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September 30, 2009

U.K. Hourly Rates Head in an Unfamiliar Direction


There has been a steady onslaught against the billable hour in recent years, not least of which is such as the demand by many clients for alternative billing arrangements. Still, the latest argument for not dividing your day into 6-minute segments may come as a surprise: For the first time in recent memory, attorney billable rates appear to be declining.

As recently as the end of 2008, the news was that despite a feeble economy, attorney billing rates had continued their never-ending escalation. A National Law Journal survey for 2008 showed that nearly 71 percent of law firms reported an increase in the amount that they charged clients in 2008 as compared with 2007.

New research reveals that, at least in the U.K., the hourly billing rates for top law firms has declined by one third over the past 12 months. The research from Jim Diamond, an independent legal costs consultant, shows that partners at five of London's top firms (Allen & Overy, Clifford Chance, Slaughter and May, Freshfields Bruckhaus Deringer and Linklaters) billed an average of £450 an hour, down from £675 a year ago. The reduced rates are the lowest in five years, and reflect the substantial discounts that these firms were forced to offer to hold off competitors in the economic downturn.

Banks in particular are negotiating fees aggressively. According to one Magic Circle partner, banks are seeking cuts of up to 30 percent. Diamond adds that in addition to discounting, lawyers are finding themselves forced to take on less well-paid work.

Diamond's research did not address law firms in the U.S., but 2009 data for U.S. firms will be out soon enough. Until then, I wonder: Are major law firms in the U.S. slashing billable rates, as well?

September 30, 2009 | Permalink | Comments (3)

Are the Yellow Pages Now Obsolete for Lawyers?


The Lawyerist blog asked a great question in this post yesterday: Are the Yellow Pages now obsolete as a form of advertising for lawyers?

Sam Glover ponders that question, noting that he has "not heard any Yellow Pages success stories in a very long time, except from the occasional criminal defense or personal injury lawyer with a full-page spread." He adds that he flirted with the idea of advertising in the phone book a couple of years ago before realizing that he "would pay a couple hundred dollars a month for a fraction of the traffic I already got from other sources."

Glover asked his readers if they still used the Yellow Pages, and received some interesting comments both pro and con. One reader mentioned showing the Yellow Pages to his teenage kids, who were bewildered by -- and disinterested in -- the entire concept of a big stack of pages that were not online. Another reader wrote, however, that there was still a "ton of value" in the Yellow Pages and that the good ones were in the process of re-inventing themselves.

Skepticism is rife in other parts of the blawgosphere as well. Legal marketer Larry Bodine has long looked down his nose at the idea of Yellow Pages ads for lawyers, claiming that "it just attracts bottom-feeders, illiterates and shoppers." Bob Ambrogi gave an example here earlier this month of how phone book ads can become the albatross around a firm's neck. A Florida personal injury firm went bankrupt at the beginning of September and listed $2.5 million in assets owed to 12 creditors -- $1.5 million of which was for advertising in various phone directories.

I personally find it very hard to believe that hard copy Yellow Pages are long for this world. What do you think?

September 30, 2009 | Permalink | Comments (13)

Pint Glass Injuries Cause British Government to Leap Into Action


Writing on his "Lowering the Bar" blog, Kevin Underhill brings us news of the latest effort to make life difficult for personal injury lawyers. On the heels of its ill-fated effort to control stabbings by banning knives that have a point on the end, the British government is now seeking a new design for pint glasses that it hopes will reduce the number of incidents in which people use them to attack each other. For whatever reason, the British Home Office, which is the lead government department for immigration and passports, drugs policy, counter-terrorism, police, and science and research, has taken a keen interest in the 5,500 people who are attacked with glasses and bottles every year in England and Wales.

The Home Office has reportedly commissioned a new design in an attempt to stop glasses being used as weapons and is looking hard at a plastic glass. The British Beer and Pub Association, however, is strongly against the idea of mandatory plastic glasses:

For the drinker, the pint glass feels better, it has a nice weight and the drink coats the glass nicely. That's why people go out for a drink, to have a nice experience. I would ask, is it necessary to replace the much-loved pint glass for safety reasons in the vast majority of pubs where there is no problem?

Underhill writes that "somebody who would otherwise be stabbing you with a broken pint glass is probably going to be enterprising enough to find something else, like maybe a pewter tankard, to attack you with." Based on accident data provided by The Royal Society for the Prevention of Accidents ("RoSPA"), Underhill also identifies some other public health risks that may require some sort of urgent governmental action in England. 

  • 1,000 accident cases recorded under the category "Cardigan sweater"
  • 943 cases of injury due to "fairground punch machines"
  • 656 cases involving "sex or marital aids"
  • 615 injuries from gravestones or headstones
  • 308 magnet injuries
  • 205 "pie or tart" injuries
  • 82 injuries from chopsticks
  • 18 injuries from capes.  ("What are we doing to make our capes safer?" Underhill demands).

Underhill's "Lowering the Bar" blog is quite funny. Read his "about the author" bio here: if you like that, as I did, you'll probably find the rest of the blog funny, too.

September 30, 2009 | Permalink | Comments (2)

September 29, 2009

A Video Matching Site for Lawyers and Clients

A new video site wants to play matchmaker for lawyers and clients. The idea behind LegalTube is to help potential clients find the right lawyer by letting them view videos of the lawyers discussing themselves and their areas of practice.


"LegalTube is the only legal directory where finding a lawyer or the answers to your law-related questions is as easy as channel surfing," the site promises. "It's a way to connect attorneys and potential clients by offering 'face time' in the comfort of your living room."

The site is just getting started and has only a handful of videos, from what I could see. Search for a personal injury lawyer in California and there is only one video, for a firm in Newport Beach. The same search for Texas yields just two firms, each with one video. For most states, the search turns up no firms or videos. Instead, potential clients are invited to fill out a form and have LegalTube arrange for an attorney to respond

Another section of the site is designed to feature videos of lawyers answering common legal questions. Again, there is not much here yet. The PI section has two Q&A videos, both from the same Alabama lawyer. Most other sections had no videos, just a message saying that the section has "no Expert Q&A" yet.

It isn't all business at LegalTube. The site includes three sections of videos described as "arresting entertainment": Law Laughs, in which lawyers tell lawyer jokes and relate courtroom bloopers; Law Tales, where lawyers tell "strange but true stories" from their practices; and Law After Dark, described as "our original webisode reality series that follows night court judges and the very real cases they encounter." The three episodes posted so far show what appears to be an actual night court judge in Alabama as he confronts such situations as a man who wore shorts to court and a woman who can't seem to understand why she shouldn't drive without a license.

Although there is not much here yet, it certainly makes sense for lawyer directories to match videos with profiles. Videos let potential clients get a sense of the lawyer in a way that simple text never could. Plenty of lawyers have already discovered this with videos on YouTube. Take those YouTube-style videos and arrange them by city, state and practice area, and you could have something useful for consumers. This site is not there yet, but it might be heading in the right direction.

September 29, 2009 | Permalink | Comments (6)

Practice Management Group Inducts 12 as Fellows


I try to avoid shameless self-promotion here, figuring I can do that on my own blog. This weekend, however, I found myself in the company of a group of outstanding legal professionals, all of whom were being honored as leaders and innovators in the field of law practice management. So I can justify this post as being about them, not about me.

At a dinner in Denver Saturday night, 12 of us from the U.S. and Canada were inducted as fellows of the College of Law Practice Management. The nomination letter sent to the inductees earlier this year by COLPM President Edward Flitton succinctly explains the college's purpose:

The COLPM is an honorary organization, unassociated with any bar association, which formally recognizes individuals who have made outstanding contributions to the law practice management profession over a period of not less than ten years. Currently, there are just over 200 Fellows from all around the world.

So it was a true honor for me to join this year's group of inductees, which was composed of:

With my induction now official, I join another member of the Blog Network who is already a COLPM fellow: Rees Morrison. Ron Friedmann, a former member of this network, is also a member. And, of course, Bruce MacEwen, who was inducted alongside me, was a long-time member of this network.

Congratulations to all the inductees and thanks to COLPM for this great honor.

September 29, 2009 | Permalink | Comments (0)

Judge: No Proof Cows 'Tormented' By Oral Sex

This has to be the strangest legal story I have read in a long time, if not ever. In New Jersey, a judge has dismissed charges against a former police officer accused of engaging in oral sex with calves. The reason the judge dismissed the charges: He had no way of knowing how the calves felt about the encounters.

To be fair, the judge's point was not that the sex may have been consensual. You see, New Jersey has no law against bestiality. Instead, prosecutors charged the officer, Robert Melia Jr., with animal cruelty. That crime requires proof that the animal was "tormented." Melia's attorney, Mark Catanzaro, filed a motion to dismiss the charges, claiming it was impossible for anyone to know how the cows felt about having his client's penis in their mouths.

Superior Court Judge James J. Morley agreed that he could not look into the mind of a cow. "If the Legislature wants to make bestiality a crime, which it was once, so be it," he said. "It's not the prosecutor's office's job to outlaw what the Legislature hasn't. In order for it to be a crime, you have to establish if you tormented the animal, we're talking beating or disfiguring."

"I'm not saying it's OK," the judge added. "This is a legal question for me. It's not a question of morals. It's not a question of hygiene. It's not a question of how people should conduct themselves."

The prosecutor was not happy with the dismissal of the charges. "I think any reasonable juror could infer that a man's penis in the mouth of a calf is torment," a Burlington County assistant prosecutor, Kevin Morgan, is reported to have said. "It's a crime against nature."

Melia's bovine misbehavior came to light when investigators were investigating him and his girlfriend on suspicion of molesting three minor girls. When police raided his home in 2008, they found video showing him having sex with the calves in 2006. The former Moorestown police officer still faces sexual assault charges for molesting the underage girls.

The incident no doubt leaves many with a bad taste in the mouth. But for Bridget Crawford at Animal Blawg, it leaves her wondering, "Why don't calves deserve protection from sexual predators? It doesn't make any sense." That is a question that could leave legislators, at least in New Jersey, chewing the cud for some time to come.

September 29, 2009 | Permalink | Comments (11)

September 28, 2009

Should the SEC Deputize the Zero Hedge Blog?

The beleaguered SEC can use all the help it can get right now, so maybe it should deputize the Zero Hedge blog?

On Sept. 17, one of its contributors ("Anal_yst") wrote in a post entitled, "Unsolicited Offer to the Securities & Exchange Commission: Hire Me," that the SEC was in such dire shape that

I personally just can't sit idly by and facepalm/laugh/cry anymore. I am hereby volunteering my services to help my Country and investors World-wide by going to work for the frenemy: the Securities & Exchange Commission. 

I'm offering to work inside the belly of the beast, to sit through hours of what are no-doubt eye-gougingly-boring staff meetings, meetings where inexperience and an incredible lack of natural curiosity are likely nourished.  I promise to tell you, the SEC, when you are about to get your FAIL on, when you are failing to connect two already connected dots, to act as the voice of reason in the absence of, well, any.

There was no indication that the SEC picked up on Anal_yst's offer, but just a few days later, on Sept. 21, ZH's lead contributor ("Tyler Durden") took matters into his own hands. In a post entitled, "Dear SEC: For Your Viewing Pleasure - Obvious Perot Front Running," Tyler Durden showed in graphic detail how insider trading had apparently occurred in advance of the Dell-Perot acquisition announced that day. He wrote:

As you likely are not aware, Dell today acquired Perot Systems (we imagine the companies used the attorney-client privilege to avoid disclosing any transaction details to you). All fine and good: here is the link to the 8K should you wish to familiarize yourself with the EDGAR filing system.

Yet something that you may want to consider in your 8 hour daily coffee breaks is the following. We present the option activity in Perot calls last week. Over 2,500 Oct $20 calls were purchased at about $1. The same option is now worth $9.60. The result: an approximately $2.2 million profit in the four days since the accumulation of the options started on September 15 by whoever the party(ies) that were tipped off about this deal.

Tyler Durden then presented several screenshots from Bloomberg showing activity in Perot call options that was unusual, to say the least. It is unknown whether Durden's "head's up" was the trigger, but less than 48 hours later, the SEC announced an insider trading case against an employee of a Perot affiliate for trading in the very options identified by Durden.

September 28, 2009 | Permalink | Comments (3)

101 Damn Fine and Not-So-Fine Law Firm Taglines

The Stem Legal blog has collected 101 "taglines" from major law firms in the U.S., U.K. and Canada. As Steve Matthews of Stem Legal observes, these taglines, which firms use to brand themselves on their Web sites and elsewhere, seek to describe the firm’s philosophy "succinctly and (hopefully) memorably" through all sorts of methods: alliteration, puns, you name it. You can read the full list here, but here are some of my favorites and least favorites, as well as some observations:

Five I like:

Three I won't instantly forget:

Five firms that need to merge:

Two taglines possibly made up by my four-year old or in a five-minute meeting:

Here, your choice clearly boils down to Leadership versus Experience:

Harry Potter Wisdom Division

Five that aren't working for me:

September 28, 2009 | Permalink | Comments (5)

Indiana Grandmother Jailed After Buying One Box Too Many of Cold Medicine


Ultimately, it was the box of Mucinex-D that Sally Harpold purchased for her daughter in March 2009 at a Clinton, Indiana, drugstore that got her thrown in jail. Because it came on the heels of a purchase of a box of Zyrtec-D cold medicine that she had already dared to pick up for her husband earlier that week, Harpold, a grandmother of triplets, was awoken by police officers banging on the front door of her home on July 30 (four months after the purchases) and taken in handcuffs to the Clinton Police Department. She was questioned about her cold medicine purchases, and then sent to jail until her husband posted $300 bail. Later, her police mug shot appeared on the front page of her local newspaper in an article entitled, "17 Arrested in Drug Sweep."

As discussed in the Crime and Federalism blog, Indiana police arrested Harpold because her two purchases meant that she was technically in violation of a statute that restricts the sale of ephedrine and pseudoephedrine products to no more than 3.0 grams within any seven-day period. The statute is intended to help fight the problem of methamphetamine production in the area, as pseudoephedrine can be used to manufacture "meth." As Vermillion County Prosecutor Nina Alexander notes, however, the law does not require that the purchase must be made with the intent to make meth. Alexander told the local press that the public has the responsibility to know what is legal and what is not, and ignorance of the law is no excuse. "I'm simply enforcing the law as it was written,” Alexander said.

Maybe it's time for a new kind of warning on the side of the decongestant box?

September 28, 2009 | Permalink | Comments (19)

September 25, 2009

Juror's Googling Results in New Trial

The South Dakota Supreme Court has ruled that a judge was justified in throwing out a defense verdict and ordering a new trial in a wrongful death case because of a juror's Google searches. In a Sept. 16 opinion, Russo v. Takata Corporation, the court affirmed the order of a new trial in a case brought against a seat-belt manufacturer by the estate of a 16-year-old girl who was killed after she was thrown from her vehicle.

What is interesting about this case is that the Googling took place before the juror was impaneled and consisted of just two brief searches. In May 2007, the then-prospective juror, Shawn Flynn, received a summons to jury duty that identified the names of the parties and cautioned, "Do not seek out evidence regarding this case."

Never having heard of Takata and wondering "what they did," Flynn searched the name on his home computer and found its home page, where he learned that it was a seat belt and airbag manufacturer. He then searched the name TK Holdings, also listed on the summons as a defendant, and found it was the American subsidiary of Takata.

Once he was chosen as a member of the panel and sworn in as a juror, Flynn conducted no further searches. During deliberations after the 19-day trial, one juror asked whether Takata had ever been sued before for defects in its seat belts. Flynn responded that he had done a Google search of the company but did not find any lawsuits during his search. Another juror told Flynn that they were not supposed to consider outside information. There followed a brief but heated exchange about this among several jurors, but nothing was reported to the trial judge.

After the jury returned a verdict for Takata, the plaintiffs filed a motion for a new trial based on the discussion in the jury room of Flynn's Google searches. After a hearing on the motion, the trial judge concluded that the introduction of the information about Flynn's searches impacted the jurors' decision as to whether the product was defective and whether Takata had notice of any defects. The judge vacated the verdict and ordered a new trial.

In affirming the trial judge's order, the Supreme Court cautioned that its decision was not to be read as setting a broad rule. "Today we announce no hard and fast rule that all such types of internet research by a juror prior to trial without notice to the court and counsel automatically doom a jury's verdict. Rather, as we do in such close cases, we give deference to the trial court, which had the distinct advantage of being present throughout the nineteen-day trial."

September 25, 2009 | Permalink | Comments (3)

Schemes Let Lawyers Sidestep Ambulance Chasing

Why chase after ambulances when you can just wait around the hospital for them to arrive? That appears to be the thinking of personal-injury lawyers in two states who are alleged to have purchased hospital records to find clients and beef up recoveries.

First came the Miami lawyer we reported on in August (A New Low in Ambulance Chasing) who was said to be under investigation for his role in a scheme to buy stolen hospital records and use them to solicit clients. At the time of that report, the FBI had charged that another man, Ruben E. Rodriguez, paid $1,000 a month to a technician at a Miami hospital to obtain the records of injury victims. Rodriguez then sold the information to the lawyer.

Now come similar allegations out of New York, where Newsday reports that a Bethpage lawyer, William Hamel, was charged with bribery this week in an insurance fraud scheme involving patient records purchased from employees in New York City's public hospitals. N.Y. Attorney General Andrew Cuomo charged that Hamel, a lawyer with the Manhattan firm Dinkes & Schwitzer, used the information to lure patients into receiving unnecessary treatment and then submitted more than $1 million in phony insurance claims.

Meanwhile, there was more news this week in the Miami case. Maria Victoria Suarez, a cosmetician who is the wife of Ruben Rodriguez, was added to the indictment against her husband and was scheduled to appear in court to be arraigned. The hospital technician who sold the records has pleaded guilty to charges of conspiracy, the Miami Herald reports. Authorities have yet to identify the lawyer allegedly involved in the scheme.

September 25, 2009 | Permalink | Comments (5)

Lawyers Convene to Consider Polygamy and the Law

Lawyers are convening today at the Snowbird Resort in Snowbird, Utah, for the first-ever conference focused on the legal implications of polygamy. Sponsored by the polygamy advocacy group Principle Voices, the conference is designed to provide a snapshot into the family, criminal law and constitutional issues that often confront plural families, Principle Voices Director Mary Batchelor told Associated Press.

Given that polygamy is a crime in every U.S. state, you might think there would not be much for lawyers to talk about here. But the full-day conference, Family or Felony?, features a full slate of speakers. They include two legal-aid lawyers from Texas who will discuss their role in last year's Texas Supreme Court ruling ordering the return of children taken into custody by state authorities in the raid on the Yearning for Zion Ranch.

Other speakers on the agenda include Utah Attorney General (and 2010 Senate candidate) Mark Shurtleff, whose topic is vaguely described as "Utah's Approach"; Kirk Torgenson, Utah's chief deputy attorney general, speaking on criminal prosecution of polygamy; Utah Legal Clinic attorney Brian M. Barnard on the constitutionality of laws banning polygamy; Salt Lake City criminal-defense lawyer Grant W.P. Morrison on family law and polygamy; and Ken D. Driggs, an Atlanta lawyer and polygamy historian, on legal case histories involving polygamy.

The day's final speaker will be Allie Darger, a woman who will share her insights on what it was like to be raised in a polygamous family.

September 25, 2009 | Permalink | Comments (3)

Remembering Judge Jerry Buchmeyer


If truth is stranger than fiction, few knew that better than U.S. District Judge Jerry Buchmeyer of Dallas, who died this week at the age of 76. Highly regarded as a jurist, Buchmeyer was also well known for his long-running Texas Bar Journal column, "et cetera," which culled real-life humor from actual trials and depositions. The State Bar of Texas turned Buchmeyer's collected material into a blog, Say What?!, where his funny stories live on.

In 2006, J. Craig Williams and I had the good fortune to interview Judge Buchmeyer for our legal-affairs podcast Lawyer2Lawyer. In the interview, he recounted that it was his first case as a federal judge in 1979 that inspired him to start collecting courtroom humor.

The criminal case involved a female defendant who had come to Dallas as part of a scheme to buy $500,000 worth of gold Krugerrands using counterfeit checks. On the witness stand was a man named Dooley Wilson. A retiree whose wife had urged him to go back to work, Wilson was in his first day as a limousine driver when he had the misfortune to pick up the woman en route to purchase the Krugerrands. When the prosecutor asked Wilson to identify the woman in the courtroom, the nervous man pointed to the female U.S. attorney in charge of the case and said, "That's her." Everyone in the courtroom laughed, Buchmeyer recalled, including himself.

At the time, Buchmeyer was also president of the Dallas Bar Association. When he ran dry of ideas for his obligatory president's column in the bar newsletter, he started using these funny stories from trial and deposition transcripts. His humor column launched a year later and continued until 2008 -- a 28-year run. While he found many of the stories on his own, he also had many sent to him by readers from all over the country. Here is another of his favorites that he told during our interview:

Question: Isn't it a fact you've been running around with other women?
Answer: Yes it is, but you can't prove it.

Of course, Judge Buchmeyer was known for more than funny stories. As Nathan Koppel wrote this week at the Wall Street Journal's Law Blog, he was best known for a 1985 ruling that helped desegregate public housing in Dallas. The Dallas Morning News said he "was considered a courageous and independent champion of civil and human rights by some, but an ultra-liberal bent on disrupting the status quo by others."

You can hear our interview with Judge Buchmeyer at the Legal Talk Network.

September 25, 2009 | Permalink | Comments (0)

September 24, 2009

They Call Me Bruce


First off, let me just say that I know this won't be easy.

My prolific predecessor, Carolyn Elefant, cultivated a very loyal following over her three-and-a-half years writing Legal Blog Watch. Indeed, Carolyn did such a great job during her time here that lawyers from different continents penned poems in her honor when she announced her departure last week. 'Nuff said.

My co-author, Bob Ambrogi, has for years been the gold standard for identifying and discussing trends and new developments in the legal blogging world. In fact, my first interaction with Bob was when he reviewed a fledgling Web site of mine for his Legal Line Web site -- in June 2000!!!

And then there's me. By way of introduction, I am an attorney, and practiced law both in the SEC's Division of Enforcement and later with a big law firm as a securities and commercial litigation partner. I have been a legal blogger since 2003, when after leaving the practice of law I joined a company called Institutional Shareholder Services. At ISS, I started a blog about securities litigation and SEC enforcement called Securities Litigation Watch. I wrote SLW for over three years, an experience that taught me that (a) I loved the creativity and challenge involved in writing it, and (b) the benefits of blogging in a niche area of the law were enormous in terms of exposure, networking and thought leadership.

Today, I am the editor of an online publication called Securities Docket that is, like SLW before it, focused on securities litigation and enforcement issues. I also am a columnist and legal blogger for Compliance Week on those same subjects. I have a passion for those areas of the law, but I confess that I am really looking forward to writing for Legal Blog Watch, where my potential range of topics will be so much broader. I am active on Twitter and LinkedIn, and would love to connect with any of you who have thoughts or ideas on legal blogs or anything else.

My hope is to have fun bringing you the best, funniest and most thought-provoking posts I can find by scouring the legal blogosphere. And with that, let's roll!

September 24, 2009 | Permalink | Comments (2)

Deputies' Wii Bowling During Drug Raid Doesn't Please Sheriff

Professor Jonathan Turley's Res Ipsa Loquitur blog has a priceless video (below) showing the execution of a search warrant for drugs carried out by deputies in Lakeland, Fla. The officers of the High Intensity Drug Trafficking Area (HIDTA) Task Force did, in fact, find marijuana, meth, weapons, drug paraphernalia and over $30,000-worth of stolen property. Unbeknownst to the deputies, however, the person whose home they raided had a wireless camera connected to his computer, which captured the deputies on video as they made another discovery in the home: a Nintendo Wii bowling game.

Over the course of the nine-hour raid, the deputies searching the home battled it out on the virtual bowling lanes, celebrated strikes and well-executed spares, and danced for joy -- all of it caught on tape.

The video also includes an interview with a somber Sheriff Grady Judd, who was asked to comment on his deputies' pin action execution of the search warrant. The bewildered sheriff stated that "my deputies know that they shouldn't have been playing Wii while executing a search warrant.... that doesn't please me."

Res ipsa loquitor, indeed:

September 24, 2009 | Permalink | Comments (0)

Legal Blog and Journalism Leaders Discuss 'New Media & the Law'

Last night at Georgetown University Law Center, several leaders in the legal blogging and journalism world met to discuss "New Media & The Law." The panel featured David Lat (center in the lousy photo from my camera phone below) from Above the Law, Tony Mauro (right) from the National Law Journal and the Blog of the Legal Times), and Matt Welch (left) from Reason Magazine. Eileen O’Connor, adjunct professor at Georgetown and a former reporter and bureau chief at CNN, moderated. The audience included ABA Journal editor and publisher Ed Adams and his Legal Rebels crew, who recently featured Lat as a "Legal Rebel" and arranged for him to interview American Lawyer-founder Steve Brill.


Mauro, a veteran journalist with 30 years of experience covering the Supreme Court, offered several observations on the changes he has seen in legal journalism. He said that for many years the lawyers he covered simply would not speak with reporters. That changed in the 1980s thanks to publications like The American Lawyer. Today, when important Supreme Court decisions come down, Mauro receives no fewer than 10 to 30 pitches from lawyers (and lawyer marketers) vying to provide him with their comments on the case.

Mauro is a fan of blogs and is an active participating author of the Blog of the Legal Times. His one real concern about blogs and other even shorter forms of journalism, such as Twitter, is that in the rush to churn out information, journalists may miss out on the opportunity to be more reflective and put a story into context. He said that in the Sotomayor hearings, for instance, he and his colleagues were feverishly blogging, tweeting and making videos of the day's events, but did not have always have time to be more thoughtful on what was occurring.

Lat acknowledged that legal bloggers in an operation like Above the Law, which is supported by advertising and currently receives approximately 10 million page views per month, do need to publish a certain number of posts each day to "feed the beast." ATL's target quota is 10 to 12 posts per day, which on slow news days can be a challenge, sometimes requiring Lat and his colleagues to admittedly "put stuff out for the sake of putting it out." Lat said that ATL has a lean staff and operates on a lean budget, with one full-time editor (Elie Mystal); one part-time associate editor (Kashmir Hill, who also writes for another publication called True/Slant); and Lat himself, who spends a good bit of his time working for ATL's parent company Breaking Media and even serving as in-house counsel on legal issues. Happily, Lat says, ATL has never been sued.

Lat also explained that in today's law firms, associates and others are very willing to share what was once regarded as confidential or sensitive information with ATL. Even when law firms try to make sharing this information painfully difficult, people find a way to get ATL the information, whether it be by transcribing voicemail messages or taking pictures of "unforwardable" e-mails with their camera phones!

Welch, a former assistant editorial pages editor of the Los Angeles Times, focused on the plight of newspapers in the digital age. Welch said that newspapers "get a bad rap and they deserve every bit of it." He compared the output of his 10-person publication (which includes a print edition, a Web site with daily content, a blog with 15 to 20 items each day and a video operation) with that of his 27-person L.A Times "Opinion" division that created just two pages each day in the newspaper, the majority of which was written by others and read by no one, he says.

September 24, 2009 | Permalink | Comments (0)

September 23, 2009

In-House Counsel Confront Social Media

On Monday, I chaired a day-long program in New York, Social Media: Risks & Rewards. The program was produced by Corporate Counsel magazine and its publisher, ALM, which is also publisher of this blog. I cannot offer praise enough to this program's organizers and participants. More so than any program I've participated in before, it delved substantively into the nitty-gritty issues that businesses -- and their in-house lawyers -- face in this brave new world.

Of the well-over 100 lawyers who attended, most worked in-house. Of those, most worked in key positions such as general counsel, chief operations officer, chief compliance officer and chief intellectual-property counsel. They came from major corporations and nonprofits representing internationally known brands as diverse as Toys "R" Us, Shell Oil, Walmart, Boy Scouts of America and Major League Baseball.

No matter what industry or sector the attendees and panelists came from, it was clear that they are wrestling with many of the same issues. How do they protect and police their brands in cyberspace? How do they protect their intellectual property. How do their businesses engage and involve themselves in social media? What internal policies should they develop with regard to social media? What guidelines should they set for their employees?

Throughout the day, the conversation and presentations were thoughtful and constructive. But at the end of the day, I found myself thinking less about the participants than about those who did not attend. Clearly, the attendee list at this event represented the leading edge of in-house lawyers in their focus on social media. But how far behind do others trail? My guess is that, at the majority of companies, their in-house legal departments have barely begun, if they've begun at all, to consider these issues, let alone develop strategies to address them.

The title of the program was right on in referring to social media's "risks and rewards." For businesses that fail to consider and address how social media might impact them, the risks are severe. But for businesses that are smart about engaging and adapting to social media, the rewards can be great. The lawyers at Monday's program perceived the potential rewards and were taking action to see that their companies were able to reap them, safely. As for all the lawyers who were not at the program, I hope you're at least paying attention.

September 23, 2009 | Permalink | Comments (2)

Breyer Urges Judges to Engage the Public


Standing before a Boston ballroom packed with hundreds of judges and lawyers, Supreme Court Justice Stephen G. Breyer last night urged them to continue their efforts to educate the public about the role of the judiciary and to engage them in the judicial process. "We have to explain why this institution is worth supporting," he told them.

Breyer was the keynote speaker at a dinner commemorating the 150th anniversary of the Massachusetts Superior Court, one of the oldest trial courts of general jurisdiction in the country. The dinner capped a day-long symposium that explored both the history and the future of the court. More notably, the court used the occasion of its anniversary to stage a series of educational events throughout the year aimed at enhancing public understanding of the courts. Among the most talked-about of these are re-enactments of famous trials, such as one scheduled this week that will recreate the 1893 trial of Lizzie Borden.

Breyer praised trial judges as "the people who face the people." But he expressed concern that the general public fails to understand the impartiality of judges and the importance of judicial independence. "Judicial independence means something to a judge. But to someone who is not a judge or a lawyer, it is hard to convince them of what you are talking about."

Within just the last five years, he said, he has seen a dramatic drop in public confidence in the judiciary. Just a few years ago, poll numbers showed that roughly a quarter of the public believed judges decided cases based on politics. That number has been creeping up, Breyer said, to the point where, "the last time I looked, it's closer to 50 percent."

This is why public education and engagement is so important, Breyer said. "You know whether you're deciding [a case] fairly, but don't expect anyone else to." Citing President Eisenhower's 1957 use of the 101st Airborne to enforce school desegregation in Little Rock, in furtherance of a federal judge's order, Breyer suggested that courts use such great moments in law to help teach the importance of judicial independence.

Still, he conceded, making the public understand why the judiciary is an institution worth supporting "isn't such an easy thing to do." After all, he said, we are asking them to support an institution that will not always do what the public believes it should.

September 23, 2009 | Permalink | Comments (0)

Two Rebels of Legal Journalism Have a Chat

What happens when the original rebel of legal journalism, Steve Brill, sits down for a chat with today's best-known rebel of legal journalism, David Lat? Well, if you happen to have a camera present, you get the fascinating three-part interview posted this week as part of the ABA Journal's Legal Rebels project.


In 1979, Brill launched the magazine The American Lawyer. As I recounted in a recent post, that magazine grew into the company that now produces an array of print and electronic publications, conferences and research products and that owns this very blog. In those early days, Brill, a lawyer and journalist, was seen as a rabble-rouser. The magazine's reporting on the business-side of law forever changed the nature of legal journalism. Brill sold the magazine a dozen years ago, but his influence can still be felt.

Lat, by contrast, is the founder of the blog Above the Law. What was originally dismissed as a gossip blog has evolved into an enormously popular blog that regularly breaks news about law firms and the business of law. Even those who once dismissed it now begrudgingly respect it as a leading and -- dare I say it -- mainstream source of legal journalism.


So if Brill was once the rebel of legal journalism, Lat may now own that mantle. In these three videos from their conversation this week, they talk about the nature of legal journalism then and now and about traditional media versus new media. Lat is the interviewer here and Brill the subject, but Lat makes no pretense of feigning objectivity, instead telling Brill right out, "You've been a long-time idol of mine." The hard-nosed Brill shows some respect in return, noting that his daughter, a 2L at Yale, is "on your site all the time."

Much of the conversation focuses on the business of blogging and publishing. That is understandable, given that Brill's current venture, Journalism Online, is focused on building a model for online publishers to charge for content. "Your business model is not going to work long term," Brill tells Lat. "If I decided tomorrow that I wanted to compete with you, I could hire six guys and take away half your advertising."

For publishers to survive online, Brill believes, they must create a business model more like the traditional print model, one that blends revenue from both advertising and circulation. When he says that, he is talking not just about old-school publishers, but also about ventures such as Above the Law. Referring back to his law-student daughter, he says, "You can't tell me that she wouldn't pay you $2 a month" to read Above the Law. Responds Lat, "I wouldn't say we've ruled out that model."

Brill has harsh words for his former magazine's Web presence, suggesting that a blog such as Above the Law is filling a need that traditional legal publishers failed to address online. "It is a scandal that The American Lawyer's Web sites aren't successful the way ... I mean, you shouldn't exist if The American Lawyer was doing its job." He also took a swing at The Huffington Post, which relies heavily on content from other sources. "I'm not so sure that some of what The Huffington Post does they're entitled to do," Brill says. "I'm not so sure you can make a business out of rewriting somebody's story."

For anyone interested in the business of law, the business of publishing or the business of blogging, these videos are well worth your time.

September 23, 2009 | Permalink | Comments (0)

Farewell to Carolyn Elefant


I have not blogged here since last Thursday. In the interim, something momentous happened. Carolyn Elefant left Legal Blog Watch. Carolyn and I co-authored this blog for 3.5 years, alternating posting duties every other day, with occasional time off for good behavior. By Carolyn's calculation, that added up to some 1,680 posts for her and I guess it would be about the same for me.

Carolyn and I stepped in together to fill the shoes of -- as Carolyn put it -- the now-famous Lisa Stone, co-founder of BlogHer. Lisa started this blog back when no one was yet sure whether this blogging thing would take off. She did such a good job here that, when she left, the editors here at must have figured it would take two people to fill her giant shoes.

For me, working with Carolyn had many rewards. Most notably was simply the reward of reading her posts. Even before we started here, I knew Carolyn from listservs and from her own blog, My Shingle. I knew that she understood the interests of real lawyers out there in the trenches because she was one herself. I knew that she was an advocate for the solo and small firm lawyer, as she has continued to be. I knew that she was thoughtful and opinionated, as she consistently demonstrated. But what I didn't fully appreciate when we started out was just how good a writer she is. Through reading her posts, I believe, I learned how to be a better blogger.

One other reward of working with Carolyn was in getting to know her. Oddly, we spoke only rarely over these years. She is near Washington, D.C., and I am outside Boston. We didn't even e-mail much. If anyone thinks we spent a lot of time planning and coordinating, they'd be mistaken. Instead, we fell almost immediately into a natural synchronicity that just flowed. I like to think we complemented each other in our posts and perspectives. But I know for certain that Carolyn's insight and steady demeanor helped make this all work seamlessly.

So I will miss working with her, even as I look forward to working side-by-side with my new blogging partner here, Bruce Carton. I will not be alone in missing her, judging from the sentiments of people I've spoken to in the last few days and of bloggers such as Reid Trautz and Bill Pollak, the CEO of the company that publishes this blog. In fact, as befitting a farewell, one U.K. blogger even penned a poem in her honor. Follow that link to read it in full, but let me echo its final verse:

    All I know is that
    If you’re half as good at law
    As you were at blogging
    You'll be quids in.

Best wishes, Carolyn, in all your future endeavors. May the quids come rolling in.

September 23, 2009 | Permalink | Comments (5)

September 22, 2009

East Texas 'Troll Tracker' Defamation Lawsuit Settles

The Prior Art reports that after four days of courtroom testimony in Tyler, Texas, the "Troll Tracker" defamation lawsuit ended last night in a confidential settlement. The jury was set to hear closing arguments and begin deliberations today. 

According to The Prior Art:

Cisco issued a statement Tuesday morning in which it said the dispute between the parties "has been resolved to their mutual satisfaction, and Rick Frenkel and Cisco apologize for the statements of Rick Frenkel on the Troll Tracker blog regarding Eric M. Albritton."

We've previously covered the ongoing saga of the anonymous blogger who caused an uproar in East Texas with his unbridled commentary on the so-called "patent trolls" that frequent its court system. Back in 2007, famed patent plaintiffs lawyer Ray Niro even offered a bounty to anyone who could reveal the identity of the blogger. But it was a pair of East Texas trial lawyers who ended up suing the blogger, Cisco lawyer Frenkel, for defamation.

The case settled shortly after Judge Richard Schell ruled that the jurors would have to find "actual malice" on the part of the defendants, Cisco and Frenkel, for plaintiff Eric Albritton to obtain punitive damages in the case. The whole affair is a bizarre story that offers insights into the patent litigation hotbed that is East Texas, corporate patent strategy, public relations and free speech -- and IP Law & Business reporter Joe Mullin has all the juicy details here, here and here.

September 22, 2009 | Permalink | Comments (1)

Lawyers Must Learn to Search

For as long as there has been civil discovery in lawsuits, litigators have had responsibility for the task of figuring out how to search for the documents responsive to an adversary's requests. As the amount of information available to companies and people explodes, however, that task has become more challenging. Last week, Steven C. Bennett, a partner with Jones Day who also teaches electronic discovery at Rutgers and New York Law School, wrote on tech news site Internet Revolution that despite numerous advances in conceptual and artificial intelligence methods for search, the legal community has to a large extent ignored these developments.

Bennett offers several reasons for this disconnect. Among other things he reminds us that, historically, discovery in litigation was conducted exclusively on paper, with documents reviewed by hand for relevance.  He also notes that "the only search mechanisms generally taught in law school concern closed sets of materials, i.e., judicial opinions and other materials gathered by large publishing companies such as Westlaw or LexisNexis."

Bennett argues that those days may be gone, however, as courts have now suggested that expert assistance is required to formulate reasonable searches for purposes of discovery in litigation. Indeed, he cites U.S. District Judge Judge Facciola of the District of Columbia, who wrote last year that:

“Whether search terms or 'keywords' will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman..." United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008).

If there are law schools that have not yet begun to teach advanced search and information retrieval techniques, now may be the time to start.

September 22, 2009 | Permalink | Comments (5)

Legal Business Development via Twitter: The Challenge

In a post today on Legal Technology called "Where to Focus With Social Networking," Larry Bodine argues that while the number of online social networks continues to grow quickly, the good news is that marketers and lawyers can ignore most of them. At the top of his list of "time-wasters" that can be ignored is Twitter, which he says a study has shown to be 40 percent "total pointless babble." He cites to other statistics showing that 10 percent of Twitter users account for over 90 percent of tweets, 60 percent drop out after one month and never come back, and 55 percent have never posted a tweet.

One thing I was quite confident of after reading Bodine's post was that a blistering response would be posted quickly by Kevin O'Keefe, CEO of LexBlog and a Twitter evangelist. Kevin did not disappoint, writing today on his blog that:

The basis for [Bodine's] argument appears to be that most lawyers don't use Twitter and that 40% of the discussion on Twitter is mindless - as if the conversation among lawyers and local business leaders in the country club on men's golf day is that of complex legal matters.

Based on the results I am hearing lawyers are getting by building relationships through Twitter, and getting clients as a result, I am beginning to think that Twitter offers the highest ROI of any networking/relationship building tool.

I've already told you that I'm a Twitter fan, although I remain skeptical of its current value for BigLaw business development. As discussed here, however, anecdotal evidence of actual clients gained by solo practitioners through Twitter is starting to roll in.

To me, this is a specific question that has an answer: Either lawyers are getting clients from Twitter or they are not. The "evidence" I've seen so far on this consists of the four lawyers in this article who say they did gain new clients from Twitter; an old report that lawyer Adrian Dayton picked up a "major legal client" on Twitter; and dozens of examples of lawyers who made connections, received speaking engagements and so on that I hereby deem to be irrelevant to this particular inquiry.

So my challenge to you all is this: Provide us with real examples of clients gained through Twitter in the comments below, so that we can all have some facts to work with in the ongoing "Business Development via Twitter" debate.

September 22, 2009 | Permalink | Comments (7)

Want Dignitary Status? Bring Your Own Shovel


See anything wrong in this picture? No? Then you're clearly not from Texas, where the law bloggers are having all kinds of fun with the recent prank by attorney and party-crasher George Lobb (white hard hat above).

On Sept. 2, officials and dignitaries were on hand to break ground for a new federal courthouse in Austin, Texas. Also there, with his own shovel, was the uninvited Mr. Lobb, who somehow managed to get into the official photograph commemorating the event. In fact, the Tex Parte blog writes that when Lobb "joined the dignitaries picked to be in the photo, the General Services Administration spokeswoman who coordinated the event gave Lobb one of the gold painted ceremonial shovels."

Court officials are miffed, Austin Legal reports:

“We had an interloper,” said U.S. Magistrate Judge Andy Austin, who said local federal judges were not amused. “It was almost like this Forrest Gump thing.”

“The night after the groundbreaking, I was watching the news and I saw a shot of the group. I was like, ‘What the hell was he doing in there?'” Austin said.

Lobb is a May 2008 law school graduate who Magistrate Austin said has been court-appointed on a handful of criminal cases in federal court. “This guy had nothing to do with the courthouse,” Austin said.

September 22, 2009 | Permalink | Comments (0)

September 21, 2009

Patent Auctions Continue, Despite Setbacks

The New York Times ran a piece yesterday on patent auctions, focusing on the story of Daniel Schlager, a doctor who invented a "personal alarm" device using GPS technology in the early 1990s. As a small inventor, Schlager and a partner hired a patent licensing consultant to help them present the technology to cellphone companies like Qualcomm and Motorola. They weren't able to interest them in taking a license, so they sued. According to the article, Schlager's company, Zoltar Satellite Alarm Systems, has spent millions in legal fees and collected millions in settlements. Now Zoltar is looking to sell its alarm patents next month in an auction put on by San Francisco-based patent broker Pluritas.

The article doesn't specify how the "auction" will take place, nor does this press release, but it does hint at the Zoltar patent portfolio's value.

Today, the fast-growing makers of smartphones like Research in Motion, Apple, HTC and Nokia have no agreements with Zoltar. Dr. Schlager said he did not plan to sue them. Instead Zoltar will sell its patents in an auction, hoping for a faster, simpler and less risky payoff.

Given the 20-year shelf life of a patent, Zoltar's patents presumably have at least six years of life left in them. That's plenty of time for a new buyer to start suing the rest of these smartphone-makers. So why is Zoltar trying to cash out now? Without a look at the confidential settlements the company has reached in previous litigation, it's tough to say for sure.

But the more general trend discussed in the article -- the proliferation of patent auctions -- has hit a few bumps in the road of late. This June, Chicago-based Ocean Tomo sold its live-auction unit to British broker ICAP for a measly $10 million. Ocean Tomo's March auction in San Francisco was particularly disappointing, failing to stir much frothy bidding after several years of splashy live-auction events. Patents will surely continue to prove an attractive asset for investors, as the article suggests -- Intellectual Ventures, the largest single investor in patents, has started selling off some of its portfolio to buyers who aren't opposed to litigation as a way to monetize their investments. But based on the Ocean Tomo experiment, it's clear that the world isn't quite ready for patents -- even those like Zoltar's -- to be sold like cattle.

September 21, 2009 | Permalink | Comments (1)

Pro Bono Effort Makes All the Difference Between Two Death Penalty Appeals

Earlier this month, The New Yorker ran an epic-length article on the trial, conviction and execution of Cameron Todd Willingham, a Texas man who was accused of setting his own house on fire and killing his three young children. Willingham was put to death in 2004, but writer David Grann details how the pseudo-science prosecutors relied on to show that the fire was not an accident, and a lackluster defense by court-appointed lawyers who couldn't disprove it, doomed Willingham to death by lethal injection. It's a haunting tale, and well-worth the long read. Grits for Breakfast provides a thorough roundup of commentary on the story, including a response from the prosecutor in the case, who is now a judge.

Could Willingham, who never stopped protesting his innocence and chose to die rather than accept a guilty plea in exchange for a life sentence, have been saved if he'd had a better lawyer? It's a question most defendants must ask themselves after a guilty verdict, but in Willingham's case there's reason to believe he really could have walked away a free man if he had had counsel with more drive -- and money -- to defend him. As Grann writes, "Another inmate, Ernest Ray Willis, had a case that was freakishly similar to Willingham’s." The difference was,

Willis had eventually obtained what Willingham called, enviously, a “bad-ass lawyer.” James Blank, a noted patent attorney in New York, was assigned Willis’s case as part of his firm’s pro-bono work. Convinced that Willis was innocent, Blank devoted more than a dozen years to the case, and his firm spent millions, on fire consultants, private investigators, forensic experts, and the like. Willingham, meanwhile, relied on David Martin, his court-appointed lawyer, and one of Martin’s colleagues to handle his appeals. Willingham often told his parents, “You don’t know what it’s like to have lawyers who won’t even believe you’re innocent.” Like many inmates on death row, Willingham eventually filed a claim of inadequate legal representation. (When I recently asked Martin about his representation of Willingham, he said, “There were no grounds for reversal, and the verdict was absolutely the right one.” He said of the case, “Shit, it’s incredible that anyone’s even thinking about it.”)

The American Lawyer's Douglas McCollum profiled Blank (who is now a partner at Kaye Scholer) in January 2005, tracing his work from the day in 1992 when the 26-year-old first-year associate was brought onto the case by a partner at Mudge Rose Guthrie Alexander & Ferdon, through his group's absorption into Latham & Watkins, which never blanched at the cost or resources needed to set Willis free. Reading the two stories side-by-side, the difference between the defense and appeals process -- and the outcome -- for the two men could not be more stark.

September 21, 2009 | Permalink | Comments (1)

September 18, 2009

Are Lawyers Getting Clients From Twitter?

I'm a fan of Twitter, and have been using the service since early this year both personally (@brucecarton) and as a news feed for securities litigation news (@SecuritiesD). I'm also interested in its use and value to lawyers, particularly to lawyers in the "BigLaw" world. Looking at it through this BigLaw lens, I have been pretty skepticaI thus far as to Twitter's potential as a business development tool for lawyers (as opposed to a more generic PR/news distribution tool for law firm news and announcements, which seems like a no-brainer use to me).

Stories are starting to pop up more often these days, however, about lawyers who have used Twitter to actually get new, paying clients. On Tuesday, Lawyers USA ran an interesting article about several lawyers who had successfully turned their activity on Twitter into clients. These include:

  • Brett Trout (@bretttrout), an intellectual property attorney in Des Moines, Iowa, who has gotten six new clients since joining Twitter a year-and-a-half ago.
  • Deena Burgess (@DeenaEsq), a New York attorney who started her own firm a year ago, and who has turned five Twitter followers into clients.
  • James Walker (@cruiselaw), an attorney in South Miami, Fla., whose practice is devoted solely to suing cruise lines on behalf of injured passengers. Walker "tweets about the three things he knows best: cruise ship law, cruise ship law and cruise ship law." Walker says that one of his followers, a California maritime attorney, has referred Walker cases which Walker estimates to be worth several million dollars.
  • Stefanie Devery (@StefanieDevery), a real estate attorney in Mineola, N.Y., has received about 10 referrals from out-of-state lawyers who follow her on Twitter in the six months since she began using Twitter.

I have yet to hear any BigLaw Twitter success stories, but perhaps that will be the next wave? Please weigh in here with your own examples of lawyers who have used Twitter to gain new legal clients.

September 18, 2009 | Permalink | Comments (1)

Lawyers and Social Media: A Force for Good or 'Evil'?

An article in Saturday's New York Times highlighting the hazards of attacking a judge in a law blog has sparked a variety of reactions from lawyers. Back in 2006, criminal defense attorney Fred Conway lashed out at a Florida state judge, labeling her an "EVIL, UNFAIR WITCH" and "seemingly mentally ill" in this post on JAABlog, which covers the Broward Country court system. This bit of free expression earned Conway a reprimand and a $1,200 fine from the Florida Bar earlier this year, and also set off a First Amendment battle in the Florida Supreme Court.

A search for "evil witch" in the Quest search box at the top of this page shows a range of reactions this week among fellow legal bloggers. Kevin O'Keefe, CEO of LexBlog, believes the article was a "disservice to the American lawyer and the public we serve" because it flagged "isolated incidents where lawyers have run into trouble because of ill-advised blog posts." Kevin writes that, notwithstanding these isolated examples, "the good things achieved by lawyers through the use of the net and social media far outweigh the bad." The WisBlawg had the opposite reaction, observing that "the type of comments made by Conway were not isolated, as the article reveals, and this is an issue that isn't going away any time soon."

Over on the Marquette University Law School Faculty Blog, the reaction was that

As the New York Times article points out, your “freedom to gripe is limited by codes of conduct.” Thus, criticizing the court or revealing client details online -- even if the lawyer thinks she’s veiled the true subject -- can cause trouble for a lawyer because she runs the risk of violating rules of professional responsibility.

Finally, the Wise Law blog went straight to the point, reminding us all:

Bottom line - don't refer to a judge as an "Evil, Unfair Witch"... Or to state it more simply, if a lawyer ought not to make a specific comment in a public speech or debate, he or she ought not to say it online, either.

What do you think?

[If you'd rather listen to a debate on social media and lawyers instead of reading one, check out NPR's recent "Talk of the Nation" conversation with Nevada Judge Gary Randall and attorney Michael Downey.]

September 18, 2009 | Permalink | Comments (2)

My Last Day at Legal Blog Watch

So let me get right to the point: Today is my last day as a contributor to Legal Blog Watch. Though I've spent the past three-and-a-half years here trying to uncover salacious little tidbits or outrageous controversies in the legal world to enlighten or entertain readers, I'm disappointed to report that there's no scandalous backstory to my departure. I've just run out of steam.

During my tenure here, I've blogged an average of 10 posts a week, roughly 50 weeks a year, for a total of 1,680 posts. Since I'm neither a natural-born nor professionally trained writer, the sheer volume of blogging has taken its toll on my ability to consistently formulate keen insights and package them into clever and engaging blog posts, all within a short span of time. Rather than compromise quality or let my posts grow stale, I prefer to step down now and turn the reigns over to a fresh voice.

At the same time, my law practice, Law Offices of Carolyn Elefant is getting busier because some of my practice areas, like renewable energy, haven't been impacted by the recession. Likewise, with firms cutting associates and employment opportunities in the legal profession on the decline, demand for information on starting and running a solo practice is on the rise. The first run of my book, "Solo by Choice," is about sold out, so I'm going to start an update. I'm also finalizing a major upgrade of my home blog,, to make it even more useful to readers.

Still, even with these opportunities ahead, my decision to leave Legal Blog Watch isn't without regret. I've had a front-row seat to watch the tumultuous changes sweeping the legal profession and a soapbox from which to comment on it. I've seen the profession swing from the giddy, extravagant days of $1,000/hour billing rates and $2 million profits per partner to its current morass of massive layoffs, pathetic efforts to stem the breach in the dike by cutting back on luxury toilet paper purchases and ABA bar dues and the growth of offshoring legal contract work to India. I've followed the scandals surrounding Enron and Bernie Madoff, and a recent historic presidential election in which lawyer candidates dominated the primaries.

It has been even more fascinating to watch the way technology is changing the legal profession. I've tracked how social media tools went from being a blip on the legal profession's collective radar back in 2006 to a force to be reckoned with in 2009, impacting discovery, ex parte communications, jury trials and lawyer marketing. Yet as technology giveth, so too does it taketh away. I've observed how some of the traditional trappings of the legal profession, like typewriters in law practice, bike couriers and fancy law firm libraries, are going extinct.

In a profession that hews so closely to precedent, I've found all of these changes invigorating. As I leave my position here, I look forward to playing a more active role in rebuilding our trade instead of merely commenting on its transformation. But there's one change I've seen during my stint here that has been a huge disappointment, and that is the deterioration of the blawgosphere. When I started writing for Legal Blog Watch in March 2006, I felt like a kid in a candy store as I read through insightful, well-informed blog posts and chose content to feature. Three-and-a-half years later, the number of legal blogs has exploded, yet the quantity doesn't translate into quality. I've discovered that the Pareto principle applies with full force in the blawgosphere, with 20 percent of the blogs generating 80 percent (maybe more) of the original insights and thought-provoking content. Perhaps there are some terrific new blogs out there, but they become more and more difficult to find amidst all of the noise. On the flip side, most of the great blogs are getting even better with age.

But for all the ups and downs, I've enjoyed every day that I've been here. The thrill of getting paid to read blogs and write for Incisive Media/ALM Media never grew old. Fittingly, this week even brought a parting gift of sorts -- The New York Times Freakonomics Blog (of which I'm an unabashed fan) picked up one of my earlier posts.

Though some people have claimed Incisive is beholden to its advertisers or large law firms, never once have any of my posts been censored or removed, even though they may have been critical of an Incisive sponsor. I credit Jill Windwer and David Snow for allowing me and my co-blogger, Bob Ambrogi, to write what we want, and I also thank them and the rest of the Incisive family for their unwavering support of Legal Blog Watch.

I also have an enormous thank you to John Bringardner for his skillful editing over the past two years so that my posts always shined, and for his patience in waiting to get my material on days when I couldn't meet my deadline. There's also Jennifer Moline and Jennifer Collins, the editors who preceded John, as well as the now-famous Lisa Stone, who created this blog and plucked me from the obscurity of MyShingle to write for her, first as an affiliate blogger and then at Legal Blog Watch. And of course, no final post would be complete without a hat tip to my indefatigable iron-man co-pilot Bob Ambrogi, whose quality posts and powerful writing have forced me to keep improving just to keep pace. Between Bob and my successor, Bruce Carton, I know that I leave the blog in good hands. Most of all, thanks to all of the loyal readers who have kept coming back, commenting and feeding the conversation. You've helped take this blog from its modest beginnings to its current perch as one of the most popular online destinations for legal news.

And with that, I'll pass the keyboard to my successor.

September 18, 2009 | Permalink | Comments (28)

September 17, 2009

Study Surveys Public's Idea of 'Noncommercial Use'

A key concept in copyright law is that of commercial use. It is a factor in analyzing fair use. And the Creative Commons licensing scheme includes a noncommercial license, by which copyright owners allow others to use their work provided it is for noncommercial purposes. But what is noncommercial? Do the creators and users of copyrighted works agree on what this means?

Last year, Creative Commons set out to explore the public's understanding of this concept. Now, it has published the results of the year-long study, Defining "Noncommercial": A Study of How the Online Population Understands "Noncommercial Use." The somewhat surprising conclusion is that creators and users largely agree in their understanding of noncommercial. Here is what the executive summary says:

The empirical findings suggest that creators and users approach the question of noncommercial use similarly and that overall, online U.S. creators and users are more alike than different in their understanding of noncommercial use. Both creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial.

In other words, where money changes hands, users understand the use to be commercial. But where no advertising is sold or money made, the line between commercial and noncommercial gets harder to draw. In these situations, says the report, "there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial." And as that uncertainty grows, so does the gap between creators and users in their perception of whether the use is noncommercial.

So what are the implications of this study? From a legal standpoint, probably not much, says Jonathan Bailey at the blog Plagiarism Today. There is already plenty of caselaw on the question and most people appear to agree with how the CC license defines noncommercial. The more direct impact, he says, is likely to be seen when CC drafts version 4.0 of its licenses, a process it is expected to start next year.

September 17, 2009 | Permalink | Comments (1)

Courts Clamp Down On Jurors' Web Use

We've written here about the challenges judges and lawyers face from jurors' tweets and jurors' blogs. Separate stories in the news out of California illustrate how courts are dealing with these challenges.

In Sacramento, the court presiding over a wrongful death lawsuit is taking the unusual step of requiring jurors to sign a declaration attesting that they will not use "personal electronic and media devices" to research or communicate about any aspect of the case. Jurors will have to sign the declaration both before and after they serve. It is said to be the first time a California court has taken such a step, reports

Earlier this month in San Francisco, the Superior Court issued a proposed rule that would require potential jurors be given a reminder not to blog, tweet or conduct Internet research about cases. As reported in The Recorder, the proposed rule was prompted by a jury-selection episode in June, when an entire panel of 600 jurors had to be excused after it was discovered that several had conducted their own online research into the case.

At the FindLaw legal technology blog Technologist, Duane Morris partner Eric Sinrod says it makes sense for courts to tighten up on jurors. "It is reasonable to expect that the natural curiosity of some jurors and the ease and habit of Internet research might cause them to let their fingers do their walking into finding out about their cases outside of the courtroom," he says. "This undermines the judicial process, as jurors only are suppose to be presented the facts as deemed appropriate by the judge."

Now if they could only come up with a way to keep the judges off Twitter.

September 17, 2009 | Permalink | Comments (0)

Tax Court Writes Off Lawyer's Deduction for Prostitutes

A veteran New York tax lawyer has lost his legal battle to claim tax deductions for more than $100,000 he spent on prostitutes and pornography. But, hey, you can't blame a guy for trying.

William G. Halby, a tax lawyer first admitted to practice in New York in 1956, claimed the deductions as medical expenses. His visits to prostitutes and his purchases of books and magazines constituted sex therapy, he contended. Over two years, he claimed deductions for $108,086 spent on prostitutes and $7,373 on books, magazines, videos and pornographic materials.

But in a decision issued this week, the U.S. Tax Court ruled that Halby's sex therapy was not an allowable deduction.

Petitioner’s payments to various prostitutes were personal expenses not prescribed by a doctor and not intended to treat a medical condition. Petitioner is not entitled to deductions for these amounts.

Petitioner is likewise not entitled to deductions for amounts paid for books and magazines on sex therapy and pornography. The purchases were not for the treatment of a medical condition but were instead personal items.

At least it can be said that Halby was meticulous in claiming these deductions. The Tax Court said that he kept track of his visits to prostitutes in a journal. "The journal included the date, the name of the 'service provider,' and the amount." He did not, however, ask the "service providers" for receipts.

Not only did Halby lose the deduction and have to make up some $21,000 in tax deficiencies, but he was also ordered to pay a penalty of $4,298 for claiming deductions without any reasonable basis in the tax law. As an attorney who specialized in tax law for more than 40 years, the court said, Halby "should have known that his visits to prostitutes in New York were illegal and that section 213 [of the tax code], the regulations thereunder, and caselaw do not support his claimed deductions." 

Halby's Martindale-Hubbell profile shows him as being of counsel to a law firm in Larchmont, N.Y., but the firm's Web site does not list him anywhere. Halby had already lost a state tax case involving these same deductions, with the N.Y. Division of Tax Appeals concluding that "permitting the deductions would be counter to public policy."

September 17, 2009 | Permalink | Comments (9)

Controversy Continues Over Law Prof's Anti-Gay Ad

As a graduate of Boston College Law School, I was disappointed to read about BC Law Professor Scott T. Fitzgibbon's starring role in an anti-gay marriage TV ad targeted at voters in Maine. Now that I've watched the ad and read more about it, I find it even more disappointing for the ways in which it distorts some of the underlying issues.

By way of background, Maine last May became the first state to legalize gay marriage through legislation rather than court action. No sooner was the legislation signed into law than a coalition of gay marriage opponents mounted an effort to put a referendum on the November ballot to repeal it. Their effort was successful and now Question 1 goes to Maine voters Nov. 3.

With the referendum secured, the battle of the TV ads began. The first ad from gay marriage opponents to hit the airwaves prominently featured Fitzgibbon, who is just as prominently identified as from Boston College Law School. (It carries the disclaimer, "Title for identification only, no university endorsement implied.") He warns of the dire legal consequences that would befall the state should gay marriage become law:

Unless Question 1 passes, there will be real consequences for Mainers. Legal experts predict a flood of lawsuits against individuals, small businesses and religious groups. Church organizations could lose their tax exemptions, homosexual marriage taught in public schools, whether parents like it or not.

As he makes that last point -- that homosexual marriage will be taught in public schools -- a case citation flashes on the screen, as if to underscore the point. The citation is to Parker v. Hurley, a 2008 decision of the 1st U.S. Circuit Court of Appeals. And guess what? The case provides no support for Fitzgibbon's contention. It was a challenge on constitutional grounds to a school's use of two books that included portrayals of gay marriage. Given that it was decided by the 1st Circuit, which includes Maine, and was based on constitutional issues rather than statutory issues, it applies in Maine without regard to whether or not Question 1 passes. More to the point, the 1st Circuit went out of its way to say that the case was not about a coerced curriculum:

On the facts, there is no viable claim of "indoctrination" here. ... [W]e note the plaintiffs' children were not forced to read the books on pain of suspension. Nor were they subject to a constant stream of like materials. There is no allegation here of a formalized curriculum requiring students to read many books affirming gay marriage.

That citation is not the only distortion in the ad. As Fitzgibbon makes the assertion that church organizations could lose their tax exemption, an AP story flashes on the screen showing the headline, "Homosexual Advocacy Group Accuses Maine Diocese of Violating Tax Law." But two blogs, AmericaBlog and the BC Law student blog Eagleionline, say that the ad altered the AP headline from "Gay Rights Group" to "Homosexual Advocacy Group." And the story says nothing about a church losing its tax exemption because of gay marriage, but because of its involvement in political advocacy.

BC Law Dean John H. Garvey issued a statement yesterday in response to the controversy on campus over the ad. Saying that he recognizes "that this is an emotional and sensitive subject for many people," Garvey says, "I also believe that one of the most important aspects of an education at a school like ours is the principle of academic freedom." Fitzgibbon, Garvey says, "is free to express his views."

Garvey is right, of course. Fitzgibbon should be free to express his views. But it seems to me that, as a law professor, he should at least base those views on reasoned analysis of the facts and law. In this case, he instead relies on inflammatory and unfounded rhetoric. What would Fitzgibbon say if one of his students did the same?

September 17, 2009 | Permalink | Comments (12)

September 16, 2009

Kind of Like, for Lawyers and Clients

Corporate counsel routinely issue requests for proposal as a way to hire law firms. Now, even small fry clients can do the same using a just-launched site called, featured today in an article on the State Bar of Wisconsin's Web site. From the article, here's how works:

[T]hose looking for legal services post a description of the work they need performed. Acknowledging that many of these matters may be personal and confidential, [Nicholas Cronin, site founder] explained that only attorneys who have set up an account with the site are able to view the postings.

“To further protect personal information, the attorneys will not be able to see any identifying information other than the city, zip code and state where the legal matter is located,” Cronin states in his description of the service found at the web site.

Lawyers registered with the site browse the postings and then bid for the work, choosing an hourly, contingent or a flat fee structure. If clients do not like any of the bids, they have no obligation to choose an attorney, Cronin said. If the client does find what they are looking for, the attorney selected is provided contact information and work can begin to resolve the legal issue, he said.

Hundreds of lawyers have registered for the site since its May 27 launch. Registration is free, with the site supported by ad revenue. A similar concept is which is geared toward small business needs. Small businesses can sign up and post a description of a matter in which they need assistance and receive proposals and fee estimates from lawyers.

So what are lawyers saying about bidding sites? Richard Sheil, a solo practitioner in Oregon quoted in the Wisconsin article, observed that these sites provide benefits and drawbacks. On the plus side, Sheil believes that auction systems can make information available more broadly, which can reduce costs for consumers. At the same time, Sheil worries that lawyers might undervalue their services when submitting a bid in an effort to win the client.

So far, the Association of the Bar of the City of New York has found that bidding sites pass muster. In a recent opinion, the bar found that these bidding systems are often similar to the RFPs employed by the government or corporate entities. The bar, however, did caution the company to take care to safeguard confidential information.

So will these sites attract bonafide cases, or just those where clients have dud cases and have been rejected by other lawyers? That was one of the complaints often raised about lawyer matching sites like, which were popular in the heyday of the dotcom. Still, it costs nothing to register for these sites, so at least lawyers can experiment to determine how the bidding process works for them.

September 16, 2009 | Permalink | Comments (1)

Does Bar Exam Failure Presage Career Failure?

Law student blog The Shark takes issue with a UCLA law school researcher's study (first reported at the ABA Journal) which concluded that people who fail the bar exam fare worse than even college graduates in the first five years after graduation but spring back later in their careers. Still, the study showed that those who failed the bar lagged behind other earners, with those between the ages of 40 and 49 earning $54,000 compared to the average of $83,600 for all lawyers. Jane Yakowitz, who conducted the study, concluded that:

Legal education may be a disservice for the significant group of students that never pass a bar exam -- a group whose composition can be predicted fairly accurately before they’ve even begun law school,” she says. “At the very least, law schools owe it to their prospective students to provide candid information about the risks of attending law school.

The Shark objects to the implication that those who fail the bar were never cut out for law school, noting that law school provides a good education no matter what happens afterward. In addition, The Shark lists a bunch of highly successful public figures -- including Hillary Clinton, John F. Kennedy and Kathleen Sullivan -- who failed the bar the first time around.

Come on, can failing a single test (and one as stupid as the bar exam, no less) really ruin one's life? What do you think?

September 16, 2009 | Permalink | Comments (5)

September 15, 2009

Is Total Attorneys Complaint a Total Joke?

What are we to make of the complaint by Connecticut lawyer Zenas Zelotes against Chicago-based Total Attorneys and its lawyer-founder Kevin Chern? Zelotes has filed versions of his 303-page complaint against more than 500 lawyers in 47 states. He alleges that these lawyers are obtaining referrals through and sharing fees with Total Attorneys in violation of legal ethics rules. The Connecticut Law Tribune first reported about the complaint in July and now it is back in the news with a piece in the Norwich Bulletin.

In a blog post written shortly after the story appeared in the Law Tribune, Total Attorneys president Chern defended his company's business model.

Mr. Zelotes’s argument that the pay-per-performance model employed by Total Attorneys amounts to fee splitting defies even the most basic logic. Sponsoring attorneys pay fees based on exposure, regardless of whether or not a particular consumer ever retains them or they ever receive a fee.

The truth is that the pay-per-performance model employed by Total Attorneys is the industry standard in online advertising and is most notably employed by Google as the pricing model for their AdWords program. Total Attorneys’ program is a natural extension of the Google performance-based pricing model. Both times that ethics opinions have addressed performance-based pricing models, first in South Carolina and then in Kentucky, they have been found to be compliant.

At Law Marketing Blog, Larry Bodine sides with Chern, calling the complaint "zany" and citing those same South Carolina and Kentucky ethics opinions to conclude that the law is on the side of Total Attorneys. Carolyn Elefant, my colleague in writing Legal Blog Watch, also sides with Chern. In a comment to Chern's blog post, she wrote, "Frankly, I have never understood the objections to these 'for fee' referrals. The bars all run referral services and they are pay-for-play."

But are the ethics rules all that black-and-white? Connecticut's chief disciplinary counsel, Mark DuBois, has found probable cause to pursue disciplinary complaints against five lawyers relating to their involvement with Total Attorneys. "I feel like the traffic cop who has to defend the 35-mile-an-hour speed limit to a guy who has invented a car that goes 200 miles per hour," DuBois told the Norwich Bulletin, saying the cases raise "fascinating issues" about the use of technology in marketing legal services.

DuBois earlier told the Law Tribune that the Web sites used to attract potential clients could run afoul of his state's rules. "The problem with that is that the advertising rules here require there to be the name of a Connecticut-admitted lawyer on the ad and that lawyer has to file the ad with the grievance committee for review." Dubois also said there would be ethical problems if the fees paid by attorneys are deemed well in excess of the cost of the advertising sites' operation.

In Virginia, a draft ethics opinion issued earlier this year concluded that a lawyer's participation in a Web site similar to Total Attorneys would violate that state's ethics rules. The non-binding draft was put out for public comment and now awaits further review by the state bar Ethics Committee.

These actions in Connecticut and Virginia suggest that Zelotes' complaints should not be dismissed out of hand. Regardless of whether you believe the complaints have merit, they point to the need for a broader re-examination of legal ethics rules that some see as outmoded and others as essential to protecting consumers. I agree with Martha Sperry at the blog Advocate's Studio, who says this case highlights the need for our the legal profession "to examine change, and that includes the ethical rules that purport to guide the profession and ensure protection of client interests."

To the extent that these complaints point to the lack of clarity and consistency in the rules of conduct governing lawyers, they are no joke. Complaints filed in 47 different states could conceivably result in 47 different outcomes. That kind of uncertainty doesn't help lawyers or consumers.

September 15, 2009 | Permalink | Comments (17)

Report Ponders a Democratic NLRB

Fasten your seatbelts for a Democratic National Labor Relations Board. That is the warning that opens a new U.S. Chamber of Commerce report that considers how the labor board is likely to change under the Obama Administration. "After eight years of Republican majorities and relatively well-balanced NLRB decisions, most of which were accepted by the federal circuit courts of appeals, the Obama Administration will usher in a new Democratic, pro-union majority set to reverse Bush Board decisions and much more," says the report, The National Labor Relations Board in the Obama Administration: What Changes to Expect.

As Michael Fox explains at his blog, Jottings By An Employer's Lawyer, the report was written for the U.S. Chamber by two of his partners at Ogletree Deakins, the father/son duo of Harold P. Coxson Jr. and Christopher R. Coxson. Among labor lawyers, much speculation of late has been focused on the potential implications of the Employee Free Choice Act. But while the fate of the EFCA remains uncertain, the election of President Obama means that changes in NLRB precedent are sure to come, Fox suggests.

With three vacancies on its five-seat board and the two occupied seats split between Democrat Wilma B. Liebman and Republican Peter C. Schaumber, the NLRB has been crippled in its decisionmaking of late. Obama has nominated three lawyers to fill the vacant seats: Craig Becker, associate general counsel to the AFL-CIO and the Service Employees International Union; Mark G. Pearce, a union-side labor lawyer in Buffalo, N.Y.; and Brian E. Hayes, a Republican who is labor policy director on the Senate Committee on Health, Education, Labor and Pensions. But the Senate has shown no urgency to act on the nominations and the U.S. Chamber is pushing for a full hearing on the nomination of Becker, calling his views "out of the mainstream."

If the Chamber is gearing up for a fight against Becker, this newly published report is its call to arms. The report includes an entire section devoted to Becker's writings in law reviews and elsewhere, noting, "It is unusual that a nominee to the NLRB has written so prolifically on the NLRA." The bulk of the report is devoted to an analysis of "Bush Board Decisions Likely to be Reversed." As a press release announcing the report says, "The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration." The bottom line, the report concludes, is that a Democratic board's rulings "collectively will increase union leverage in every aspect of labor-management relations."

Regardless of whether you agree with the Chamber's perspective on this, its report makes for an interesting read for anyone interested in the law and policy of labor relations.

September 15, 2009 | Permalink | Comments (0)

DMCA Protects Video Site, Judge Says

In what is being hailed as a major victory for video-hosting sites, a federal judge in Los Angeles has dismissed Universal Music Group's copyright case against Veoh, a video site that allows users to share videos. Finding that Veoh qualifies for protection under the safe harbor provision of the Digital Millennium Copyright Act, U.S. District Judge A. Howard Matz granted summary judgment dismissing Universal's suit.

Universal's lawsuit contended that Veoh was aware of infringing material on its site and failed to remove it promptly. "But Veoh has shown that when it did acquire knowledge of allegedly infringing material -- whether from DMCA notices, informal notices, or other means -- it expeditiously removed such material," Matz concluded. The burden of policing copyright infringement rests on the copyright owner, he said, and a service provider is not obligated to affirmatively investigate "red flags."

The judge also rejected Universal's contention that Veoh had actual knowledge of copyright infringement because it "knew that it was hosting an entire category of content -- music -- that was subject to copyright protection." To that, Matz said:

If merely hosting user-contributed material capable of copyright protection were enough to impute actual knowledge to a service provider, the section 512(c) safe harbor would be a dead letter because vast portions of content on the internet are eligible for copyright protection. UMG’s theory would also make the DMCA’s notice-and-takedown provisions completely superfluous because any service provider that hosted copyrighted material would be disqualified from the section 512(c) safe harbor regardless of whether the copyright holder gave notice or whether the service provider otherwise acquired actual or constructive knowledge of specific infringements.

This is the second time a federal court has thrown out a copyright case against Veoh under the DMCA. Observers say the ruling's greater significance may be in what it foretells about a similar lawsuit brought by Viacom against YouTube.

"[T]his ruling could prove to be influential on the judge in the YouTube case, since Veoh's policies are very similar to YouTube's," EFF lawyer Fred von Lohmann told Ars Technica. YouTube's chief counsel Zahavah Levine echoed von Lohman, telling CNET News, "This decision reaffirms the judicial consensus and what we've known all along: the DMCA protects services like YouTube."

But Viacom's General Counsel Michael Fricklas said his case is different. "Our case is in a different forum, not bound by the Veoh case. We remain confident that we will prevail on the law and the facts. Today's decision contradicts the consensus that sites and copyright owners share the responsibility to use readily available tools to minimize copyright infringements."

September 15, 2009 | Permalink | Comments (2)

Senate Hopeful Once Had Centerfold Spread

Scottbrownpicture Scott Brown, a lawyer running as a Republican to fill Ted Kennedy's U.S. Senate seat, has achieved much in his career. He has been a Massachusetts state senator since 2004 and before that he served three terms as a state representative. For 30 years, he has been in the National Guard, rising to the rank of lieutenant colonel in the Judge Advocate General's Corps. He was awarded the Army Commendation Medal for meritorious service in homeland security after the attacks of Sept. 11, 2001, and was named Public Servant of the Year by the United Chamber of Commerce in 2004. And as if all that wasn't noteworthy enough, he even saw his daughter make the top 16 in the 2005-2006 season of American Idol.

But around the halls of Boston College Law School, from which the Senate-hopeful graduated in 1984, Scott Brown may always be remembered for something else -- his nude centerfold spread in Cosmopolitan Magazine. As the BC Law student blog Eagleionline recounted in a post last March, then-3L Brown was featured in a photo shoot as the first-place winner of a Cosmo centerfold contest. He used the money he made to help pay his law school tuition. Here is a snippet of what Cosmo had to say about Brown:

Tall (6'2"), rangy Scott Brown, 22, has the strong-but-huggable good looks most Cosmo girls are really searching for. You may want Mr. Muscles or a river-boat gambler for an adventure, but adorably sexy is what makes him someone to snuggle over the longer haul!

The Cosmo write-up said that Brown's younger sister entered him in the contest without his knowing, "but this prince-next-door wasn't too reserved about later posing nude." As a matter of fact, some at BC Law still remember the shoot, reports Eagleionline. "The atmosphere surrounding the 1982 photo shoot was fun and light-hearted. Indeed, according to one, Brown promoted the shoot himself by distributing copies of the magazine on campus."

Eagleionline also unearths Brown's BC Law yearbook photo, which it aptly describes as "less conventional." Clearly, Brown is comfortable in front of a camera. These days, that alone can qualify someone for the Senate.

September 15, 2009 | Permalink | Comments (4)

September 14, 2009

Hulk Hogan Sues Law Firm for Overcharging

Retired professional wrestling champ Hulk Hogan is up for another fight, only this one doesn't involve grappling with another large man clothed only in a few strategically placed swathes of spandex. Instead, Hogan is taking on American Lawyer "Litigation Boutique of the Year" finalist Zuckerman Spaeder, alleging that the firm overcharged Hogan by more than $1 million in legal fees. According to Hogan's malpractice complaint, Zuckerman Spaeder never disclosed that Hulk Hogan's insurance company would have provided a free attorney to defend Hulk Hogan in a civil case that arose out of his son's car crash. Moreover, Hogan contends that the lawyer whom Hulk Hogan's insurer had lined up for him was far more qualified than the two Zuckerman Spaeder attorneys who charged rates of up to $550 an hour. The Zuckerman attorneys denied all charges in a statement they released to The Am Law Daily.

This seems like a tough, tough case to prove. First, Hulk Hogan needs to establish that Zuckerman did indeed have an ethical obligation to disclose the availability of lower cost options (for the record, I believe that lawyers should always do so). Second and even more difficult, Hulk Hogan would need to show that the cheaper lawyers would have attained a better result. Perhaps Zuckerman padded its bills -- the $1.5 million that the firm charged to defend Hulk Hogan in a civil case, even one involving serious injury, seems quite high. Hulk Hogan's lawyers say the bill was high in part because lawyer rates were charged for work performed by paralegals. So perhaps there's a viable claim for unreasonable fees. The claims for malpractice for failure to disclose are going to be far harder.

Do you think that law firms are required to disclose lower-cost alternatives to their own services? And how far does the obligation extend? Informing a client of available services under an insurance policy is one thing. Recommending the cheap lawyer down the street is another.

September 14, 2009 | Permalink | Comments (5)

Law Students Exiled to Externships

It used to be that unpaid externships were the ugly stepsister to highly paid summer associate programs.  But in this new economy, no more. According to a story in The National Law Journal (Hat tip to The Am Law Daily), externships -- unpaid, for-credit work opportunities -- are providing a path to hands on experience now that many law firms have canceled their internships. Now, law schools are encouraging students participate in externship programs to gain experience. For example, at UCLA school of law, 74 students completed externships in 2009, in contrast to just 41 in 2007.

With externships in demand, I hope that law schools are willing to be flexible in certifying externship programs. Several years back, I hoped to use a law student to work as an extern on a complex and somewhat high-profile (within the local community, anyway) civil rights case. The student would have had opportunities to observe depositions, summarize transcripts and assist with investigation and legal research.

Because the case was a long-shot, I characterized it as quasi-pro bono, meaning that my clients paid my costs with my fees recovered through a contingency agreement and/or under fee shifting statutes. However, the law school determined that I did not qualify for an externship program because the matter was not 100 percent pro bono.

I agree that if lawyers can afford to pay students, they should. But at the same time, if lawyers are willing to take the time to mentor students and provide them hands-on experience, why shouldn't the law school offer students credit for that arrangement, whether the lawyer is getting paid for the matters that the extern handles or not?

September 14, 2009 | Permalink | Comments (0)

Prop 8 Controversy Splits California Bar

A year ago, I posted here about a group of law professors that decided to boycott the Association of American Law Schools' annual meeting at the San Diego Manchester Grand Hyatt as a protest of hotel owner Douglas Manchester's financial support of the Proposition 8 campaign to ban same-sex marriages. Taking a lesson from the professors, California lawyers similarly challenged the California Bar Association's decision to hold its annual meeting at the Manchester Grand Hyatt, reports But the California Bar determined that it was not possible to move the convention so it opened as scheduled at the Manchester last Thursday.

The Bar's decision didn't stop the Conference of Delegates from relocating to a new venue, the Hilton San Diego Bayfront. Participants who wanted to attend both events could take a cab between the two venues. However, in an attempt to keep participants at the Hilton and away from the Grand Hyatt venue, the Conference of Delegates created its own continuing legal education program.

The Conference of Delegates originally split from the main Bar in the late 1990s, but its decision to move to a new venue and establish its own CLE programs was apparently one of its most visible expressions of its independence to date.

September 14, 2009 | Permalink | Comments (6)

September 11, 2009

Lawyer on Tap to Lead AFL-CIO

Richard L. Trumka, the former coal miner expected to be elected president of the AFL-CIO, America's largest labor federation, at its convention in Pittsburgh next week, is a lawyer who got his start in the labor movement as a staff attorney for the United Mine Workers of America. Trumka, 60, has been AFL-CIO secretary-treasurer since 1995 and was formerly president of the United Mine Workers. But his legal background is often overlooked.

Trumka As had his father and grandfather before him, he started out as a coal miner at age 19. He continued to mine while he worked his way through Pennsylvania State University. After graduating from Penn State in 1971, he went to Villanova University School of Law, where he earned his law degree in 1974.

After law school, Trumka joined the UMWA as a staff attorney in its Washington, D.C., headquarters. He remained there until 1979, when he returned to mine work. In his free time, he did legal work for local families on a pro bono basis, according to his official biography.

He also became involved in union affairs and quickly rose through the ranks. In 1981, he was elected to the board of directors of UMWA District 4. A year later, at age 33, he was elected UMWA president, its youngest president ever.

As president, he led a nine-month strike against the Pittston Coal Company. His biography describes it as "one of the most successful strikes in recent American history." Wikipedia says the strike "has been called a rallying symbol for the entire labor movement." His work to promote mine worker solidarity with South African miners earned him the 1990 Letelier-Moffitt Human Rights Award.

Not long after becoming AFL-CIO secretary-treasurer in 1995, Trumka was investigated by federal prosecutors looking into whether he illegally helped steer $150,000 in AFL-CIO money to help Ron Carey win the Teamsters presidency in 1996 over James Hoffa Jr. Trumka refused to testify before a federal grand jury, invoking his Fifth Amendment right against self-incrimination, and was never charged, according to Reuters.

My search of legal blogs for comments about Trumka found only one post, on the EFCA & Labor Law Reform Blog, published by the management-side labor law firm Jackson Lewis. The post takes issue with a Washington Post article describing the Pittston strike as Trumka's "crowning achievement. "We are unclear how Trumka measures the success of a strike, but his crowning achievement resulted in a court ordered injunction being levied against his union, his union officials being held in contempt of court and his union being fined more than $30 million dollars for strike related activities," the post's authors write.

One point on which reports about Trumka agree is that he is likely to be a more aggressive union leader than was his predecessor, John Sweeney. In that, his background as a lawyer will no doubt serve him well.

September 11, 2009 | Permalink | Comments (1)

Lawyer Faces Discipline Over Blog Posts

A former Illinois assistant public defender faces disciplinary charges over postings to her blog that Illinois authorities say exposed client confidences and revealed her complicity in a client's fraud on a court. The attorney denies the charges and says she plans to hire legal counsel to help her fight them.

The focus of the disciplinary complaint is Kristine Ann Peshek and her former blog, "The Bardd Before the Bar -- Irreverant Adventures in Life, Law, and Indigent Defense." Among other things, the blog chronicled her work as an assistant public defender in Winnebago County. She discontinued the blog when her supervisor became aware of it in April 2008 and fired her.

The two-count complaint from the Illinois Attorney Registration and Disciplinary Commission charges Peshak with writing posts to her blog that identified her clients and revealed confidential information about them. Although she never used last names, she referred to clients by first names or by jail identification numbers, the complaint says. In the course of her writing about her defense of clients on drug and other charges, she revealed information that would be "embarrassing or detrimental" to them, the complaint charges.

In one post, Peshak describes her conversation with a client just after the client's sentencing. Having told the judge and Peshak that she did not use drugs, the client now wanted to go back before the judge and tell him that she was on Methadone. Peshak's blog post described her reaction:

Huh? You want to go back and tell the judge that you lied to him, you lied to the pre-sentence investigator, you lied to me? And you expect what to happen if you do this? I'll tell you what would happen; the sentence just pronounced would be immediately vacated and you'd go to prison, that's what would happen.

This post was double trouble, the complaint charges. Not only did Peshak harm her client with the post, but she also revealed her complicity in her client's fraud upon the court.

In an e-mail to the ABA Journal, Peshek said that she would never have posted information that she believed would lead to identification of a client unless she had the client's permission or it was a matter of public record. "I would not have posted any information in such a manner that I thought a specific client could be identified, without that client’s permission, or without the information being a matter of public record," she told the ABA Journal.

Peshak's former blog has been replaced by a new one, A Bird in a Roomful of Cats. Her new blog carries what she describes as a caveat, and it includes this:

I do not post the real name of any person I may mention without prior permission – and mostly not even then. In fact, some of the "persons" made reference to are amalgams of several similarly situated individuals, given a "pseudonym" in order to protect the innocent (or the guilty, as the nature of this blog should indicate may often be the case). If you think you recognize yourself or another in these pages, you may possibly be right - but you most probably are wrong.

"It so happens," she goes on to write, "that I was born hard-wired to be bluntly honest and outspoken about what I see, think and believe. ... I am a professional rabble rouser using the internet as a vehicle to vent." It remains for Illinois disciplinary authorities to decide whether her bluntness crossed an ethical line.

[A hat tip to Legal Profession Blog, which first reported the complaint.]

September 11, 2009 | Permalink | Comments (2)

Judge Slams Blogger's Special Treatment

A federal prosecutor's decision to let prominent political blogger Andrew Sullivan off the hook for a marijuana bust was condemned yesterday by a federal magistrate judge as unjustified favoritism. But finding that he was without power to override the prosecutor's decision, the magistrate judge dismissed the charges nonetheless.

"The only reasons given for the dismissal flout the bedrock principle of our legal system that all persons stand equal before the law," U.S. Magistrate Judge Robert B. Collings of Massachusetts wrote in a memorandum opinion issued yesterday. But "fidelity to the law" governing a prosecutor's discretion to dismiss a criminal matter required him to grant the request, Collings said.

The genesis of Collings' ire was Sullivan's arrest July 13 by rangers at the Cape Cod National Seashore for marijuana possession. A British citizen who has lived in the U.S. since 1984, Sullivan is a former editor of The New Republic who became one of the first of a breed of high-profile political bloggers when he launched his blog, The Daily Dish, in 2000. His blog is now hosted by The Atlantic Online, where he is a member of the editorial staff.

The park ranger who arrested Sullivan charged him with a misdemeanor possession offense that carried a maximum penalty of a $5,000 fine and six months imprisonment. He issued Sullivan a citation directing him either to appear in U.S. District Court or forfeit collateral in the amount of $125.

Sullivan was notified to appear in court on Sept. 2. But on Aug. 26, the U.S. Attorney's Office filed a request for leave to dismiss the charge against Sullivan for the reason that "further prosecution of the violation would not be in the interest of justice." Given so general a justification for the dismissal, Collings scheduled a hearing on the request and directed Sullivan to appear.

At the hearing, which was held in Hyannis on Cape Cod, Sullivan appeared together with his attorney, Robert Delahunt Jr., a partner with Mintz Levin in Boston. The U.S. attorney was represented by James F. Lang, acting deputy chief of the office's Criminal Division. Collings questioned why Sullivan's case was being treated differently from the cases of others.

"The Court expressed its concern that a dismissal would result in persons in similar situations being treated unequally before the law," Collings recounted in his opinion. He noted that other people charged with the same offense at the National Seashore were routinely given violation notices and prosecuted if they failed either to appear or to forfeit collateral. In fact, other persons were in court that very day being prosecuted for the same offense.

Both attorneys, Lang and Delahunt, said the reason for the dismissal was that Sullivan is in the process of applying for "a certain immigration status" in the United States, and that immigration experts had told them that if Sullivan paid the $125 forfeiture fee, it could hurt his application. Noting that Sullivan would be required to notify immigration authorities of the criminal charge in any event, Collings asked the lawyers what difference his payment of the forfeiture fee would make. "Neither attorney could answer the Court's query except to say that the lawyers they had consulted who practice immigration law said it would."

After taking the matter under advisement, Collings issued his opinion yesterday, which he began with this statement: "It sometimes happens that small cases raise issues of fundamental importance in our system of justice; this case happens to be an example." He went on to condemn the U.S. attorney's favoritism of Sullivan:

In the Court’s view, in seeking leave to dismiss the charge against Mr. Sullivan, the United States Attorney is not being faithful to a cardinal principle of our legal system, i.e., that all persons stand equal before the law and are to be treated equally in a court of justice once judicial processes are invoked. It is quite apparent that Mr. Sullivan is being treated differently from others who have been charged with the same crime in similar circumstances.

But Collings concludes that the constitutional principle of separation of powers prevents him from doing anything but to grant the dismissal request. "That the Court must so act does not require the Court to believe that the end result is a just one."

[Hat tip to Noah Schaffer at The Docket.]

September 11, 2009 | Permalink | Comments (1)

A Wound That Time Can't Heal

Time heals all wounds, my mother used to tell me. But eight years later, the horrible events of 9/11 continue to hurt. Some were wounded more critically than others that day, they who lost sons and daughters, mothers and fathers, spouses and loved ones. But all of us -- individually and collectively as a nation -- suffered damage to our psyches so severe that I don't believe time ever could, or ever should, heal our wounds. Yes, with the passage of time will come new generations who will not grasp the horror of that day. But let us hope that no generation ever forgets how suddenly our lives can turn and how precious are the moments in which we live.

September 11, 2009 | Permalink | Comments (2)

September 10, 2009

News Roundup

Brooklyn man meets his match in lawsuit against Sean McGinn, a Brooklyn man who filed a $5 million class-action suit against over unanswered emails has dropped the suit due to the extreme amount of ridicule he endured from media coverage. [New York Post]

Fantasy lawyer job settling fantasy football disputes: Are you a lawyer/sports fan looking for work? Why not sign up to settle disputes at Fantasy Dispute or  Sports Judge, which provide a lawyer to resolve disputes among fantasy league participants. Of course, the pay -- $15 a case -- will barely cover the cost of beer at a real life football game. []

"Truth is more controversial than pornography."  So says Consumer Watchdog founder Harvey Rosenfield after his group's billboard that read "Consumer Watchdog Says: 'You Can't Trust Mercury Insurance'" was taken down last week after the insurance company complained. By contrast, just down the street, a billboard for an Absolut Mango ad that depicts a giant vagina remains standing. [MSNBC]

Lawsuit over bad behavior: OK, so the wait staff's remark on a couple's restaurant bill describing their two year old daughter as a "little f****" probably isn't a paradigm of customer service. But are the parents behaving as badly as their daughter apparently did by consulting a lawyer and threatening a suit? [Daily Mail]

September 10, 2009 | Permalink | Comments (1)

Only a Small Percentage of Lawyers Use Twitter

At the beginning of 2009, Larry Bodine predicted that Twitter would become a popular social media tool for lawyers. However, after several months of usage, Bodine discovered that Twitter was not as effective for lawyer marketing as he'd initially believed.

Fast forward nine months, and we find that perhaps Bodine is right. For all of the vocal fans of Twitter as a tool for use by lawyers, Twitter still hasn't gained much traction in the legal community. According to Bodine's blog post today, only 6 percent of lawyers use Twitter. Bodine posits that:

With more than 90% of lawyers not using Twitter, and even fewer of their target customers tweeting, the research confirms that Twitter is not useful for business development by private lawyers.

Is Bodine right? Does the slow growth of Twitter amongst lawyers prove that it's ineffective and should be avoided? Or, with so few lawyers using Twitter, is there still an opportunity for lawyers who decide to use the service now to gain a first mover advantage? What's your view?

September 10, 2009 | Permalink | Comments (12)

Law Schools Cutting Back in Down Economy

Turns out the ivory tower isn't insulated as many would believe. Just as law firms have been cutting lawyers from the ranks to deal with the current economic client, now law schools are doing the same. The Harvard Law Record details some of the cuts at Harvard Law School resulting from the downturn. For example, Harvard expects to reduce the number of events and conferences which it typically holds because now-struggling law firms are unable to sponsor them. Many of the Harvard law journals are also concerned about whether they can obtain funding for traditional activities such as symposia. And last month, the law school moved four of its neighborhood-based clinics to the Harvard campus to save on rent and staff.

Students are feeling the impacts of cutbacks directly as well, albeit in smaller ways. Dean of Students Ellen Cosgrove warned students that they could expect an end to free food for events and a cutback on coffee, which would be available until 10:15 a.m. instead of noon. 

September 10, 2009 | Permalink | Comments (0)

Corporate Counsel Exchanging Information Through Social Networking

Lawyers -- do you feel your ears burning? Maybe that's because corporate counsel are exchanging information about your services and how to save money on them on social networking sites like Linked In, Legal OnRamp and Martindale-Hubbell Connected, to name a few. Bloomberg reports that in an effort to cut legal costs, in-house attorneys are increasingly turning to social networks to identify expertise in a given field and identify cost cutting measures. Consider this recent exchange described in the Bloomberg piece:

Steven Weinberger, general counsel of Wisdom Natural Brands, boasted on an online social network last month that he saves money by drafting his own trademark applications before sending to outside lawyers for review.

Paul Escobar, corporate counsel at Cumberland Gulf Group of Cos., wrote back saying he, too, sometimes drafts legal documents to establish content and tone before outside counsel get their hands on them.

So what industries are predominant on the social networking scene? Surprisingly, it's not high tech, but rather more traditional industries: financial services, manufacturing and health care.

As corporate counsel come on board, law firms are motivated to join in hopes of attracting potential clients. These days, LegalOnRamp has 10,000 members. However, Larry Bodine reports that Legal OnRamp plans to add 14,000 additional corporate lawyers as part of a deal with Corporate Executive Board Co.

Do you belong to any of these social media networks for lawyers and have they generated clients for your practice?

September 10, 2009 | Permalink | Comments (0)

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