Saturday, October 21, 2006

Buhai on malpractice actions against unlicensed "lawyers"

Sande Buhai (Loyola Los Angeles) has posted this article on SSRN, also upcoming in Utah Law Review.  It explores the malpractice tort issues relating to defendants who are committing the Buhai2 unauthorized practice of law.  Its title is "Act Like A Lawyer, Be Judged Like A Lawyer: The Standard of Care for the Unlicensed Practice of Law," and its abstract is after the jump below.  To me, some of the more interesting follow-up issues involve causation:  did the lack of license actually cause the damages to the client, or some substandard conduct?  If not substandard conduct, then why do we care for torts purposes that the defendant has no license?  If there is substandard conduct, then why do we care that the defendant has no license?  Of course the article focuses on the standard by which to judge "substandard conduct" and takes the infinitely reasonable position that the standard set is that of the lawyer which defendant pretended to be.  I am just adding that the other elements in such a case, particularly damages and the causation that connects them to that breach of duty, raise nice issues too.  [Posted by Alan Childress]

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October 21, 2006 | Permalink | Comments (0) | TrackBack (0)

"Being Right Is Not All It's Cracked Up to Be": A Reply to Professor McGowan (with a nod to Professor Schneider)

Posted by Jeff Lipshaw

David McGowan (San Diego) over at Legal Ethics Forum has a thoughtful response to my earlier post on law and morality - in particular, my cryptic concern over the impact of what I called "reducto-empiricism" as the underlying world view of young lawyers going out into the world.  If I may fairly summarize it, David contests whether there are in fact any articulable moral universals that are useful in resolving legal-ethical dilemmas.  Indeed, as the human race has not been able to agree on any moral universals (except maybe one or two like "don't kill so many of your society that your existence is threatened") in all of recorded history, appealing to them constitutes a "crutch substituting for analysis."

David, of course, hits at the very heart of my dilemma - which is that I like the concept of Kantian derived universalisms, but I can't justify any of them, except the concept itself, which seems to me to invoke some kind of first principle, even if I don't know what it is.  (For that reason, people call it God, but that's way too concrete for me.  See my Yom Kippur post.)

One of the great benefits of Kantian schizophrenia is that I can critique undue empiricism, but I can also beware of fanaticism or dogmatism, and call it transcendental illusion - the mistake of belief for truth. (In my view, even Kant erred if he thought he had derived "Truth," say about lying, from the categorical imperative.  Reason can give you an ought but that is beyond or apart from truth or falsity.)

David called himself a Humean empiricist, and I'd certainly agree on form.  If you have read Professor McGowan's work, you know that, like Hume, he has a charming and witty skepticism about there being any right answer, so at least he feel pretty good about the law not necessarily giving us one.   (Recall that it was Hume's skepticism that shook Kant from his "dogmatic slumbers.")  His pragmatism is a fair successor to Hume's congeniality as the standard by which we conduct ourselves.  I think it gets to the same place Larry Solum would get in his aretaic philosophy - no sense worrying about the metaphysics, but trust that virtuous people (virtues being derived inductively from what has generally been considered good) make virtuous decisions.

More below the fold.

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October 21, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Clients, Economics, Ethics, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)

Friday, October 20, 2006

ABA is Owned By Criminal Defense Bar

That's the precious assertion found in an interesting ABA Journal on-line story on a Louisiana federal court case considering the proper representation of capital defendants (is one lawyer enough?)  One Louisiana prosecutor had testified that prosecutors are discouraged from joining the ABA so its defense-ridden "standards" can't be thrown back in their faces. The ABA is predominantly comprised of criminal defense lawyers! Now a criminal defense attorney in that federal hearing wants the record to reflect an affidavit by the current Chair of the ABA's Criminal Justice Section, refuting that claim to bias and membership-skewing in the ABA.  [Here is the Journal's link to the Motion to Expand and its proferred affidavit.]

Did you know the ABA was all sold out to the criminal defense bar?  I always assumed it was owned by car rental companies.  [Alan Childress]

October 20, 2006 in Ethics | Permalink | Comments (1) | TrackBack (0)

Missing Pro-posites*

Okay, enough with the serious stuff.  Let's play a game,  like Miriam Cherry's version of Sniglets over on PrawfsBlawg last month. This is a word game, and we are lawyers or law professors or law students (or in the case of my two readers, children of law professors) who rely on language to keep the dogs in Alpo, so it has something to do with the profession.  (I assume everyone who reads this blog is so literate they do the Saturday New York Times crossword puzzle in ink without mistake inside of fifteen minutes.)

The game is called Pro-posites.  In the last post I used the word disgruntled, which sounds like it ought to have an opposite:  gruntled.  Is anyone ever gruntled?  This is the missing pro-posite. 

Here's another:  inept.  I have broad experience in being inept.  If I practice more, will I become ept?

The format of Legal Profession Blog, being a part of the Law Professor Blogs Network ("our editors focus their efforts, in both the permanent resources & links and daily news & information, on the scholarly and teaching needs of law professors"), requires one of us to approve your comment before it's posted.  Any good faith attempt to supply missing pro-posites will be published.  (Sorry there are no other prizes.  All I could think of was the unused tube of Boudreaux's Butt Paste I used in Secured Transactions as an example of trademarks and copyrights.)

[Jeff Lipshaw]

*I'm sorry, Paul.  I know this is outside the scope of the blog, but I couldn't help it.  Don't fire me!

October 20, 2006 in Lipshaw | Permalink | Comments (11) | TrackBack (0)

"Them": Availability Heuristics and the Scholarship of Corporate Demons

Yesterday in my Business Enterprises I class, we moved into the fiduciary duties of corporate directors, a subject close to my heart, having counseled a public company board from 1999 to 2005, a period that spanned the burst of the Internet bubble, the Enron fiasco and its ilk, the passage of Sarbanes-Oxley, and the New York Stock Exchange's adoption of the governance standards in it revised listing requirements.  During that period, we did an partial IPO of an wholly-owned subsidiary, resulting in a controlled public company listed on NASDAQ, and later acted on behalf of all of the shareholders of the subsidiary to sell it in a cash-out merger.  We also pondered significant strategic redirection, saw the resignation of a CEO, and then merged the company out of existence.

So, as I observed to my class, I have perhaps a harder time seeing corporate directors as "them," and prefer to think not of directors as demons, or even as Richard Posner's faceless and automatonic "rational frogs," but as real human beings faced with difficult choices, and without the benefit of the hindsight that either litigators or law professors bring to the table.  Perhaps that is why I was taken with the even-handed approach of Professors Rasmussen and Baird in the article I highlighted several days ago.  I also suggested to the class, whether someday they are in the position of counseling, defending, or suing directors, they would be well served to appreciate the complexity of the ex ante decisions (whether or not it is a calculation) facing corporate directors.  Indeed, my pedagogical point is that this is at least some basis for the deference that courts give to directors, absent breach of the duties of care and loyalty, for actions taken in good faith under the business judgment rule.

Should we look at corporate directors with the glass half full or half empty?  I confess, having watched a white male conservative Republican director (one of our curmudgeons) argue that our non-discrimination policy should include a ban on discrimination on account of sexual orientation, and similar displays of independent-mindedness against type on a fairly regular occasion, I incline toward the former.  But I cannot deny the reality of what seems to me good judgment gone awry in what viscerally seems to be a non de minimis number of backdating cases.  (I have already expressed my view on that issue:  I would have criticized a general counsel who did not go beyond the strictly legal in pointing out the issues of truth-telling - or its opposite - in undertaking the practice.)

More below the fold.

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October 20, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Clients, Economics, General Counsel, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, October 19, 2006

An Altruistic Theft

by Mike Frisch

Those who have read my article evaluating the District of Columbia attorney discipline system in the Georgetown Journal of Legal Ethics know that I have serious concerns that attorneys who violate ethics rules receive treatment that is far too lenient. A recent example of this unfortunate trend is a hearing committee report in In re Hewitt, Bar Docket No. 374-04, decided on September 21, 2006. The report is not available in electronic form, but is a public document that can be obtained from the Board on Professional Responsibility, 202-638-4290.

The case involves misappropriation, a lawyer term thay means theft of entrusted funds. The attorney had been appointed as conservator for a person unable to care for himself. The attorney had control of the ward's assets, including a banking account. For a period of years, all went well, with the lawyer performing the work and being paid by seeking and obtaining court approval, as required by statute. In 2001, The attorney filed a petition for court approval of his fees, but did not bother to wait for it, removing over $2000 on the day the petition was filed. His excuse was his concern that the ward would lose Medicaid eligibility for having too many assets if he did not take money for himself.

The Probate Court denied the petition for fees, finding that the lawyer's activities were "not legal in nature nor compensible as attorney's fees." The lawyer claimed not to have received the order and thereafter failed to file a required account that would have disclosed what he had done. Over a year later, the attorney responded to a court order to show cause why he should be removed, claimed he then learned that the court denied his request for compensation and repaid the money.

The hearing commitee questioned the court's authority to deny compensation (which is the court's job by law and statute), believed every aspect of the lawyer's story, criticized Bar Counsel (always a good reason to be lenient) and suggested that the attorney had taken and used the ward's money for over a year due to a sincere desire to act in the ward's best interests. It also seemed to think that a single theft was no big deal. They recommend probation.

Ah, self-regulation! It's great for lawyers.

October 19, 2006 in Ethics, Frisch, Professional Responsibility | Permalink | Comments (3) | TrackBack (0)

Proposed AALS Conference on Transactional Lawyering?

Gordon_1Navigate your way over to Gordon Smith's post (Gordon, on the left), on this subject over at Conglomerate, and let him know if you are interested in helping organize one.

I organized a two-credit class at IU-Indianapolis entitled "Technology Start-Ups and Venture Capital," and Gordon's case book not yet being published, there was a dearth of materials directed at this kind of transactional lawyering.  You could go to Josh Lerner's business school text on venture capital, but the only place you really saw law qua law was in the discussion of the so-called "down round" in which the venture is no longer worth was it was before, and somebody (either the entrepreneur or the venture capitalist or both) has to take the brunt of the dilution that occurs when the next round of stock sells for less than the previous round.  (Gordon, by the way, has an excellent article on one of the leading cases on that topic, involving Benchmark Capital.)

The trick is aiming the course at something more academic or theoretical than a CLE talking head seminar, but not leaving it so theoretical that it has no particular value to the practice.  Gordon cites Ron Gilson's classic article on the transactional lawyer's value proposition, that of "transaction cost engineer," but it's the line about trying to teaching a theory of private ordering that has me intrigued.  The law and behavioral economics school, I think, aspires to a unified theory of behavior on the subject of ordering, but will understanding the availability heuristic, or commitment bias, or asymmetric information makes lawyers more effective in transactions?  It may, but it's a leap from the description of the theory to ex ante predictions based on the theory to actual use of the theory in live transactions.

Last evening, I was a judge in the Tulane Moot Court Board's ADR competition.  One of the participants was, I think, in the minds of the three judges a standout, but very little of what was exceptional was cognitive or rational.   Her effectiveness had more to do with personal force, charisma, or something like that, than argument.  The other thing I noticed (albeit from the standpoint of thirty years' more experience in the negotiating trenches) was negotiation by argument as opposed to negotiation by creativity.  (There was negotiation by empathy, but it consisted primarily of "our client likes your client" as a preamble to the argument of a position.)

All of this to say that transactional lawyering as an academic field needs to look not just at economics, but at social psychology, strategy, decision theory, philosophy, conceptual blockbusting, and drama, just to name a few other areas.

As I said over at Conglomerate, here's an enthusiastic "count me in."

[Jeff Lipshaw]

October 19, 2006 in Lipshaw | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 18, 2006

Teaching-job postings in legal profession/legal ethics

I noticed in an SSRN email (Legal Scholarship Network) that Michigan State University's law school is looking to fill a chair in "Professional Responsibility, where a nationally significant scholar would be eligible for appointment to the Frank J. Kelley Chair in Ethics," among other openings they list.  That chair is for "experienced teachers."  Their list of openings for entry-level positions also names professional responsibility as a desired subject, along with commercial law, contracts, and civ pro.  (Here is their general website.) In either event, the application is made to:    

                     Prof. Kevin W. Saunders
                     Senior Associate Dean
                     Law College Building
                     Michigan State University
                     East Lansing, MI 48824

Any chair of an appointments committee who would like to post similar information on this blog about hiring needs in the legal profession, ethics, or professional responsibility should feel invited to do so as a Comment below this post. 

A useful, and fairly complete, listing of the various Chairs of Appointments at several law schools (for both lateral and entry level positions) was blogged over the summer on PrawfsBlawg and is linked here.  Sometimes it is especially hard to find information about lateral hiring, so I recommend the posting for that distinction and contact information. That site also indicates that Temple may hire a tenure track (entry level?) person in PR.  (I also recall that the University of Tennessee was looking to fill a need in legal ethics, I believe by an entry-level or experienced person, but don't see it listed on that post.) Finally, Jeff has already recommended Brad Wendel's excellent and wry essay on the appointments process and its resume requirements. Good luck, everyone.  [Posted by Alan Childress]

October 18, 2006 in Hiring | Permalink | Comments (0) | TrackBack (0)

Facts, Truth, Positivism, Instrumentalism and Law Practice

Posted by Jeff Lipshaw

There are a couple of very, very interesting posts over at PrawfsBlawg this morning.  On the surface, they appear to be on wholly different subjects, but I see a common theme.

First, Paul Horwitz has post on a speech given by Linda Greenhouse, the New York Times Supreme Court reporter.  The central issue in Paul's post and the ensuing comments is not the substance of her speech (her disappointment with the moral stands of "our generation" resulting in things like prisoner abuse, Abu Ghraib, etc.) but the reaction of some that her comments were "easily" statements of fact.  Paul cleverly recasts the speech to pose the question - how can these conflicting views both be fact?

Second, Miriam Cherry talks about remarks of Justice Anthony Kennedy at the Lawyers Club of San Francisco.  Justice Kennedy's anecdote is of his days in practice, and the distinctions between a particular result that the law might allow, and the "honorable" result.  In this instance, Justice Kennedy persuades his client (by having him read King Lear) not to favor a particular child in his estate.  The point is that the law would allow that result, but that result was not right.

Connecting these two posts, and relating the common theme to the practice of law, below the fold.

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October 18, 2006 in Ethics, Law & Society, Lipshaw, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 17, 2006

Teaching Future Board Counselors - World View?

Check back over the next few days as I will be blogging - in the Straddling series - on teaching corporate law to future counselors to corporate boards.  I am just now getting to Van Gorkom, Disney, Caremark, etc. in my syllabus, and I've been thinking about the world view implicit in The Prime Directive, by Rasmussen & Baird, on which I have commented previously, and that in The Unimportance of Being Earnest:  Reflections on Director Liability and Good Faith, recently posted on SSRN by Elizabeth Nowicki (I listened to Professor Nowicki give an overview of this paper at the Law & Society Annual Meeting in July as well).

To come:  reflections from my present academic perch on the good old days when I was counseling a corporate board. [Jeff Lipshaw]

October 17, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, General Counsel, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)

"Research Canons" in The Legal Profession

Posted by Alan Childress

Not to be confused with the original Canons of ethical rules.  This means that the ongoing PrawfsBlawg project of research canons, or essential readings in various subjects, is now spotlighting legal ethics and professional responsibility. Great idea, though I hope it is taken more broadly to include landmark research in "the legal profession" generally and not only ethics and bar discipline as such.  I'd say all of that is encompassed by their underlying project description (despite the title of this application) since their test is what is essential foundational reading for a new academic in the field -- and no such person in their right mind would only read about ethics rules writ small.  You can go to the blog above and post Comments on what you'd tally as such essential reading.

Andy Perlman and Brad Wendel of legalethicsforum actually got a jump start on this project a week or two ago. So first one might want to look at the suggested articles and books Brad posted there (now  helpfully repeated in the PrawfsBlawg Comments section) as well as some nice Comments attached to Brad's original list (not found at PrawfsBlawg, at least not yet).  One of those Comments is from our blogboy Jeff, offering his top reads in the field.  His list implicitly suggests we take seriously the business ethics, corporate governance, negotiations,and fiduciary duty areas that most people would ignore in their first efforts at sticking their toe into the cold pool of legal ethics.  But he is right that they should not be ignored.  How to talk about legal ethics in the business setting without understanding the literature about corporate structure, culture, and obligations to investors and constituencies? 

Jeff's list does not dismiss the usual suspects -- still classics, I'd say, including some on Brad's list -- about "the role of the lawyer as advocate." But his list does seem to recognize that not all lawyers are Matlock and not all clients are Manson.  I'd add that Sarbanes-Oxley and its limits, as an example, cannot be understood just in the abstract as all about the right thing to do.  One needs to consider compliance costs too, or whether the lawyer's role envisioned there is at odds with the image of lawyer embedded elsewhere in ethics law.  I'll add my own list, FWIW, over at PrawfsBlawg (repeated under the fold here), but kudos to Andy and Brad for seeing this coming.

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October 17, 2006 in Ethics | Permalink | Comments (0) | TrackBack (0)

Top Ten - Legal Ethics and Professional Responsbility - Oct. 17

Posted by Jeff Lipshaw

There are no new entrants to the top ten this week, but some jockeying for position, just as the dust starts clearing on the BCS Bowl picture.  Fortunately, for purposes of clarity, we only have the computer rankings on which to rely, but were we to adopt a BCS approach, we'd have to have a couple subjective polls as well.  Here's to the possibility of a "Game of the Common Era" between Michigan (Go Blue!) and the team from that institution in central Ohio with the funny-looking mascot and the very fine law school.  (Hey, even my wife thinks Kirk Herbstreit is a hunk.)

But we digress.  The current top ten downloaded papers as reported by SSRN for its Legal Ethics and Professional Responsibility Journal, as of October 16, 2006:

1 Therapeutic Jurisprudence and Readiness for Rehabilitation David B. Wexler, University of Arizona - James E. Rogers College of Law

2 Politics, Office Politics, and Legal Ethics: A Case Study in the Strategy of Judgment David McGowan, University of San Diego - School of Law

Southwest Airlines:  Hedging and Shareholder Value  Michael R. Ingrassia, Georgetown Law Center, Victor Fleischer, University of Colorado School of Law

4 Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code Ronald D. Rotunda, George Mason University - School of Law

5 Judicial Opinions as Minefields of Misinformation: Antecedents, Consequences and Remedies Jacob Jacoby, New York University - Department of Marketing

6 Plato, Hegel, and Democracy, Thom Brooks, University of Newcastle upon Tyne

7 I Can Tell When You're Telling Lies: Metadata in Litigation and Transactional Practice David C. Hricik, Mercer University - Walter F. George School of Law

8 The Images of Lawyers Fred C. Zacharias, University of San Diego - School of Law

9 Legal Hazard: Corporate Crime, Advancement of Executives' Defense Costs, and the Federal Courts Peter Margulies, Roger Williams University School of Law

10 Ethics and Corporate Responsibility Marina Ricci, Valparaiso University School of Law


October 17, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack (1)

Monday, October 16, 2006

Earn an Oxford Doctorate in Professional Management on Their Dime

Or their pound, or euro.  Oxford's Said Business School has an interesting D.Phil. program in professional service firms (including management issues relating to law firms and the 465473_oxford_architecture_1 profession, but not so limited--think accountants and architects too).  They also offer scholarships to cover tuition/fees plus 10,000 pounds (roughly $18,800 US) each year for three years (and this doctorate can be earned that quickly), in an application process that begins about now, due early Jan. 07.  This is all part of the relatively new Clifford Chance Centre for the Management of Professional Service Firms, with an accomplished full-time and visiting faculty.  For example, one of the professors does research and surveys on patterns of change in professional businesses, including law firms, as well as human capital development such as payment structures and promotions in large law firms.  Others study reputation and identity within professions. The Centre held a conference in Boston in 2004 along with BC.

For those who think one of the interesting things about professions is how they organize (sorry, organise), manage their labour, enforce ethics and norms, and attract business--if the b school, management, and economics side of 'professionalism' is more your cup of tea than practicing law or studying laws--then this may be the programme (and funding opportunity) for you.  If you write them, learn to add the two dots over the i in Said.  I can't get typepad to do that, or spell umlau for that matter.    [Posted by Alan Childress]

October 16, 2006 in Economics, Law Firms | Permalink | Comments (1) | TrackBack (1)

"Who Distinguishes Between the Sacred and the Secular...."

Posted by Jeff Lipshaw

I've previously published my heterodox (thanks to Dan Markel for the word) views on liturgy, but a foolish consistency is the hobgoblin of little minds (as they say), and I do pull from Jewish liturgy the occasional insight. 

Over at PrawfsBlawg, there is a fascinating series of comments provoked by Ethan Leib's critique of The New Republic as a "liberal" magazine:  TNR Is Not Liberal In Any Meaningful Sense.  It is an interesting exercise in classification.  The commenters work through definitions of "liberal," "leftist," "right wing," "liberal bona fides," "true liberal," etc. etc.  People clearly feel strongly about it, and I assume that classifying oneself as a liberal is meaningful (or helpful).

Is it in fact a useful heuristic to presume a suite of political, moral, or philosophical views by a label like "liberal" or "conservative"?  I can imagine it is if you want to participate actively in party politics.  I'm not so persuaded for social philosophers (by which I include most law professors) generally.

On Yom Kippur, I blogged (my apostatic guilt trip taking over) on the subject of universalisms versus particularisms, and how we deal with classification and separation is a closely-allied field.  I have always been taken with the prayer that marks the end of the Sabbath - the Havdalah, or "separation."  The suggestion is that our perception of distinctiveness, is at its core, something mysterious, even divine.  So to return to the workaday world, we acknowledge (or attribute to the divine if we are so inclined) the distinction between the sacred and the secular, between light and dark, between Israel and the nations, between the seventh day and the six days of labor.  There's black and white, and there are shades of gray.  Sometimes we have to draw lines.  It doesn't matter if you think like an American, dress like an American, eat like an American; if you were not born an American, and haven't undertaken the ritual to be one, you can't vote.

Somehow we are hardwired with the paradoxical or antinomial ability to see, or want to see, continuity and distinctness in the same sensory data.  I think the point of the prayer is to have us step back and consider just which distinctions and continuities are worthy of the investment of our intellectual energy.

Just what was it that entitled one to call oneself a bona fide star-bellied Sneetch, anyway?

October 16, 2006 in Lipshaw | Permalink | Comments (0) | TrackBack (1)

Sunday, October 15, 2006

Ben Stein on How to Make Money

Posted by Jeff Lipshaw

One of the best things about reading Ben Stein's column in the New York Times business section on Sunday is that you don't have to listen to Ben's voice.  (I shouldn't make fun of Ben. I don't want to win his money; I want to win his job.)  This morning we have a faux-cynical take on wealth distribution, and how to make money.  Now I disagree a little bit with him:  I think you can learn critical and thinking skills studying either "African feminism in the 19th century" (his phrase, not mine) or "Bulgarian poetry", but he's probably right that professional specialization in either of them is not going to be hugely remunerative.  (Personally, if I were looking at a lawyer's resume, I'd take a great African feminism major over a mediocre finance major any day.  Also, in fairness to Ben, he concedes you can be happy doing a less remunerative job as long as "you just stop thinking that everyone is supposed to make the same wage.")

But I digress.  The point of this post was to highlight one piece of Ben's positive advice, which is that you have a better chance of making it into the elite 1% of the population that earns 20% of the total income "by working in fields in which you can fix your wages, preferably with the government's help.  These include law, where you need a license to practice, and thereby can lift yourself out of working for free-market wages."  Which explains why unemployable history majors like me went to law school.

October 15, 2006 in The Practice | Permalink | Comments (0) | TrackBack (0)