blawg Review #222 heads to IP Think Tank.

July 20, 2009 | Permalink | Comments (1)

Judge OKs Anonymous Comments, Blogger Won't Allow Them

There are a couple of interesting new posts around the blogosphere concerning anonymous online commenters. The first, over at Volokh, discusses a recent case out of Tennessee, State v. Cobbins, where a judge denied defendants' motion to require a media outlet to disable a portion of its Web site enabling Web users to post comments (mostly anonymous) about the pending case. Defendants argued that the site comments could prejudice jurors. The judge denied the motion for a variety of reasons, noting the importance of the First Amendment rights at stake:

The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The “ability to speak one's mind” on the Internet “without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate.” People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court.

Volokh agreed with the judge's decision, finding that the potential harm to the defendants from anonymous comments is fairly low:

Whatever one might say about the risk of incurable juror prejudice from media accounts, it would apply least to user comments, especially anonymous ones. Such comments are so low in credibility that it's hard for me to see jurors being much influenced by them, especially in the face of instructions from a judge that explain why such out-of-court sources should be ignored.

But are anonymous comments as noble or lacking in harm as the foregoing case would suggest? There's another side to the issue -- that of the hosting bloggers, who are fast tiring of junk comments clogging up their comment sections. For that reason, Houston criminal defense lawyer Mark Bennett instituted a new policy at his blog, Defending People, stipulating that:

Absent compelling reasons, this blog will join [another blog] in not publishing any comments of anonymous commenters. All comments must [include] a commenters' names (first and last) and real and verifiable email addresses.

Bennett observed that without accountability, commenters often staked out irrational or unsupported positions undeserving of public view. Bennett acknowledged that anonymous comments are not per se lacking in merit; he notes that Thomas Jefferson and James Madison often wrote anonymously to ensure that their opinions stood on their own merit. Unfortunately, Bennett realized that most of his anonymous commenters are not Jeffersons or Madisons and as such, he's not willing to tolerate them. But Bennett does allow exceptions, and if a commenter can make a compelling argument for retaining anonymity, Bennett will consider the request on a case-by-case basis.

Rob Bodine at What About Clients? supports Bennett's decision. Bodine writes that "The blogosphere, though, is still a mess, with too many nameless commenters who disrespect themselves and us, and waste our time." As such, WAC? is thrilled that a respected blogger like Mark Bennett is imposing this policy.

What's your view? Do anonymous comments cause more harm than good? Does the lack of accountability completely detract from the credibility of anonymous comments, or is it the lack of the quality of anonymous posts that is to blame? Post your thoughts below -- not anonymously, we hope!

July 20, 2009 | Permalink | Comments (2)

July 17, 2009

Friday Law Link Roundup

-- How do you best a patent troll? Get all your richest friends together and buy up all the bridges. [via Legal Pad]

-- So the Sotomayor confirmation hearings weren't exactly a summer thrill ride, but C-SPAN, believe it or not, does have more exciting fare. Had the senators followed a format more like Prime Minister's Questions -- in which members of parliament publicly harangue the prime minister for half an hour each week -- they might actually have learned a few things. Now the Brits are planning to open their new Supreme Court to the cameras, too.  Any chance our Nine might follow suit? [via The BLT: The Blog of Legal Times]

-- Florida's economy is looking a little flaccid these days -- the Sunshine State could definitely use a growth industry. Peninsular plaintiffs lawyers are looking at "chinese drywall" like its the new termites. [via May It Please the Court]

-- The Dallas office of Fish & Richardson brings us Exhibit D (Big D?) in the growing catalog of evidence why Texas lawyers are just a little bit louder than everyone else: The "Harpdrygal." [via Tex Parte]

-- "Torture memo" lawyer and UC Berkeley law professor John Yoo hired former Bush-nominee for the D.C. Circuit Miguel Estrada to represent him (on the government's dime) in his appeal against a former detainee's suit. Based on his op-ed in the Wall Street Journal this week, it sounds like he'll need the help. [via]

July 17, 2009 | Permalink | Comments (0)

Were Prime BigLaw Twitter Usernames 'Twitterjacked?'

Back in November 2008, a couple months after I joined Twitter, it was clear to me that at some point down the road big law firms were going to discover Twitter, too. I assumed that for consistency and branding, they would likely want to use their internet domain names as their Twitter username, and took some time one morning to see whether BigLaw had locked up their logical Twitter usernames.

Going through a list of the top 50 law firms, I was quite surprised to see that no less than 95 percent of the names that I thought these top 50 law firms would eventually want to use were unregistered. I suggested in a post on my own blog that day that anyone reading from BigLaw should "take 30 seconds and register your law firm's name today ... Even if you don’t understand what Twitter is, please just trust me and do this. Your law firm will thank you later, I promise!" I listed about 35 no-brainer Twitter usernames that I felt BigLaw needed to immediately lock up (e.g., @dlapiper, @jonesday, @akingump).

One week later, on Dec. 5, 2008, I checked on these 35 Twitter names again to see if anyone had responded, and was again surprised: Every single one of the 35 law firm names I listed had been registered. Given the 100 percent registration, my fear at the time was that “Twitter-squatters” might have hijacked at least some of those names trying to make a buck down the road. Six months later, a spot check of these 35 names shows that they remain registered but with no signs of life or ownership.

So I'm asking: Were these prime usernames Twitterjacked? If so, can they be recovered? Have any of the 35 BigLaw firms attempted to reclaim these names, or perhaps given up and gone with Plan B names? BigLaw lawyers from these firms, do you think your firms care about this?

Legal Blog Watch guest blogger Bruce Carton is editor of Securities Docket, an online publication that tracks securities litigation and enforcement developments on a global basis.

July 17, 2009 | Permalink | Comments (4)

July 16, 2009

Lawyer Disbarred for Hiding Bags Full of Cash

It may not be clear whether a lawyer who cashes a client check for $1,000 should be disbarred. But what about a lawyer who takes bags full of cash left on a judge's chair, then conceals the money from the IRS? That bizarre fact pattern lead to the legal defenestration of Seattle lawyer Mark Vanderveen, whose disbarment was just affirmed by Washington State's highest court in an 8-1 ruling, according to the Seattle Times.

Vanderveen took one bag filled with $10,000 left on a judge's chair and another left in a municipal parking lot, according to the article. Apparently the money was payment for representing a drug courier. Vanderveen didn't report the money to the IRS, though he'd previously reported similar cash payments. He later pleaded guilty to a felony for non-reporting and served time in jail. Vanderveen argued that he didn't realize that he needed to report the money. However, the bar found that Vanderveen's normal procedures for entering cash payments in his accounting system showed that he should have known that the money needed to be reported. The court disbarred Vanderveen, notwithstanding a hearing officer's recommendation of a three-year suspension.

Vanderveen was a former prosecutor and police officer, so it is likely that he should have known what he did was wrong. But here, as in the $1,000 check-cashing case, this was apparently Vanderveen's only transgression. Was disbarment too harsh?

July 16, 2009 | Permalink | Comments (6)

Twitter Hires First General Counsel, Hacker Puts Him to Work

Last Friday, Twitter named Alexander Macgillivray as its first General Counsel -- apparently not a moment too soon. Just a few days later, reports the BBC, Twitter was in touch with its legal counsel trying to assess the fallout after hundreds of its internal documents accessed by a hacker were published on the popular TechCrunch blog.

The Twitter hacking incident first came to light on July 14, with this TechCrunch post that recounted its dilemma:

The guy (”Hacker Croll”) who claims to have accessed hundreds of confidential corporate and personal documents of Twitter and Twitter employees, is releasing those documents publicly and sent them to us earlier today. The zip file contained 310 documents, ranging from executive meeting notes, partner agreements and financial projections to the meal preferences, calendars and phone logs of various Twitter employees...

We’re not going to post any of those documents [relating to employee information or company floor plans]. But we are going to release some of the documents showing financial projections, product plans and notes from executive strategy meetings. We’re also going to post the original pitch document for the Twitter TV show that hit the news in May, mostly because it’s awesome.

There is clearly an ethical line here that we don’t want to cross, and the vast majority of these documents aren’t going to be published, at least by us. But a few of the documents have so much news value that we think it’s appropriate to publish them.

On July 15, TechCrunch reiterated its decision:

But we are going to publish some of the other information that is relevant to Twitter’s business, particularly product notes and financial projections. Many users say this is “stolen” information and therefore shouldn’t be published. We disagree.

We publish confidential information almost every day on TechCrunch. This is stuff that is also “stolen,” usually leaked by an employee or someone else close to the company, and the company is very much opposed to its publication. In the past we’ve received comments that this is unethical. And it certainly was unethical, or at least illegal or tortious, for the person who gave us the information and violated confidentiality and/or nondisclosure agreements. But on our end, it’s simply news.

If you disagree with that, ok. But then you also have to disagree with the entire history of the news industry. “News is what somebody somewhere wants to suppress; all the rest is advertising,” is something Lord Northcliffe, a newspaper magnate, supposedly said. I agree wholeheartedly.

In that same post, TechCrunch also argued that it wasn't responsible for the release of the documents. Instead, the fault lay with lax security systems in place at both Twitter and Google:

It’s not our fault that Google has a ridiculously easy way to get access to accounts via their password recovery question. It’s not our fault that Twitter stored all of these documents and sensitive information in the cloud and had easy-to-guess passwords and recovery questions. We’ve been sitting in the office for eight hours now debating what the right thing to do is in this situation. We’ve spoken with our lawyers.

So how did a hacker obtain the documents? Biz Stone, one of Twitter's co-founders, speculated on that in this blog post:

About a month ago, an administrative employee here at Twitter was targeted and her personal email account was hacked. ... From the personal account, we believe the hacker was able to gain information which allowed access to this employee's Google Apps account which contained Docs, Calendars and other Google Apps Twitter relies on for sharing notes, spreadsheets, ideas, financial details and more within the company.

Stone defended Google Apps, stating that Twitter would continue to use them. He claimed that the attack resulted from the public spotlight on Twitter and relentless efforts by hackers to break into Twitter employee accounts. Finally, Stone emphasized that the hackers targeted Twitter, the company -- not Twitter, the service -- and that user accounts had not been compromised.

So far, the data released by TechCrunch relates to the company's financial projections and business plan, reports the San Jose Mercury News. One such document described at ZDNet was an internal financial forecast that Twitter would increase revenue from zero during the first two quarters of this year, with a modest $400,000 in profit by Q3 2009, followed by $140 million by the end of 2010. By 2013, Twitter projected, it would have 1 billion users and make $1.54 billion.

As for legal issues related to the publication, there hasn't been much discussion as of yet in the blogosphere. The New York Times Bits Blog mentions some of the legal issues in passing, noting that Michael Arrington of TechCrunch said that he has lawyers looking at the legal aspects of trade secrets and the receipt of stolen goods. Meanwhile, Richard Koman at ZDNet isn't sure that the First Amendment would protect TechCrunch from liability in this case. If you have any thoughts on the legal issues here, feel free to share them below.

July 16, 2009 | Permalink | Comments (0)

Wikipedia Threatened for Putting National Portrait Gallery Pictures Online

A picture may be worth a thousand words, but is it worth a lawsuit? Wikipedia administrator Derrick Coetzee is about to find out. As reported by paidContent, the National Portrait Gallery in London sent Coetzee a legal notice demanding that he remove more than 3,000 photographs from Wikipedia that Coetzee had downloaded from the Gallery's database. Prior to sending a legal notice, the Gallery had asked Wikipedia to take down the photos, without success. Now, Coetzee is being represented by Fred von Lohmann of the Electronic Frontier Foundation.

The dispute raises several interesting legal questions. As the paidContent post describes:

Whilst the creators of the portraits themselves (and, therefore, the owners of their copyright) are long deceased, the case concerns the gallery’s photographs of the paintings, which it argues have separate and active copyright. One might argue that's a disingenuous logic - though the original paintings are, to all intents, now in the public domain, by virtue of hanging in a gallery, the government-funded gallery’s claim works against the notion that they should equally be in the public domain in the digital world. It’s that which Coetzee and von Lohmann are likely to argue.

To make the case even more interesting, even though Coetzee is located in the United States, the Gallery asserts in its letter that U.K. courts have jurisdiction, because the servers are located in the U.K. (and technically, the downloading took place there) and the Wikipedia pages are aimed at U.K. users. If the matter moves forward in U.K. courts, Coetzee may finally have a chance to see the images he downloaded firsthand.

July 16, 2009 | Permalink | Comments (0)

Second Cities, Standing Out and Other Advice for Law Students Seeking Jobs

Though the pace of law firm layoffs may have abated since Black Thurday back in February (with 800 jobs lost in a single day), the aftershocks keep coming. Law firms have been deferring start dates for new associates to avoid outright downsizing, and now at least one firm -- Morgan Lewis & Bockius -- is canceling its summer program to avoid having two classes of first-year associates start in 2010.

So what's a law student to do? Advice, if not jobs, abounds. Bloomberg reports that Harvard Law School is advising students to consider casting a wider net by exploring jobs in second cities such as Baltimore or Richmond, Va., if they're interested in Washington D.C., or Milwaukee or St. Louis if they want to work in Chicago.

Harvard counselors are also encouraging students to build their skill sets. But it's not clear how students can compete for job opportunities with licensed lawyers who are willing to work for free. Back when I was in law school, state and federal attorney general offices were prime spots for law students who couldn't find work at a firm, provided that they'd work for free. But in a down economy, even those offices can have their pick of volunteer JDs. Consider the New Jersey Attorney General's office, which is putting out the call for lawyers to work 20 hours a week, unpaid.

Other schools are taking a different approach to helping students. The Long Island Business News reports that Hofstra Law School is teaming up with Nassau County Bar Association to sponsor a series of speakers who can help students find jobs. One recent speaker was Ari Kaplan, author of "The Opportunity Maker: Strategies for Inspiring Your Legal Career through Creative Networking and Business Development." Kaplan encourages students to be aggressive in building relationships and creative in finding common connections.

One way to do that is to set up Google alerts. Searching on a contact’s name will bring up media announcements, blog posts, Tweets and press releases, revealing what is going on in their personal and professional lives.

For instance, Kaplan said he is running a 5-kilometer race in Hudson, N.Y., next week and someone he met would know that if they set up an alert in his name. That person could then potentially send him an e-mail wishing him luck. That e-mail is something Kaplan said he would remember.

“That's a starting point,” Kaplan said. “It's a free and easy tool that people don’t realize is out there.”

Kaplan reminds students that they should also capitalize on existing connections through alumni groups or former law firm colleagues.

The article also quotes Jim Weller, a hiring partner in the Jericho, N.Y., office of Nixon Peabody, who says that any kind of unusual writing or practical experience will help students stand out. Weller says doing volunteer work can also help give students an edge. Though again, the question is where can lawyers work for free with so much competition?

Finally, there's this interesting suggestion from Matt Homann's [non]billable hour blog: Use Facebook to help employers track you down. The post goes on to describe how a recent college grad posted a Facebook ad with a caption "I want to work for Disney." It didn't help her get the job but it did result in numerous contacts and ideas for other potential employment opportunities.

What's your advice to lawyers still looking for work? Post your ideas below.

July 16, 2009 | Permalink | Comments (5)

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