October 3, 2006
Teaching Leadership to Law Firm Associates
A commercial conference organizer is offering a "Law Firm Associate Leadership Summit" that has been certified for CLE credit in New York and California. Part of the pitch: "Becoming a successful attorney takes more than just great legal skills. Success depends upon proving to your firm that you are a manager, leader, business developer, and mentor. The years spent in law school and as a junior associate don’t teach you these crucial skills, and if you wait to learn them when you make partner…"
Is the factual assertion true? Are these crucial skills, and are they not taught? Are they teachable? Do law firms really want them taught? Are senior law firm partners, when asked by deans for contributions, demanding more leadership education? If these skills are not taught by law schools, why are they not taught by the law firms themselves? Perhaps economic theory might tell us something here....
And Is There a Little Tax Prof Zaron?
Normally, an announcement by Tax Prof Blogger and Grand Poobah Paul Caron of an opening for a tax prof in South Dakota would not be worthy of further comment, but for the possibility of pedagogical devices it suggests. Anybody notice that tax prof Caron is doing a favor for tax prof Baron? And they probably both cite tax economist Aaron.
Rumor has it that the ever-entrepreneurial Cincinnati faculty member, building off of the success of the "Tax Stories" series, is commissioning a series of "I Can Practice It All By Myself" books, in the style of Dr. Seuss and friends. The first will be "The Yaks Practice Tax," the plot of which involves the Tax Yak cleaning up a tax shelter scheme with the help of his friends, Little Prof Aaron, Little Prof Baron, Little Prof Caron, Little Prof Daron and so on. I won't reveal the plot twist, but it involves the miniscule Little Prof Zaron explaining why the whole thing is a step transaction, and blowing the whole thing up. (Doug and Mary Kahn are kicking themselves that this wasn't around to read to little Jeff.)
Next up: Rock the Fox on SOX, a primer on the federalization of corporate governance.
October 2, 2006
NNR Heading as New Email Term
As newspapers and efficiency studies lament the time drain of emails (also affecting lawyers and society so that is my hook to say this here [I know, lame]), I propose we all start putting NNR for 'need not reply' in the headings right after RE (even with a title following) of all emails that just provide information. I'd bet those emails would get opened first and more often than ones not so identified. I think people believe they have to reply to an email to be polite so they do, and the endless communications snowball starts. That could be cut considerably by an ethic of giving information with no expectation of reply. If this catches on, I have calculated that email ping-pong will reduce by 642%. --Childress
Trust, Lawyers, and the Linguistic Turn
Posted by Jeff Lipshaw
A reader asked by way of an e-mail how a client knows whether a lawyer litigating a case is spending the right amount of time (i.e., not under-representing and not padding the bill either with useless hours or with unworked hours). I wish I had a better answer, but I can see how it would be difficult for a non-business consumer to know. I suggested the usual proxies - detailed bills, willingness of the lawyer to explain, references from other clients, etc. - but I am sure none of those are satisfying. How do I know whether a house in this neighborhood is worth $X, or that an auto parts business is worth approximately 4-5 times EBITDA? I have the benefits of heuristics - rules of thumb - and experience that the ordinary consumer may not. I know from years of experience that doing this kind of deal will cost $X, or litigating a case for two years will cost $Y.
The question launched me into a musing during the morning run about trust. Trust is immensely interesting as a theoretical matter. I am dealing with it now in the context of duties as between deal adversaries (i.e. the right to disclaim truth-telling in or out of the acquisition document). Claire Hill (Minnesota) and Erin O'Hara (Vanderbilt) recently posted an interesting article on cognitive trust, in which they consider instances of non-optimal trust, and possible legal remedies. Is there a linguistic turn to trust? If philosophy of language tells us that there are no private languages, that all language is a shared experience of attributing meaning and context to otherwise arbitrary symbols, is the acquisition of trust somehow the acquisition of a shared language? My heuristic on the value of businesses or the value of houses is not something I hold privately, but the internalization of a social standard or expectation. I am comfortable with the jargon, and accept it as true. Can the same be said for the relationships between lawyers and clients?
October 1, 2006
HP Ethics Firestorm Overcooked?
posted by Alan Childress
The shake-up at Hewlett Packard – after its Chair Patricia Dunn outed a leaking board member by having a PI firm obtain phone records by "some ruse" – garnered, you know, national outrage. Currently there's congressional investigation and headline comparisons to Watergate. Less discussed in the firestorm is the role of the HP lawyers, including an internal ethics counsel, in the initial matter and its aftermath. That particular focus is being nicely raised by Brad Wendel and others in the Legal Ethics Forum, with a particular slant on the role of Plausible Deniability in corporate ethics and with the lawyers involved. He quotes, for example, the chief ethics director’s ironic but lame response upon finding out Jim Rockford’s unsurprising methodology: "I shouldn't have asked."
I think the Forum and other communities are great places to discuss such issues, as well as the media and some parts of government, so the following is not directed at what the Forum is detailing (especially legal ethics and the ostrich effect). HP and its shareholders, of course, are right to care. The board member was right to quit in a huff and take any legal recourse available to him. HP can do what it wants with its Chair. But am I the only one who thinks the larger 'scandal' is being blown way out of proportion, particularly in the media and by posturing in Congress and elsewhere?
This is not Watergate. This is not monumental. This is not governmental. This is probably not all that unusual. If I had any confidence that Congress would address the real privacy issues underlying this clumsy keystone cop episode – systematic spying on employees by employers, overreaction to leaks to the press, the use of technology to track people, the more dangerous idea that government could do this to any of us and seems to believe it can – then the firestorm might do something. As it is, I suspect none of this will be the political agenda. Instead it seems to focus on this incident as an aberration at the highest levels rather than routine at the lowest ones, or potentially routine outside the workplace by government actors. A bit more after the jump.
From another angle, I wonder whether all the outrage would be focused on Chair Dunn if her methods had uncovered a high level HP officer passing Defense Department computer secrets to Iran. Or proprietary HP technology to Sony in Japan. Or just some low level software programmer wasting company time blogging about his passion for pug dogs. Is the outrage and posturing pitched at us because so many of us can identify with the aggrieved board member? I do, but I guess I assumed an employer with millions at stake would be watching. We all know emails are post cards, and phone records have been in the news all year as supposed fair game. Wasn’t he a bit naive to think he could leak with a reporter by phone and never have his company care enough to dig, even by stepping over the line? Someone might have told him that’s what borrowing his son’s girlfriend’s cell phone is for.
I simply don't recall this level of concern for privacy and personal integrity a few months ago when the Coke employee was caught trying to hawk cola secrets to Pepsi, or was it from Pepsi to Coke? (Can't tell with the blindfold on.) I know there are differences between the methods used to reveal the employee's efforts (though they are not as different as one might think), but I hate to think the main difference between this incident and that was the social status and identifiability of the watched worker, if you will.
I wish that public and media concern would really raise the core privacy issues that have been reformulated so profoundly in the last five years, due to seismic changes in technology and fear of terror. But I doubt the HP 'scandal' will, and do not think it is the most paradigmatic model to do so.
Katrina and Government
Posted by Jeff Lipshaw
Check out this post from Shavar Jeffries (Seton Hall) at blackprof.com, speaking of Katrina and the failure of liberalism, on the need of poor and minority communities to "focus our efforts on work at the local level, with people we know and trust, to transform block-by-block the economic, social, and cultural destinies of our communities." I don't agree with all of what gets posted, but this is a wonderful blog, with a divergence of opinion that transcends political correctness. I subscribed to the RSS feed a few months ago.