November 18, 2006
"Please Don't Feed the Trial Lawyers" & Lawyer Bashing: Election Update
Posted by Alan Childress
Earlier this year, St. Louis lawyer-blogger Evan Schaeffer of Legal Underground offered an interesting post on industry and media lawyer bashing. His rant (and that of his guest 'Unnamed Associate') was inspired by a tort reform billboard admonishing, "Please Don't Feed the Trial Lawyers." The sign was "ugly and obnoxious," he added--sharing a great photo of it (not the generic and healthy one right). Their blogposts in turn inspired lots of strong (pro and con) Comments, found here and here, and further anecdotes at that time.
Now Schaeffer has an update following the elections: How did those tort reform and court reform campaigns eventually fare, after all this talk and spending? His take (with examples): not so well. "In short, they lost." That is, he adds, for now; it is "no time to gloat," since "I'm not sure that one mid-term election means all that much."
At least now maybe the ugly billboards can come tumbling down. In Tucson, campaign signs have to, within 15 days of a general election--leading the Land Use Prof Blog to wonder about the First Amendment implications of such semiotic-purging regulations on blatantly political speech.
Texas Center for Legal Ethics Seeks Executive Director
The non-profit Texas Center for Legal Ethics and Professionalism posted this announcement for an Executive Director to run its office (in Austin). "The Executive Director is responsible for the professional, administrative, and financial work...and to develop new programming opportunities for education and training in the areas of legal ethics, professionalism, and grievance avoidance." Complete job description here from the state bar site. Deadline: Dec. 15. [Alan Childress]
Ordinality Gone Berserk: P Number Status in Michigan
The November 2006 issue of the Michigan Bar Journal features an article, written with tongue firmly planted in cheek (I hope!) by one Daryle Salisbury, about the history of the attorney bar number, known in Michigan as the "P Number." For all that we lawyers attribute status to anything remotely suggestive of a number (from USNWR rankings to brain volume), I can attest, as a member in good standing of the Michigan bar and former practitioner, yes, as Mr. Salisbury relates, having a low P number did carry with it some amount of status.
The original set of P numbers were assigned to the 12,763 lawyers practicing in 1974 when the system was instituted, ranging from P10001(Arnold K. Aach) to P22764 (Abraham Zwerdling). (I prepared so many pleadings containing a signature block of my mentor Donald S. Young that I can still remember his P number, P22636, as well as my own P30713.) Remarkably, if you were to be admitted to the bar today, your P number would be something in excess of P69234.
I'm thinking that it would be nicely efficient and highly ordinal if, where a tie breaker between lawyers is needed in any circumstance (some examples: deposition at your office or mine; my language on the environmental representation or yours; who gets the bigger office, etc.), we have something like the Sagarin system for ranking football teams. And in honor of my many friends in the law and economics movement, here is the first draft of an algorithm for determining your L (for Lipshaw) number (I haven't worked out several things, like a proxy for the co-efficient of pomposity, or how to make this work on a unisex basis):
L = (1/PN)*(100*BV/SSF)*(250-USR)
[BSc - BSls]
L is the Lipshaw number
PN is P number
BV is brain volume
SSF is stuffed shirt factor
USR is US News ranking of your law school
BSc is current belt size
BSls is belt size upon law school graduation
The Practical and Economic Consequences of Rules Prohibiting Secret Settlements
Posted by Alan Childress
Many states, newspaper editorials, legal newspaper articles, proposal submissions to the ABA, and especially law professors are all mulling the idea--in proposed ethics rules and more generally--of prohibiting or limiting secret settlements. Two law professors at the University of Kansas Law School have approached the question anew by examining the economic and practical by-product of such anti-secrecy proposals. Their conclusion: "restrictions on secret settlements not only may be ineffective, but in fact may be counterproductive." For example, "rather than increasing the information available to the public about alleged hazards to public health and safety, restrictions on secret settlements may have the unintended consequence of doing exactly the opposite," as parties avoid scrutiny and the public record of filings by acting outside of court or by arbitration.
The paper, "Secret Settlement Restrictions and Unintended Consequences," is authored by Christopher Drahozal & Laura Hines (left). It is now posted on SSRN and will appear in the Kansas Law Review; find its full abstract after the jump. (By contrast, here's a link to a 2003 article by David Dana & Susan Koniak criticizing secret settlements.)
The Drahozal and Hines abstract is:
This Article evaluates the likely consequences of restrictions on secret settlements. Both the defendant and an early claimant - a claimant who discovers that he or she has a claim before other claimants do - have a strong incentive to maintain secrecy, and they have a variety of means by which they might do so. First, in many cases, a claimant can circumvent restrictions adopted by a single state or federal court by filing suit in a state or court without such restrictions. Second, parties might circumvent secret settlement restrictions adopted by a single state by choosing another state's law to govern the settlement. Third, parties could avoid restrictions on secret settlements in court by settling before the claimant files suit. Finally, many parties could accomplish much the same result as a secret settlement by use of predispute or postdispute arbitration agreements, taking advantage of the privacy of the arbitration process. Indeed, restrictions on secret settlements not only may be ineffective, but in fact may be counterproductive. To the extent the restrictions encourage parties to settle before the claimant files suit or to choose arbitration instead of litigation, they may reduce rather than expand the amount of information available to the public about the dispute. Currently, if the secret settlement occurs after the claimant files suit, the factual allegations in the complaint are a matter of public record for some period of time (at least until the settlement occurs). If secret settlements are prohibited, and the settlement takes place outside of court or the case goes to arbitration, even that information is lost. Thus, rather than increasing the information available to the public about alleged hazards to public health and safety, restrictions on secret settlements may have the unintended consequence of doing exactly the opposite.
November 17, 2006
Thunderdome: Bar Counsel Group to Hold February Meeting Dangerously Near PR Lawyer Camp (Or: Carpe Per Diem)
Posted by Alan Childress
The National Organization of Bar Counsel (NOBC) will hold its mid-year meeting in Florida, with details to come. "Everyone’s tired of winter by February, so why not join your NOBC colleagues for a great program at the Mid-Year Meeting in Miami from February 7 through 10, 2007? We’ll be holding our meetings at the Don Shula Hotel and Golf Club, which is northwest of Miami in Miami Lakes." Hold the date.
The Association of Professional Responsibility Lawyers (APRL) announces its mid-year meeting: "Sunny Miami Beach
It is apparent that the two camps will meet by canoe across Miami Lakes for the winner-take-all Annual Ethics Elympic Games on which the good guys' continued ownership of the camp inexplicably hinges. It is predicted that the Aprl Zeals will take the egg-tossing event and the SOX race, but the Nobc Naughtybusters will come back strong in both the third-handed race and the tug-of-warrant. The inevitable tie will be broken by a cross-country race where a now middle-aged and paunchy Wudy the Wabbit Esq., inspired by coach Bill 'Tripper' Murray, hopes to get the jump yet again on his more athletic opponent, this time through everglades.
Note on the philosophy of 'Seize the Expense Account': It is generally considered "unethical" to submit receipts for both meetings in an attempt to double the reimbursement and MCLE hours. It is even worse to show slides from both events to your next-door neighbor.
How Prepared Are New Attorneys?: Survey Says...
This week the blog Law School Innovation, at this link, posted a general request for readers to provide input on the sorts of questions that should be used by Harvard's Berkman Center to construct a survey of relatively new attorneys. "I ask anyone with an interest in the topic to submit your suggestions for what this survey should entail," writes poster and Berkman fellow Gene Koo. The Comments posted there at LSI are already rich with suggestions, but you can post what you'd want to know too. [Alan Childress]
Lessons in Passion, Joy, and Energy from Professor Schembechler
Perhaps he did not teach things as consequential as we purport to teach in the legal academy, but Professor Schembechler taught and modeled character in a way that made us proud to be associated with him. The team first, aspirations to excellence, respect for the person, and above all a teacher. I can only hope that four days before I go I have this much passion, joy, and energy about what has been important to me in my life.
by Mike Frisch
A recent post described a new Florida rule that permits a client to knowlingly waive a statutory limitation on contingent fees. The Indiana Supreme Court recently imposed discipline where the attorney attempted to circumvent Indiana's 15% limitation on patient compensation amounts in excess of $100,000. In Matter of Stephens, the attorney was concerned about the agreed contingent fee and offered the client the option of either an hourly rate or a non-refundable $10,000 payment in addition to the contingent fee. The client paid the $10,000 but discharged the lawyer about 18 months later and sought a refund. The lawyer refused but later did refund the retainer after disciplinary proceedings were initiated.
Two important points. First, a material change in an agreement regarding fees may be considered a business transaction with a client. Rule 1.8(a). The transaction must be fair and the client must be advised to seek independent advice. Second, agreements to pay fees in excess of the statutory maximum may be considered per se unreasonable absent a rule like the Florida one. Rule 1.5(a).
A lawyer may be well advised to honor a fee agreement reached with the client even if it seems like a bad bargain when seen in the rear-view mirror.
Feldman & Harel on Rules, Standards, and Social Norms
Yuval Feldman (Bar-Ilan, left) and Alon Harel (Hebrew University - Jerusalem, below right) have posted Social Norms and Ambiguity of Legal Norms: An Experimental Analysis of the Rule v. Standard Dilemma on SSRN. Here is the abstract:
The general belief is that social norms influence behavior. Yet the influence of social norms on the willingness to obey legal norms depends to a large extent on contingencies which have not been investigated. This paper explores two parameters which influence the degree to which social norms influence the willingness of individuals to conform to the law: the type of social norms (positive or negative norms) and the type of legal norms (rules or standards). The paper explores the effects of these two parameters on legal compliance. Our findings indicate that in the absence of information concerning social norms, rules and standards have similar effects on compliance. In contrast, rules and standards have differential effects on compliance when they interact with social norms. Furthermore, our findings also indicate that negative social norms, namely social norms of disobedience, have greater effects on the willingness to obey legal norms than social norms of obedience.
I think this is a fascinating subject. I'm in the midst of presenting to a number of workshops my critique of the Delaware Chancery Court decision on disclaimers of promissory fraud in complex business transactions. Fraud is standard-based and requires an ex post review of the facts and circumstances; contractual disclaimers are rule-based, in which one party ex ante attempts to cut off that very inquiry. To put my argument into the context of this paper, narrow construction of disclaimers of truth-telling would make sense as against the strong social norms against lying, and that norm's incorporation into the law as a standard.
November 17, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
More on the Super-Lawyers Banished From Metropolis, New Jersey
The New Jersey AG's office has now filed its response brief to the state's restrictive rules against advertising with one of those "Super Lawyers" or "The Best Lawyers in America" designations, says this law.com story. The NJ Supreme Court will have to decide the fate of such rating services, which were virtually put out of business there by an earlier ban on attorneys' use of the designations--the country's toughest such ban--on which Jeff had previously posted. The AG brief supports the ban but in a more qualified way that may leave the Court room for doing what some other states do: allow the designation with apt disclaimer. (The July 24 ban by the Court's advisory committee on advertising had even forbidden lawyers from participating in the selection process! Thus, future ratings in NJ must be based on lawyer brain volume only, no subjective surveys.) Presumably, then, New Jersey has no place for the ultimate super-lawyer, Attorney Man, or even Daredevil or possibly Batman himself. [Alan Childress]
What is Chicken, Is a Buckeye a Hairless Nut, and Other Great Questions
I make no predictions, but at least with the onset of age, I can sleep before and after the game without the stress dreams that used to afflict me. I believe, however, in the power and transcendence that emanates from the winged helmet. [Jeff Lipshaw]
November 16, 2006
Yet Another Reason it Sucks to be the Governor's Daughter
For instance, your colleagues leak your emails. Headline and first paragraphs from AP (?!) and found in today's online New York Lawyer:
Emily Pataki, Now NY Biglaw Associate, Fails Bar Exam on First Try
ALBANY, N.Y. -- Emily Pataki, like the late John F. Kennedy Jr., has failed the New York state bar exam on her first attempt.
Pataki, the eldest daughter of Republican Gov. George Pataki and, like her father, a graduate of Columbia University Law School, informed colleagues at the White & Case law firm in New York City in an e-mail memo Tuesday that she failed the exam. A copy of her e-mail was obtained by the New York Observer weekly newspaper and reported Tuesday on its political Web site.
My 2 cents: You know what? The bar exam is hard. Brilliant people have failed it. It'll be tough, Emily, but hang in there. This will be a distant memory soon enough and you will do great things in law. Anyway, this is not news and should not be an AP or NYL story. [Alan Childress]
by Mike Frisch
A recent Illinois Review Board decision interpreting Rule 4.2 should be of particular interest to the domestic relations bar. Matter of Peters involves a series of incidents that occured during an attempt to settle a dissolution action. The husband's lawyer was trying to finalize a settlement agreement and the wife's lawyer left to attend to other court business. Husband's lawyer asked for but was refused permission to talk to the wife. Wife then overheard discussions between husband and his lawyer concerning changes in the agreement and heard that, if they both agreed to the changes, the dissolution proceeding would end. Wife walked over, but there apparently was no substantive discussion between her and counsel.
Husband and wife then met without counsel present and wife signed off on the revised agreement. Husband's counsel submitted that agreement to the court. Wife's counsel was unable to convince her to revoke the agreement and withdrew from the representation. After the court approved it, wife felt the inevitable buyer's remorse but failed in her effort to set the agreement aside.
Did husband's lawyer violate Rule 4.2? No with respect to the hallway encounter, according to the Review Board, because there was no direct, intentional contact between wife and husband's attorney. Yes, however, in giving the revised agreement to husband with knowledge that he would deliver it to wife directly. The interference with wife's attorney-client relationship with her lawyer in removing counsel from the settlement process was also held to constitute conduct prejudicial to the administration of justice.
NOBC Adopts GATS Resolution
The ADA and Attorney Discipline
by Mike Frisch
The Supreme Court of Arkansas recently published a decision rendered in December 2004 in a disciplinary case involving two complaints against an attorney, one filed by by Judge Susan Weber Wright of Bill Clinton-Paula Jones fame. The case raises several interesting points of disciplinary process and procedure. There is a discussion of the penalty phase of a bar proceeding and the appropriate use of mitigating and aggravating factors. Disciplinary counsel may not offer evidence of uncharged misconduct in the misconduct phase without amending the charges to give the accused attorney fair notice, although such misconduct may be considered in the sanction phase. The lawyer's claim of entitlment to mitigation under the Americans with Disabilities Act was rejected due to insufficient evidence (the diagnosis was dysthymic disorder), with the court citing cases finding the ADA inapplicable where the proven misconduct demonstates that the attorney is not qualified to practice law. Disbarment was imposed in light of the court's finding misappropriation of advanced fees.
The case is Ligon v. Price, 200 S.W. 3d 417 (Ark. 2004).
Goodbye Peer Ranking; Hello Brain Volume!
Posted by Jeff Lipshaw
A good friend who is a federal judge in Detroit does the New York Times crossword puzzle every day to keep the mental juices flowing. (I do it for the same reason, but only from Thursday through Saturday, but that is because, as my seventeen year-old son puts, "you are an arrogant ass.")
The Wall Street Journal is reporting this morning that physical, not mental, gymnastics are what keep the old noodle in shape. According to a study published in the November issue of the Journal of Gerontology: Medical Sciences, Prof. Arthur Kramer of the University of Illinois (Urbana-Champaign) and colleagues claimed that people who exercised as little as three hours a week "had the brain volumes of people three years younger."
We need to be clear here on the definition of brain volume, as reported by the WSJ: "the brain's volume of gray matter (actual neurons) and white matter (connections between neurons)." You measure brain volume with magnetic resonance imaging, and studies have shown that the bigger the brain, the better the thinking, the remembering, the cognitive flexibility, and the perseveration (although I did not see whether brain volume was related to a man's ability to see the butter when opening a refrigerator).
There is research opportunity here. How about a new empirical study in which we determine the average brain volume of law school faculties and law firm partnerships? Wouldn't it be something to find out the USNWR rankings either correlate or do not correlate to average brain volume? Think about the advantages. Instead of the annual deluge of glossy law porn, we'd be rolling MRI machines into the lobbies in Palo Alto, Cambridge, Morningside Heights, Ann Arbor, New Haven, and Hyde Park. Deans would be organizing calisthenics in the faculty lounge. Faculty workshops would be replaced by brisk walks around the campus. Aspiring lower tier schools could spend less time on lateral hiring and more time on Pilates.
And the University of Chicago would have to disavow the famous line (which I recall being in the application materials when I applied to the law school back in 1975) of its former president Robert M. Hutchins (left, with Maude Phelps Hutchins): "Whenever I get the urge to exercise, I lie down until the feeling passes away."
November 15, 2006
Serving by Fax is Bad Public Relations for Bama
The blogger "WiredGC" says that worse than suing a fan-artist to assert the intellectual property rights of a major [intellectual powerhouse] university is...serving the lawsuit by fax. Two LP insights: "The first is just because you can, doesn't mean you should. The second is that methods matter, and are largely what the court of public opinion rules on." So true. Nonetheless, roll tide. [Alan Childress, '79]
Faster than a Speeding Ticket; More Powerful than a Writ of Attachment
Look! Up in the sky! It's Rose Bird, it's a plane!
No, it's Attorney Man!
[Jeff Lipshaw - HT to Ray Diamond]
HALT Organization Grades States' Lawyer Discipline Systems (and Utah Gets No Big Love)
Posted by Alan Childress
The watchdog organization HALT ("An Organization of Americans for Legal Reform") is out with its new report card on bar discipline. All the states' bar discipline systems are graded for 2006 based on such factors as adequacy of discipline, promptness, openness, fairness, and lay participation.
This follows up the organization's 2002 survey and assessment. "Unfortunately, few states showed any improvement, and many states' systems actually saw their grades decline!" Only Utah, right, received an F this time around (slow, gags complainants, and imposes public discipline in less than 5% of investigated cases). But that is hardly good news for many other states. It is not as if the plethora with a D+ (including New York, Ohio, Iowa, Texas, and California) or C- (Virginia, Louisiana, Kansas, and many others) can brag to their local papers. DC and Jersey got a C+. The 'best' grades (B-) went to Colorado, Arizona, and Connecticut. [Not the same curve used at many law schools today, but fascinating nonetheless.]
There's a helpful color-coded map rating the states. Specifics on each are found by a pull-down menu, with details on all factors and their changes since 2002. Here's the comparison chart for all jurisdictions. The HALT site follows other issues and is one of the permanent resources we link at left.
Comparing Engineering Ethics to Lawyer Ethics
Posted by Alan Childress
There is a brief and surprisingly interesting 2006 article, posted on the website of the American Society for Engineering Education, which compares the ethics codes for lawyers to those for engineers. It particularly focuses on the approach, mindset, and structure of the two sets of codes, and finds that the engineering rules--which tend to be sparser, more abstract, and less practical--can gain from the ABA's experience and product. It is entitled, "A Comparative Study of Professional Ethics: What Can the Ethics of the Legal Profession Teach Engineers?" The authors, Paul Rossler and Martin High, are engineering professors at Oklahoma State, and one of them (High) is also trained and licensed as a patent lawyer.