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August 31, 2009

Got Milk? Get Fired

The WSJ Juggle Blog reports on an Ohio Supreme Court decision finding that a company that fired a female employee who took unscheduled breaks from work to pump breast milk did not violate Ohio's pregnancy discrimination or sex discrimination laws. The facts, as summarized in the post:

[LaNissa Allen] was fired after taking unscheduled breaks from work to pump milk. She fed her five-month-old baby before reporting to work for her 6 a.m. shift, but found waiting until her scheduled 11 a.m. break to pump milk was too difficult. Any breastfeeding mother could relate to the discomfort and leakage Ms. Allen said she was experiencing.

Ms. Allen asked her bosses either to let her take an extended break at 10 a.m., or to extend a brief 10-minute break she was allowed at 8 a.m., to allow her time to pump, but neither request was granted. After suffering for several days, Ms. Allen began taking an unscheduled restroom break around 10 a.m. every day to use her breast pump, court papers show. A supervisor told her she was violating work rules by not waiting until her 11 a.m. break, and she was later fired.

Allen sued, arguing that her termination violated sex and pregnancy discrimination laws. The company disagreed, arguing that the firing didn't relate to Allen's need to pump, but the simple fact that she didn't follow directions and violated workplace rules with unauthorized breaks.

The court said that Allen failed to offer evidence that the employer was motivated by discrimination. It seems to me that would have been a difficult task; Allen would had to produce either example of sexist comments from supervisors or evidence showing that the company did not treat other male workers taking unauthorized breaks as harshly. Because Allen never proved this element of her case (according to the court), it never reached the issue of whether breastfeeding mothers are protected by pregnancy discrimination laws.

Bloggers have been critical of the "Got milk, get fired" decision. Kate Harding throws in her two cents on's Broadsheet blog, while Pamela Wolf of CCH WorkDay says that the court should have ruled on the pivotal question: "Does Ohio law protect women from employment discrimination based on breast feeding?"

During the recession, I suspect more women are rushing back to work soon after having babies in order to hold on to their jobs and avoid losing any income. The breastfeeding question is likely to present itself again soon, either in Ohio or other jurisdictions.

August 31, 2009 | Permalink | Comments (7)

Will Bar Associations Review Facebook for Applicants' Fitness?

Maybe it's just as well that most bar associations remain in the dark about Facebook and other social media. Via Above the Law, comes news from True/Slant  that:

The Florida Bar Examiners, the group that decides who gets to become a lawyer in Florida, is considering forcing some wannabe lawyers to be subjected to a thorough social networking investigation prior to their being knighted esquires. Florida bar examiners will look for evidence of substance abuse in applicants with a history of those problems, and will of course check to see if you would like to overthrow the government.

In particular, the Florida Bar intends to single out the following applicants:

• Applicants who are required to establish rehabilitation under Rule 3-13 “so as to ascertain whether they displayed any malice or ill feeling towards those who were compelled to bring about the proceeding leading to the need to establish rehabilitation;”
• Applicants with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse;”
• Applicants with “significant candor concerns” including not telling the truth on employment applications or resumes;
• Applicants with a history of unlicensed practice of law (UPL) allegations;
• Applicants who have worked as a certified legal intern, reported self-employment in a legal field, or reported employment as an attorney pending admission “to ensure that these applicants are not holding themselves out as attorneys;”
• Applicants who have positively responded to Item 27 of the bar application disclosing “involvement in an organization advocating the overthrow of a government in the United States to find out if they are still involved in any related activities.”

The Bar's policy doesn't make much sense, though. If applicants have already admitted to a history of substance abuse, why does the Bar have a need to see photos of them on Facebook in a drugged state? Likewise, if applicants have a history of UPL allegations, is Facebook really going to help? After all, if a lawyer is committing UPL, is he or she going to post about it in a Facebook status report? ("Tricked a judge today, and represented a client even though I didn't pass the bar.") Though I don't endorse examining Facebook at all, if the Bar is going to do it, then the policy should apply to all candidates and not just those who are already suspect.

Again, though I don't endorse review of Facebook pages, this policy wouldn't be out of step with what other employers are doing. The True/Slant piece notes that more than a third of managers admitted to not offering jobs based on what they found on applicants' social media pages. Because reliance on social media in job selection is becoming more prevalent, Daniel Solove of Concurring Opinions suggests that, at the very least, managers put candidates on notice that they intend to check their Facebook accounts.

Do you think bar associations should rely on social media to determine bar admission? And where do we draw the line on those aspects of a bar applicant's private life that can be deemed relevant to his or her fitness as a lawyer? Or does putting one's private life on Facebook, by definition, make it public?

August 31, 2009 | Permalink | Comments (3)

Fewer Newspapers Fighting for Open Access

The New York Times reports on yet another of the consequence of the tough economic situation for the newspaper industry: Fewer newspapers are fighting to open court proceedings. Without newspapers to fight the access battle, the burden falls to the public and litigants themselves.

NYT reporter Adam Liptak highlights the story of Georgia public defender Gerard Kleinrock, who is currently challenging the conviction of his client Eric Presley at the Supreme Court. Kleinrock argues that the trial judge erred in denying the public the right to observe jury selection in Presley's case. The trial judge had found that the courtroom was not large enough to accommodate both the public and potential jurors.

In his brief, Kleinrock emphasized the importance of recognizing a right of public access:

The days of powerful newspapers with ample legal budgets appear to be numbered ... Will underfunded bloggers be able to carry the financial burdens of opening our courtrooms?

Liptak suggests that if a seasoned press lawyer had been present at the time that the judge ruled, the result might have been different. A lawyer for a news organization may have been able to offer alternatives to closure that would have accommodated the defendants' interest in access and the court's interest in conducting the proceeding efficiently.

Are newspapers still critical to fighting the "access fight?" What's your view?

August 31, 2009 | Permalink | Comments (1)

Lawyers Responsible for a Key Internet Milestone: Spam

Later this week the Internet will celebrate its 30th birthday, and to mark the occasion the Associated Press rounds up some of the key milestones in Web history. Not surprisingly, engineers and scientists are primarily responsible for the technological developments that helped the Internet grow from a primitive interconnection between two computers into a global, publicly accessible system. But lawyers, too, have played a key role in shaping the Internet that we know today -- by introducing the world to spam.

That's right. Back in 1994, the husband-and-wife law firm of Canter & Siegel came up with what was then a novel approach to advertising their firm's immigration services. They contracted with a computer developer to create a program to generate advertising for the firm's Green Card Lottery service and to spread it to 6,000 Usenet discussion groups. Users rebelled, sending so many complaints to Canter & Siegel's Internet Service Provider that the company's servers crashed, leading the ISP to terminate Canter & Siegel's account and the Tennessee Board of Professional Responsibility to open an investigation of the pair. The firm remained unrepentant, claiming that their low cost ad generated 1,000 new clients and $100,000 in revenue.

But at what cost? Fifteen years later, spam remains a substantial problem for the Internet. Meanwhile, lawyers have gone on to advertise online in other, less intrusive ways through Web sites, blogs and now social media. Many of these new online marketing tools help level the playing field for solo and small firm lawyers, while providing valuable information at no cost to consumers, both of which are benefits in my view. I'm no fan of spam, but perhaps the Canter & Siegel legacy isn't entirely negative.

August 31, 2009 | Permalink | Comments (0)

August 28, 2009

New AIG CEO Expands Definition of 'Work From Home' -- to Croatia

It's the year 2009. Bloggers often work from home and, increasingly, lawyers are seeking out flexible arrangements that will allow them to work from home, too. BlackBerrys, iPhones, laptops, inexpensive fax and copy machines, forwarded telephone numbers and high-speed Internet access make working remotely easier than ever. The introduction of young lawyers -- who have grown up working and communicating with people electronically -- into the workforce should also be pushing the legal world closer to a "practice anywhere" model.

Yet every day there are reminders that the professional world is not quite ready to embrace the "work from home" movement completely. The most recent is the flap over new AIG CEO's working vacation in Croatia just days after starting in his new role. The CEO, Robert Benmosche, swears he is working hard in his "palatial villa with 12 bathrooms and his vineyards on the Peljesac Peninsula" (where he says "every bathroom is like a piece of art," according to Reuters), but nobody believes him.

"People criticize me for being on vacation. I actually started work a week before I was actually supposed to," Robert Benmosche told Reuters in an interview. "I do have conference calls every day, I have all my information sent here. I can work here as well as in the office in New York."

Benmosche said that he regularly keeps up with AIG business via telephone and the Internet, helped by the villa's array of satellite technology, and had three conference calls scheduled for Wednesday.

So for all of you non-believers who would cast a suspicious eye on Benmosche working in his "flip-flops, khaki shorts and a green polo shirt," here is the video proof:

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.

August 28, 2009 | Permalink | Comments (2)

In a Downturn, Who Gets Priority?

There are three lawyers in a lifeboat built for two: a partner, a third year associate and a new grad. The partner stays because it is his boat. Who gets the remaining seat?

Though this hypothetical sounds like the beginning of a really bad lawyer joke, it also depicts a reality that law firms now face in the downturn. As Crain's Cleveland Business (H/T ABA Journal) reports, several Ohio firms cut their summer programs realizing that if they needed to hire in 2011, they would have access to a huge pool of legal talent -- plenty of experienced lawyers who had been downsized by their firms. As Christopher Carney, chairman of the hiring committee at Brouse McDowell explained, at this time, "there's no reason to hire entry level lawyers" with so many associates on the market.

Of course, this kind of strategy shifts the burden of the down economy to new grads who, without experience or contacts and in serious debt, are least able to cope with unemployment. As The New York Times summed up the situation earlier this week, law firms' decisions to cancel or downsize summer programs is having an impact even at top tier schools, where firms traditionally drew the majority of their summer classes:

New York University, Georgetown, Northwestern and other top universities confirm that interviews are down by a third to a half compared with a year ago, while lower-ranked schools are suffering more. What is more, when interviews finish in a few weeks, even fewer offers will be extended, said Howard L. Ellin, the chairman of global hiring at Skadden, Arps, because many firms are interviewing students for slots they may not fill....

The timing is worse for the class of 2011, the second-years now looking to get into firms, because of a unique logjam created last year. After the September financial crisis, firms chose to defer their new hires at the price of steeply cutting recruiting this year.

So now, the so-called top schools are pushing students to explore other markets in cities like Pittsburgh and Fort Lauderdale, where they may find less competition. Likewise, new grads are flooding government lawyer programs and clerkships. But even if these students from top schools manage to get these positions they'll simply wind up displacing students from lower schools who previously sought out these opportunities.

Is there any solution to this riddle, any group that is better situated to take the hit of the economy than another? How do you think firms should decide?

August 28, 2009 | Permalink | Comments (2)

ABA Takes on the FTC

Earlier this month, the Federal Trade Commission once again delayed enforcement of its "Red Flags Rule," which requires creditors and financial institutions more time to develop and implement written identity theft prevention programs. As discussed here, the FTC considers lawyers to be creditors and therefore subject to the red flag rules because they extend credit to clients by rendering services first and issuing fees after the work is completed.

The ABA opposes the FTC's rules but has attempted to resolve the matter amicably. Now, tired of playing wait and see, the ABA yesterday filed suit against the FTC in federal district court in the District of Columbia, asking the court to enjoin the FTC from applying the Red Flags Rule to lawyers, reports The National Law Journal and The Am Law Daily. As summarized by the NLJ, the ABA complaint contends that:

applying the rule to lawyers is “arbitrary, capricious and contrary to law,” and that the FTC has failed to “articulate, among other things: a rational connection between the practice of law and identity theft; an explanation of how the manner in which lawyers bill their clients can be considered an extension of credit under the [Fair and Accurate Credit Transaction Act]; or any legally supportable basis for application of the Red Flag Rule to lawyers engaged in the practice of law.”

Of course, the ABA's true concern isn't that the FTC may have violated the tenets of administrative law in promulgating the Red Flags Rule. Rather, the ABA's real beef is that the FTC's action encroaches on the ABA's role in regulation of the profession, as well as the traditional role of the states. And the ABA has a point; the ABA's Model Rule of Professional Responsibility and every state ethics code mandate that lawyers safeguard client information and keep it confidential. This obligation encompasses the sensitive, financial information that the FTC seeks to protect through the Red Flags Rule. 

Over at The Volokh Conspiracy, Jonathan Adler suspects that the ABA has the upper hand in this smackdown. Four years ago, the ABA and FTC battled over whether the FTC could regulate lawyers under the Financial Services Modernization Act. There, the FTC argued that because lawyers engage in "financial transactions" and provide "financial services," they were "financial institutions" and could be subject to the privacy provisions of the Act. But the D.C. Circuit disagreed, finding that the Act did not expressly say that it applied to lawyers and that the FTC stretched the meaning of "financial institutions" beyond the scope of what was intended by the statute. The same argument applies today; the FTC contorted the definition of creditor beyond what was intended by the Fair and Accurate Credit Transactions Act.

Adler also believes that the FTC has gotten cold feet, which explains why it has extended the enforcement deadline three times. We'll see if the FTC decides to continue with this suit or agrees to modify the rule to exempt lawyers.

August 28, 2009 | Permalink | Comments (1)

How Many Twitter Followers Does Your Lawyer Have?

On Twitter, one very misleading metric remains the overwhelming focus of users: How many followers do you have?

On the surface, this number would appear to be a reasonable way to quickly gauge whether a new Twitter user you have encountered is worth following: 5,000 other people find this person interesting enough to follow, you might say to yourself, so I will too.

Some people use the number of Twitter followers as evidence of their knowledge or guru-status in a particular area. Lawyer Adrian Dayton, for example, who joined Twitter in January 2009 and has written a new book entitled, "Social Media for Lawyers: Twitter Edition" includes this blurb on his book's Amazon page:

Adrian Dayton is recognized as a leading expert in exploiting social media for business development within law firms.... Since creating his Twitter account: - He has gained over 30,000 followers - Is consistently ranked in the top 50 most popular Twitter accounts worldwide - Has ranked number 1 in the state of New York ahead of CNN, Fox News, and Anderson Cooper.

In recent months, however, it has become crystal clear that the number of followers a Twitter user has is not necessarily indicative of anything at all. There are now paid services and other well-known and effective free techniques that will artificially boost a Twitter user's number of followers from zero to tens of thousands in a matter of weeks, if not less time. Indeed, in June, I began to see "tweets" from people I follow on Twitter that read things like, "I've added 3,108 followers in 27 days using the [XYZ Service] Try it for free! 30 Days Free Ends June 24!" And sure enough, their number of followers had exploded over that period.

Other tactics inflate follower numbers just as easily. One widely used method is to identify spam accounts on Twitter (which will take you about 5 seconds, as they are everywhere) and then follow all of the spammer's followers. As discussed here, "the logic behind this is that if they will follow a spammer they will follow anyone, including you."

Dayton told me he did not use any kind of service to go from zero followers to over 30,000 in seven months, but added that he "has his ways." And in fairness to him, he seems to live on Twitter, produces a lot of interesting content that he shares on his blog, and probably has a large number of legitimately engaged followers.

The problem with blindly attaching any importance to a large follower number you see on Twitter is that there is simply no easy way to tell whether the person has done so "organically" or by one of the end-runs discussed above. As such, there is no way to know what to make of that person's 10,000 supposed "followers." What is clear, however, is that the overwhelming majority of the insta-followers people add to their accounts appear to be "bots," spam Twitter feeds, inactive accounts, or simply people that have absolutely no interest in them or what they are posting on Twitter. It is hard to think of any value such followers would have for lawyers using Twitter.

An additional metric that might shed some light on the significance of a Twitter user's "following" would be a count of "Interested Followers." This number could reflect the total number of followers who have ever responded in any way (i.e., via a "re-tweet" or an "@" message) to something the user has posted. To me, the number of "Interested Followers" someone has would be much more meaningful than their gross "Followers" number.

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.

August 28, 2009 | Permalink | Comments (12)

August 27, 2009

Birthers, Lawyers, Billables and Obama

We're a little late in addressing the "birther" movement, but the unending controversy over Obama's birth certificate has generated so much legal work that, try as we might, we couldn't ignore it anymore. A recent thread in the right-wing blogosphere has it that law firm Perkins Coie has billed Obama's lobbying organization more than a million dollars while trying to suppress lawsuits over Obama's eligibility to be president, an issue that has long been considered settled by the courts but continues to simmer on the Internet.

For anyone who has managed to avoid cable news for the past year, a little background:

The Constitution states that only natural-born citizens of the United States are eligible to become president. This came up from time to time over the years (see Chester A. Arthur, Barry Goldwater), but the 2008 presidential election presented the unique circumstance of two candidates whose far-flung birthplaces were hazy enough for their citizenship to be called into question. Arizona Sen. John McCain was born in a hospital in Colon, Panama, just outside U.S. territory in the Panama Canal Zone, where his father was stationed as a naval officer. Then-Illinois Sen. Obama was born in Hawaii to a Kenyan father with British citizenship and an American mother who would go on to raise her son in Indonesia. The brief controversy over McCain's citizenship was put to rest when Northern District of California Judge William Alsup dismissed a lawsuit challenging McCain's place on the California ballot in September 2008. But in spite of a widely-circulated copy of Obama's Hawaiian birth certificate and two Hawaiian newspaper announcements of his birth at the time, members of the so-called "birther" movement have continued to question the his eligibility to serve as president.

One of the leaders of the birther movement is a lawyer. And a dentist. And a realtor. Southern California-based Orly Taitz was born in present-day Moldova, but immigrated to Israel in 1981 and to the U.S. in 1987. According to Wikipedia, she earned her law degree via a distance-learning law program from Taft Law School in Santa Ana, Calif. Taitz continues to pursue her legal battle against the evidence, because, as she told Esquire:

I am extremely concerned about Obama specifically because I was born in Soviet Union, so I can tell that he is extremely dangerous. I believe he is the most dangerous thing one can imagine, in that he represents radical communism and radical Islam: He was born and raised in radical Islam, all of his associations are with radical Islam, and he was groomed in the environment of the dirty Chicago mafia. Can there be anything scarier than that?

Taitz has become the most visible face of the birther movement, braving the TV news gauntlet to shout about her theories and keep the controversy alive.

But back to Perkins Coie. D.C. partner and election law specialist Robert Bauer served as general counsel for the Obama election campaign, and continues to represent Obama on personal matters, like the Rod Blagojevich investigation. But Chelsea Schilling at conservative news Web site WorldNetDaily recently examined Federal Election Commission records for "Obama for America," showing that the lobby organization paid Perkins $1,352,378.95 from Oct. 16, 2008 through June 30, 2009. Schelling claims that Perkins Coie has been racking up the billables to quash birth certificate challenges, citing letters Bauer sent to plaintiffs Gregory Hollister, a retired Air Force colonel, and political activist Alan Keyes, who have both filed suits challenging Obama's eligibility. There's no breakdown of how those costs have been allocated, so there's little indication that any serious money has been spent specifically to have Obama's lawyers battle the birthers, but that hasn't stopped WorldNetDaily and a blog known as Citizens Against Pro-Obama Media Bias from trying to connect those dots anyway. 

Still, against all logic, Bauer might have another eligibility lawsuit to deal with soon enough. Rep. Trent Franks, R.-Ariz. (sponsor of the 2004 Lawsuit Abuse Reduction Act), said just last week that he's considering filing his own suit to have the president release his birth certificate.

August 27, 2009 | Permalink | Comments (27)

Souter Seals His Secrets, but Rabble Guesses Them Anyway

Retired Supreme Court Justice David Souter is donating his personal and professional papers to the New Hampshire Historical Society, reports The National Law Journal's Tony Mauro. But in a move that adds yet another epithet to the long list of his eccentricities, the D.C.-hating, apple-core-eating, wood-cabin-inhabiting, Luddite justice is also secretive: His donation came with the caveat that public access to his papers must be restricted for 50 years.

"The unusually severe bar on access is surprising in one sense," Mauro writes, "but very Souter-esque in another."

Souter is an avid historian -- in fact joining the board of trustees of the New Hampshire Historical Society as part of the announcement of his decision to donate his papers there. He knows well the "call of history," the obligation of historical figures and public officials to help flesh out the how and why of important events.

But Souter is also an intensely private person, especially protective of the Supreme Court on which he served for 19 years. He was a lifelong diarist and may have decided that his files were too sensitive to be made public while any of his colleagues or many of his law clerks are still alive. Other justices have solved similar issues by making some segments of their papers available earlier, others later.

Historians of the court may be disappointed, but fans of speculative Supreme Court fiction (surely that's a genre, no?) can turn to the commentariat over at Althouse for a peek at what Souter might have been writing in his lifelong diary. First, there's the banal:

"Had breakfast. Went to the Post Office to pick up the mail--just an LL Bean catalogue. Don't think I'll be buying anything this year. Returned home to garden, lunch. Carpe diem."

Then there's the overly literal:

First Monday in October
AM: Prepped for annual intellectual lobotomy
PM: Gnu yam pump. Strock hormp!

And then there's a helpful suggestion for the Historical Society to consider, something along the lines of what's being done with George Orwell's diaries:

Isn't he older than 50 years old? Why not publish the 50-yr-old parts of the diary day-by-day? The blog that time forgot, or something.

Of course, there's also the more clear-eyed question of historical significance: 

Will anyone care about Souter in 50 years? Can any non-law professor name a Justice from 50 years ago, besides Warren?

Perhaps that was the sage old justice's plan all along.

August 27, 2009 | Permalink | Comments (0)

August 26, 2009

Was Armed Intruder a Law Prof?

When a man was arrested Friday after carrying weapons into the University of Louisville Law School library, the school's announcement identified the man, Thomas H. Irwin, as a former university student and contract employee. But the announcement neglected to say what appears to be the case -- that Irwin is a lawyer who formerly taught at the law school.

Irwin_mug Irwin, 56, is reported to have entered the law library at 8:30 a.m. Friday carrying two handguns and 53 rounds of ammunition. A law library employee recognized him as someone who was barred from campus and called university police, who escorted him off the premises. He was charged with two misdemeanors -- carrying a concealed deadly weapon and criminal trespass. Irwin had a permit for the weapons and told police he had them with him because he planned to go to a shooting range later.

The Louisville Courier-Journal says that Irwin had worked as an adjunct faculty member at the law school and in the College of Business and had taken undergraduate and graduate courses at the university. He had worked at the university until December 2008 when, according to the university announcement, he was "declared persona non grata." Another news report said that the university's decision to ban Irwin from campus was made after he allegedly harassed another employee.

The Kentucky Bar Association's lawyer locator shows that a Thomas H. Irwin is an active member of the bar and lives in Louisville. A cached page of course offerings for the Spring 2009 semester of the University Honors Program shows that a Prof. Thomas Irwin was scheduled to lead an international travel seminar that would study international commercial law through visits to Belgium, France, Germany and the Czech Republic. Another cached page on the university's site from 2003 shows an undergraduate named Thomas Irwin as having earned recognition from the College of Arts and Sciences as a Dean's Scholar.

There is also a page for a University of Louisville professor named Thomas Irwin at Only two students left comments about him, both in 2008. One described him as "really easy" and urged, "take him!" The other said, "You're in for a ride if you take him. Be prepared for lots of group projects, random assignments, and ambiguous online tests."

So it appears that Irwin has been something more than a simple "contract employee" at the law school. But exactly what his role was remains unclear based on published reports. If any reader can shed any further light on this, please feel free to add your comment below.

August 26, 2009 | Permalink | Comments (6)

¡Viva Al Nye the Lawyer Guy!

Alan-photo In Maine, he is known simply as Al Nye the Lawyer Guy. But in Cuba, he will forever be remembered as "el abogado norteamericano Al Nye." With a few brief remarks on his blog last week, Portland, Maine, family lawyer, Rotary Club member and Red Sox fan Alan R. Nye became a hero of the Cuban government.

It all came to pass after a Maine court last week found the Republic of Cuba responsible for the wrongful death of an American believed to have been shot down while on a covert mission over the island in 1963. Waldo County Superior Court Judge Jeffrey Hjelm awarded the man's daughter damages of $21 million plus interest.

Nye wrote about the award on his blog, calling it "amazing." "I’ve been a lawyer for nearly 30 years and have never heard of a lawsuit such as this being successful," he said. "A citizen of Maine filing a suit in state court against a foreign country for an incident that happened over 25 years ago." He also said he did not "fully understand the basis of the damages."

Nye's was not the only blog to discuss the award. Also covering it was CubaDebate, an official Cuban government blog. According to a translation published on the Miami Herald blog Cuban Colada, CubaDebate called the court ruling "unprecedented" and said, "It wouldn't have happened if it weren't a lawsuit against Cuba in a U.S. courtroom, where evidence is not necessary. ... All the judge needed were rumors and prejudices to condemn the island and award a fortune to the plaintiff."

As evidence of the outrageousness of the award, CubaDebate published a separate post highlighting Nye's comments. Identifying him as "el abogado norteamericano Al Nye," CubaDebate noted Nye's description of the award as "amazing" and his comment that never in his nearly 30 years of practice had he seen anything like it. The Cuban blog even featured a picture of Nye's blog.

I hope Nye at least gets a good cigar out of all this. Of course, it can't come from Cuba.

August 26, 2009 | Permalink | Comments (1)

Legal Rebels With a Cause

The ABA Journal officially kicked off its Legal Rebels project yesterday, posting the first seven profiles of the 50 legal innovators it plans to feature. As Carolyn Elefant first wrote here last month, the project will profile lawyers, paralegals and other legal professionals who are "remaking the profession" through innovation and perhaps also grit.

Rebel_without_a_cause The first group of rebels are legal professionals who all have causes of one sort or another. They are:

The Legal Rebels project is a multimedia affair. Each profile is accompanied by video and audio. A Legal Rebels manifesto was cooperatively written over the last month by contributors to a wiki and is now open for legal professionals to add their signatures. You can follow the project on just about any social media platform. And you can follow the ABA Journal editors as they take the project on a road tour, visiting a different "Rebel" every day for two weeks, starting Sept. 14.

August 26, 2009 | Permalink | Comments (2)

Ted Kennedy, RIP

Ted Kennedy died last night. He was a great man and a great representative of the virtues and selflessness of the legal profession. He fought for others ahead of himself and for justice ahead of self-interest.

August 26, 2009 | Permalink | Comments (3)

Justice Is Served?

The wheels of justice grind on:

Mother-in-law sues comedian. Apparently, Sunda Croonquist's mother-in-law can't take a joke. The comedian's routine includes frequent jokes about her mother-in-law. Now, the mother-in-law is hoping to have the last laugh with a lawsuit filed in federal court in New Jersey.

Smoker's daughter awarded $13 million. A state court jury in Los Angeles decided this week that cigarette maker Philip Morris USA should pay $13.8 million in punitive damages to the daughter of a longtime smoker.

Anti-spam activist loses lawsuit -- and most of his possessions. Even before the 9th Circuit issued its searing rebuke last week of the lawsuit by anti-spammer James Gordon, the company he sued had showed up to collect on the attorneys' fees it was awarded in the trial court.

August 26, 2009 | Permalink | Comments (0)

August 25, 2009

Lawyers Beware: Judges May Be Watching You on Social Media

There's an interesting article this week in Texas Lawyer about how judges are using social media. On one level, having judges who are familiar with social media can be helpful in dealing with certain issues that may arise at trial, like tweeting jurors or electronic discovery involving sites like Twitter and Flickr. But on another level, some of the judicial Facebook usage described in this article seemed a bit intrusive, in my view.

Judge Susan Criss, of Galveston's 212th District Court where she's served since 1999, often "friends" lawyers through Facebook. In order to avoid any communications that might be perceived as ex parte, Criss asks lawyers to de-friend her if they're appearing before her at trial. But as she peruses the Facebook profiles of her friends and associates, Criss sometimes comes across comments by litigants bragging about how they'll make money off a case. She says that in these instances she alerts lawyers on both sides. That's courteous, but lawyers should be sufficiently familiar with social media to check these sites themselves.

Similarly, Criss keeps track of what lawyers are doing. According to the story,

Criss recalls that recently a lawyer told her she needed a continuance because of a death in her family. The judge previously had given the lawyer a weeklong continuance, but at a subsequent hearing the lawyer's senior partner, who appeared on her behalf, told Criss his colleague actually needed a month-long postponement, Criss says. "I knew from her bragging on a Facebook account that she had been partying that same week," Criss says. The judge says she told the senior partner at the hearing about her Facebook discovery and denied his request.

Another time, Criss says, she told the lawyers in her courtroom for a weeklong trial that she intended to go to a bench-bar conference and would miss a day of court. "Then that evening, I was on Facebook. I saw another lawyer post about the bench-bar conference. The lawyer who had been in my courtroom then wrote, 'Judge Criss is coming to speak at your conference Friday. Be nice to her so she will be in a good mood when I come back.' I wrote, 'I will be in a good mood when I come back.'" The lawyer who first posted about the conference then wrote to the friend, "Ha, ha you forgot Facebook was public," Criss adds.

That seems a little scary to me!

What do you think of this judge's use of Facebook?

August 25, 2009 | Permalink | Comments (4)

After Security Warnings, a Recap on RECAP

Last week, I wrote about RECAP, a Firefox-based software plug-in that automatically sends documents downloaded by a user through PACER to an online Internet repository where they are made available to the public. Though RECAP doesn't appear to violate any of PACER's terms and conditions of use, some federal courts are warning lawyers who have installed RECAP to exercise caution in use.

Last Friday, Paul Levy of Public Citizen's Consumer Law & Policy Blog noted that the United States District Court for the District of Michigan e-mailed the following notice to lawyers who use the courts electronic filing system:

The court would like to make CM/ECF filers aware of certain security concerns relating to a software application or “plug-in” called RECAP, which was designed to enable the sharing of court documents on the Internet.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. At this time, RECAP does not appear to provide users with access to restricted or sealed documents.

Please be aware that RECAP is “open-source” software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes. This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.

Levy opines that the note is not a genuine security warning, but an attempt to intimidate users from installing RECAP. After all, as more federal court documents become accessible at no cost, the federal court system will lose revenues.

But Levy acknowledges that RECAP users should still be cautious -- not so much for security, but to ensure client confidentiality. He references New York Personal Injury Law Blog author Eric Turkewitz's concerns that free access to court documents in which personal information has not been properly redacted can compromise client confidentiality and give rise to identity theft. Both agree that lawyers must pay closer attention to the requirements of Federal Rule of Civil Procedure 5.2, which prohibits parties from filing information such as a social security numbers and taxpayer ids (except last four digits) or birth dates. With the prospect of information filed at the court becoming available online for free, FRCP 5.2 takes on greater significance.

August 25, 2009 | Permalink | Comments (2)

Mobile Devices Significantly Expand the 40-Hour Work Week

A few weeks ago I posted about two recent lawsuits by employees seeking overtime pay for responding to work messages on company-issued smart phones after hours. These types of lawsuits are on the rise, not only because of technology advancements, but also the present recessionary climate, with layoffs forcing employers to squeeze more work out of fewer people.

But just how much overtime are we talking about here? You'd be surprised. The U.K.'s Birmingham Post reports on a recent employee survey by Manchester-based employment law firm Peninsula, which found that employees who use devices like BlackBerrys on the job work an extra 15 hours a week.

Are mobile devices really extending the work week by as much as 15 hours? And is that time productive or are the returns diminishing because employees aren't getting enough of a break?

August 25, 2009 | Permalink | Comments (0)

From Small Tweets, Big Firm Clients Grow

Many large firm lawyers are hopping aboard the Twitter bandwagon, (as well as those of other social media sites) and realizing big time benefits from tiny, 140-character tweets, reports the San Jose Business Journal. However, it bears noting that most of the large firm lawyers finding business on Twitter represent startups or emerging technology developers who tend to rely heavily on social media.

For example, Glenn Manishin, an antitrust, telecommunications and technology policy litigator at Duane Morris says that at lease a half dozen clients have retained him based on connections built through social media. These days, Manishin's clients typically DM him (DM stands for direct message, a way of sending a private tweet to a friend via Twitter) instead of sending e-mails. Corporate attorney Cindy Hess of Fenwick & West finds that using social media enables her to understand her high-tech clients' businesses and even use their products, which in turn builds stronger connections with existing clients and sends a message to prospective clients that she's not "out of the loop."

Other large firm lawyers are slow to get on board with social media, but Pete Townshend of McDermott, Will & Emery isn't complaining:

I'm happy my competitors are slow, and I would love their firms to adopt dumb policies about forbidding use of social networks,” he said. “The temptation is to adopt don't-use-it policies without thinking about the client benefit. It'd be great for me if that was adopted because they obviously don't understand the technology and completely whiff on the marketing opportunity.

It certainly makes sense for firms representing high-tech clients to engage Twitter and other social media. But does Twitter or social media make sense for firms with other types of clients? Share your views below.

August 25, 2009 | Permalink | Comments (3)

August 24, 2009

Live From Washington: ILTA '09

If you can't get yourself to ILTA, ILTA is getting itself to you. The International Legal Technology Association is holding its annual meeting this week near Washington, D.C. True to its character, it is enabling those who cannot attend in person to participate virtually. The deskbound among us can get a taste of the goings-on at ILTA in any of four ways:

  • Live broadcasts. ILTA and the knowledge-management company ii3 are cooperating to produce ILTA TV, a combination of live broadcasts and recorded roundtables delivered straight from the convention floor.
  • Live webcasts. Several conference sessions will be broadcast through live webcasts. Viewing one, however, will cost you $50. More information about the webcasts can be found on this page.
  • Virtual exhibit hall. The company is providing ILTA with a virtual exhibit hall. Browse a map of the exhibitors and click on any one to learn more about the company or schedule a contact. Free registration is required to use this feature. ILTA's site has more information about how to register.
  • Tweets and blogs. Twitter users can follow the official conference tweets from @ilta09 and can follow other ILTA tweets by searching the hashtag #ilta09. There is also an official conference blog.

No doubt any number of bloggers are in attendance. If you are blogging from ILTA, add a comment below and let us know.

August 24, 2009 | Permalink | Comments (2)

Half of Blawgs Fail in First Year

Launch a legal blog today and there is a pretty good chance you will not still be blogging a year from now -- maybe not even four months from now. That is the conclusion -- admittedly unscientific -- arrived at by Mark Herrmann at the blog Drug and Device Law after considering the life expectancy of a newborn legal blog.

Herrmann's curiosity was fueled by the discovery that the law-professor authors of two blogs, Product Liability Prof Blog and the Civil Procedure Prof Blog, had decided to call it quits (although the blogs will continue assuming the Law Professor Blogs network succeeds in recruiting new authors).

In his own blog turf of drug and device law, Herrmann noted two recent examples of blogs that, in short order, made their debuts, attracted some interest and then closed up shop. One, Medical Devices: Law, Trends, and Oddities Blog, launched in December 2007 and went silent in March 2008 -- a lifespan of four months. Another, Consumer Class Actions and Mass Torts Blog, started in January 2009 and was gone by April -- again, a lifespan of four months.

Herrmann next looked at some of the blogs launched by lexBlog, a company that designs and hosts blogs for law firms. Herrmann randomly selected six blogs off the blogroll of lexBlog founder Kevin O'Keefe's blog and found three to which he administered last rites. Again, Herrmann emphasizes that his review can hardly be considered empirical research, but he nevertheless reaches a conclusion about the life expectancy of a legal blog:

Legal blogs are like small businesses: Half of 'em fail in the first year, and 90 percent of 'em fail in the next five.

Maybe that's a little precise, given that we didn't actually do any empirical analysis. But you get our drift. Legal blogs don't last.

They require a ton of work; they gather readership only slowly over time; and they're not the gold mine of new business that blogolaters say they are.

Unscientific though Herrmann's research may be, it rings true. I receive a number of e-mails announcing new legal blogs with great fanfare. Many times, by the time I've dug far enough through my inbox to reach one of these announcements, the blog is already dormant. I have seen blogs publish only their introductory post and then never another.

As Herrmann says, blogs require work. They do not necessarily require a "ton of work," as he says. But they require a consistent commitment of time, something lawyers never seem to have enough of as it is. Launching a blog is easy. It is the follow-through that is tough. My advice has always been to give it a test run before announcing the blog to the world. Try posting for a month or even two. If it seems like something you can stick with, then roll out the trumpets and fanfare.

August 24, 2009 | Permalink | Comments (7)

Legal Research Revisionism

What happens in the Eastern District of Pennsylvania stays in the Eastern District of Pennsylvania. That could be the new motto for that court, based on a story by Shannon P. Duffy in The Legal Intelligencer that is drawing a lot of interest among legal bloggers. The story describes the unusual terms of a personal-injury case settled while on appeal to the 3rd U.S. Circuit Court of Appeals:

The confidential settlement in Klein v. Amtrak -- a case in which two trespassing teenagers climbed atop a parked train car and suffered serious burns when they got too close to a 12,000-volt catenary wire -- included an unusual provision that called for the trial judge to vacate all of his published opinions and have them removed from Lexis and Westlaw.

And it worked.

A few months after holding an hourlong oral argument, the 3rd U.S. Circuit Court of Appeals agreed in late July to remand the case to the trial judge, U.S. District Judge Lawrence F. Stengel, who, in turn, agreed to vacate eight of his published opinions and to "direct" Lexis and Westlaw to remove them from their databases.

Westlaw spokeswoman Gretchen DeSutter tells Duffy that the judge's request to remove the opinions would "absolutely" be honored and that Westlaw automatically removes an opinion from its database anytime a judge vacates it.

No sooner did Duffy's piece appear than two different legal bloggers stepped up to fill this newly created legal-research void. At The Volokh Conspiracy, Eugene Volokh posted seven of the eight "decommissioned" opinions, which he somehow found with help from Kevin Gerson of the UCLA Law Library. He did this, he wrote, because "It seems to me that it would be very helpful for scholars to have these opinions available somewhere, even if lawyers might find them less useful because they were withdrawn." Volokh's post drew a slew of comments about the propriety of the judge's decision to withdraw the opinions.

Also stepping in to fill the void was Maxwell S. Kennerly at the blog Litigation & Trial, who published all eight of the withdrawn opinions. "As a citizen, I am a strong believer in open government and governmental accountability, including for the judiciary," Kennerly explained. "As a lawyer, I do not believe a court can ever truly 'unpublish' a decision, and I believe that law is made every time a court decides any issue."

Notably, Kennerly found the opinions using RECAP, the recently released Firefox extension that recycles PACER documents into a publicly accessible archive (as Carolyn Elefant wrote about here last week). Kennerly's post drew posts from blogs such as Concurring Opinions and Techdirt praising RECAP for its power to preserve documents in the public domain even after they are "unpublished." "Insofar as systems like RECAP help keep government more open and prevent the expunging of records, that is perhaps an unexpected bonus feature to the transparency project," wrote Deven Desai at Concurring Opinions. "It preserves some truth."

Not to diminish the sleuthing by these bloggers that allowed them to find and publish these withdrawn opinions or to diminish the potential power of RECAP, but there is a slight ironic twist to this story, as Duffy, the author of the original story, pointed out in a comment posted on Volokh's blog. Although the documents were removed from Westlaw and Lexis, they did not exactly disappear from public view. They remained available to the public in the court's file and on the court's Web site (scroll down to case number 2004-0955). As we said at the outset, what happens in the Eastern District of Pennsylvania stays in the Eastern District of Pennsylvania -- or at least on its Web site.

August 24, 2009 | Permalink | Comments (4)

Blawg Review Cuts Through the Pink Tape

With the nation's lawyer-in-chief officially out on vacation this week, there may not be a single lawyer in the United States left working this last week of August. So too in the U.K., where the anonymous family lawyer who writes the blog Pink Tape reports that 90 percent of sensible lawyers are off on holiday. "Only the obsessives, the skivvies and the family lawyers remain working through the court vacation." Perhaps that explains how the blog's author came to host this week's Blawg Review #226.

Actually, she too is about to head off on a break of her own, first to Scotland and then to "exotic" West Virginia, "embarking on a transatlantic diplomatic mission in the style of Bill Clinton, to see if I can get the Scots and Americans to be chums once again." But before she goes, she offers this roundup of notable blog posts from both sides of the pond. It is peppered with references to nudity and breasts, not simply because "a bit of gratuitous filth might get me more hits," but because, as she announces, she is pregnant and soon to be breastfeeding, and so bodies and breasts are very much on her mind. Read about these matters and more at Blawg Review #226.

August 24, 2009 | Permalink | Comments (0)

August 21, 2009

Fla. Lawyer Aims to Build 'Safari Law' Practice, Bag Big Game

Myphoto(19) On the hunt for a new practice area? Florida lawyer Ethan Andrew Way is trying to blaze a trail in "safari law," according to the Tallahasee Democrat. Way came up with the idea for his new specialization after learning that a friend with whom he'd hunted was having trouble getting his hunting trophies home from Namibia. So Way, who has 11 years of experience in less exotic practice areas like family law, criminal law and bankruptcy, got to thinking where a hunter could find help with such a legal problem. He ran an Internet search on "safari law" and, finding no specialists, bought the domain name and started handling safari-related issues and disputes.

So, what types of issues does safari law encompass? Way says that he often assists hunters with getting permits required for transporting firearms and dealing with regulations related to animal trophies. At this time, safari law is just a small part of Way's practice -- less than five percent. But Way still aspires to grow his the practice and eventually spend several months a year overseas, hunting and working on safari law cases.

August 21, 2009 | Permalink | Comments (1)

Lawyers Viewed Negatively by Most Americans

I've long known that many people don't like lawyers, but I have to confess, I was surprised to learn just how many. According to a recent Gallup poll (H/T ABA Journal News), a scant 25 percent of Americans have a positive view of the legal field. Only three industries ranked lower: real estate, automobile and oil and gas. Even the folks in the banking industry -- linked to the current foreclosure crisis and our widespread economic woes -- ranked higher than lawyers, with a 28 percent holding a positive image.

So who rates highest? That would be the computer industry, with a positive rating by 62 percent of those surveyed, followed by the restaurant industry, then farming and agriculture.

August 21, 2009 | Permalink | Comments (3)

Summarize This Case, Professor: Slacks v. Suits

The blawgosphere is replete with posts about how lawyers should or shouldn't dress. But where's the guidance for a law professor in need of advice on appropriate attire? Professor Bennett Capers took matters into his own hands at PrawfsBlawg, asking readers what he should wear on the first day of class:

Given the importance of this first impression, am I the only one that obsesses at the start of the school year about what to wear on the first day of class, down to what color tie to wear? And I'm curious. Given that professors who don't naturally look professorial -- I think you know what I mean -- often have to do extra work to command respect and authority, is it mostly those professors who worry about clothing and first impressions? (In the extreme, are we the ones that take Rogers v. American Airlines and Jespersen v. Harrah's Operating Co. personally, and keep Dress for Success and its targeted variations in the back of our minds?) And here’s my final question. I'm still relatively young, and I don’t like trousers with elastic waistbands. As I get older, will I succumb and actually find elastic waistband trousers appealing? Not that I have anything against waistband trousers ...

Reader responses varied. One commenter said that he wears suits (albeit, without a tie) "to make clear how seriously I take the endeavor, and also to try to distinguish myself from the students." Another commenter agreed that appearance should matter for law professors:

I don't mean to sound harsh, but I don't think it shows any degree of nobility to ignore one's appearance in favor of a sole focus on scholarly pursuits. I think it's possible -- and preferable -- to demonstrate a degree of effort in both. Also, this can be done on a budget and with minimal effort.

Still another commenter writes that she's given up formal dress in the classroom. She says she feels she's a better teacher now because she has incorporated her personality, "clothing and all, into the classroom."

How did your law professors dress? Did it have any impact on your educational experience? I don't even remember those details about mine. I think they were all fairly non-descript, but maybe I just wasn't paying as close attention as some law students do these days.

August 21, 2009 | Permalink | Comments (0)

August 20, 2009

New Niche: Tell-Alls by Courtroom Sketch Artists

If you watched the NewsHour on PBS last week, you might have caught Jim Lehrer's interview with courtroom sketch artist William J. Hennessy Jr. If you missed it, no problem, because the transcript is now posted at the Online NewsHour. Hennessy was also recently featured in a post at The Blog of Legal Times.

The occasion for all this attention to a man whose occupation is rarely in the limelight -- even if his work regularly is -- is the publication of his book, "All Rise: Courts, Crime, and Courtroom Art." The book features hundreds of illustrations from trials he has covered in a career that spans more than a quarter century and in which he has sketched some of the period's most historic cases.

But for as long as he has been doing this, Hennessy told Lehrer, he never got over the awe he feels at the Supreme Court. "Drawing in the Supreme Court is very different from a regular courtroom," he said. "They're a panel of nine justices. It's a very awe-inspiring event, even after 27 years of doing it. To some degree, it's predictable, but you're always prepared, as usual, with -- prepared for what's unexpected."

While Hennessy's is the latest book to be published by a courtroom sketch artist, it is not the first. Others I know of or have been able to find:

Ease of these books combines the artist's illustrations with the artist's observations of the trials and the participants. Even as these artists were busily sketching, it seems, they were also keeping notes.

August 20, 2009 | Permalink | Comments (0)

Down to Yasgur's ... Blawg?

As you no doubt know unless you live under a rock, this week marked the 40th anniversary of the Woodstock Music and Art Fair. And as you no doubt also know, Woodstock was not in Woodstock, N.Y., but on the dairy farm of Max Yasgur in Bethel. Yasgur appears in the 1970 documentary about the event, proclaiming, "The important thing that you've proven to the world ... is that a half million young people can get together to have fun and music ... and have nothing but fun and music and I god bless you for it!"

The venue was also memorialized in the song "Woodstock," written by Joni Mitchell:

    I came upon a child of God
    He was walking along the road
    And I asked him where are you going
    And this he told me: he said
    I'm going on down to Yasgur's farm
    I'm going to join in a rock 'n' roll band
    I'm going to get back to the land
    And set my soul free...

SSYportrait Max, it turns out, had a brother, and that brother had a son, Stevan. Steve worked as a veterinary assistant and as a journalist before settling on his current career as a collaborative lawyer in Minneapolis, Minn. Now, if you are a lawyer named Yasgur and you are thinking of launching a blog, what better time to launch it than coincident with the 40th anniversary of Woodstock and what better name to give it than Yasgur's Firm?

Yasgur readily admits the name of his new blog is no accident. In a post introducing himself and his blog, he describes what he hopes to do with it.

It is intended to share, more or less frequently, observations about practice, Life, the life of practice, and the work of helping people sort through their divorce and emerge with hope. The occasional personal note is allowed, but 'not to worry.' It'll probably have to do with fly fishing or food. I'll try to make it interesting.

While the timing of the launch of Yasgur's blog may not have been a coincidence, it was a coincidence that just as Yasgur started blogging, a reporter for Minnesota Lawyer happened to shoot a brief video interview with him as part of a series of interviews with lawyers attending a solo and small firm conference in Duluth. You can see that video at MinnLawyer Blog, which is also where I first read about Yasgur.

The important thing, after all, is that lawyers get together and have fun and music ... and, of course, blogs.

August 20, 2009 | Permalink | Comments (0)

Law Prof Tied to Pot Bust

A married pair of prominent Massachusetts lawyers -- one a professor at Suffolk University Law School -- have been tied by their son to his business growing and selling marijuana. Jonathon Cook, 20, allegedly told police in Natick, Mass., that his lawyer parents knew he was selling drugs out of their home and that his stepfather helped him build a room to grow marijuana and bought some of it himself.

The man's mother, Kathy Jo Cook, a former president of the Women's Bar Association of Massachusetts, and his stepfather, Timothy Wilton, the Suffolk law professor, issued a statement yesterday denying the allegations. "We are not only extremely concerned about Jonathon and the charges against him, but also saddened to hear about the allegations against us," the couple said. "These allegations are false, and we were extremely surprised to hear about them. As lawyers, we have deep faith in the legal system, and are confident that as this matter unfolds, the truth will surface."

The allegations, reported yesterday by the Metrowest Daily News, were contained in a police report prepared after police arrested Cook last Friday following an undercover investigation into his drug dealing. The arrest came two weeks after Cook was shot in the hand during an invasion of the home he shared with his parents. The allegations were described by a prosecutor yesterday at Cook's arraignment.

Cook told investigators that his mother delayed calling police after the shooting so that he could dispose of the marijuana plants that were in the house. He told police that Wilton would buy marijuana from him and sometimes steal it. He claimed that Wilton helped him build a grow room in the basement in exchange for some of the profits from the drug sales.

Cook had moved back into the house only recently, after losing his job. At his arraignment, the judge ordered him held on $50,000 bail. Other reports on this:

August 20, 2009 | Permalink | Comments (1)

Our Linked-In Judiciary

"Your Honor, I'd like to add you to my professional network on LinkedIn."

Connect with a judge on LinkedIn? I have not done it. But an increasing number of judges are creating public profiles on the professional networking site. Among them are federal circuit, district and bankruptcy judges and state appellate and trial judges.

For example, I found five U.S. Circuit Court judges with public LinkedIn profiles: Richard Clifton of the 9th Circuit, Deborah Cook of the 6th Circuit, Jennifer Elrod of the 5th Circuit, John M. Ferren of the D.C. Circuit and Edith Jones of the 5th Circuit. (There are others who keep their profiles private, such as this judge of the D.C. Circuit and this judge of the Federal Circuit.) These judges' networks of connections are small by LinkedIn standards -- Judge Elrod has the largest network with 27 connections followed by Judge Jones with nine. The others have only three or four.

Also on LinkedIn are at least two federal district judges, Bernice Donald, who sits in Memphis, Tenn., and Nancy Gertner, who sits in Boston; two U.S. bankruptcy judges, Robert Kwan, who sits in Los Angeles, and Pamela Pepper, who sits in Milwaukee, Wis.; and one U.S. magistrate-judge, Jeff Manske, who sits in Waco, Texas. Of the federal judges I found on LinkedIn, Manske is the most linked, with a network of 54 connections.

My search of LinkedIn turned up a number of state appellate and trial judges, including one Supreme Court justice, G. Barry Anderson of the Minnesota Supreme Court (with 39 connections), and a number of intermediary appellate court judges. Other state appellate judges I found (with the number of connections in parenthesis) were:

There are also a number of state trial judges from all across the country with profiles on LinkedIn. I need not list all I found here. But you may be interested to know the answer to this question: Who among the judges on LinkedIn is the most connected? I can't claim my research was exhaustive, but of the judges I found with public profiles on LinkedIn, the five with the largest numbers of connections were:

1. Derek Mosley, Judge, Milwaukee, Wis., Municipal Court (419)

2. Woodie Jones, Chief Justice, 3rd Court of Appeals, Austin, Texas (329)

3. Michael Massengale, Justice, 1st Court of Appeals, Houston, Texas (216)

4. Herb Wright Jr., Judge, 4th Division Circuit Court, Arkansas (186)

5. Elisabeth Earle, Judge, Travis County, Texas (161)

Let me be clear: As far as I can determine, there is nothing inappropriate or unethical about a judge maintaining a profile on LinkedIn. However, online networking poses traps for the unwary -- and perhaps even more so for judges.

I wrote previously here about the judge who was reprimanded for comments he posted to Facebook. That would seem an obvious trap to avoid. But another looming issue for judges who engage in professional networking is the identity of their connections. Could a judge's connections on LinkedIn or Facebook create the potential for conflicts of interest? Should litigants routinely vet a judge's social-networking profile in advance of a trial? Should judges be required to make public disclosures of the individuals and groups they connect to online?

Besides the potential ethical pitfalls, there are aspects of some LinkedIn profiles that just seem inappropriate for a judge. For example, LinkedIn profiles allow a user to specify settings for what sorts of contacts they are open to receiving. One Ohio appellate judge says on her profile that she is open to "career opportunities" and "business deals." She is far from alone among the judges I looked at in welcoming those types of contacts. Is it wrong? I do not think so. But it may be in bad taste.

There are many legitimate reasons for judges to be on LinkedIn and other professional networking sites. A recent issue of Case in Point, the magazine of the National Judicial College, suggests that participation in social media and online networking can be a low-cost way for judges to keep themselves informed and at the same time enhance public understanding of the judiciary.

So, next time I come across a judge I know on LinkedIn, maybe I'll extend the judge an invitation to network. It doesn't hurt to ask.

August 20, 2009 | Permalink | Comments (2)

August 19, 2009

Free E-Mail Services: Safe or Not?

Last week, I asked whether lawyers make a poor impression on clients when using free e-mail addresses like Gmail or Yahoo. This week, there's a more serious debate brewing in the blogosphere over e-mail, specifically, whether free e-mail services are unsafe at any speed. In other words, are the confidentiality and privacy features of these systems so grossly inadequate that no level of caution can make them suitable for communication with clients?

Toby Brown at 3 Geeks and a Law Blog cautions against reliance on these services. Re-reading the terms of service agreements from Gmail and Yahoo, Brown discovered that they both reserve the rights to pre-screen e-mail and target ads to content. Because these free e-mail services expose confidential communications to third parties, Brown believes that lawyers who use these services may be waiving confidentiality and could put themselves at risk of disciplinary action.

I've reviewed the Google ToS agreement several times before but I don't agree with all of Brown's conclusions (Disclosure: My husband works at Google but not on any e-mail-related projects). For example, Brown only partly posts language from "Content from You" -- the ToS provision that says "By submitting, posting or displaying the content you give Google a perpetual, ... free ... licence to ... any Content." However, the reason that Google needs access to a license is to provide its service, and the ToS make that point clear:

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

As for scanning the content of e-mails, that may be unavoidable in an Internet Age. As Sam Glover writes at Lawyerist, most mobile messaging devices, like iPhones or BlackBerrys, route information through servers where third parties have access to your communications. And in most cases, the scanning is automated, based on computer scans of words or trends, not humans reading the e-mail. Finally, Google's privacy policy offers added protection. Still, for those lawyers who don't even want e-mails scanned for ads, they can upgrade to Google Apps, says Glover, which keeps mail free from scans and offers even stronger protections.

I realize that there are risks to using free e-mail services, but at the end of the day, I'm willing to accept the risks in exchange for the convenience. For starters, I haven't seen any cases where client confidentiality was compromised or data accessed through transmission by free e-mail, so I'm going to assume that the risk of harm is low. In addition, even though I don't use a free e-mail service for client communications, many of my clients do. If I have an ethics obligation to ensure that e-mail transmissions are secure, wouldn't I then have an obligation to tell clients to forgo free e-mail to communicate with me, even though it may be their only option?

I realize that there are secure methods for communicating online (through online portals and workrooms), but I find that for many of my clients it's a hassle to have to log into a service to communicate with me. If free, unsecure e-mail is the quickest way that clients can send me feedback or let me know something about their case, then I want to encourage that communication. As I see it, what's more harmful than the hypothetical risk of disclosing client communication is the very real problem that clients won't take the time to send me information critical to their case because I've put in place too secure a system (on both ends).

August 19, 2009 | Permalink | Comments (9)

Why Lawyers Hate E-Discovery

Via EDD Update, I was directed to an epic post by lawyer and electronic discovery guru Ralph Losey, entitled Plato's Cave: Why most lawyers love paper and hate e-discovery and what this means for legal education. Losey begins with the allegory of Plato's Cave, the story of prisoners who have been held captive in a cave all of their lives. They can only see shadows on the wall and come to believe that the shadows are people and objects. One of the prisoners escapes from the cave and discovers that shadows are merely illusory, and people are real. But when the prisoner is returned to the cave and tries to share his new knowledge with the other cave dwellers, they don't believe him and he is ridiculed, because life in the cave is all they've known.

Losey says the allegory works for lawyers, too. Growing up reading paper books and educated on paper in law school, lawyers come to fear e-discovery because it is a new world, just as life outside the cave was for the cave dwellers. As Losey puts it:

Just like the prisoners in Plato's Cave, [lawyers] do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.

In practice, lawyers sometimes cling to paper even to the detriment of their clients. In one recent case, Bray & Gillespie v. Lexington Insurance Co., 2009 WL 2407754 (M.D.Fla. August 3, 2009), plaintiff's lawyers' lack of familiarity with electronic record keeping resulted in severe sanctions. The plaintiff had been ordered to produce guest records from a hotel, but did not realize that the records could be accessed electronically. So, the plaintiff's paper lawyers only looked for these records in warehouses full of papers, and made selective disclosures which were eventually discovered. But as Losey points out, the entire matter could have been avoided simply by producing the records electronically -- though plaintiff's lawyers did not seem to realize that was possible.

Because many lawyers don't understand e-discovery, they criticize it as too expensive or a passing trend. They're threatened by it, so they remain entrenched in their ways.

Because law schools rely so heavily on the use of paper in teaching, Losey believes that the only solution is to train lawyers online to make them more comfortable with computers and e-discovery. And he's hopeful for future generations, which will come of age in an online world.

Is Losey's assessment accurate? Are lawyers still afraid of electronic discovery and records management? Or is the next generation of lawyers leading the profession out of the cave and into the light?

August 19, 2009 | Permalink | Comments (1)

Facebook Sued for Privacy Violation

A photographer, an actress, a college student and two minors filed suit against Facebook on Monday, alleging that the site violates state privacy law and misleads members into believing that the information that they post can be accessed only by designated "friends" and not third parties, reports the Associated Press. Plaintiffs also claim that Facebook engages in data mining of members' information without fully disclosing those practices. Legal Newsline notes that the Facebook lawsuit was filed by famed Texas trial lawyer Mark Lanier, best known for his involvement in Vioxx litigation, not to mention his firm's lavish holiday parties.

Experts don't expect the suit to get very far, characterizing it as either a "kitchen sink" approach (TechCrunch) or a "jumbled mess" (Professor Eric Goldman, as quoted at CNET). As Larry Magid explains on CNET, the plaintiffs seem to have raised every possible issue in the hopes that one would stick, because the suit has so little merit. As TechCrunch describes, the suit essentially complains "about many of the very mechanisms that make Facebook a social network."

Plaintiffs in the case appear to have engaged in run of the mill socializing on Facebook: sharing photos, writing status updates and similar things. They're then complaining that privacy, copyright and other rights are violated as people look at the photos, read the updates, etc. It's sort of like jumping into a pool and then complaining that you're wet.

For example, one of the privacy violations concerns a status posting by an 11-year-old boy sharing that he had contracted the swine flu. When the boy's parents learned that he had a Facebook account, they removed the "medical condition positing" but "have been unable to learn whether the information has been stored or disseminated by Facebook. Another user who started with Facebook in college now complains about modifications of the terms of service over the years, which is fairly common as sites evolve. Moreover, as Magid points out, the user could simply close her account if she's unhappy with how the site works.

TechCrunch and Magid also argue that Facebook's terms of service give users more control over content depending upon which privacy settings they apply. The solution to the complaints is for users to learn how to use Facebook properly, rather than to file a suit that, if successful, could make Facebook more onerous for the majority of users.

August 19, 2009 | Permalink | Comments (8)

DOJ Political Bias Lawsuit Followup

Last June, news emerged that the Department of Justice applied a political litmus test to screen candidates for its honors programs, rejecting those whose résumés or Web sites suggested liberal leanings. Eight jilted applicants have since filed a class action, alleging that DOJ improperly relied on politics in making hiring decisions and violated privacy laws by culling information from applicants' Web sites without disclosing that it had collected this information, as required by federal law. The National Law Journal carries the full story.

On Tuesday, a federal judge in Washington, D.C., heard oral argument on the DOJ's motion to dismiss the suit. DOJ lawyer John Tyler acknowledged that the hiring scandal marks "a dark chapter in the department's history." However, he argued that the court should dispose of the case because the plaintiffs failed to exhaust their remedies under the Civil Service Reform Act, which required plaintiffs to first bring their claims to the Office of Special Counsel. In response, plaintiffs' lawyers argued that bringing the case to the Office of Special Counsel was "utterly unrealistic" and that the Civil Justice Reform Act did not contemplate the unique situation presented by the case.

A ruling on the motion is expected within a month.

August 19, 2009 | Permalink | Comments (0)

August 18, 2009

Vault Releases 2010 Law Firm Rankings

Vault-tag The much-vaunted Vault law firm rankings were released today for 2010. The rankings are notable because they are based entirely on associate votes. They rank firms on five characteristics -- overall prestige, departmental prestige, regional prestige, diversity and quality of life.

Ranked number one for the seventh year in a row is the New York firm Wachtell, Lipton, Rosen & Katz. The remainder of the top 10 are:

  • Cravath, Swaine & Moore
  • Skadden, Arps, Slate, Meagher & Flom
  • Sullivan & Cromwell
  • Davis Polk & Wardwell
  • Weil, Gotshal & Manges
  • Simpson Thacher & Bartlett
  • Cleary Gottlieb Steen & Hamilton
  • Covington & Burling
  • Kirkland & Ellis

This year's rankings remain fairly stable from last year, writes Vault managing editor Brian Dalton. But there was significant movement among the top 10, he says, "with Latham & Watkins falling out, Weil Gotshal & Manges climbing from #9 to #6, and Skadden Arps Slate Meagher & Flom jumping over Sullivan & Cromwell to the #3 slot." Also significant, he says, is that the ascension of U.K. firms has stalled. The current perception, he notes, is that "the U.K. firms are hurting more than their U.S. counterparts."

Is "prestige" too nebulous a basis on which to rank a law firm? Dalton answers this question by noting that the consistency of the rankings over the years suggests that it is a concept associates understand.

Using the Vault survey’s simple prestige scale, the BigLaw hive mind consistently orders firms in precise ways. An arbitrary example: Schulte Roth, which came in at #77 this year, ranked 80, 77, 76 and 82 over the previous four years. Another example, #55 Alston & Bird, ranked 57, 61, 59 and 57 over the same period. Another: #89 Finnegan Henderson: 90, 88, 89, 85. While there may be little meaningful distinction between slots 77 and 80, or, say, slots 59 and 57, there are meaningful differences between tiers. The relative consistency of these rankings, year after year, indicates that there clearly is a method to the madness.

The rankings are already generating plenty of discussion at Above the Law. Let us know what you think.

August 18, 2009 | Permalink | Comments (6)

Patry Returns to Blogging, and to a Debate

William Patry is back to blogging and already finds himself in a back-and-forth debate over whether copyright law inhibits innovation and props up antiquated business models.

Patry is a prominent copyright lawyer who works as senior copyright counsel for Google and wrote a seven-volume treatise on copyright law. As we reported here at the time, Patry announced in February that he was discontinuing his popular blog, The Patry Copyright Blog, which he launched in 2005. Last week, he launched a new blog, Moral Panics and the Copyright Wars, tied to the release of his new book of the same name, to be published on Sept. 3 by Oxford University Press.

The debate is with Ben Sheffner, author of the blog Copyrights & Campaigns, over the lessons to be learned from the music-industry trials over peer-to-peer file sharing. Patry actually invited Sheffner to the debate, believing he would serve as a "perfect counterpoint" to the views Patry expresses in his book. "I spoke to him about doing a kind of tag team on some of the issues raised, and he has generously agreed. I hope our constructive differences can help set a civil tone."

In its simplest form, their debate turns on the "Internet view" of copyright. "On the Internet, (almost) everyone hates copyright," Sheffner writes. But that Internet view does not reflect the view of ordinary people, he argues. In the three P2P cases tried so far, "all three of those juries demonstrated through the very large damages awards they imposed that they view illegal downloading and 'sharing' as wrong, and deserving of harsh sanction."

For Patry, the issue is not what the general public thinks about copyright law. The issue is that copyright owners "have used copyright to deny consumers access to things they want." What they want, in the case of music, is a viable model for purchasing songs online at a reasonable price. When the music industry failed to provide that, it took Apple's iTunes to show that such a platform could succeed. "I want copyright owners to succeed economically," Patry writes, "but I want them to succeed by satisfying consumer demand, not by thwarting it."

That is just the starting point for the discussion, which continues through a number of back-and-forth posts between the two, all published on Patry's blog. The tone is, as Patry hoped, civil and the two copyright lawyers' thoughts are well worth reading for anyone with an interest in the state of copyright law.

August 18, 2009 | Permalink | Comments (1)

Supreme Court Ruling Revives Death Penalty Debate

The Supreme Court caught us off guard yesterday, issuing a potentially momentous order on a quiet August Monday when we would assume the justices would be off in their RVs or wherever. The court ordered a federal district judge to hear testimony on the claims of death row inmate Tory Anthony Davis that he did not murder a Savannah, Ga., police officer in 1989, as the Fulton County Daily Report explains.

The order itself is just a paragraph, unsigned. It transfers Davis' habeas corpus petition to the U.S. District Court in Georgia and instructs the court to "receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner's innocence."

Apart from its coming in the middle of August, the order is significant for several reasons. For one, it is the first time in nearly 50 years that the court has ordered a hearing based on a petition for habeas corpus filed directly with the Supreme Court, as opposed to petitions that have come up through the lower courts. "Today this Court takes the extraordinary step -- one not taken in nearly 50 years -- of instructing a district court to adjudicate a state prisoner's petition for an original writ of habeas corpus," wrote a strident Justice Antonin Scalia in a dissent from the order in which Justice Clarence Thomas joined.

For another, it illustrates the dramatic clash among the justices in their perspectives on the death penalty. Scalia's strident dissent is met by an equally strident concurrence written by Justice John Paul Stevens and joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer. "Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the State's execution of its lawful criminal judgment," argues Scalia. "The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing," responds Stevens.

For still another, the case represents an end run around the Antiterrorism and Effective Death Penalty Act, a 1996 federal law designed to limit death-row prisoners to one round of federal court appeals. Davis had exhausted his first round of federal appeals and was turned down by the 11th U.S. Circuit Court of Appeals when he sought permission to file a second federal appeal. So he took his case straight to the Supreme Court and found success. "Prisoners have been trying for nearly 50 years without success to get the Justices to employ this 'original jurisdiction,'" writes David von Drehle in Time. "Davis succeeded." (von Drehle does a great job explaining the interplay between this case and the AEDPA.)

Last but hardly least, the case could set the stage for a decision on an issue never squarely decided by the court -- whether the Constitution forbids the execution of a defendant who can demonstrate "actual innocence." "This court has never held," Justice Scalia wrote in his dissent, "that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Perhaps not, but it has suggested as much, writes Adam Liptak in The New York Times. Liptak cites dictum from a 1993 decision, Herrera v. Collins, in which Chief Justice William H. Rehnquist wrote for the court, "[W]e may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief."

And so Davis and his case get another chance. And perhaps he will be back before the Supreme Court yet again.

August 18, 2009 | Permalink | Comments (3)

Lawyer Continues Fight for Man's Innocence

In February, we told you about Maine lawyer Morrison Bonpasse whose book, Perfectly Innocent, had caused three jurors to doubt their 1993 conviction of Alfred W. Trenkler in connection with a 1991 bombing that killed one Boston police officer and maimed another. After reading the book, three of the jurors, including the forewoman, wrote letters to U.S. District Judge Rya W. Zobel in Boston urging her to grant Trenkler a new trial.

Since February, there have been several developments in the case. For one, two additional jurors sent letters to Judge Zobel urging a new trial. For another, even with the five letters from former jurors, Zobel was not swayed. On March 16, she issued a memorandum opinion and order denying Trenkler's request for a new trial.

Zobel ruled that most of the newly discovered evidence cited by Trenkler in his request was barred by a one year statute of limitations on such evidence. The one piece of evidence that was not time barred did not meet the requirement of alleging a constitutional violation, she said. In July, she issued a certificate of appealability, a formality that allows Trenkler to appeal her ruling on a new trial to the 1st U.S. Circuit Court of Appeals, which he plans to do.

Meanwhile, Bonpasse has been pursuing a related matter before the Massachusetts Board of Bar Overseers. He filed a grievance alleging that the prosecutors in the case committed misconduct when they failed to disclose to the defense that they sought early release from prison of an informant whose testimony was critical to the case against Trenkler.

In June, Bar Counsel Constance Vecchione notified Bonpasse that her office would not pursue an investigation. "The federal Pacer system shows that Mr. Trenkler has been represented in a number of proceedings in federal court over the last seventeen years by very competent counsel who (I am assuming from your correspondence) have not chosen to pursue further the issue you raise of inducements supposedly offered by prosecutors to the witness," Vecchione wrote.

Bonpasse appealed Vecchione's denial to a single member of the Board of Bar Overseers, who affirmed her decision. He is now asking the full board to review the matter.

Our original post about this in February drew the comments of one skeptic. Jack Marshall, a lawyer who runs the site Ethics Scoreboard, called the whole matter "nonsense" and the jurors "dupes." "A man who was not present at the trial, based on interviews of the convicted, gets jurors who WERE at the trial to doubt their opinions? This says more about the quality of juries than anything else," he wrote. Bonpasse posted a reply to Marshall's comment arguing that the case is not nonsense, but a "noble challenge."

For now, it appears the case will continue as Trenkler takes it to the 1st Circuit and Bonpasse continues to pursue his bar grievance. Anyone interested in following the case can do so at Alfred Trenkler Innocent Committee.

August 18, 2009 | Permalink | Comments (3)

August 17, 2009

Are Generation Y Lawyers a Bunch of Slackers?

Over at Idealawg, Stephanie West Allen plays host to a robust debate over whether Generation Y lawyers -- or "millennials," lawyers under 30 -- who seek work/life balance to the exclusion of focusing on client needs are unrealistic slackers or serious professionals with different priorities than previous generations. West Allen set off the discussion with this question:

I continue to ask myself where the client service focus is in this generational wrangling. In fact, that is what I listen for when I hear the discussions. How much is it mentioned? If at all?

Although blogger Scott Greenfield responded with a standalone post, Does the Word "Slackoisie" Offend You? Good, (making his opinion on the issue clear with his title), many others chimed in on the original post's comment section. Dan Hull of What About Clients? claims that most millennials he's hired in his firm have not matched the quality of older lawyers, and that their level of self-involvement makes it difficult for them to put the needs of clients first. Charon QC sides with Greenfield and Hull, though he also acknowledges that work without enjoyment can lead to unhealthy habits.

On the other side of the debate is Susan Cartier Liebel, who believes that West Allen asks the wrong question. She contends that the professional goal of client service and the personal goal of a life well lived aren't mutually exclusive, and that the millennials are an exciting group that will bring change to the profession. Likewise, Alli Gerkman also says that client service and personal life are not incompatible and that younger generations have been brought up to multitask, writing:

Thanks to technology, GenY is far more tied to the client at all hours of the day than any previous generation and this, to them, is normal. Young lawyers and professionals I know think nothing of fielding client calls over the weekend or diving into a client emergency in the middle of the night.

As for me, I am still not sure where I fall on this continuum. I can tell you that I cringe when I hear newer solos talking about how working for themselves means that they can dress anyway they want without taking into account a client's expectation of how a lawyer ought to look. At the same time, I've also had terrible experiences with older lawyers whom I've supervised (particularly those retired from a government background) who ignored deadlines and turned out terribly researched work product.

Ultimately, as lawyers, our clients' needs must always come first. If that means handling fewer clients to spend more time with children or getting by on four hours of sleep to finish a brief (both of which I've tried over the years), then that's a decision that Generation Y and all lawyers must make.

August 17, 2009 | Permalink | Comments (2)

Take Back the Law!

PACER, the federal government's system for Public Access to Court Electronic Records, was originally intended to make court filings more accessible to litigants and the public at large. Now, roughly a decade later, Carl Malamud and others argue that PACER actually deters access by holding public documents hostage behind an 8-cents-a-page fee wall.

So what can the public do to take back the law (ie: the judicial decisions and court orders funded by tax dollars and which comprise the body of law with which the public is bound to comply)? Some are advocating a gradual approach, urging the government to make a few improvements in the site that would improve site use and access. But others are pushing an approach that turns PACER on its head, which is exactly what The Center for Information Technology Policy at Princeton University is doing with its RECAP the Law project. "RECAP" -- PACER spelled backwards -- is short for recapture, as in recapturing the law.

RECAP is a neat little tool by which the the public can effect this revolution -- essentially, CITP's (nonviolent) version of the Molotov cocktail. When a user installs RECAP, any documents accessed on PACER are automatically uploaded to an Internet Archive repository and shared with other users when they do similar searches. From the RECAP site:

RECAP is an extension (or “add on”) for the Firefox web browser that improves the PACER experience while helping PACER users build a free and open repository of public court records. RECAP users automatically donate the documents they purchase from PACER into a public repository hosted by the Internet Archive. And RECAP saves users money by alerting them when a document they are searching for is already available from this repository. RECAP also makes other enhancements to the PACER experience, including more user-friendly file names.

But is RECAP illegal? Not according to Michael Arrington's analysis at Tech Crunch, which explains that the PACER site, by its own terms, specifically states that: "The information gathered from the PACER system is a matter of public record and may be reproduced without permission.” But it also specifies that "any attempt to collect PACER data in a manner to avoid billing is prohibited and may result in criminal prosecution or civil action."

Still, RECAP users are paying to collect data; it's just that the data is then being shared with an online repository. In fact, RECAP isn't all that different from commercial services that harvest documents from PACER and then resell them -- except that RECAP provides the documents free. But it seems to me that if the court were going to shut RECAP down, it would have to shut down commercial document harvesters as well.

RECAP has already made a splash in the blogosphere, with commentary roundups here and here, all singing its praises.

Naturally, I'm a fan of RECAP -- who could oppose any service that expands access to the law by making it accessible to the public at no charge? At the same time, I have to confess that PACER's 8-cents-per-page fee (with a cap of $2.40 per document) was the least of my gripes about the service, in large part because even at those rates it's still cheaper than other commercial providers. For me, the worst aspect of PACER is that it represents a lost opportunity. After a decade and substantial advances in content management and online search, PACER users are still limited to finding documents by case name or docket numbers -- we can't perform even simple word searches. What I like best about RECAP is that it may cure the search deficiency of PACER as well.

Fortunately, I've got a couple of cases pending in federal court, so I'm going to download RECAP and join the revolution! Will you?

August 17, 2009 | Permalink | Comments (0)

Patent Denials on the Rise

Inventors shouldn't count on a patent as a ticket out of the recession. Even though the number of patent applications is on the rise, the U.S. Patent and Trademark Office has been rejecting them at an unprecedented rate over the past few years. According to the Milwaukee Journal Sentinel, the PTO denied more than 59 percent of patents filed in the quarter that ended June 30 -- that's up significantly from the 35 percent rejection rate that prevailed between 1975 and 2004. The agency imposed stricter standards for issuing patents five years ago, partly in response to criticisms of setting the bar too low. But some claim that the PTO has gone too far and is rejecting valid patents simply to get rid of the backlog.

Many patent examiners agree, or at least contend that the PTO's policies encourage them to err on the side of rejection. According to Robert Budens, president of the trade union for the PTO's 6,300 examiners, there is a "culture of fear" among examiners that they'll be penalized or lose a bonus if they grant patents that are eventually rescinded.

In response to growing rejections, more applicants are filing appeals. Since Oct. 1, 2008, 6,280 appeals have been filed, although the Board of Patent Appeals affirms the PTO's decisions more than 70 percent of the time. Some say that the success rates on appeal shows that PTO's decisions are sound. But other experts say that even the appeal numbers are understated, since some of the appealed patents are resubmitted for further review rather than resolved by the Board.

August 17, 2009 | Permalink | Comments (0)

After Facing the Court of Public Opinion, Judge Sharon Keller Goes on Trial

"We close at five." 

For Texas Criminal Court of Appeals Judge Sharon Keller, those words could end up etched on the epitaph of her career, the Texas version of "Let them eat cake." After 15 years on the bench, Keller is on the other side of the dais today in San Antonio, where she's on trial for five judicial misconduct charges stemming from her decision not to keep the CCA open after hours to accommodate the defense team for convicted killer Michael Richard, who was scheduled to be executed that night, Sept. 25, 2007. 

Richard was convicted for the heinous 1986 rape and murder of a Houston-area nurse and mother of seven. But on the morning of his execution, the Supreme Court agreed to review Baze v. Rees, "a Kentucky case over whether unconstitutional pain and suffering was caused by a three-drug combination used in executions -- the same lethal cocktail used in Texas," according to the AP. The decision gave Richard's lawyers at the nonprofit Texas Defender Service a chance to stay his execution. They jumped into action, cobbling together a filing that included a motion to file a writ of prohibition, a petition to file a successor writ of habeas corpus, and a motion for a stay of execution before the court closed at 5 p.m. But thanks to what they claimed was a computer problem and the court's lack of e-mail capabilities, the TDS lawyers were going to be late. At 4:45pm, Ed Marty, general counsel of the Court of Criminal Appeals, dialed Sharon Keller, the court's presiding judge, making what Texas Monthly writer Michael Hall characterized as "the most infamous phone call in recent Texas history." Despite the CCA's informal tradition of allowing last-minute appeals on "death days," the by-the-book judge told Marty the court would be closing at its usual hour, cutting off Richard's chances for a reprieve in light of the high court's decision. The defense delivered its filings at 5:45pm, but it was too late. The execution proceeded, and Richard was pronounced dead on the table at 8:23pm.

When news of Keller's phone call hit the press, it generated an uproar over the conservative judge, whom opponents have nicknamed "Sharon Killer." Newspaper editorials around the country called for her removal, as did several groups of lawyers and judicial ethics experts. This February, the Texas Commission on Judicial Conduct announced formal proceedings against her, which began this morning in Bexar County. After the trial, the presiding judge will file a report to the CJC, which will have three options, according to Texas Monthly: "Dismiss the charges, give Keller a reprimand, or recommend that she be removed from office." 

The Texas Monthly story, The Judgment of Sharon Keller, provides a thorough backgrounder on the much-maligned judge. From her private school roots in Dallas to her ascent to the bench during the Bush administration, Keller had always been known as dedicated, thorough and exacting in her work, writes Hall. But she also gained a reputation for being very "pro-prosecutor," as she once described herself, which meant "seeing legal issues from the perspective of the state instead of the perspective of the defense." She would go on to issue a number of controversial decisions, including several death penalty cases, and continued in her entrenched, pro-prosecutor stance. Hall quotes her again as saying, "The court, as it existed in the late 1980s and early 1990s, took every opportunity to change established law to benefit defense attorneys. All we have done in the last few years is to fix those mistakes."

Would the Supreme Court have granted the stay if the CCA had acted on it? No one will ever know, but two days later, TDS lawyers for Carlton Turner, the next inmate scheduled for lethal injection, filed a motion for a stay on the same Baze issue with the CCA, which denied it by a vote of 5-4. Then they filed it with the U.S. Supreme Court, which granted it, halting his execution.

Stay tuned to Tex Parte, for updates on the Keller case. While some see it as a political witch hunt to oust a conservative judge, others see it as a corrective to an unjust system. But keep in mind that, whatever happens to Keller herself -- and it could take a while, according to Texas Lawyer -- the "We close at five" fiasco is unlikely to alter the state of the death penalty in Texas. As Hall sums it up in his piece, "Keller was elected by Texans who are in fact not at all tired of the death penalty, who believe that if you kill someone, you deserve the ultimate punishment. Keller, the kind, decent, implacable face of the state criminal justice system, is proud to give it, with no compromise, no doubt, and no mercy."

August 17, 2009 | Permalink | Comments (1)

August 14, 2009

Lawyers Prefer Coke

Cocaine Lawyers, it seems, prefer coke. And we refer not to soft drinks, but to drugs. As between cocaine and marijuana, occupations show a clear divide in their drug of choice. For lawyers, the choice is cocaine.

Over the past week, Richard Florida has written a series of posts for The Atlantic in which he and two colleagues slice and dice data from the National Survey of Drug Use and Health to create a picture of the relationship between drug use and various political, economic and psychological characteristics of states. In his latest entry, This Is Your Occupation on Drugs, he looks at the relationship between drug use and specific types of professional and creative jobs.

Occupations sort relatively neatly along the lines of marijuana versus cocaine use. The short of it is that marijuana use is more positively associated with science (.35), education (.38), artistic professions (.35), and engineering and architecture (.29), while cocaine use is positively associated with lawyers (.41) and, to a lesser extent, with business and finance occupations (.27), computer jobs (.25), and management fields (.26).

So what are we to make of this? Florida puts the question to one of his colleagues in analyzing this data, Peter J. Rentfrow, a lecturer in social and developmental psychology at the University of Cambridge.

I think it's interesting that cocaine is high for finance, law, and quant professions. Although we can't infer whether it's people in those jobs actually doing drugs, those professions are generally regarded as intense and lavish. So it's interesting that an expensive stimulant like cocaine is used more often in places where comparatively large numbers of people work in intense and high-paying jobs ...

What I think is particularly interesting about the results is that most professions possess elements of income, education, and personality. Even in those cases where lawyers and architects make similar amounts of money, they're very different lines of work and appeal to different types of people.

What Rentfrow seems to be saying is that intense professionals are more likely to prefer cocaine while mellow professionals are more likely to prefer marijuana. If so, one can only wonder what might happen if one day the intense professions and the mellow professions got their drugs mixed up.

August 14, 2009 | Permalink | Comments (1)

The Reinvention of Legal Research

Legalbooks At The Huffington Post, Peter Schwartz writes that we are in the midst of "the radical transformation of the legal publishing marketplace," a transformation, he contends, that will no longer support the two largest legal publishers, West and LexisNexis. As they suffocate under their own weight, the legal research marketplace will open to "nimble, low-cost competitors and new rivals with deep pockets such as Bloomberg."

His prediction should be read with the understanding that he is the founder and president of one of these "nimble, low-cost" competitors, the online legal publishing company Knowledge Mosaic, which sells a news and research service targeted at the securities industry. That said, Schwartz makes some interesting observations about the state of legal research. He makes three key points:

  • Data trumps documents. Where legal documents were once valuable in and of themselves, they are now "mere information containers." New methods for extracting and organizing that information will change how we perform research.
  • Information is liquid. Not only is it liquid, it is a raging flood. We need to manage it and filter it.
  • Information is a commodity. With so much information available to us, value is not in access to information, but in tools to manage it.
  • Customers will not pay for research. Because information is now a commodity, clients will no longer pay for law firms to perform legal research.

This all means that if law firms can no longer pass along research costs to clients, then the mega-publishers can no longer support their established pricing models. They begin to crumble and new rivals emerge.

Sounds good, responds Greg Lambert at 3 Geeks and Law Blog, but it ignores the fact that "these same giants of legal research are posting huge profits during a slump in the global economy." It also minimizes the importance of "documents" in traditional legal research, he believes.

When all is said and done, your final product should be something that is upheld by a court of law if challenged by another. Within the common law courts, this generally means that you must point to existing documents that support your claim. The whole idea behind such concepts as stare decisis is that the "law" is built upon existing law and decisions and is usually not changed except in extreme circumstances. When you have concepts like stare decisis, you need to be able to rely upon solid resources that have earned the trust of the courts. It may be true that information is liquid, but laws and the legal information behind those laws are much more like ice than they are like water.

Access to free information takes the researcher only so far, Lambert contends. Courts demand not simply information, but authoritative information. "Legal researchers do not have to satisfy the world's hunger for information, they have to satisfy the court's expectation of presenting authoritative information that can withstand the challenges of a system that relies upon that authority to drive the decision it makes."

The mediator in me wants to split the baby and say that Schwartz and Lambert are both right, to an extent. Lambert is right that the legal world remains a world of documents and authority. But Schwartz is right that new models will emerge -- and are emerging -- for managing the flood of information and our ability to extract from it the right documents and the right authority. It is the authority that matters, not the publisher of it.

Does that signal the demise of West and Lexis? Only if they fail to adapt not just their pricing models, but also their delivery methods.

August 14, 2009 | Permalink | Comments (4)

5th Circuit Disses John Edwards T-Shirt

I presume Paul Palmer's parents thought they were taking a stand for free speech when they brought him the T-shirt that bore the slogan, "John Edwards for President '08." Palmer, then a sophomore at Waxahachie High School in Texas, had gone to school that morning with a different T-shirt, one that said Palmer_pete simply, "San Diego." When the assistant principal told him his attire violated the school policy against wearing shirts with printed messages, he phoned home and his parents soon arrived with the Edwards shirt.

You see where this going, right? The school said Palmer could not wear the Edwards shirt. So Palmer got another shirt. This one said "Freedom of Speech" on the front and had the text of the First Amendment on the back. When the school rejected that one, too, Palmer responded by suing the school for violating his freedom of speech under the First Amendment. When the trial court denied Palmer's request for a preliminary injunction against enforcement of the school's dress code, he appealed to the 5th U.S. Circuit Court of Appeals.

As Tex Parte Blog reports, a three-judge panel of the court decided yesterday to uphold the trial court's denial of an injunction. The panel found that the lower-court judge did not abuse her discretion by denying the injunction and that the school district's dress code is "content-neutral." Palmer had argued on appeal that the dress code was not content neutral because it permitted small logos and certain school-approved shirts that promote school clubs and athletics. The appellate panel did not see it that way. In the decision, Palmer v. Waxahachie Independent School District, the court said:

The District was in no way attempting to suppress any student’s expression through its dress code -- a critical fact based on earlier student speech cases -- so the dress code is content-neutral. Its allowance for school logos and school-sponsored shirts does not suppress unpopular viewpoints but provides students with more clothing options than they would have had under a complete ban on messages.

Palmer's principal argument (yes, pun intended) had been that Supreme Court cases had established a bright-line rule that schools cannot restrict speech that is not disruptive, lewd, school-sponsored or drug related. But the 5th Circuit said that Palmer overlooked another category of student speech restriction that the constitution allows -- regulations that are content-neutral.

August 14, 2009 | Permalink | Comments (3)

Disgraced, Disbarred Attorney Found Dead

In Minnesota legal circles, a newspaper once wrote of him, David Moskal was "known for several remarkable achievements, including the fastest disbarment in the state's history." Moskal rose rapidly from No. 1 in his class at William Mitchell College of Law to become one of Minnesota's highest-flying personal injury lawyers, earning millions and profiled in the magazine Minnesota Law & Politics as one of the state's "Tort Kings."

The newspaper article I quoted above went on to say: "He made partner by the time he was 33, and soon had all the usual perks: a house with a pool, a condo in Steamboat Springs, a lakefront cabin in a resort area, hefty alimony payments and a jewelry-bedecked second wife."

How far the mighty do fall. Even as Moskal was earning millions, he was stealing millions more from his clients. He was estimated to have stolen anywhere from $1.8 million to $5 million, all of it poured into supporting his luxurious lifestyle. When the thefts were discovered in the late 1990s, Moskal's career as a lawyer came to a quick end. Ultimately, he was sentenced to five years in prison.

After he completed his prison sentence, he moved to Colorado, where he was found dead last week at the age of 54. No cause of death has been made public, but his obituary suggested that memorial contributions be made to two suicide-prevention organizations.

Even after Moskal moved to Colorado, controversy dogged him, writes Mark Cohen at MinnLawyer Blog. While working as a paralegal and client liaison for a spine-injury center, he allegedly passed himself off as an attorney. For that, he was sentenced to another 30 days in jail and had his supervision extended.

Moskal blamed his thefts on clinical depression. But Cohen says Moskal's case will always be a mystery. "It’s impossible to say what inner demons plagued Moskal," Cohen writes, "but they apparently caught up with him in the end."

August 14, 2009 | Permalink | Comments (7)

August 13, 2009

Two Visions of the Future Law Firm

What will we see in the law firm of the future? It is a question Richard Susskind considered more than a decade ago in his book, "The Future of Law," and again in last year's book, "The End of Lawyers? Rethinking the Nature of Legal Services." With the economy what it is, Susskind is far from alone in considering this question, as two recently published articles underscore.

In The Philadelphia Inquirer this week, Larry E. Ribstein tells business writer Chris Mondics that law firms have yet to figure out the model that will get them out of the economic mess in which they find themselves. Ribstein, a professor of business law at the University of Illinois College of Law and author of a blog that focuses on business law, Ideoblog, says that their response so far -- cutting costs and discounting rates -- is not a cure.

"My theory is that big law firms don't have a coherent business model," Ribstein says in the article. "From a client standpoint, why would you pay so much per hour for a lawyer who works for a big firm vs. [a lower rate] for a lawyer who works for a smaller firm? What value does the big firm add?"

Instead, firms need to take a far more creative approach. One he suggests: Law firms might raise capital from investors. That would provide firms with lower-cost financing and make them answerable to investors. But before that could happen, of course, there would have to be changes in the legal ethics rules that bar such arrangements.

Nationalcoverjulaug09 In another recent article, 2020 Vision, published in National, the official magazine of the Canadian Bar Association, lawyer and writer Mitch Kowalski imagines a speech delivered in the year 2020 by one Nancy Kwan, the CEO of a professional law corporation, upon being named Canada's legal CEO of the year. She talks about the elements that have made her firm a success.

She sums up the firm's approach as "better, faster, cheaper." To get there, the imaginary Kwan explains, the firm made changes in four key areas:

  • Structure. The firm eliminated individual ownership and rights and created a separate and distinct corporate entity that did away with consensus decision-making and replaced it with a board of directors.
  • Overhead. The firm outsources as much as possible, including legal research, document preparation and due diligence.
  • Knowledge management. The firm's KM director is a member of its executive team and KM is an integral part of every lawyer's workflow.
  • Billing. All fees are fixed and agreed on with the client before the work is done. If the firm fails to perform as promised, its fee is reduced.

This imaginary firm of the not-so-distant future, of course, reflects what some innovative firms of today are already instituting. As Ribstein suggests, for firms to find a business model that will work going forward, they need to think creatively.

August 13, 2009 | Permalink | Comments (2)

The World's 10 Best Court Web Sites

For the 11th year running, Justice Served announced its annual awards for the Top 10 Court Websites in the world. Justice Served is a consulting firm that provides services and training to courts in management and technology. It looked at thousands of court Web sites and evaluated them based on criteria that included their functionality, ease of use and appearance.

In evaluating functionality, Justice Served gives higher grades to sites that allow users to perform court business online, without having to appear in person at the courthouse. It gives "extra credit" to sites that are geared toward the public, as opposed to attorneys or other regular users of court services.

Based on these criteria, this year's best court sites are:

The Justice Served blog adds an interesting footnote to this year's awards. When the firm first started ranking court sites in 1999, it found 300 of them. By last year, the number of court sites grew to some 4,000. This year, however, Justice Served could find only 3,000, a significant drop from just a year earlier. Its explanation: "This leads us to the conclusion that court websites went through substantial consolidation last year."

[Hat tip to Kate Bladow at technola for the pointer to the awards.]

August 13, 2009 | Permalink | Comments (0)

Fordham Bans Reed Smith Recruiters

In what reporter Gina Passarella in The Legal Intelligencer calls an example of the current economic climate's "uncharted waters" and "choppy tides," Fordham Law School yesterday took the highly unusual andWtreanor perhaps even unprecedented step of banning the international law firm Reed Smith, the 16th-ranked firm on this year's Am Law 100, from interviewing on campus for five years.

The ban, first reported yesterday on the blog Above the Law, came after Reed Smith notified the school that it was canceling interviews in September running Aug. 12 through Aug. 19, for which students were already scheduled. That meant the unfortunate students who had signed up for those interviews had lost a potentially valuable interview slot.

Fordham Dean William Michael Treanor (pictured) called Reed Smith's action unprofessional and disappointing. In an e-mail sent to students and faculty (republished by Above the Law), he informed them of the news and of his decision to impose the ban.

While disappointing, Reed Smith's action is more disheartening because of the lack of professionalism it conveys. The firm could have made its decision earlier; in fact, it received its interview schedule prior to canceling its participation. In my seven years as Dean, no other firm has canceled its interviews after the schedule was released. Thus, we have informed the firm that it will not be invited to participate in our OCI program for the next 5 years. I have never imposed such a sanction on an employer, and I was saddened to do so.

At Fordham Law, we require our students to conduct themselves with the utmost professionalism, and we expect employers to demonstrate the same high standards.

At Reed Smith, Michael B. Pollack, the firm's global head of strategy, told The Legal Intelligencer that he suspects the ban will not be good for either the firm or the students and that he hopes Treanor will reconsider. "We're trying to run a business just like he's trying to run a law school and I appreciate the pressures that he is under and I would hope he would appreciate the pressures we're under," Pollack said.

Reed Smith will have a summer program next year, he said, but it will be smaller than in recent years. Reed Smith will still interview Fordham students, he added, but at its offices and not on campus.

August 13, 2009 | Permalink | Comments (2)

August 12, 2009

Microsoft Barred From Selling Word

A Texas federal court judge granted an injunction against Microsoft, barring the company from selling some of its Word word-processing software because it violates a Canadian company's patent related to XML (extensible markup language), reports The Wall Street Journal, USA Today and other media sources. As Wikipedia explains, XML is used to create custom markup languages, which in turn are used in a variety of products, including Microsoft Office.

Back on May 20, a jury found that Microsoft had infringed on Canadian company i4i's patent. The judge's ordered Microsoft to cease Word sales in 60 days and pay $240 million in damages for violating the patents. The judge's order is available here, courtesy of Patently-O.

So will Microsoft start removing its products from the shelves? Hardly. Right now, Microsoft still has various options, including settling with i4i or buying the company out. In addition, Microsoft will appeal, though it is not clear that the appeal with stay the judge's order to cease sales. According to Dennis Crouch at Patently-O:

Under ther Federal Rules of Civil Procedure, Microsoft has a right obtain a stay of relief pending appeal after it posts an appropriate bond. However, that right only applies to monetary damages. There is no right to stay injunctive relief pending appeal. On occasions, both District Courts and the Federal Circuit will stay injunctive relief pending the outcome of an appeal.

The district court has already denied Microsoft's motion to stay injunctive relief. "The fact of Microsoft's infringement causes i4i to suffer irreparable harm for every new XML customer that purchases an infringing Microsoft product. To stay any injunction would only prolong that harm without providing any remedy."

Crouch observes that Microsoft also has a technical remedy in addition to these legal avenues:

Microsoft can presumably fix its patent problem by eliminating the .docx format. According to court records, "i4i has presented evidence that it is possible to design a software patch that can remove a user's ability to operate the infringing functionality." Alternatively, Microsoft could buy the patent – although the price will now be substantially higher than it was in 2007.

Even if you're not a fan of Microsoft, the decision could still be bad news. Crouch suggests that OpenOffice might be liable as well.  And if that happens, i4i may target users because no central entity controls its development and distribution (although Sun is a potential target).

August 12, 2009 | Permalink | Comments (1)

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