Saturday, October 28, 2006

Follow Up to Hricik Post on Facial Prosecutorial Misconduct

Posted by Alan Childress

Over on Legal Ethics Forum, David Hricik (Mercer) had previously posted, in "Naked Prosecutors, Oh My!," about a Ohio prosecutor arrested for wandering around his building without legal briefs.  Apparently a prosecutor in Seattle (or two) read David's post and determined to one-up the merely-naked Ohio prosecutor.  A post on CrimProf Blog reports (from the Seattle Times) that he (but not she) was arrested after patrons complained they were having sex in a bathroom stall at Qwest Field during a Seahawks game [editor's commentary: eww].  He is a senior deputy prosecutor, not unlike the title held by "Jack McCoy" (Sam Waterston) in Law & Order. Because NBC producer Dick Wolf always prides himself on taking the show's plots straight from recent headlines -- and fearful that the actors including Fred Dalton Thompson are method-trained Stanislavskians who always do their research before playing a role -- we at LPB are determined to simply 'hold it' at any future sporting event to avoid hearing that donk-donk musical cue coming out of the stall next door.

October 28, 2006 in Blogging, Partners, Straddling the Fence | Permalink | Comments (0) | TrackBack (0)

New Kind of Limited Counsel to Pro Se Clients: Pilot Project on Helping Self-Help

Posted by Alan Childress

Robert Ambrogi reports here on LawSites (via Massachusetts Law Updates, with further links) about a pilot project in Massachusetts permitting attorneys to take on limited appointments of self-represented people, to counsel them on discrete or limited parts of their matter without obligation to take on the case as a whole.  It's starting with family law and probate courts, and even includes drafting documents531931_a_nonstick_frying_pan_1 signed by the client but with the notation "prepared with assistance of counsel."  This may be the closest thing, coincidentally, to something MyShingle's Carolyn Elefant was116412_japanese_restaurant_01_6 just kidding about last week when she marveled at a cooking service that makes the customer do most of the work--and joked we should do that in law practice too.  I suspect she didn't mean to be so prescient. 

October 28, 2006 in Clients, The Practice | Permalink | Comments (0) | TrackBack (1)

Law Firm Outsourcing in NY Times

As reported Oct. 6 here on LPB, there seems to be a trend in law firms to outsource and offshore certain parts of their office operations and even law work.  Friday the New York Times reported on the story, including Clifford Chance's large steps in that direction, as linked here.  [Alan Childress]

October 28, 2006 in Economics, Law Firms, The Practice | Permalink | Comments (0) | TrackBack (0)

More on the Massachusetts Discipline Matter Alleging Extortion Plot

Here is a link to a Boston Globe on-line story with further details, following up on Mike Frisch’s remarkable previous post, on a Massachusetts bar discipline matter involving three attorneys alleged to have tried to extort a law clerk in order to help reverse an unfavorable trial court ruling. The Board of Bar Overseers, he reported, recommended disbarring two lawyers and suspending a third. The further details making the story curiouser and curiouser include the fact that the third lawyer used to be chairman of [wait for it] ... that Board of Bar Overseers (and once president of Nike). One of the others had been "ethics counsel" to two governors; another, a state prosecutor.

You cannot make this stuff up. But it does make a bit more sense out of the comment I made to Mike in reply before (below his post), as to how bizarrely careful (and ultimately lucky) they were to meet the clerk in a state where surreptitious taping is legal. (I thought at the time it seemed to be like making sure not to use the mails while murdering someone.) Maybe, I am now guessing, it was not such a bizarre calculus on their part. Perhaps lawyers involved in such a plot with a background in ethics and prosecutions may have calculated the difference between taping–an easily provable crime (and ethics offense) that is nearly strict liability because it does not seem to depend upon intent–and their larger plot, which presumably had some harebrained 'plausible deniability' built into it which came down to their word (their esteemed and ethically experienced word) against a lowly law clerk’s. They were not just MoeCurlyLarry after all, as I had suggested, yet they clearly did not count on law clerk getting FBI to mike them back. All of this is speculation on my part, but that’s what makes more sense to me after I know more about the three. How else did they think they could get away with this rube goldberg plot?  (One explanation [not mine but does explain the taping and strategy above somewhat]:  their view of the facts is correct, that they intended to expose judicial misconduct not extort anyone, over the hearing examiner's view.) Further blogging on this case is now found at How Appealing as well.  Anyway, the lawyer's former chairmanship of the BBO adds new meaning to the phrase 'bar oversight.'  [Alan Childress]

October 28, 2006 in Ethics | Permalink | Comments (0) | TrackBack (0)

New Feature, Signs of the Pedagogical Apocalypse - Part Deux, and One Reason Why New Orleans Is So Cool

Legal Profession Blog is pleased to announce that interactivity with our readers (thank you both) is Achildressnow enhanced with the addition of the "Recent Comments" listing on the lower left hand side bar.  The salutary effect is that it will now be publicly apparent when Alan (left) and I are simply commenting on each other's posts, and we may stop.

On a completely different topic, several weeks ago, I unveiled the "fish pun" participation technique I used in my Business Enterprises class.  Unfortunately, like so many of my clever ideas, this also had a shad ending.  Nobody volunteered a pun.  Perhaps they thought it was a croppy idea.  I felt somewhat redeemed when a student not in my class suggested that the discussion of governance should include mention of the "poisson pill."  All this demonstrates is that as a pedagogue, I have a long roe to hoe.

Finally, why New Orleans is so cool.  Everybody knows everybody.  When Alene and I were down herePiazza on a visit last April, we stopped in one of the neatest bookstores in the world, the Garden District Book Shop.  I bought a little book by a New Orleans writer named Tom Piazza (right) about his Katrina experience called Why New Orleans Matters (HarperCollins, 2006).  I went out to dinner last night with some friends who had invited another friend - Mary Howell, Tulane Law School alumna and well-known civil rights lawyer here.  Our mutual friends asked, "where's Tom?" (he was out of town) and it turned out that Mary was the Mary in Why New Orleans Matters - Tom's partner, and whose parents farm in Missouri was the place to which they evacuated, and where Tom wrote the book. 

I should add:  one of the mutual friends is Bob Marshall, the Times-Picayune reporter who broke the stories on the failures of the Army Corps of Engineers in the design and construction of the levees.  I can't mention Bob without referring to need to begin the restoration of the wetlands that lie between New Orleans and the Gulf.  Last night, Bob, who also covers environmental issues and outdoor sports (bullet and hook, as they say) mentioned the plan he supports to use treated sewage as a way of rebuilding the wetlands.  There are bumper stickers available, but this being a family-oriented blog, I can't repeat what they say.  [Jeff Lipshaw]

October 28, 2006 in Blogging | Permalink | Comments (1) | TrackBack (0)

The Complete Ethical Person (Musings Provoked By Fleischer on Backdating)

FleischerPosted by Jeff Lipshaw

Conglomerate blogger Victor Fleischer (left, Colorado) has posted Options Backdating, Tax Shelters, and Corporate Culture on SSRN, and provokes me to a series of musings on what I would call the "complete ethical person."  Here is the abstract of Vic's article:

This Essay examines the problem of tax noncompliance through the prism of the options backdating scandal. The noncompliance of backdating was obvious, at least to tax lawyers. Backdating wasn't a sophisticated tax scheme. Rather, the noncompliance was collateral damage from weak internal controls and, in some cases, the rent-seeking of executives. Noncompliance in the face of clear rules is an overlooked problem in the corporate tax shelter literature, which tends to focus on disclosure, deterrence, or statutory interpretation. We should also study what creates the demand for tax shelters. The evidence from backdating suggests that a fast-and-loose attitude can develop when innovative companies outgrow their internal controls. When viewed in institutional context, a subset of corporate tax shelters, although adorned with more formal attire than backdating, may also be best understood as a compliance issue rather than a problem of textualism or inadequate penalties. The implication for law reform is that process matters. Culture matters. We may have more success in closing the tax gap if we support procedural changes in the way companies approach tax compliance rather than altering the substantive rules in ways that may have unintended consequences for non-fraudulent transactions.

This is a very interesting article!  Like Vic, I am concerned about corporate cultures that too eagerly transport the value of innovation and creativity in product and organizational design to the financial and regulatory side of the house.  Indeed, you can cheat on both sides.  It's fair game to take cost out of a product by achieving the same result - the ASTM standard, or defect level, or whatever - with better design, less material, less inspection, etc.  It's cheating to cut corners by mixing sand with plastic resin when you know the product can't perform as warranted.  It's also fair game to interpret the rules reasonably and to one's advantage.  Perhaps the gray area is wider, but we know when somebody has gone over the line.  (My own musings on the backdating issues are over in the dusty archives at PrawfsBlawg.)

Vic talks about revealed preferences, and I heartily concur that the cynicism that grows in an organization upon perception of dissonance between the company executives' rhetoric and their inconsistent reality is a cancer.   I continue to believe, however, that the solution lies in deontological execution by real people, and not more consequentialist regulatory schemes.   Vic's paper cites the work by Claire Hill and Erin O'Hara on trust:  that either smaller or more cohesive and trusting groups are more willing to tolerate fraud or misconduct.  To return to an allusion I have no doubted beaten (or pithed) to death, that's the rational frog approach.   Put enough rational frogs in a boardroom with enough economic incentive (punishment?  liability?) to croak on each other, and we solve the problem.  Vic moves away from the economic incentive in suggesting disclosure, "distrust" (a la the Hill and O'Hara work), and most intriguingly, "identity," in which one hires as the director of the particular area of compliance a person whose "sense of identity" prevents him or her from undertaking the non-compliant activity.

More below the fold.

Continue reading

October 28, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Economics, Ethics | Permalink | Comments (0) | TrackBack (0)

Friday, October 27, 2006

Caron Posts on Ethics Treasury Job, and Tax 'Ethics' Paper

The TaxProf parent company and LPB honcho Paul Caron recently made two ethics-related posts.  One announces a job opening in Treasury (in DC next to the White House) for an ethics attorney; apply by Nov. 13.  The other post links to an SSRN paper called  "The Ethics of Tax Evasion: A Comparative Study of Germany and the United States," and has its abstract.  It involves comparative surveys of populations in the U.S. and Germany, so it is not about legal ethics as such, but rather public compliance.  Finally, Paul announces he is a 1 in a 100 guy.   That leaves 99 other Paul Carons wishing they'd thought of LPB.  [Alan Childress]

October 27, 2006 in Hiring | Permalink | Comments (0) | TrackBack (0)

Rapoport on How Lawyers Behave: the Hollywood Effect

Speaking of Nancy Rapoport (Univ. of Houston, going to UNLV), as Jeff just did on their B-School posts, she has now posted on SSRN's Law & Soc'y: Legal Profession her 2000 article, published in Notre Dame's legal ethics journal.   The title is "Dressed for Excess: How Hollywood Affects the Professional Behavior of Lawyers," and the abstract is:

This article discusses two related points: first, that the way in which movies portray lawyers shapes how clients view effective/ineffective lawyer behavior, and second, that the portrayal also helps lawyers to forget appropriate professional behavior.

Later in the paper Rapoport describes such inappropriateness as including unethical behavior learned from movies, coldness and assertiveness, and a rule-boxed lack of emotional growth (despite the title I did not find a discussion about dressing appropriately).  She particularly discusses The Verdict, The Devil's Advocate, and My Cousin Vinnie, and seems to treat the latter as a guilty pleasure. 'The two youths....'   [Alan Childress]

October 27, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (3) | TrackBack (0)

How Recruiters Rank B-Schools and Their Students: Is Law Different?

Nancy Rapoport's post over at Money Law on the Business Week ranking of business school reminded me that back at the end of September I started to write the post that follows, and left it sitting back in the dusty cybervaults of TypePad.

Here, unabridged and unedited from about a month ago is additional fuel for Nancy's fire:

The Wall Street Journal (Sept. 20) ran its annual special report on business schools as ranked by  corporate recruiters.  The most interesting thing about it was not the result, but what attributes in students the recruiters said they most valued. According to the WSJ, the following percentages of corporate recruiters considered these attributes important in evaluating business schools and their graduates.

89.0%: Communication and interpersonal skills
86.9: Ability to work well within a team
86.2: Personal ethics and integrity
84.3: Analytical and problem-solving skills
82.9: Work ethic
74.5: Fit with the corporate culture
74.0: Success with past hires
72.5: Leadership potential
67.1: Strategic thinking
64.9: Likelihood of recruiting "stars"

Here are the questions that keep coming back to me:

1. How would law firm, corporate, and government agency recruiters rank the important attributes for law schools and their J.D. graduates (as opposed to M.B.A.s)?

2. Do business schools and their faculties address these attributes as part of teaching and research?

* * *
I know I had more questions, but I can't remember them anymore.

[Jeff Lipshaw]

October 27, 2006 in Hiring | Permalink | Comments (1) | TrackBack (1)

Sanctions in the 7th Circuit for Improper Jurisdictional Statement

Posted by Alan Childress

The AELR blog reports on the Seventh Circuit's imposition, openly as a cautionary tale, of appellate sanctions for one Grand against lawyers (and naming them, I guess to invoke the shaming by a gemeinschaft of which Jeff is so fond) whose briefs failed to include a proper "statement of jurisdiction."  Sanction power is a new toy, it seems, in that court (if you follow blogger "Bob Loblow").  I am as impatient with unethical lawyering as the next guy (well, the next guy is Mike, so I cede that high ground to him), or even incompetence.  But sanctions for that?  Sanctions may not legally require finding bad faith or unethic, but since that is how it is541128_judje_hammer_1  'heard' in people's real lives, I think that judges should hesitate to invoke the power in situations where real people may be mislabeled by the public or legal community as "unethical."  Just because judges can does not mean they should.  C'mon, it's not as if the lawyers omitted the proper "statement of standard of review" which Rule 28(a)(9)(B) clearly requires!  That'd warrant disbarment, or better yet permanent disbarment--no, double secret permanent disbarment.

P.S.  The jurisdictional statement was not wholly missing.  It named diversity of citizenship of the parties for being "citizens of different states."  It did not name which states, as the local circuit rule -- but not FRAP! -- clearly requires.  (The federal rule 28(a)(4)(A) only requires "stating relevant facts supporting jurisdiction.") The Reply brief, "compounding the error, states that the plaintiff's jurisdictional statement is complete and correct," apparently forgetting its zealous advocate's duty to piss all over the opponent for this nightmarish evil.  So six people and a firm got sanctioned and the world sleeps better now.  Read the per curiam...if you don't believe me.  But I am not kidding about the standards of review.

October 27, 2006 in Ethics | Permalink | Comments (1) | TrackBack (0)

Flat Fee Billing by Law Firms

Two blogs have very recent stories on the potential profitability and good client relations of using flat fee billing instead of hourly rates for all sorts of components of legal work, like depositions and discrete projects within a case, that are traditionally billed by the hour.  One is by Carolyn Elefant of MyShingle (directed to solo or small offices) and the other by Ed Poll (who thinks I am Childless, to the chagrin of my 2 kids) over at LawBiz.  Ed points out that most firms lack self-knowledge on their costs of operations, and in any event need to get the client involved. The readers' comments after Carolyn's post are very good (nice details), and she also has a funny post on translating the cook-it-yourself "convenience" service Dinner My Way into law practice.  [Posted by Alan Childress]

October 27, 2006 in Billable Hours, Economics, Law Firms | Permalink | Comments (0) | TrackBack (0)

Zwolinski on Teaching Applied Ethics

Matt_belgium_5Matt Zwolinski, a professor in the Philosophy Department at the University of San Diego, and a colleague of Larry Alexander and Steve Smith in USD's Institute for Law & Philosophy, has a wonderful post over at PEA Soup on the teaching of applied ethics. As a former USD legal philosopher, Larry Solum, would say, here's a taste:

I think our applied ethics -- certainly our teaching, and maybe our research -- should focus less on explaining/clarifying moral theory, and more on getting people to care about being moral in the first place.  And/or we could teach students how to recognize situational forces that tend to lead to unethical behavior, and how to avoid or overcome those forces.  There are probably lots of useful projects in which we could engage as applied ethicists.  My point is that if out main concern is helping students to be better people, then it's not clear tha teaching them lots of moral theory is going to be a significant part of any of them.

My hunch is that if we teach people why being moral is important, then for the most part they'll figure out how to do it on their own.  If we don't teach people why they should care about morality, and all the moral theory in the world won't stop them from turning into moral monsters.

[Jeff Lipshaw]

October 27, 2006 in Ethics | Permalink | Comments (1) | TrackBack (0)

Massachusetts Update

By Mike Frisch

By remarkable coincidence, the Massachusetts Board of Bar Overseers ("BBO") yesterday issued its decision in the case I mentioned in my last post. The decision should be available on line shortly. The case involves charges against three lawyers, two quite prominent, who hatched a scheme to entice a former judicial clerk to help overturn a series of adverse trial court decisions by luring him to a jurisdiction that allowed secret taping on promise of a phony job offer. After a second secretly taped "job interview" produced no helpful evidence, the two then confronted the former law clerk as if he were a low level drug dealer turning on his connection. They falsely suggested that they had an inculpatory tape of the first meeting (no tape ever surfaced) and threatened to destroy his career. The clerk got a lawyer and went to the FBI. The FBI had the clerk tape the lawyers as part of an investigation of possible extortion. The bar matter was activated when federal prosecutors declined to pursue criminal charges. The hearing officer had recommended disbarment for all three. I am told that the BBO on review of the hearing officer's report reduced the sanction for the most senior and prominent of the trio to three years with disbarment for the other two.

Further, it appears that the "reforms" of the Massachusetts discipline system proposed by the Task Force has been preempted by far more reasonable reform proposals that grew out of a study by the ABA. Perhaps not all is gloom and doom in the hope for improvement in regulation of the profession.

October 27, 2006 in Ethics | Permalink | Comments (1) | TrackBack (1)

Pine Tar, Zealous Advocacy and the Disney Case - More on the Ethics of Exercising One's Rights

Posted by Jeff Lipshaw

A few days ago, I commented on the Kenny Rogers-Tony LaRussa pine tar (or clump of dirt) incident in Game 2 of the World Series.  Steve Lubet (Northwestern and Legal Ethics Forum) commented: 

Let's assume that Larussa did make a spontaneous decision to defer to his own sense of justice as opposed to the positive law. The problem is that he wasn't exactly playing poker with his own money. He was acting as the employee of an organization, managing a team of professional athletes. Everyone involved has a serious stake in the outcome of the series, financial and reputational. what would give Larussa -- a lawyer, after all -- the right to privilege his own sense of justice over the positive law, in a situation where others (whom he did not consult) may suffer the consequences?

AperlmanAndrew Perlman (left, Suffolk) also over at Legal Ethics Forum has advanced the discussion with an analogy to the professional requirements of zealous advocacy.   I was a litigator for ten years before I moved into the corporate and M&A world, but one of my aphorisms of practice was "every time I thought I was either sublimely clever in pressing a rule-based advantage, it turned around to kick me in the ass."  But that's me, and it could well be I just wasn't very clever.

Yesterday, in BE class, we launched into teaching the Delaware Supreme Court opinion in Brehm v. Eisner, better known as the Disney shareholder lawsuit, concerning the compensation paid to Michael Ovitz upon termination after his fourteen month stint as Disney's president.  (I confess:  at one point, I couldn't help it and this came out:  "certain as the sun, rising in the east, tale as old as time, Beauty and the Beast,"* at which point I teared up, sighed deeply, and moved on.) 

One of the heretofore little-discussed professional issues was Sanford Litvack's conclusion that trying to assert that Ovitz could be terminated for cause was a "no-brainer:"  there was simply no basis for bringing Ovitz's conduct, even if obnoxious or insubordinate, within the clause.  And mind you, this was no small decision:  fighting the "non-fault termination" aspect of the contract could well have saved Disney a portion of that $140 million in severance cost.  Indeed, one of the plaintiffs' theories was that Litvack and Eisner breached the fiduciary duty of care by not asserting the claim.

Under the Lubet view, or under Andrew's zealous advocacy view, if Litvack concluded that Disney could pass Rule 11 muster (or the straight face test), did he have an obligation, moral or otherwise, to all the uninformed stakeholders (i.e. the shareholders) to pursue the claim, even if as nothing more than bludgeon to knock ten or twenty or thirty million dollars off the pay-out?  The similarity between the LaRussa judgment and the Litvack judgment, it seems to me, is the extent to which you are willing to employ EVERY means at your disposal to win (no pun intended - but playing hardball).

That was always the toughest kind of call for me as a general counsel.  Like Litvack, I would conclude that contesting a particular issue was a "no brainer" because in my judgment we had no case.  But I always wondered in those instances:  was I too nice?  or too ethical?  Somebody could cobble together enough of a position to cause some grief for the other side (because it seemed like people were always taking marginally ethical positions against us, and finding lawyers who would sign the pleadings!)  And a distinction as between LaRussa and Litvack, perhaps, that the latter disclosed his view to his principals but the former didn't, doesn't hold - because if I reached a legal conclusion and expressed it to the board, it was the rare case that anybody would question it.  In essence, my sense of ethics or my moral judgment, as the GC, became the moral judgment of the corporation.  I am sure it was the same for Litvack (well, maybe not - the case says Eisner checked with everybody!)

*Trivia bonus:  the voice of Lumiere, the singing candlestick ("Be Our Guest"), was Jerry Orbach, better known as Lenny Briscoe, the long-time detective on Law & Order.

October 27, 2006 in Ethics, General Counsel, In-House, Lipshaw, The Practice | Permalink | Comments (1) | TrackBack (0)

Thursday, October 26, 2006

Debunking Urban Myths of the Legal Profession: Help Stella Get Her Name Back

Posted by Alan Childress

You recently received yet another email reporting six outrageous lawsuits in which the plaintiff recovered jackpot money for injuries suffered after doing something evil (trying to sneak out a window avoiding a check, steal a hubcap, or rob a house) or monumentally stupid (RV on cruise control while driver gets coffee, thief locks self in garage for 8 days then eats dry dogfood).  In fact the email was forwarded (actually 'FW: FW: FW: FW:...ed') to you by a non-lawyer friend as some proof that the legal system is nuts and, implicitly, that you are a tacit approver--if not the Nurse Ratchet--of this massive nuthouse.  They are laughing at you, not with you.  Fortunately there is an internet site with proof that refutes all sorts of urban myths, including the six current ones winning 'awards' for how they show the legal profession sucks.  [Note on how this rock-paper-scissors belief system works:  Websites are solid proof against Emails.  Emails beat Nancy Grace.]  Further proof that the urban myth is false:  it originally attached a 7th story about the infamous poodle in the microwave--always a dead giveaway which explodes the myth.  Meredith Miller used the site over on ContractsProf to debunk the contracts-insurance story about the guy who claimed on a fire policy after smoking his cigars...and won!  But then got arrested for arson!!  Lawyers are so technical and so clever!!!

Specific to the legal profession as a group, and spread by politicians via stump speech and not email, is the urban legend created when Dan Quayle asked, "Does America really need 70% of the world’s lawyers?"  No, but...  That number has no basis in fact, Marc Galanter has shown in his study of whether lawyers are fomenters of strife, corrupt, and in essence economic catfish.  A corollary is the undercounting of Japanese lawyers by applying a U.S.-centric definition of 'lawyer'--followed by a claim to Japanese superiority based on their near-lawyer-free economy.  You will encounter this one at a cocktail party.  Tell them that Japan's 80 law schools graduate almost as many students as the U.S. does each year and where are they getting that crap?  Don't get into the details (that pesky 2% bar pass rate) that nominally support their point.  Ultimately the power of this myth--and it has been used powerfully--depends on comparing apples and oranges when it comes to tallying "lawyers" in various countries, as I previously detailed. The reality is that lots of law is being practiced in Japan.

At any rate, the email "award" always mentioned is the Stella Awards, named for a real person with a real case that has become the poster oldlady for tort reform:  Remember that huge $judgment against McDonald's after Stella dropped her hot coffee in her lap at the drive-thru, ouch?  Except theT_coffecop3  actual facts of this tragic accident have long been shown to debunk the legend in like ten real ways.  The media and emails have not been fair to Stella Liebeck on her own suffering, and now her name is routinely attached to funny lies that end with a request that you support tort reform (or with your friend just trying to get you to admit that the profession is an ass).  Don't, not on these terms. 

October 26, 2006 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Quick Advice on Firing Associates

Over at LawBiz blog, law firm consultant (and attorney) Ed Poll has some quick tips on firing an associate in such a way, apparently, as to avoid his or her going postal.  It is clear that he ultimately advises having a real severance policy, and marvels at law firms and law offices that do not, but short of that his advice seems useful for employers in this prickly situation.  [Alan Childress]

October 26, 2006 in Associates, Hiring, Law Firms | Permalink | Comments (1) | TrackBack (1)

More on Lawyer Blogs as 'Advertising'

Posted by Alan Childress

Over at FindLaw, novelist and lawyer Julie Hilden has posted a column entitled "Are Lawyers' Blogs Protected by the First Amendment? Why State Bar Regulation of Law Blogs As 'Advertising' Would Be Elitist and Reductive."  'Reductive' meaning if this kind of marketing is advertising subject to bar regulation, then anything is.  Mike Frisch previously posted the FTC's opinion letter on the New York bar's proposed new restrictions on advertising and marketing, and he too questions the First Amendment aspect of the proposals, which go beyond blogging and consider other kinds of restrictions such as cooling off periods.

October 26, 2006 in Blogging, Ethics | Permalink | Comments (0) | TrackBack (0)

Look for "Jeff Lipshaw's" Face on Borden 2%

Posted by Alan Childress

An abashedly pseudoscientific census-based website, How Many of Me?, will tell you how many of the 299,968,595 people in the U.S. share your name.  Compared to the 113 named Harry Potter and the 56 of Michael Frisch, there are only 34 Alan Childresses's, making me somewhat unique.   If you click on the link, you'll get a provocative pop-up for a dating service.  Focus groups apparently have already determined that pathetic narcissistic loners who'd find some emotional bonding in feeling like they are 'in' a group of people who share only an appellation (OurName.com, anyone? Copyright 2006 Alan Childress.  All rights reserved) ought to get out more and date.  "Hey, there are 66 other John Hinckleys, cool!"   Or maybe you just hope to verify that you are The One, truly unique as opposed to my relative and ungrammatical uniqueness (though, oddly, I once lived down the street in Shreveport from one of the other 33).  For my name, I just see it as the knowledge that there are 33 Americans who would have an easier time stealing my identity...and then soon find they regret it and pay me to take it back.  Sort of O'Henry's "The Ransom of Red Chief," except my good name and creditworthiness are the bratty nine-year-old boy.

We now live in a society where actual bonding and shared identity--real identity--can be secondary to the sense of belonging from sharing a legal and formal identity.  I guess that's a different problem from being in China, where even if you are a one-in-a-million kind of guy, there are 2000 people exactly like you.  In our society we can be unique but share the reality our parents foisted upon us while reading one of those insipid Baby Name books.  My parents would not spend the 50 cents from Pocket Books and picked one that is from the Latin for "guy who opens door for woman who does not see him there and closes it on his face."  I wish it were Rex, or that they just called me Steven which they legally named me, but we don't do such things in the South.  Which my brother Rory found out when he joined the Air Force and they suddenly started calling him Harold.

The Legal Profession Blog regrets to inform you that there are zero people named Jeff Lipshaw in the U.S. and equally few of the Jeffrey Lipshaw variety.  There is Supreme Court precedent from 2000 189279_milk_container suggesting that he will not succeed in demanding a recount.  There is also Supreme Court precedent limiting trials in favor of summary judgment and arbitration, because live witnesses are so messy, plus Daubert allows trial judges individual discretion to accept pseudoscience as proof of fact.  I hereby plan to represent "Jeff's" wife Alene on a contingency fee basis (paid into a commingled pool of money from which I'll pre-draw my 49%) to collect the life insurance proceeds due me her.  Meanwhile, I am merely a sociologist and not a philosophizer like "Jeff"--and "his" philosophy leans more to the Kantian than the modern Cartesian ilk ("I IM there4 I'm."). Still I ask myself, if a treehugger blogs in the woods, but does not exist, does anybody hear him?

October 26, 2006 in Law & Society | Permalink | Comments (1) | TrackBack (0)

But Have They Ever Had to Deal With Wedgies on Tristan da Cunha?

I am not completely willing to defer to co-editor and guru Professor Childress on issues falling under the "Law & Society" rubric.  Yes, he has a Ph.D. from the esteemed program in Jurisprudence and Social Policy from Cal Berkeley, but I once took a course called Law and Society from Lawrence Friedman.  And it's there our random walk through professional issues takes us this morning.

One of the things that has stuck with me for over thirty years was Professor Friedman's particular exemplar of social norms as predating formal law in simple societies (the gemeinschaft to gesellschaft thing for you sociology types).  As Professor Friedman relates in American Law:

Tristan da Cunha [is] a lonely, isolated barren spot of land in the middle of the South Atlantic Ocean.  A few hundred people live there, growing potatoes and catching fish.  A team of scholars visited the island in the 1930s to study animals, birds - and social life.  The social scientists on the team were amazed to see how law-abiding the people were - if we can apply the word "law-abiding" to people living in a place where there is nothing that even looks like law as we know it.  Nobody could remember a time when a serious crime was committed on the island.  There were none of the trappings of criminal justice - no police, courts, judges, or jails.  Nobody needed them.
* * *
Of course, in a broad sense, there was law on the island, and lots of it.  There were norms of behavior, and people followed them; these norms were enforced by real sanctions. . . .  Teasing, shaming, and open disapproval are also methods of punishment.  They can be terribly severe, in their own way.

It is in that scholarly sense that I reacted this morning, with some relief, to the news story out of Livingston, Montana about the high school principal who inexplicably relived his male adolescence by performing what is known as a wedgie on one of his students.  No doubt one of my professional colleagues has looked at this as a potential contingent fee case, but my relief is that the formal law has not (yet) intervened.  Let's hear it for teasing, shaming, and open disapproval as the punishment that fits the crime. (Nothing in this post, by the way, is intended to condone the wedgor's conduct - it's one thing to horseplay with my kids - see below - and another to be in a position of trust with other people's children. I would not have objected had he been fired - which still to me is an aspect of social norming or shaming, and not recourse to law as remedy; i.e., criminal prosecution or personal injury lawsuit.)

One additional personal note on this.  If you follow the link to Wikipedia above, you will find the definition of an "atomic wedgie."  This actually has some bearing on our nuclear family.  My practice of teaching my teenaged sons (see left) important aspects of male culture, like the wedgie, endedMattjames_1 when (a) they got bigger and stronger than me, and (b) they figured out that if they teamed up against a common enemy, they were even more effective.  Hence, it was not teasing or shaming, but, as in the Cold War, mutually assured destruction that ended the threat of the atomic wedgie in our home.

[For a look at the serious side of shaming as punishment, see Dan Markel's series over at PrawfsBlawg.]

[Jeff Lipshaw]

October 26, 2006 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 25, 2006

What to Advise Junior Profs About Blogging/SSRN?

Posted by Alan Childress

Nancy Levit of UMKC, on whose earlier work [on 'domesticating' women teachers in law schools] I previously posted, has just posted a new abstract and article on SSRN, called "Scholarship Advice for New Law Professors in the Electronic Age."  In it, she explores the rather cloudy mentoring situation of advising untenured colleagues about whether to dip their toes into blogging, how to use SSRN, and other techy issues that may cause political or lost-in-translation problems among the fuller faculty.   [Abstract after the jump below.]  I'd add what she acknowledges more diplomatically than I do:  that fuller faculty has some oldfart Luddites.  [BTW, how is it that there even is a Luddite.com?  is there an Anarchists.org?]  They may look askance (or the nice ones, just skance) at any attempt to 'play' or 'waste time' on the internet (and may be right) -- and, especially, 410779_66811632 to claim some academic or scholarly cred for it.   What would you advise a junior colleague about such activities?  Even the stock "do it until it actually interferes with your real writing and class prep"--essentially classic advice from the Boy Scout Handbook--insufficiently accounts for the backlash that may occur even without proof of such interference with the paying job.  To her credit, Nancy does not stop at the Hallmark card lingo.

The article is out for submission and your consideration or even disagreement.  Because Nancy is apparently secure in herself, and obviously tenured in writing such a piece and asking the following before publishing it, she seriously would like to hear your views on the issue -- what is your advice to that junior prof? ...does it depend on factors I am not mentioning?  ...does it depend on how many others at the school already blog or push SSRN (and how they are liked for that fact among the fullers?)  She has provided her email link here (that is dangerous but we are here to serve) and/or you can post your comments on this site.  There was a much-reported discussion earlier this year at a Harvard Law conference on blogging and academia with an all-star cast and agenda, at which Randy Barnett made waves about the "incompatibility" of blogging and scholarship.  He got the ball rolling on that at January's AALS in DC, helpfully debated by Dan Solove and others at concurringopinions here and linked and highlighted by Paul Caron here.  Jeff tells me there was some nice follow-up about Larry Solum but I have not found it to link it here, yet.  {UPDATE:  Jeff gave me the link to Markel's summary, including Solum's AALS talk, on Prawfs here.}  For some other thoughts specific to blogging (Levit's is not), and one of the best titles of the year, see Christine Hurt's and Tung Yin's "Blogging While Untenured and Other Extreme Sports."  Meanwhile, please don't let Tulane's Tania Tetlow see any of this before she agrees to guestblog on our LPB.

I enjoyed Nancy Levit's advice and think it ought to be published even without the modifications she invites from readers.  (That of course is one of the advantages and dangers, especially to junior profs, of posting on SSRN before placing the piece--would you advise someone to do that, or worry they will endlessly massage the piece before moving onto the next one?  [not an issue with Levit]) One part of her article that I find less convincing is her marketing statement (my term) that the piece explains to senior colleagues what the brave new world is and translates it for them.  To be fair, it contains useful tips about citing blogs and using SSRN for long-established writers, and she does not say as such that it is an educational brochure for faculty skeptics.  But to the extent it is, I doubt the older and fartier ones will read it unless it is foisted on them, and I hope she is not suggesting that the junior person ought to be the one to hand the article to a Luddite on some kind of suicidal educational mission.  Better to stay in the Saigon Hilton playing karate with the mirror than to enter that jungle seeking to tame the old man.

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October 25, 2006 in Associates | Permalink | Comments (0) | TrackBack (0)