Monday, October 9, 2006
Posted by Alan Childress
Here is the West information page on an audio- or video-webcast "Ethics Update" program of three and a quarter hours, including accidental clients and "red flags." Although the West email circulating about this could give more coverage information and less hype ("The hottest ethical issues discussed!"), I note that the content is provided by the reputable and substantive ALI-ABA organization. You'd have to go to the link to find out that the speakers are actually quite good, including my colleague at GW Susan Martyn (who did not put me up to this) and Kathleen Clark at Wash U., as well as speakers from a law firm, the bar, and in-house. In contrast (to the subject matter ambiguity of hot), their "people who also bought" suggestions box features one program that I think I understand the contents by its title: "Don't Lie, Cheat, or Steal!" We are pleased to observe that West did not put an asterisk on the title, though disappointed that such advice is not considered hot.
Posted by Alan Childress
The recent proposals in the New York state bar over defining blogging as advertisement subject to bar regulation, noted here earlier, raise just one controversial ethics issue raised by the growth in lawyers' blogging and use of the internet. Other ethics and practice issues certainly apply to lawyers using the net (such as via email and more static websites), which are summarized in this short primer by a bar counsel for the state of Virginia. Though it is not shelf-life current, it raises the right issues for attorneys to consider (and do follow-up research in their state on) when using the www for for their legal presence and communications. More detailed and recent treatment of the disciplinary and liability issues specific to blogging is given in this helpful piece on SSRN by David C. Hricik (Mercer). Its abstract:
[The article a]ddresses the legal ethical issues that face lawyers who blog (or blawg), including the potential for disclosure of client confidences, inadvertent formation of attorney-client relationships, and the unauthorized practice of law.
And over at MyShingle.com, a nice site following solo and small firm practice, Carolyn Elefant writes her opinion (backed by reasons which persuade me) that On-Line-Marketing (OLM) through fee-based internet referral services had its moment in the sun but that moment has passed -- disputing an article she cites which predicts a boom in such OLM as "fashionable" for clients trying to find an attorney. But OLM is not realistically the primary tool for her audience's marketing of legal services; rather, blogging and Google searches are more likely to reach clients than OLM.
There has been extended commentary over at PrawfsBlawg on the subject of "disciplining the lazy student." I think Paul Horwitz's post hits the mark. I like to have participation, and followed the lead of colleagues here at Tulane who use a "panel" system similar to the one Paul describes. The only point, in my mind, is to have somebody prepared for a discussion, and to allocate that preparedness in a fair way.
In my classes, there's a penalty for absence or unpreparedness, but it's a low threshold to avoid it. You have to want to get marked down to get marked down. There are instances, however, where a student, due to exigencies, has been missing when I look down at the seating chart and up at the seat. In every case, I learn later that the reason for the absence has been understandable and, indeed, excusable. But I make the point each time that there is a life lesson here. These exigencies will come up in practice, and even if you have a personal emergency, there may be judges, clients, partners, or others waiting for you, and you need to deal with that as well by the courtesy of a phone call or e-mail to explain what happened.
Sunday, October 8, 2006
Posted by Jeff Lipshaw
Hum the boomer anthem We Didn't Start the Fire as you contemplate this.
Law firms with the foresight to force partners to save for retirement by instituting defined benefit pension plans thirty or forty years ago are now feeling the same pinch as companies generally in trying to keep pension assets growing to meet obligations that are growing even faster. The problem with pure defined contribution plans (i.e. 401(k)s and the like) is that saving depends on the employee - matching plans can create incentives (bring the horse to water), but they can't make young or middling lawyers save (one presumes they drink!).
A couple years ago, a federal district court in the Southern District of Illinois shocked the pension world with an opinion noteworthy for its complete ignorance of the concept of time value of money and the allocation of risk and return in ruling that what has become known as a "cash balance" pension plan violated ERISA. The essence of the cash balance plan is to promise a rate of growth on the contributions, not a particular level of benefit. In an eminently sensible opinion, Judge Easterbrook concluded that the time value of money did not constitute age discrimination under ERISA (by providing a different level of benefit the longer an employee was in the plan), and reversed the decision (See Cooper v IBM Personal Pension Plan.) While this restores balance to the pension universe (get it?), the political and demographic impetus behind the case continues to raise its head.
What makes the plan a defined benefit plan is the fixed obligation to pay, say, five percent a year growth. The company still takes the risk that its investments will not accrue even at that rate, but it is more manageable than chasing the equity markets. But the impact is that younger workers will not have as rich a pension payout as their older boomer siblings and cousins.
That generational impact is now being felt in law firms, particularly those with defined benefit plans, where older partners are retiring nicely, thank you, very young partners have no expectation of similar benefits and quail at the thought of supporting all the younger boomers, and the younger boomers are now in the squeeze, facing a shorter period before the golden years to accrue value, and not getting the old defined benefits.
UPDATE: Paul Secunda over at Workplace Prof Blog (who actually knows whereof he speaks!) has intelligent commentary on this subject.