Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, August 23, 2011

California Law Firm's Use Of Associate To Defend Itself Is The Same As Self Representation

 A law firm litigant that was successful on appeal is not entitled to recover statutory “prevailing party” attorney fees because its own associate represented it in the appeal. 

Carpenter & Zuckerman et al. v. Cohen et al., No. B215544, 2011 WL 1759152 (Cal. Ct. App., 2d Dist., Div. 5 May 10, 2011).

Saying the use of an associate was equivalent to self-representation, the 2nd District Court of Appeal held that the fee request fell within case law that precludes law firms that represent themselves from recovering attorney fees for their own representation.
This case was based upon California law and I am not sure that if it would have much application outside of California.
Mitchell H. Rubinstein

 

August 23, 2011 in Lawyers | Permalink | Comments (0)

Monday, July 25, 2011

Lawyer Up. Get A Lawyer In 15 Minutes

You can get a Pizza in 15 minutes, so why can't you get a lawyer in 15 minutes. Well now you can. A June 16, 2011 NY Times article discusses how a company called "Lawyer Up" promises to find you a lawyer in 15 minutes. There is even an app for that. As the article states:

The service’s personal plan, aimed at young people, costs $4.95 a month. Those who do not have a subscription can pay a flat fee of $100 for the first call, which the company calls its “pay-in-a-pinch plan.” For all clients, an operator checks contact information and processes the lawyer’s initial fee of $250 on a credit card for the first hour of service.

Perhaps inevitably, there is an app for that, already available on Android phones and under development for the iPhone. It is basically a panic button, speed-dialing the service.

Lawyers do not pay to sign on to the roster, or for the client calls. Legal ethics rules frown on arrangements in which lawyers split fees with nonlawyers, and especially when lawyers pay people to round up clients — a practice known as using runners. A Connecticut lawyer who signed on, Patrick Tomasiewicz, said that when he got the call from the company, his main question was whether he would need to pay LawyerUp. The company satisfied him that its structure avoided runner issues.

Sorry, but I for one would not trust this service.

Mitchell H. Rubinstein

 

July 25, 2011 in Lawyer Employment, Lawyers, Legal News | Permalink | Comments (5)

Saturday, June 25, 2011

Lawyers and Superstition

There is a great article in the Feb. 11, 2011 New York Times about lawyers and superstition. It chronicles how some lawyers eat at the same lunch counter and the same lunch every day of a trial with the hope that this will bring them good luck. 

The amazing thing about this article is that no matter how irrational this behavior might seem, it is true. Many lawyers do follow rituals. Think about it.

Mitchell H. Rubinstein

June 25, 2011 in Lawyers | Permalink | Comments (1)

Saturday, June 4, 2011

Software to Replace Lawyers? It's true.

Armies of Expensive Lawyers , Replaced By Cheaper Sofware is an interesting March 4, 2011 New York Times article. It is about how "e-discovery" can be used to find documents with key words or phrases. This cuts down dramatically on lawyer time. This can save the client a significant amount of money. E discovery is also much quicker. The  article states:

But that was in 1978. Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

This raises a host of legal issues. Is e discovery sufficient? With respect to a lawyer who engages in e-discovery as opposed to regular discovery, is he or she breaching the standard a care? What if something is missed or a mistake occurs?

Law review commentary on the litigation issues raised by e discovery would be most welcome. 

Mitchell H. Rubinstein

 

June 4, 2011 in Law Review Ideas, Lawyers, Litigation | Permalink | Comments (2)

Thursday, January 6, 2011

Lawyer Disciplined For False Notarization Of Court Papers

Matter of Essien, ____A.D.3d___, 2010 N.Y. Slip Op. 06512 (1st Dep't. August 31, 2010), reminds us that no matter how easy it might be to do, a lawyer should never, repeat never, notarize a signature if he did not see the person sign the document. This lawyer did just that. He was disciplined by the 1st Department with a public censure. 

Of course, notaries should also never falsely notarize a dcoument and if they do they can loose their license. 

Mitchell H. Rubinstein

January 6, 2011 in Ethics, Lawyers | Permalink | Comments (1)

Wednesday, December 22, 2010

Even Lawyers Have Employment Problems

Students who are not interested in a career in labor and employment law often ask me why they should consider taking my employment law class at New York Law School. The answer is simple. Because lawyers are employees too. They can run into employment problems, their families can have employment law problems and their clients can have employment law problems. 

One illustration of this is a August 12, 2010 New York Law Journal article about an associate suing Nixon Peabody, a large law firm over a bonus he claims that he is entitled to. 

Mitchell H. Rubinstein

December 22, 2010 in Lawyers | Permalink | Comments (0)

Sunday, November 28, 2010

Should a lawyer Accept a Temporary Job?

Our sister blog, Legal Skills Prof Blog (which is edited by Jim Levy who is a contributing editor of this blog) ran an interesting story on Nov. 23, 2010, which you have to read to believe. Jim cites to two sources who question whether an out of work lawyer should accept temporary work. The concern is that this type of work would not look good on a resume. Jim does not  comment on this; but I commented on his blog and will comment here. 

The worst thing on a resume is a gap because that implies that the person was fired. Whether that is true or not that is simply the implication. So, what is a person suppose to do? Getting a job as a temp shows that the person is willing to work and is not concerned with titles or form. 

Sure, no one wants to be in this situation; but given the economy many lawyers find themselves in this situation. The responsible thing to do is to try to get out of it anyway you can. 

Mitchell H. Rubinstein

November 28, 2010 in Lawyer Employment, Lawyers | Permalink | Comments (2)

Friday, November 19, 2010

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Legal Counsel Kyrene School District Tempe, Arizona
Labor & Employment Attorney Lozano Smith Fresno, California
Mid-Level/Senior Special Education Attorney Harbottle Law Group Orange County, California
Special Education Attorney Lozano Smith Fresno, California
School Law Attorney Brannan Legal Search Chicago, Illinois

 

November 19, 2010 in Lawyers | Permalink | Comments (0)

Wednesday, September 8, 2010

Article on Atty's Fees After Perdue Supreme Court Decision

U.S. Supreme Court Decision On Enhancing Civil Rights Fees is an interesting June 16, 2010 New York Law Journal article about Perdue v. Kenny A ___U.S.___(April 10, 2010). The article summarized the Court's holding in part as follows:

Supreme Court precedent thus established that although there is a "strong presumption" that the lodestar amount is a reasonable fee, the "presumption may be overcome in "rare circumstances in which the lodestar does not adequately take into account a relevant factor for determining a reasonable fee. An attorney's performance and results obtained justifies a lodestar enhancement only in "rare" and "exceptional" cases in which there is "specific evidence" that the lodestar is not adequate to attract competent counsel.

Because the Court treated superior performance and results obtained "as one," the pertinent question for the district court is whether superior attorney performance was adequately taken into account in the lodestar. The Court recognized three possible circumstances in which such enhancement may be appropriate:

1. Where the method used in determining the hourly rate "does not adequately measure the attorney's true market value[,]"for example, because the hourly rate is based only on a single factor such as experience. In the author's view, this reasoning is puzzling because in these circumstances it would seem that the solution would be to determine an appropriate hourly rate rather than determine whether an enhancement is warranted.

2. "Second, an enhancement may be appropriate if the attorney's performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted."

3. Compensation for delay in payment may be made "'either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value;'" however, it is also possible that an enhancement may be appropriate for costs caused by unanticipated delay, especially if unexpectedly caused by the defense.

The Court stressed that any enhancement must be calculated using a method that is reasonable, objective, and capable of meaningful appellate review. The Court reversed the district court's 75 percent lodestar enhancement because the district court failed to provide adequate justification for it. The Supreme Court questioned why a 75 percent enhancement was granted instead of, say 50 percent, or 25 percent, or 10 percent?

Mitchell H. Rubinstein



September 8, 2010 in Articles, Employment Discrimination, Lawyers, Litigation | Permalink | Comments (0)

Wednesday, August 18, 2010

Attorney Sanctioned For Not Following Appellate Court Rules

Cottonwood Financial v. Estes, from the Wisconsin Court of Appeals, District III, dated May 25, 2010 is a decision that attorneys should all be aware of. It reminds of us of the importance of following court rules. The court criticizes the attorney for writing a one page letter instead of a reply brief and states that plaintiff's brief:

violated the rules of appellate procedure by failing to provide proper citation to the appellate record or to the relevant case law. While not bothering to properly cite within it, Estes also submitted an excessively long, 230-page appendix. Including nearly the entire record in the appendix defeats the very purpose of an appendix. Further, her brief’s table of authorities fails to comply with WIS. STAT. RULE 809.19(1)(a), which requires “reference to the pages of the brief on which [the authorities] are cited.” It is unacceptable to merely indicate “passim,” without indicating even the first page at which an authority appears in the brief. Nor is it acceptable to list in the table nine chapters of the Wisconsin statutes as a single authority, or, for that matter, a single chapter, or an entire code, or multiple sections of a federal act—all of which Estes did here, and all of which direct us only to “passim.

Hat Tip: Legal Writing Prof Blog

Mitchell H. Rubinstein

August 18, 2010 in Lawyers | Permalink | Comments (0)

Sunday, June 6, 2010

Lawyers' Ability To Predict Case Outcome Is Not Good

Your Lawyer is Wrong is a very interesting June 4, 2010 article from the Chronicle of Higher Education. It is about a recent study conducted by psychologists which indicated that lawyers are not very good at predicting the outcome of their cases. They are biased in favor of their own cases, at least according to this study. As the article states:

But—guess what?—lawyers aren't so good at evaluating those odds, according to a new paper published in Psychology, Public Policy, and Law. That's because they're biased in favor of their own chances; they think they're going to win, and often they're wrong. The study surveyed nearly 500 lawyers and had them predict the outcome of an active case and then compared those predictions with what actually happened. From the paper:
Lawyers frequently made substantial judgmental errors, showing a proclivity to overoptimism. The most biased estimates were expressed with very high initial confidence: In these instances, lawyers were extremely overconfident.

But, surely, more experienced lawyers have a better sense of who's going to win, right? Nope. In fact, "the data provided no support for the hypothesis that lawyers with more practical experience are better calibrated than lawyers with less experience." So much for the Matlock Effect.

The article appears in Psychology, Public Policy, and Law 2010, Vol. 16, No. 2, 133–157. It can be downloaded here. It would  be interesting to see if lawyers conducting the same study will come to the same conclusion.

Mitchell H. Rubinstein

June 6, 2010 in Law Review Ideas, Lawyers | Permalink | Comments (0)

Tuesday, June 1, 2010

Attorney-client privilege and work product doctrine protect from discovery documents prepared by attorneys during investigation of teacher’s alleged sex abuse

7thCirEagle

Sandra T.E. v. South Berwyn Sch. Dist. 100, ____F.3d____ (7th Cir. Mar. 30, 2010), is an interesting case. The Seventh Circuit held that documents and notes prepared by attorneys from a law firm hired by an Illinois school district to investigate the district’s handling of a teacher’s sexual molestation of a number students were protected from discovery by the attorney-client privilege and the work product doctrine.

The teacher was arrested and charged with several crimes related to sexually molesting female students. The school district hired Sidley Austin LLP to conduct an internal investigation and provide legal advice to the school board. During the investigation, Sidley Austin attorneys interviewed present and former employees as well as third parties who had never been employed by the school board. The attorneys took notes and later prepared memoranda regarding the interviews for future use in giving legal advice to the school board.

The federal district court ruled that the board had hired Sidley “as an investigator, not as an attorney,” and ordered the firm to produce the documents. The 7th reversed the lower court’s decision and concluded that the district court had erroneously concluded that Sidley Austin had been hired solely to conduct a factual investigation. It found that an engagement letter made it clear that Sidley was hired to provide its legal expertise based on the findings of the investigation, bringing the case squarely within the U.S. Supreme Court’s holding in Upjohn Co. v. United States, 449 U.S. 383 (1981), that “factual investigations performed by attorneys as attorneys fall comfortably within the protection of the attorney-client privilege.” The Seventh Circuit emphasized that the factual investigation conducted by Sidley’s attorneys was “an integral part of the package of legal services for which it was hired and a necessary prerequisite to the provision of legal advice about how the District should respond.”

Mitchell H. Rubinstein

June 1, 2010 in Lawyers | Permalink | Comments (0)

Monday, May 31, 2010

Can The Attorney Client Privilege Be Asserted If The Putative Attorney Was Not Properly Admitted?

Here is a great law school hypo. Employer hires attorney. The attorney is later fired. Can his former employer assert attorney-client privilege? This is actually not a law school hypo. Rather, this issue is pending in the Southern District of New York. A New York Law Journal article about this case dated April 8, 2010 is available here. (registration required).

Law review commentary on this interesting topic would be most welcome.

Mitchell H. Rubinstein

May 31, 2010 in Ethics, Law Review Ideas, Lawyers | Permalink | Comments (0)

Saturday, May 29, 2010

Lawyer Found In Criminal Contempt And Gets 6 Months In Jail For Contacting Juror

Sometimes you just cannot make these stories up. The ABA Journal Now covered this story here. The court opinion from Florida is available from that link.

Mitchell H. Rubinstein

May 29, 2010 in Lawyers | Permalink | Comments (1)

Sunday, May 23, 2010

Reminder; Attorneys in 2d Circuit Must Renew 2d Circuit Admission Every 5 Years

2dcircseal

2d Circuit Local Rule 46.1 requires attorneys to renew their admission to the 2d Circuit every five years. It provides:

2) Renewal of Admission. An attorney is admitted for a period of five years, and must renew admission every five years for an additional five-year period. Renewal requires submission of an attorney admission renewal application.

(A) Failure to Renew; Inactive Status. An attorney who fails to renew admission within one month after the expiration of the five-year period is placed in inactive status. An attorney in inactive status must complete the renewal process to practice before the court. After 12 months in inactive status, an attorney is removed from the court’s admission roll and must reapply for admission in accordance with (a)(1).

(B) Admission Renewal Schedule. An attorney already admitted to practice in this court must initially renew admission in accordance with the timetable below, and must thereafter renew admission every five years based on this initial renewal date.

(i) Admission on or after July 1, 2004. An attorney admitted to this court on or after July 1, 2004, must renew admission no later than five years from the original date of admission.

(ii) Admission before July 1, 2004. An attorney admitted to this court before July 1, 2004, must renew admission no later than the anniversary date of the original admission as it occurs during the period July 1, 2009 through June 30, 2010.

The process is actually fairly simple. Their is a one page form that must be filled out and you need to submit a $25 check. You need to know your state registration number (in New York you can get that from e-courts) and the date of admission in the 2d Circuit (available on their web site) as well as in every state and court your admitted in. A word to the wise, do not wait until the last minute.

Mitchell H. Rubinstein

May 23, 2010 in Lawyers | Permalink | Comments (0)

Reminder; Attorneys in 2d Circuit Must Renew 2d Circuit Admission Every 5 Years

2dcircseal

2d Circuit Local Rule 46.1 requires attorneys to renew their admission to the 2d Circuit every five years. It provides:

2) Renewal of Admission. An attorney is admitted for a period of five years, and must renew admission every five years for an additional five-year period. Renewal requires submission of an attorney admission renewal application.

(A) Failure to Renew; Inactive Status. An attorney who fails to renew admission within one month after the expiration of the five-year period is placed in inactive status. An attorney in inactive status must complete the renewal process to practice before the court. After 12 months in inactive status, an attorney is removed from the court’s admission roll and must reapply for admission in accordance with (a)(1).

(B) Admission Renewal Schedule. An attorney already admitted to practice in this court must initially renew admission in accordance with the timetable below, and must thereafter renew admission every five years based on this initial renewal date.

(i) Admission on or after July 1, 2004. An attorney admitted to this court on or after July 1, 2004, must renew admission no later than five years from the original date of admission.

(ii) Admission before July 1, 2004. An attorney admitted to this court before July 1, 2004, must renew admission no later than the anniversary date of the original admission as it occurs during the period July 1, 2009 through June 30, 2010.

The process is actually fairly simple. Their is a one page form that must be filled out and you need to submit a $25 check. You need to know your state registration number (in New York you can get that from e-courts) and the date of admission in the 2d Circuit (available on their web site) as well as in every state and court your admitted in. A word to the wise, do not wait until the last minute.

Mitchell H. Rubinstein

May 23, 2010 in Lawyers | Permalink | Comments (0)

Monday, May 17, 2010

Cloud Computing and Lawyer Ethics

Cloud computing is in vogue today. Everyone, including me, loves it. You do not have to worry about files taking up space on your computer or have access to your files if your using another computer. The files are stored on a server. Getting Your Head in the Cloud is an interesting April 2010 ABA Journal article which raises the question of whether there are ethical issues for lawyers to store client data in "the cloud." As the article states:

The early indications from ethics authorities are that storing client data in the cloud does not violate ethics rules, as long as the lawyer took appropriate steps to safeguard the information from inadvertent or unauthorized disclosure.

Rule 1.6 of the ABA Model Rules of Professional Conduct states that, generally, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation. (Rule 1.6 is generally followed by the states.)

But the comments to Model Rule 1.6 provide some leeway in applying its mandate. Comment 16, for instance, states, “A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” And Comment 17 states that a lawyer must take “reasonable precautions” to prevent information relating to the representation of a client from going to unintended recipients when it is being transmitted.

“If you purchase the technology and there’s a breach, you’re going to say, ‘I relied on the cloud provider,’ and the rules back you up,” says Lucian T. Pera, a partner at Adams and Reese in Memphis, Tenn., and president of the Association of Professional Responsibility Lawyers. “The rules say attorneys must act competently to safeguard information. It’s a reasonableness standard, and nothing has changed about the rules but how they apply in a changing world.”

Some recent ethics opinions reach a similar conclusion. The Arizona State Bar’s Committee on the Rules of Professional Conduct, for instance, concluded in Opinion 09-04 (issued Dec. 9, 2009), that a law firm may use an online file storage and retrieval system that enables clients to access their files over the Internet as long as the firm takes reasonable precautions to safeguard the security and confidentiality of the client’s information.

Cloud computing is here to stay. I see it no different than lawyers storing client money in bank accounts. The lawyer has to rely on the bank not stealing the money or disclosing it to a third party. Law review commentary with respect to this important issue would be most welcome.

Mitchell H. Rubinstein

May 17, 2010 in Ethics, Law Review Ideas, Lawyers | Permalink | Comments (1)

Sunday, May 2, 2010

Ethics Opinion Says Lawyers May Ghostwrite Court Papers and Not Disclose It

The New York County Lawyers Association recently issued an important opinion stating that lawyers can ghost write court papers to a limited degree for pro se litigants without disclosure. opinion

An ABA New Now Blog entry about this opinion is available here.

Mitchell H. Rubinstein

May 2, 2010 in Ethics, Lawyers | Permalink | Comments (0)

Monday, April 26, 2010

Lawyer Sues For Defamation

Lawyers are not immune from lawsuits. A March 16, 2010 article in the Blog of the Legal Times discusses a defamation suit filed by a temp attorney because someone apparently told his employing agency that he was fired for stealing. I hope the plaintiff lawyer realizes that, depending upon the facts, the statement made to his employing agency may be protected by a qualified privilege.

Mitchell H. Rubinstein

April 26, 2010 in Employment Law, Lawyers | Permalink | Comments (0)

Wednesday, March 17, 2010

The Blackberry Lawyer

Virtual Escape is an interesting Feb. 2010 article from the ABA Journal. the article points out that four fifths of lawyers, that's 80%, use a Blackberry or some other smart phone. This is changing the way we practice. Sure we are more efficient and more available. However, email is impersonal and many lawyers are loosing that personal touch with clients that is sometimes so important.

Mitchell H. Rubinstein

March 17, 2010 in Lawyers | Permalink | Comments (0)