Legal Profession Blog

Top Ten - Legal Ethics & Professional Responsibility - Nov. 14

Sham, Alydar, Joe Frazier, Andy Roddick, Orly Lobel's Harvard Law Review article.  What do they have in common?  All deserved to be Number 1, but were just born at the wrong time.  So as Secretariat was to Sham, Affirmed to Alydar, Ali to Frazier, and Federer to Roddick, so are Balkin & Levinson to Lobel.  A great paper, and despite its placement in the HLR, doomed never to hit the top of the SSRN charts, simply because it was born at the wrong time. 

But there are no losers here - it's an honor just to be able to play the game!

Here are the papers with the most downloads in the Legal Ethics & Professional Responsibility Journal, as reported by SSRN for the last sixty days.

1 Law and the Humanities:  An Uneasy Relationship, Jack M. Balkin, Sanford Levinson, Yale University - Law School, University of Texas Law School

2 The Paradox of Extra-Legal Activism:  Critical Legal Consciousness and Transformative Politics, Orly Lobel, University of San Diego School of Law.

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

4 Options Backdating, Tax Shelters, and Corporate Culture Victor Fleischer, University of Colorado at Boulder - School of Law

5 Harry Potter, Ruby Slippers and Merlin:  Telling the Client's Story Using the Paradigm of the Archetypal Hero's Journey, Ruth Anne Robbins, Rutgers School of Law - Camden.

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

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

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

9 Scholarship Advice for New Law Professors in the Electronic Age, Nancy Levit, UMKC School of Law

10The Public Responsibility of Structured Finance Lawyers Steven L. Schwarcz, Duke University School of Law

[Jeff Lipshaw] Clip art courtesy of Cindy Pierson-Dulay's Horse-Races.net.

Verdict for Illinois Supreme Court Justice in His Libel Lawsuit

The jury awarded $7 million in damages today to Supreme Court Justice Robert Thomas in his libel suit against a local newspaper that had reported in 2003 that Thomas had used his bar disciplinary authority for political purposes and threats.  Here is the story from the Chicago Sun-Times.  [Alan Childress]

Spindler on Corporations' Release of Information After Dura Pharmaceuticals' Securities Damages Rule

Posted by Alan Childress

James Spindler (Southern Cal., Law) has posted on bepress Legal Repository the article, "Why Shareholders Want Their CEOs to Lie More after Dura Pharmaceuticals." It will be published next year in the Georgetown Law Journal.  Despite the provocative title, it seems primarily about the timing and "bundling" of release of corporate information and, in any event, raises some implications for proper counseling of corporations after the Supreme Court, per Justice Breyer, decided Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005).  The abstract:

The Supreme Court's recent Dura Pharmaceuticals decision requires a plaintiff to show a market decline (ex post losses), as opposed to price inflation at the time of purchase (ex ante losses), in order to maintain an action for securities fraud. Since fraud is actionable only where a market decline attributable to the fraud occurs under the ex post loss rule, firms that can bundle together disclosures or business projects are under-deterred by the antifraud regime: the success of one project may compensate for the failure of another, the firm can time the release of good and bad news to mask fraud's effect on price, and "other factors" that would have caused a loss of investment value even without the fraud can disallow a claim for damages. Strategically, firms may bundle to minimize exposure to liability. On the other hand, firms that value transparency may wish to unbundle. In this sense, the credibility of disclosure under an ex post loss rule depends on the extent to which firms can and do unbundle, whereas an ex ante regime is theoretically perfect in any case. This analysis also reveals two additional problems with an ex post rule: market tests for ex post damages awards (a chief purported benefit) are generally not available for bundled firms, and awarding ex post damages may over-punish small frauds but reward big ones.

Spindler had previously posted on analysts' conflicts of interest in "Conflict or Credibility: Analyst Conflicts of Interest and the Market for Underwriting Business."  It was published in volume 35 of the Journal of Legal Studies (June 2006).

West CLE Webcast 12/18 on Ethics In Corporate Counseling

Topic is "Ethics 2006:  Corporate & Legal," and includes SOX, internal investigations, "who is the client?", backdated options, and corporate attorney-client privilege.  Live webcast is 3.25 hours on Monday, December 18, 1:30 pm EST. 

UPDATE: Here is a link to the entire West collection of audio CLE webcasts on ethics from the National Business Institute, which are field-specific and run various dates. [Alan Childress]

A Confidentiality Dilemma

by Mike Frisch

Here's a case that can serve as a teaching tool regarding the perils of making disclosures adverse to a client even where the client has threatened and intimidated the lawyer.  In re Ponds involved a lawyer who represented a client on a federal weapons charge. The client had prior convictions for offenses including assault with intent to disable. The client was released on home confinement with work-release privileges. He stopped cooperating with the conditions of release and a warrant for his arrest was issued.

Shortly thereafter, the client appeared at the lawyer's office with another man known as "Bones." They pressured the attorney to write a retainer refund check for $5000. The hearing committee in the bar case found that the attorney acted as a result of fear for himself and his office staff. As soon as the client left, the attorney left a voice mail message with the AUSA describing the events. The attorney also stopped payment on the check.

The attorney then filed a motion to withdraw that described the office encounter and related certain legal advice that the attorney had given. Applying Maryland's confidentiality rule, it was found that the disclosure of information relating to the client's whereabouts and knowledge of the warrant was protected by the duty of confidentiality. The disclosures were not necessary to establish a defense to a potential charge of aiding the bail jumping because of the stop payment order on the check. Public censure was imposed in recognition of the difficult circumstance confronted by the lawyer.

The lesson is clear. Whenever a lawyer discloses information adverse to the client, such disclosures must be strictly limited to those permitted by the applicable rules.

New District of Columbia Ethics Rules

by Mike Frisch

The District of Columbia Court of Appeals has adopted extensive revisions to its Rules of Professional Conduct effective February 1, 2007. The court appoved the proposed amendments of a bar committee that had devoted study to the last round of ABA Model Rules changes. One new rule brings D.C. more closely in line with the ABA on the confidentiality exception allowing disclosure to prevent, mitigate or rectify substantial injury to financial interests of another as a result of a client's crime or fraud. The full revisions can be downloaded from the D.C. Bar's web site (www.dcbar.org).

One interesting departure from the ABA is new Rule 4.4(b): A lawyer who receives a writing relating to a representation of a client and knows, before examining the writing, that it has been inadvertently sent, shall not examine the writing, but shall notify the sending party and abide by the instructions of the sending party regarding the return or destruction of the writing.

Interesting rule, particularly in light of case law that holds that the attorney-client privilege is waived by such inadvertent disclosure. I'd be curious to hear any reader reaction to the wisdom and/or effective impact of this rule.

Pre-Clearance of TV/Radio Ads and Other New Marketing Restrictions in Florida: Prior Restraint?

Posted by Alan Childress

David Hricik at LegalEthicsForum posted a link to the law.com story on the new Florida state bar requirement of 15-day pre-screening for radio and TV ads (previously simultaneous submission to the bar sufficed, as it still does for non-broadcast media).  And Brad Wendel wondered how this is not an unconstitutional prior restraint. 

There's more, though it does not answer Brad's question.  Here is a thorough Florida Bar News story on this and other changes to the attorney advertising rules in Florida--following from a Nov. 2 state Supreme Court ruling linked here on the subject, issued after nearly two years of bar study and proposals, and made effective January 1.  The issue of whether websites and online advertising fall under such regulation (somewhat related to the New York state blogs-as-advertising debate currently raging) was left for a later day and further study.

I'll offer one 'answer' to Brad's question, which is not meant to placate him or predict success within the courts in resisting constitutional challenges to the new rule. That is to note that commercial speech, particularly in the broadcast media, receives only the limited protection of 'intermediate scrutiny'--and some courts may find that pre-screening falls acceptably into that less-protected sphere in a way that would not be allowed for more protected speech like political ads.  (For example, such commercial speech already constitutionally may require disclaimers in ways we would never force a citizen to speak politically ('Live Free or Die')). That's the argument at least, and one I know Brad 'knows' as his question was rhetorical.  I don't buy it, as explained after the jump.

While the substantive protection of intermediate scrutiny varies by the commercial nature of the speech, I would hope that courts will ultimately rule that prior restraint of any kind can be justified, if at all, only with the highest scrutiny and state justification imaginable.  This should also be true as long as the subject matter falls into a protected category at all.  Commercial speech is still "protected."

One might easily further argue that ultimately unprotected speech at least deserves a prohibition against pre-censorship regardless of the liability rules that exist and are constitutional ex ante.  Would we accept a review board placed into crowded theatres to prevent in advance someone from shouting fire?  More realistically, would we approve a pre-screening review board to read newspapers to make sure they don't falsely libel anyone?  Would we allow prior restraint of films reviewed by community standards in advance and declared to be obscene?  Already the judicial and historical answer to the last two hypos has been given as No, even though the speech is not fully protected in the strict way that core First Amendment expression is.  Some say we might accept a pre-screening of science journals on nuclear how-to secrets, but I assume that we would hardly do so by merely asking the censor to justify it with tepid intermediate scrutiny arguments. 

Commercial speech may not be 'fully' protected, but neither are the dangers of improper lawyer speech so huge, immediate, and irremediable that prior restraint is warranted there, if it ever is.

UPDATE:  Here is the ABA Journal's on-line story Nov. 17, about the Florida rules and quotes about their restrictions on misleading illustrations.

Tracking the Diversity Talk/Actions of the Profession and Especially Law Firms

There is a blog, named Law Firm Diversity:  A Rational Discussion, that follows diversity in law firms, even specific named ones, as well as the issue of diversity of race and gender in the profession generally.  For example, a post links this article from the Boston Herald on whether what law firms say about diverse hiring and promotion matches what they do--and how minority job applicants should research and detect that.  And a series of posts from November 9 link specifically to stories on Indianapolis's Ice Miller, the head of NY's Weil Gotshal, and the University of Michigan's first response to the state's constitutional amendment on affirmative action.  It seems to be an updated source to track the reality of such programs in the profession and particularly in law firms beyond their public relations.  Although one may not necessarily agree with the political premises of the blog, it does seem to be a useful resource for such links and it helpfully follows the firms' public pronouncements about diversity. 

UPDATE:  The site Feminist Law Professors by South Carolina law prof Ann Bartow is a similarly useful blog resource to follow events and especially theory related to the gender diversity of the profession.  Here is a link to its subcategory on "the legal profession." [Posted by Alan Childress]

Update on 7000 Democratic Party Lawyers Freed Up

In a post last week, we reported from the New York Times that the Democratic Party mobilized 7000 lawyers for election day.  Quote: “We’re not going to make the mistake we did last time, which was to wait until after the election for litigation.”  Or wait to know what one might sue for.  This is an entirely new function of the Federal Declaratory Judgment Act:  a lawsuit to have the judge declare what the suit is about.  If so, essentially it can become the Federal Placeholder Act.

Presumably most of those pre-suits were voluntarily dismissed later.  So the 7000 lawyers became unexpectedly available for pro bono work.  We at LPB congratulate them for taking on massive amounts of pro bono work this past week and only regret that it was not reported at all, anywhere.  Perhaps the lack of any publicity about it is due to a failure to sue for these clients in advance of knowing what the legal complaint is.

More likely, the 7000 lawyers became available for representing Britney Spears and Kevin Federline as well as their dependents (i.e., The National Inquirer and People, the latter having declared It's A Girl! though Spears had another boy). The parties are not diverse so they will not be able to file in or remove to K-Fed Court.  However, the children's own attorneys are entitled to seek double-wide declaratory relief if not a demurrer; they are understandably afraid of both parents' obvious entitlement to Adult Support.  [Alan Childress]

Back By Popular Demand - The Quadrant Matrix Theory

Posted by Jeff Lipshaw

Back by popular demand (well, maybe not popular, but one person keeps asking me about it), dredged up from the deep, dark recesses of the PrawfsBlawg archives, is my post on how to succeed as a consultant (or as a Harvard Business School prof).

* * *

There is a trick to establishing oneself as a wildly successful management consultant.  Here's how it works.

1.  Identify two necessary,  mutually interdependent, yet conflicting attributes or values.
2.  Plot one attribute low to high on the x-axis, and one low to high on the y-axis.
3.  Draw a rectangle with the x-axis on the bottom and the y-axis on the left.
4.  Bisect the rectangle vertically and horizontally to create four quadrants as a matrix.
5.  Identify examples for each quadrant of people, organizations, or whatever it is on which you are consulting that, in your opinion, have the two attributes in the following combinations:  low-low, high-low, low-high, and high-high.
6.  Make it clear that the correct progression in the matrix is from low-low to high-high (i.e., southwest to northeast).
7.  Offer a list of ten things the group hiring you can do to move from low-low to high-high.
8.  Close to thunderous applause, find the bar, and hope they have one of those huge bowls of boiled cocktail shrimp.
9.  Mail your bill for $5,000 for the day's work.

A less cynical take on this below the fold.

In fact, when well done, these presentations are memorable, because the models are simple and there is a fundamental insight they elicit.

I listened to John Kotter (right) of the Harvard Business School present his four-quadrant model on leadership and management to an executive conference when I was working for AlliedSignal.  Kotter's thesis is that management and leadership are just these kinds of necessary, mutually independent, and conflicting attributes of people and organizations.   Management consists of (1) planning and budgeting, (2) organizing and staffing, and (3) controlling and problem-solving.  The leadership analogs of these activities are (1) setting direction, (2) aligning people, and (3) motivating and inspiring.

This is a little dated, but when I listened (circa 1995), Kotter's examples were taken from the airline industry, and you can guess who stood where:

Low management - low leadership:   Eastern
Low management - high leadership:  People's Express
High management - low leadership:  United
High management - high leadership:  Southwest

The point is that leadership and management, particularly as they are found in individual styles, can be oil and water, but successful organizations need both. Another model came from a fellow by the name of Tom Connellan (left) who was affiliated with the University of Michigan Business School, and  specialized in consulting on customer service.   Tom was enamored with the intense focus on customer service one found in the Disney theme parks.  Tom's was actually a nine-quadrant matrix, with quality of product on one axis, and quality of service on the other.  What each box described was the customer's attitude toward the firm, and it went like this:

Low quality - low service:  Gone
Low quality - mediocre service:  Going
Mediocre quality - low service:  Going
High quality - low service:  Looking around
Mediocre quality - mediocre service:  Looking around
Low quality - high service:  Looking around
High quality - mediocre service:  Loyal
Mediocre quality - high service:  Loyal
High quality - high service:  An advocate

Just this morning, a friend and I were discussing her painting, and, on the spur of the moment, I did a four-quadrant matrix on "technique" and "passion" (get it?  artists can have high or low technique and high or low passion, and you want to avoid being a passionless hack in favor of being a passionate technician, but if you can't have both, you need one or the other). 

This can be quite a parlor game, though I 've not yet figured out how to package it as the next Boggle or Trivial Pursuits.   Or make it a cultural icon like Six Degrees of Kevin Bacon.  I have thought about whether the model applies anywhere in legal academy, and if so, what's the point?  Teaching vs. scholarship?  Clinical vs. doctrinal?  Empirical vs. theoretical?  Does every professor need to strive for high on both axes?  Can you plot faculties as a whole from school to school?   And when you are done, does it mean anything?

UPDATE:  Co-editor Childress and I have been brainstorming another parlor game (for a boring party): name a public figure whom you liked originally and now can't stand (politics is too easy so that doesn't count).  I nominated Katie Couric; Alan nominated George Foreman.  You can do the reverse as well:  my candidate there is John McEnroe.