Sunday, December 31, 2006
If you skipped over the "Up Front" squib in the New York Times Book Review this morning, you missed the profile of one of this week's critics, London solicitor-advocate Anthony Julius. Julius is a beneficiary of the relaxation of the monopoly of English barristers on trial practice, so he not only prepares cases for trial, but appears in court as well. He represented Princess Diana in her lawsuit against the newspaper who published photos of her exercising in a gym, as well as Deborah Lipstadt in a libel suit involving claims arising out of her book on Holocaust denial.
Julius has a Ph.D. in English literature, and is the author of T.S. Eliot, Anti-Semitism, and Literary Form. His piece in today's Times is a review of a new art collection by Hilton Kramer, the Times's former chief art critic.
Thursday, December 28, 2006
I suspect that there may be a widespread public perception that the disbarment of a lawyer is permanent. In the vast majority of states, disbarment is in fact a five-year suspension from practice with the opportunity to thereafter seek reinstatement. The District of Columbia Court of Appeals today ordered, here, the reinstatement of an attorney who had consented to disbarment in 1993 after misappropriating $76,000 from two estates that he served as court-appointed guardian. His practice had experienced a "reduction in work" and he was found to have only intended to "borrow" the entrusted funds. He repaid $65,000, with the balance paid by sureties.
The report attached to the case sets out the standards applied in reinstatement cases and the analysis of each factor. The Court adopted the Board and Bar Counsel's recommendation for return to practice, finding that "sustained and strenuous efforts [by the disbarred lawyer] justify the recommendation." [Mike Frisch]
Wednesday, December 27, 2006
If you are planning a trip to Boston around Tuesday, May 8 (as I suspect Jeff is, about then, just after Jazz Fest in New Orleans), or live there, one trip to plan may be the local bar association's 3-hr. program on "Ethics and Professional Liability." It's part of this save-the-date announcement for all sorts of CLEs the bar offers in '07. [Alan Childress]
Tuesday, December 26, 2006
Posted by Alan Childress
Minoru Nakazato (U. of Tokyo, Law), Mark Ramseyer (Harvard Law [pictured right]), and Eric Rasmusen (Ind.-Bloomington, Dept. of Bus., Econ. & Pub. Pol'y [below]) have posted on SSRN their comparative and empirical study of the Japanese legal profession: "The Industrial Organization of the Japanese Bar: Levels and Determinants of Attorney Incomes." [And my earlier post is here on significant changes in bar admission, and counting lawyers, in Japan over the past two years.] In 1999, Ramseyer and Nakazato published the book, Japanese Law: An Economic Approach [pictured left, since I cannot find Nakazato's photo anywhere].
An easier-to-access version of the new article, in very legible PDF form, is also found here from Harvard's Olin Center website. Here is their SSRN abstract:
Using micro-level data (from tax records) on attorney incomes in 2004, we reconstruct the industrial organization of the Japanese legal services industry. These data suggest a bifurcated bar. The most talented would-be lawyers (those with the highest opportunity costs) pass the bar-exam equivalent on one of their first tries or abandon the effort. If they pass, they then opt for careers in Tokyo that involve complex litigation and business transactions. The work places a premium on their talent, and from it they earn appropriately high incomes.
The less talented face lower opportunity costs, and willingly spend many years studying for the exam. If they eventually pass, they tend to forego the many amenities available to professional families in Tokyo and disproportionately opt for careers in the under-lawyered provinces. There, they earn monopoly rents not available in the far more competitive Tokyo market.
Earlier this month, the three posted elsewhere on SSRN an empirical paper on executive compensation in Japan (considering total income, executives earn far less than their U.S. analogs). Its abstract is below the fold and the paper is linked here in a handier PDF version.
December 26, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Economics | Permalink | Comments (0) | TrackBack (0)
Monday, December 25, 2006
Posted by Alan Childress
That's the question asked by Chapman's Tom Bell over at MoneyLaw, in "Law School Rankings as if the Public Mattered." He can't answer the question, since those are not data with which the ABA readily correlates its recently-collected malpractice and bar discipline statistics (which he helpfully links). But it's a question worth asking -- even acknowledging the difficulty of measuring ethicalness and competence, and the coarseness of the proxies one might use (as Tom adds here in comments).
And of course it's not part of typical law school ranking systems. Tom Bell knows ranking systems: previously he meticulously examined the U.S. News & World Report process and offered these meaningful reforms. Even with the factors it purports to measure, it fails considerably:
I discovered that almost no safeguards exist to correct or prevent such errors. I think it fair to say that, but for my peculiar obsession with the USN&WR rankings, nobody would have noticed the errors I've documented. That won't do. We cannot rely on one nutty professor to keep the rankings honest.
Until his newly suggested scoring factors are known or approximated, or if you "find that lack of interest [by law school ranking sources] troubling," Tom thinks one thing to do is support the tax-exempt HALT, a legal-profession-watchdog group (also watching the disciplining bar institutions and processes) on which we previously posted here. As Mike Frisch commented then, "HALT performs a most useful public service in its attempts to bring scrutiny to bar discipline. Unfortunately, it is very difficult for outsiders to know how truly bad a system may be."
Tom Bell's addendum is that outsiders can't truly assess law schools' most fundamental performances either--until the institutional production of ethical, competent lawyers is part of the ratings calculus.
Posted by Jeff Lipshaw
We have what in Massachusetts nee Freedonia is called an "accepted offer" on a house. I was going to post something on the classic libertarian-caveat emptor-full employment for lawyers-1700s vintage way it seemed to me residential real estate deals were closed in Massachusetts (at least if I believe my real estate agent, Max Remax). But then I thought, who am I to judge? To quote from Richard Ford's recent great addition to the Frank Bascombe trilogy, The Lay of the Land (no joke, this is at page 122 of the hardcover, and I think it is the answer to every dilemma in my life): "Perhaps you had to go to Harvard to understand this. I went to Michigan." (I should note this may also be the answer to my relationship with my wife who did go to Harvard.)
Instead it seemed to me an opportunity for a little MPRE training, on the Law of the Land (note the multi-leveled entendres here). (Disclaimer: the author is merely an MPRE trainee himself, as noted previously. He makes no representation or warranty that the following made-up examples do in fact represent how the NCBE would interpret the sample questions, although he has undertaken the exercise both in a serious and humorous vein.)
So here we go:
1. Jeff Lipshaw, a member in good standing of the bar in the states of Michigan and Indiana (also the 6th and 10th Circuit Courts of Appeal, the Eastern District of Michigan, and the United States Supreme Court), plans to take a job in Massachusetts, and goes about making an offer to purchase a home. His real estate agent, Max Remax, tells him that he will be getting a quitclaim deed, and that he, the buyer, is responsible for insuring the title. This is contrary to Lipshaw's experience in his home states, where seller is responsible for delivering a warranty deed, as well as a title policy under which the buyer is the beneficiary. Lipshaw is confused. Should he hire a Massachusetts lawyer?
(a) No, because he will likely be joining Max's synagogue and so he can trust Max.
(b) Yes, because he will likely be joining Max's synagogue and so he can't trust Max.
(c) Yes, because a lawyer who represents himself has a fool for a client.
(d) Yes, because he has recognized the limits of his competence.
Answer: d. Rule 1.1 of the MPRE states "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The comment states: "In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question." Lipshaw recalls that, even in his licensed jurisdictions, he probably hacked up his own purchase agreements. Plus, it is obvious that the local customs are designed to ensure that one always refers the matter to a Massachusetts lawyer with established competence. Many MPRE examinees are fooled by (a) or (b). The main problem here is not professional responsibility, but the fact that a fellow temple member will know how much you paid for your house, for purposes of "fair share" dues and your Campaign contribution.
More sample MPRE questions after the fold.
Sunday, December 24, 2006
Posted by Alan Childress
The Colorado Bar Association's annual "Preventing Legal Malpractice" seminar earns four credits (all ethics hours) and is offered live in these locations: 1/25 and again 2/7 in Denver, 1/26 in Colorado Springs, and 2/9 in Grand Junction. Webcasts are 1/25 and 2/7. Here is the brochure in PDF.
"A California appeals court has held that a party in mediation cannot disqualify a lawyer who jointly represents two other parties with different interests," summarizes Ben Cowgill here in his Legal Ethics Newsletter, and links the opinion helpfully.
More than anything, the decision to reverse the trial court's order of disqualification in this context came down to standing--the lack of an ability to complain by the party having no affected confidentiality interest. The Court of Appeal said: "We have identified no ethical consideration that would mandate application of a mediation-disqualification rule whenever parties who knowingly consent to joint representation participate in mediation, particularly where the Legislature expressed no such intent." [Alan Childress]
A U.S. District Judge in D.C. is pondering a ruling that could find unconstitutional Sarbanes-Oxley's creation and use of a "public company accounting oversight board." The Dec. 26 story here from Donna Block of The Deal via Law.com. Judge James Robertson heard arguments on Dec. 21 and assured the parties he would rule "as soon as I can." [Alan Childress]
Posted by Jeff Lipshaw
Some time earlier this year I posted a short essay, developed from a blog conversation among Gordon Smith, Frank Snyder, and me, about contractual disclaimers of truth-telling and reliance.
Larry Ribstein was kind enough to comment on it over at Ideoblog. Since then I have given several talks about it (as has been noted, I am about to move on to my next gig, and as has further been noted elsewhere, you can't get move on to your next gig without giving a job talk). As job talks are really just faculty colloquia on training wheels, it turns out I have gotten immeasurably valuable comments, corrections, brickbats,
Bronx cheers, well-aimed tomatoes (you say tomahtoes), and other affects of opprobrium and praise.
I have now substantially redrafted and converted the essay into an article, now renamed (slightly) Of Fine Lines, Blunt Instruments and Half-Truths: Business Acquisition Agreements and the Right to Lie, which is available on SSRN. While it still discusses (in even more gory detail) the Abry case that was the source of the original blog discussion, I had the good fortune of the new book by Ian Ayres & Gregory Klass, Insincere Promises, being published in the interim, and that provides a nice complement and, I think, support to my thesis. Here is the abstract:
In this article, I expand upon a happy coincidence (for scholars) in reconciling the overlap between contract and fraud. Both the recent book by Ian Ayres and Gregory Klass and the Delaware Court of Chancery in Abry Partners Acquisition V, L.P. v. F& W Acquisition, LLC addressed the issue of promissory fraud – the making of a contract as to which the promisor had no intention of performing. Each treatment, however, in focusing on fraudulent affirmative representations, falls short of (a) recognizing the fundamental aspect of deceptive promising in a complex deal, namely the half-truth, (b) articulating an appropriate doctrinal principle to address it, or (c) capturing the social and linguistic context that makes the deceptive half-truth so insidious.
The archetypal facts in Abry frame the issue. When the parties to a business acquisition agreement purport to limit the buyer's reliance to those representations and warranties set forth in the agreement, just what obligations of truth-telling have the parties contractually released? We need to grapple with the inter-relationship of law, language, mutual understanding, and trust. The language of the law (and the contract) is a blunt instrument by which to map to track the subtle fine lines of a complex agreement. I will contend that there is a kind of special arrogance in the illusion onto which lawyers hold – that the uncertainties and contingencies of the world are in their power to be controlled, and to the winner of the battle of words go the spoils. The correct doctrinal result is to presume in the transactional speech acts (including the contract), as we do in everyday life, a default of truth-telling, to permit the parties freely to contract around the rule, but to require narrow construction of the exceptions and disclaimers.
I know it's not that time of the year just yet, but if you happen to be a law review editor reading this and want to save me some trouble (and forking over the ExpressO fees), feel free to give me a shout.
* The picture is of a book of cartoons entitled Treasures of Half-Truth, by Pat Bagley, the editorial cartoonist for the Salt Lake Tribune. You can see the original the book at SignatureBooks.com.
Saturday, December 23, 2006
I loved it as a kid when Walter Cronkite used radar to track Santa's early-evening movements. Here is the internet equivalent, including German, French, and Japanese: NORAD Tracks Santa. In fact this half-century tradition was born of a misprinted phone number a Sears store had used in a 1955 'hotline' promotion. Today all sorts of celebrities tell their own stories (including a hairless Joey Lawrence--woaa--and the ubiquitous Edward James Olmos).
This and other great new traditions are linked on the cool blog Electronic Ephemera, including: neat new toys; the history and gallery site Just Dreidels (my understanding is that they make them out of clay); a Toy Story remix with Requiem For A Dream (my understanding is that they make them out of claymation); a 4096 Color Wheel that just might cause seizures; and the Church of Dudeism with the option of being ordained. Two years ago EE linked an Ernest Hemingway version of 'Twas The Night Before Christmas, by one James Thurber -- plus a pumpkin waffles recipe.
And last year EE posted this still-viable link to another Santa tracking system--this one by NASA. Unlike NORAD's service, this tracker apparently requires additional plug-ins (but inspires the line, "North Pole, we have a problem"). Either way, let's hope this generation of kids gets hooked on tracking Santa's and Rudolph's worldwide progress.
Point of Personal Privilege Posted (alliteratively) by Jeff Lipshaw
My grading is done; I'm waiting for the SSRN "Revision Acceptance" e-mail on an article (more to come on that when there is something on the other end of the link); the boys are still sleeping; and I already finished the NYT crossword puzzle this morning. So it's time to kick back, turn off the annoying Christmas songs like "I Want a Hippo for Christmas," and not get irritated over things like sweeping generalizations from tenured academics about untenured CEOs (this is no apologetic for CEOs, but not every financial restatement requires the CEO to be fired).
Instead, I want to list, just arbitrarily, five good things:
1. I had no clue when we started this that Alan Childress (right, as Nietzsche) would be an Ubermensch of a blogger. Thanks, Alan and Mike, this has been fun.
2. Family. My wife, Alene (brilliant, talented, and as beautiful mother of the bride, left), and I met thirty years ago this past summer. This year our daughter got married to a great guy (Arielle & Simon, right), our older son got his name on a published scientific paper from working in the lab at Michigan this summer (he poo-poos it, but I'm still proud), and our younger son will be a classmate of Michelle Wie next year.
3. Colleagues. Tulane presently and Suffolk upcoming.
4. The virtual office. As a result, all of the people in academia I consider friends, many of whom I have never met (indeed, one of whom was a reference in the recent job market).
And just to prove I can be more sensitive than Alan: Merry Christmas, Happy Kwanzaa, Happy Chanukah, Happy New Year, Seasons Greetings, Happy Holidays, or my best wishes for whatever syncretic celebration (including pagan rituals) of the winter solstice suits you.
Posted by Alan Childress
Aproposner my previous post which referenced lawyer lightbulb humor, I would be remiss if I left us law professors undissed, especially in light of the professor/sloth analogies currently flying around Jeff's other blog stomping grounds, MoneyLaw. I wrote these four, but you can do better:
Q: How many law professors does it take to change a lightbulb?
A: Dean, how many RA hours am I budgeted this year?
Q: How many law professors does it take to change a lightbulb?
A: I happened to notice that Professor Reegitzer's office does not need lightbulbs, what with the big bay windows and all, but he was hired after me and graduated two years behind me, from a school not in the top four even.
Q: How many law professors does it take to change a lightbulb?
A: What is a "lightbulb"? Is that related to Bayes Theorem, or Foucault perhaps?
Q: How many law professors does it take to change a lightbulb?
A: Hey, they make lightbulbs in Budapest. Shouldn't we start a new summer school in Budapest? I'll be the director, and will learn some Czechoslavakian before I go. It'll focus on human rights.
As for the other problem I noted, that it may be too late to take advantage of blog gift ideas, I heartily recommend Armenian Christmas Day: January 6. The kids won't mind waiting. Not only do you take advantage of all those pre-Christmas sales from Dec. 26-Jan. 5, but law professors can regift all sorts of free commercial goodies we score at the annual convention around January 4. What child wouldn't prefer a handheld whirling fan sporting the West TWEN logo over a Nintendo Wii?
Posted by Alan Childress
Over on Legal Ethics Forum, John Steele wrote some insightful, detailed, and timely posts (especially here, here, and here) raising serious ethics questions (and disqualification issues) regarding recent actions by prosecutor Mike Nifong in the Duke lacrosse rape charges. 'Timely' in part because John was arguing for more attention to the ethics issues of the DA under settled and specific rules, for all lawyers and for prosecutors, before the case got national attention again yesterday [some linked here] by Nifong's decision to plug ahead with several serious charges while dropping the rape charge. [UPDATE: More on Nifong's "admitted critical ethical lapses" here.]
One of John's readers asks, Why do prosecutors seem to always get away with their own ethics issues? The answer may be partly in the whipsaw reasoning nicely suggested by Monroe Freedman in this comment after one of John's posts:
What happens in practice is that the courts affirm the convictions, deferring to the disciplinary process for the prosecutorial misconduct. Then the disciplinary committees defer to the prosecutors' offices, who say that they police unprofessional prosecutorial conduct. And then the prosecutor avoids discipline (and, indeed, garners praise) because, after all, the conviction was upheld.
On the relationship between prosecutorial misconduct and convictions--and the institutional causes of such misconduct--John recommends the recent article by Wash U's Peter Joy (and our own earlier post on that is here). John cites other useful articles on prosecutorial ethics here.
Meanwhile, at PrawfsBlawg, Adam Kolber is arguing for a more open and correctable Westlaw or LEXIS service, sort of like Wikipedia. But he noted that such an idea "also raises some interesting professional responsibility issues," and mentions billing the time used to help others by fixing errors, as well as confidentiality issues if adversaries and others can figure out who is doing the fixing. Also at Prawfs here, and not really about the legal profession as such but the relevance will soon be apparent: Syracuse's Jeremy Blumenthal argues that practice and the academy need to pay more attention to 'standards of review' -- and in the process sort of plugged and linked my treatise on the subject. That's an unexpected and generous gift to me (and coauthor Martha Davis) this time of the year! And when buying, do remember the pocket part for each of the little ones. When rolled, they fit in a stocking. The pocket parts, I mean.
Even better gift ideas for members of the legal professoriat (we posted on some for lawyers here) are now found--if it's not too late--at this post by Orly Lobel on Prawfs. To arm yourself for holiday table talk, here are linked several new "lightbulb" jokes [HT to Discourse.net], one of which is:
Q: How many art directors does it take to change a light bulb?
A: Does it have to be a light bulb?
The one on 'focus group members' totally rocks. For lawyers, other commenters there offer two, the shorter of which is:
Q: How many lawyers does it take to change a light bulb?
A: How many can you afford?
The other one begins, but goes on for two screens, this way:
A: Whereas the party of the first part, also known as "Lawyer", and the party of the second part, also known as "Light Bulb", do hereby and forthwith agree. . .
Friday, December 22, 2006
Posted by Alan Childress
As Jeff Lipshaw posted on cloying Christmas carols [what is this "Christmas" of which you speak, Jeff?], and our reader hotly debated which ones annoy most, I was reminded that my brother Rory last week attended a fourth grade presentation in Dallas of Dickens' "A Holiday Carol." It featured The Ghost of Holiday Past, The Ghost of Holiday Present, and...you get the picture. It also had kids dressed up as trees and forest animals. I don't remember that in the original Dickens either but congratulate the Dallas schools for uncovering that long-lost Dickens original draft and using it instead of the usual and better-known one that was the result of blatant over-editing and product placement. As Rory points out, as to the holiday carol, it is literature. (Honestly, though, we agree that the trees and woods creatures were a nice touch, and Rory did not find the performances at all cloying--that was just my segue added.) I think "carol," anyway, is way too gender-identified. Maybe "A Holiday Rap"? "A Holiday Wrap"?
Professors out there may have already noticed, but it is a natural law of The Craft that when we profs are at an airport or on the plane, we always run into a student or former student. If we are actually stuck in an airport for a day and have our exams with us (never checked through), we still can't pass the day grading them with a student around. That is so (or the perfect excuse) even if the student is not one in our own class -- something about no customer-tour windows in the sausage factory. So instead I recounted 'A Holiday Carol' yesterday to Tulane 3L Jason Hammer, a student in Professor David Katner's Juvenile Clinic (David's clinic, you can imagine, is doing especially heroic work right now representing accused and troubled teens during a time in New Orleans when the criminal justice and related systems are Katrina-impacted). I meant to add that the new, improved Dickens line-up now also offers:
- "A Tale of Two Suburbs"
- "David Copperfield Without the Magic"
- "Moderately Depressed House"
- "Oliver Twist: Not That There's Anything Wrong With That"
...and of course the classic "Some Expectations: But Mainly We Want You To Have A Good Time, No Pressure."
Anyway, Jason told me something more inspiring than Dickens and on-point to the blog (not that he knew about it): he told me how appreciated the 70 McGeorge law student volunteers and those from other schools are to the Gideonizing project he (with other clinics from Tulane and Loyola, as we posted here and here) is working on. But he added a point that, to me, shows that such pro bono activity is not just grass roots sacrifice, though it may start that way: Jason says that part of the funding (over $10k), to make those 70 students' volunteer trip to New Orleans possible, came from a decision by the McGeorge dean [that's Elizabeth Rindskopf Parker] to forego mailing alumni holiday cards this year and instead support the student initiative. Now that's a holiday carol, or an update on Dickens, I'd never get tired of hearing.
Here's a link to a real-time student blog of two of the McGeorge volunteers in NOLA on their holiday break. It's fascinating and detailed. For example, 3L Drummond McCunn reports on "a new run-around today" and notes, "We ended up in Magistrate’s Court. This is where we had met the heavily accented Commissioner the day before. The two public defenders were glad to see us." 3L Kimberly Slater writes : "Especially humbling were the tales from Angola State Penitentiary, site of the movies, 'Dead Man Walking' and 'Monster’s Ball.' The inmates there were brought to the interview room in shackles, wearing orange jumpsuits. Most of the inmates have been writing their own motions, and have yet to see an attorney. It was very difficult for most students to imagine what their daily lives were like." Keep up the good work, Kimberly and Drummond, as well as David and Jason in their own much-needed clinical projects. Worthy of an end-of-play toast from Ideopathic-Short-Stature-with-Growth-Hormone-Deficiency Tim.
Thursday, December 21, 2006
I had coffee this morning with my good friend Rick Kinsley (left), formerly my colleague when he was the Senior Vice President - Human Resources of Great Lakes Chemical Corporation and I was his sage GC. Rick is simply the best human resources executive on the planet, and I never exaggerate about something as serious as this. Like me, he is a recovering corporate running dog, and has a burgeoning recruitment, executive assessment, and leadership consulting practice.
Lisa Fairfax's thoughtful post on student evaluations over at Conglomerate this morning made me think of some of Rick's wisdom. In the corporate world, we had evaluations up the yin yang, the classic being the "360," in which everyone around you got to take a shot. Lisa says (accurately, by the way, because I cannot remember many positive comments, but I can remember almost every negative one since my summer associate review in 1978): "it would inevitably be the case that no matter how many nice comments I received, there would always be that one."
Rick would say if you have 50 evaluations, cut out the top two or three and the bottom two or three, and only look at the rest. That is probably going to be the best reflection of you.
The Louisiana Supreme Court dismissed ethics charges against an attorney who also is a stockbroker. The attorney rented office space to another lawyer who represented an elderly woman who had substantial assets. The woman sought a greater return on her funds and consulted with the lawyer-stockbroker, who entered into an agreement that was not reduced to writing. The agreement provided that the lawyer would retain a portion of the funds (that were held in his escrow account) and pay a monthly amount to the woman. The woman later obtained new counsel, discharged the lawyer and sued for her losses, resulting in a substantial settlement.
The woman filed ethics charges. The attorney contested the allegations based on the defense that his conduct was as a stockbroker not an attorney. The hearing committee bought the defense but was overruled by the Disciplinary Board, which was in turn overruled by the Supreme Court, which dismissed all charges. The court found that the putative client had no reasonable basis to believe that the accused was her lawyer. Rather, investment services were not the practice of law. The court "recognize[d] there can be a potential for confusion when an attorney wears a multitude of hats." Given the age and vulnerability of the "client" (who had died and did not testify in the bar case) and the absence of a written agreement, perhaps the confusion should have been held against the lawyer.
When a member of the bar purports to act in a non-lawyer capacity, it should be that lawyer's burden to clearly advise that lawyer ethics rules will not protect the person he is working for. [Mike Frisch]
We post our final top ten of the year with a complete non-sequitur. "Have Yourself a Merry Little Christmas" and "I'll Be Home for Christmas" are worth listening to just about any time or any place. The most annoying Christmas song is "I Saw Mommy Kissing Santa Claus."
Here are the papers with the most downloads in the Legal Ethics & Professional Responsibility Journal, as reported by SSRN for the last sixty days.
1 Law and the Humanities: An Uneasy Relationship, Jack M. Balkin, Sanford Levinson, Yale University - Law School, University of Texas Law School
2 To Make or to Buy: In-House Lawyering and Value Creation, Steven L. Schwarcz, Duke University School of Law
3 Options Backdating, Tax Shelters, and Corporate Culture Victor Fleischer, University of Colorado at Boulder - School of Law
4 How an Instrumental View of Law Corrodes the Rule of Law, Brian Z. Tamanaha, St. John's University School of Law
5 Scholarship Advice for New Law Professors in the Electronic Age, Nancy Levit, UMKC School of Law
6 The Strict Character of Fiduciary Liability Robert Flannigan, University of Saskatchewan
7 Enlisting the Tax Bar David Schizer, Columbia Law School
8 Open Access, Law, Knowledge, Copyrights, Dominance and Subordination Ann Bartow
University of South Carolina - School of Law
9 Fear, Legal Indeterminacy and the American Lawyering Culture Michael Hatfield, Texas Tech University School of Law
10 Popular Culture and the Adversarial System Michael Asimow, UCLA School of Law
December 21, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (4) | TrackBack (0)
Wednesday, December 20, 2006
Here is an ABA link to information on its third edition of Attorney-Client Privilege in Civil Litigation, edited by Vincent Walkowiak. It was published by the TIPS tort law section in 2004, but has enormous utility to corporate representation, and is "revised and expanded with many new chapters, including Sarbanes-Oxley, confidentiality/communications and ethical problems." The publisher has a 20% discount on this and other books ordered by Dec. 31, using source code PAB5ELBY. [Alan Childress]
Posted by Alan Childress
Jeff did not ask for elaboration on today's post on Amtrak billing, but here is my $ two one-hundredths (where's the cents sign on this thing?). I enjoy a good correlation error. I always thought the CEOs of tobacco companies should be arguing that cancer causes smoking. At least surely there is some expert on retainer who would prove that even if smoking correlates with cancer, that's not proof of causation--maybe the same gene that causes cancer carries a desire to smoke! My favorite pop culture example of Post Hoc, Ergo Propter Hoc error (in a West Wing season-one episode of the same name, quoted below the fold): Jeb Bartlet did not lose Texas just because he made a joke about big hats.
I think Jeff's caution or insight is especially important because we are dealing with real humans here who have public reputations: the fired in-house lawyers who are now being treated as if they are part of a clean-up from an "ethics scandal" when, to me, no one has yet shown any specific ethical breach like overbilling.
It is quite possible they were let go as part of a routine management change. I think it more likely this is connected to the swirling ethics concerns and rumors, but I don't assume it is because they did anything wrong. I assume, so far and until some proof otherwise, appearing to clean house is the politically (and public relationsally) expedient thing to do right now. The GCs may be sacrificial lambs, scapegoats, or other animal offerings to a nationally enquiring press and Congress.
In the original reports, such as those we linked here, the basic accusations seemed like many things were being presented as scandalous when they may not be--and many look exactly like how lawyers work in the non-choochoo world. One instance of that may be Jeff's detailed example of "block billing," which may be at its worst a breach of some billing arrangement in the retainer, and possibly federal regulations of billing specificity--if Amtrak is subject to the government-client ones, but they were negotiating about that all along. But it does not by itself mean overcharging. Indeed, if I were going to overbill this particular client, I would be fastidious about following their procedural requirements and just specify a lot of made-up work--I would not fall into the lapse of writing my time the way I do all the other clients. [My if-I-were-overbilling conceit with apologies to O.J.]
That's Jeff's example, and it is a good one I think, because my own experience in billing clients with two big [reputable] law firms is in line with his: we usually did block billing and everyone was fine with it as long as the time was real. I'd add that we had occasional banking or insurance clients who wanted more specificity and line-itemization (maybe more often than Jeff's 99% suggests), and we tried to comply. But the inevitable lapses were never seen as unethical or sneaky; they led to calls for reminders to be clearer and of course to client renegotiations--perhaps even excuses but hey we asked for it--about write-offs. The only scandal would be a possible write-off of actually-earned time and some client-relations hiccups.
My own example of the possibly-false scandal in the original reports is their suggestion of something awry from the fact that some of the in-house counsel came from the very law firms that were now doing Amtrak work. Imagine that! How cozy!! I am shocked, shocked to find that--you get it. Not only is that uber-typical in the trackless world (yet here it was presented as if it is by itself a conflict of interest and unethical). But indeed the changing-roles relationship has its own built-in checks: Jeff has previously argued, in different words and citing an empirical article that supports the point, that there is no more virulent anti-smoker than a reformed smoker.
Without more, these Amtrak lawyers don't deserve to be treated as if there is something inherently wrong with the fact that they left a law firm to go in-house to the firm's corporate client--and then eventually accepted and paid some time sheets that did not separately itemize each legal task but instead grouped them with the same level of billing detail as if they had been on separate lines.