December 9, 2006
In Massachusetts, Prosecutor's Dinner With Jury Shows Lack of Judgment Non Obstante Veredicto
Posted by Alan Childress
Interesting story Friday in the Boston Herald, "Prosecutor Partied With Jurors: Conduct After Cape Trial Raises Judgment Questions." Two days later he was confirmed as a state judge. The defense attorney, appealing, "declined to comment on the party, but said he was not invited."
On Saturday, the paper reported the clarification by one juror that this was no party and jurors wanted answers from the prosecutor about process, sequestration, a booted juror, and the appeal. To me, this public defense of the prosecutor does not help that much: regardless of who initiated the meeting and the sincerity of the jurors' desire for information, the clarification does demonstrate that they were having substantive communications.
Whether or not that quite equals unethical "inquir[ing] of a juror concerning the jury's deliberation processes," it is not the role of the trial prosecutor to have substantive dialog with jurors in any event or assure them that the excused juror would not be prosecuted. To which a juror told the newspaper, “She was a big loss . . . but not a holdout,” referring to the booted juror. I don't see how jurors resisted volunteering similar scoop at dinner--when so easily offered to reporters--and that would then equal deliberative content.
But in any event it is hard to understand how readily the DA and others are defending the prosecutor-turned-judge (wouldn't they howl if it were the defense attorney?). Just because jurors initiated the talks and bought their own drinks? Just say no.
But Do They Make One in WordPerfect for Lawyers?
Posted by Alan Childress
Speaking of job satisfaction in the legal profession and during the holiday season: Ray Ward of Minor Wisdom writes about depression among lawyers, Carolyn Elefant touts WordPerfect over Word for lawyers in part because the latter has a new security flaw reported here, and Electronic Ephemera collects sites and technologies for everything you need that you did not know you did. Their connection? Consider the Suicide Letter Wizard for Microsoft Word website, which:
- Helps you to create a suicide letter according to your preferences. Use professional design.
- Choose from a variety of styles. Make your letter look great.
Does it use that awful little paper-clip man as a "helper"? That'd make me want to be thorough for sure.
But better yet, don't consider it. Or at least first read its unintentionally heartless and ironic legal Disclaimer, perhaps written by a lawyer who did not see the big picture: "All software on this site comes with no warranty. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED. Install and use at your own risk. Please refer to additional information in downloaded software packages documentation." I'm not sure that the biggest risk here is that the software will hang up your PC. Maybe if they sell it for Macs, too, it can be freely used without fear of crashing--or at least that's what one of those insipid Apple ads will say coming out of Justin Long's "cool" mouth (I always identify with the PC guy with the bad clothes and the nose-blowing).
The site reminds me of the reports that libraries kept losing copies of Final Exit, checked out but not returned. Anyway, Ephemera links to the wizard website here, as well as all sorts of useful sites, like the 248 ways to annoy people (#248 is "Get two cell phones and talk to yourself on them in front of other people."); Presidential oddities (Jefferson was "a lousy dresser" [like PC guy], J. Quincy skinny-dipped); the StrangeMaps blog (collecting historical [land of Holstein] and fictional ones [Tatooine, including Jabba the Hut's Palace] out there); James Bond Title Sequences; a Tax Refund Finder (nothing on it for me, so worthless); and the Santarchy site re global domination ("You'd better watch out.").
Plus the Torts teacher in me is transfixed by the macabre but eye-opening lifetime Odds of Dying Table from the National Safety Council: Fireworks discharge: 1 in 340,733. "Inhalation of gastric contents": 1 in 9,537. Air transport: 1 in 5,051. Bit or struck by dog: 1 in 117,127. Suicide by firearm: 1 in 222. [Not a typo; demand for Word Wizard bigger than one thinks.] And of course answering the universal question: lightning, 1 in 79,746 (the very same as odds that a single woman aged 41...nah, urban myth). By a short-circuiting BlackBerry? Priceless.
At one end are people so OCD that they worry how others might judge them on the format and presentation of their suicide notes. (Not me, I wouldn't even run spellcheckr.) At the other end, consider Prankmail. It's a website that's "making email fun again" by making your emails look like they are coming from someone else. [Insert a worst-case-scenario name--possibly a law dean's, or the doctor with your boyfriend's test results--here.] Oh, man. Let your brain run with the infinite possibilities. Just imagining is cathartic enough to prevent any desire to use the Wizard. (But imagining is all you'll dare to do; elsewhere on the site we find that your IP address is logged in. Still, try their suggested "Notes from your future self" idea on someone who believes in sci fi.)
Prankmail is a high tech tool for becoming just like George Clooney in more ways than--well, in the one way that you enjoy evil pranks. Just the tool for law firm jesters to have handy right now, during this festive time when firms are announcing bonuses. "It gives us great pleasure to announce that [insert seniorist partner's name] has decided that your 2350 in billable hours has earned you a gift certificate to Borders worth $50, plus a copy of Black's Law Dictionary for you to keep as long as you are still with the firm." One can only hope it will be read from the recipient's annoying BlackBerry just as he or she is self-importantly cutting in the front of your line at Starbucks. Make that 249 and 250 ways. Punk'd!
Dinovitzer & Garth on Job Satisfaction in the Legal Profession: Sorting the Social Class Factor
Posted by Alan Childress
Ronit Dinovitzer (Univ. of Toronto, Soc'y) and Bryant Garth (Dean of Southwestern Law School & ABF [left]) have posted on SSRN's Law & Society: Legal Prof. journal a provocative empirical article, "Lawyer Satisfaction in the Process of Structuring Legal Careers." It uses data as part of the ongoing After the JD Project following longitudinally the bar class of 2000 [part of their earlier work from the project, with others, here]. This one will be published in 2007 in Law & Society Review. Its abstract:
This paper proposes a new approach to the study of job satisfaction in the legal profession. Drawing on a Bourdieusian understanding of the relationship between social class and dispositions, we argue that job satisfaction depends in part on social origins and the credentials related to these origins, with social hierarchies helping to define the expectations and possibilities that produce professional careers. Through this lens, job satisfaction is understood as a mechanism through which social and professional hierarchies are produced and reproduced. Relying on the first national data set on lawyer careers (including both survey data and in-depth interviews), we find that lawyers' social background, as reflected in the ranking of their law school, decreases career satisfaction and increases the odds of a job search for the most successful new lawyers. When combined with the interview data, we find that social class is an important component of a stratification system that tends to lead individuals into hierarchically arranged positions.
In this After the JD Project team photo [all names here], Prof. Dinovitzer is shown sitting toward right, next to Dean Garth.
December 8, 2006
But Your Fifteen Minutes Are Not Quite Up Yet
Posted by Alan Childress
On the occasion of the wedding of Alene and Jeff Lipshaw's daughter Arielle today to Simon, LPB has decided to put Jeff through the Warholizer, a site that is sure to make Intellectual Property professors scurry to add a question to their exams. (HatTip to Minor Wisdom.) The startling results:
Party Bound By "Agency" Act of Lawyer: Appeal by Suspended Attorney Is Nullity
Posted by Alan Childress
Harrowing story today in the ABA Journal's online report about a Virginia appellate court's decision to find "no appeal" by a client because the lawyer who filed the notice for her was not technically a lawyer. He was suspended. For thirty days. Based on reciprocal discipline from DC, pending a hearing. But no one had yet told him--nor of course the client. The effect on appeal was that the client was not allowed to pursue alimony, and other decisions against her below including sanctions became unchallengeable.
I agree with the quoted sentiment of ethics prof Rory Little from Hastings that this is "formalism" run amok: in his word, "outrageous" to terminate the client's appeal right. I understand that the lawyer as agent can bind the client by his or her actions, but this? Effectively it creates a duty on clients to check the status of their attorney before trusting that filed papers are valid and timely. I am guessing that clients think the bar or court does that before accepting them! It is not just formalism or pedantic application of agency principles. It is abdication of the courts' implicit promise to supervise the bar before it. Clients would not know the difference between a bar discipline board and the court's clerks office which accepts filings, nor should they assume anything is amiss and somehow protect themselves.
The article understandably makes much of the fact that the lawyer himself did not know he was suspended. I don't care if he did. It's the reasonable expectation and perception of the client that should matter--perceiving reasonably that the lawyer's filing counts and the lawyer is licensed, and expecting reasonably that the courts and bar would tell her otherwise if she is wrong, or give her the chance to re-file with an attorney they find acceptable.
Ethics in the YouTube Generation: Lawyer Ad Is Funny For the Right Reasons
Posted by Alan Childress
Most funny lawyer commercials are that way for the wrong reason, and fuel the kind of bashing of the legal profession we posted on regarding Miss Manners. Here is one placed on, and linked from, the Googlish YouTube site that is funny (more cute than hilarious) because it is outtakes from making an ad where it's clear that the attorney is no glib actor--his theme is hire me for my lawyering not my marketing.
One thing I always notice in these talking-head lawyer ads, though, is that the background law library books are Aspen and West casebooks. Note to the public: student casebooks serve their purposes, but comprehensive legal research is not one of them. Try to hire a lawyer whose law books are grown up. Could be worse though; the display behind the head could be all Gilbert's.
Flood on Global Law Firms: Professionalism Vs. Business Ethos
Posted by Alan Childress
Law and society scholar John Flood (Univ. of Westminster), right, has posted on SSRN a chapter from a forthcoming book on professionalized labor groups. The chapter is "Resurgent Professionalism? Partnership and Professionalism in Global Law Firms," and the abstract is:
The industrialization of legal practice is leading to an increased tension between professionalism and business as varieties of the prevailing ethos in large law firms. Using historical and biographical data of law firms this tension is examined with the result that professionalism is, on the legal profession's own terms, dying out. Only in rare niche, smaller firms can residues of professionalism be located.
Flood has also posted, "What's Wrong with Legal Aid? Lessons from Outside the UK," an article arguing that the outsized UK investment in legal aid is not cost-effective and is driven by lawyer demand--and can be improved by looking to how other countries provide such representation. It is coauthored with Westminster colleague Avis Whyte.
Fr. Robert Drinan Inspires Still: Ethics In Action, Faith In Action
As Jeff Lipshaw posted on lawyers refusing to retire at 65 (and Carolyn Elefant comments there about changing and renewing oneself at such an age), up pops this headline from Legal Times, "Father Robert Drinan--Former Congressman, Legal Ethicist--Going Strong at 86." It is a story that Mike Frisch says "captures the essence" of the man--a figure in teaching legal ethics (among his many roles) who inspires many of us still, and Mike more personally so as a mentor and colleague. Is 84 the new 64? I think it is less about changing jobs or location so much as, more directly, doing something you really believe in. Apparently Father Drinan does, even by staying anchored: despite much traveling and as "busy as he is, he always circles back to Wolfington Hall, the newly built residence for the 56 Jesuit priests who teach and live at Georgetown," writes Tony Mauro. [Alan Childress]
District Court in 3d Cir. Rejects "Self-Critical Analysis Privilege"
The corporate party Kraft had asserted a privilege of internal evaluative materials in an employment discrimination case, but the district judge held there's no such privilege and found support in dicta in Third Circuit opinions. Story here from The Legal Intelligencer's Shannon Duffy (via Law.com). Judge Paul Diamond cited cases from the D.C., 4th, 5th, 7th, 8th, 9th, and 10th Circuits. The court issued its ruling sua sponte after first recognizing the privilege last year, leading the news story--oddly--to discuss the more accurate term mea sponte. [Alan Childress]
Asimow & Weisberg on Guilty Clients, Classical Adversarialism, & Pop Culture
Posted by Alan Childress
Michael Asimow (UCLA, below right) and Richard Weisberg (Cardozo, left) have posted on SSRN this article: "When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature, and Popular Culture." Here is their abstract:
David Mellinkoff's 1973 book 'The Conscience of a Lawyer' concerned a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty, but the client insists on an all-out defense? Mellinkoff focused on the Courvoisier case, a notorious English trial in 1840 in which defense counsel's tactics created an enormous public scandal. Legal ethicists have struggled with these issues ever since that time and they remain unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking in the certainly-guilty client situation. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide surprisingly interesting perspectives on the strong vs. weak adversarialism dilemma. Literature casts doubt on whether a lawyer can ever know with the requisite certainty whether a client is guilty. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings.
American popular culture, on the other hand, presents an emphatic answer to the question of what a lawyer with a certainly guilty client should do. According to pop culture, the lawyer's job is to betray the client to make sure the guilty criminal is convicted, dishonored, or killed. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth.
December 8, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
The New D.C. Rule on Inadvertent Disclosure: A Theoretical Framework
Mike previously noted that the D.C. rules are substantially revised effective Feb. 1, 2007, essentially to follow the "Ethics 2000" revisions, a/k/a the 2002 version of the Model Rules. One significant point of departure from the current rules he noted was new Rule 4.4(b): the lawyer who receives a writing in representing a client and knows, before examining the writing, that it has been inadvertently sent, is instructed to not examine the writing and to notify the sending party (to follow their remedial instructions, e.g., return it, shred it).
Still a very good analysis of the dilemma and the ABA's and bars' possible responses--within a theoretical framework beyond reflexive zealous advocacy--is an article last year by Andrew Perlman of Suffolk Law School (right, just across from the Boston Common and the Massachusetts State House). The article is not about the D.C. rule as such but does review all of the options and measures them against the role of the lawyer he describes beyond hired gun. It is found on SSRN and is entitled, "Untangling Ethics Theory from Attorney Conduct Rules: The Case of Inadvertent Disclosures." Its abstract and cite are after the jump. [Alan Childress]
The article is now published at 13 Geo. Mason L. Rev. 767. Its full abstract:
The article addresses a common question: What should the rules require lawyers to do when they receive inadvertently disclosed privileged information from an adversary? Many commentators have incorrectly assumed that ethics theories, such as the zealous advocacy model, can tell us the answer. In fact, existing ethics theories should serve a more limited role: they should only tell lawyers how to behave when the rules do not offer clear guidance.
To correct this mistaken reliance on conventional ethics theories as the primary generators of the positive law, this article develops an alternative model. The model suggests that, when creating professional regulations, we should draw on a wider range of values, including not only zealous advocacy, but also justice, morality, professionalism, consumer protection, consistency with other law, and the numerous considerations that go into lawmaking more generally, such as the reduction of contracting costs. By identifying and then weighing these various factors, this article concludes that the profession can provide a better framework for the development of professional regulations in general and a clearer answer to the inadvertent disclosure issue in particular.
Through the creation of a framework of this sort, it becomes apparent that we need to make two significant revisions to the Model Rule in this area, which at present only obligates recipients of inadvertent disclosures to notify senders about their mistakes. First, the Rule should be revised to require lawyers to return inadvertent disclosures when the senders request such returns, but only if the senders make the request before the recipients have reviewed the documents. Second, in those cases where senders do not discover their own mistakes, the Rule should not require recipients to bring those mistakes to the senders’ attention. The article contends that these proposed revisions are consistent with the wide range of policy rationales that should underlie professional rulemaking.
December 8, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Privilege | Permalink | Comments (0) | TrackBack
Boomer Retirement Blues, or Is 84 Really the New 64?
Today's New York Times features a story about former Weil Gotshal & Manges partner, A. Paul Victor, left, a luminary of the antitrust litigation bar, who hit the mandatory retirement age, wanted to keep working, and ended up down the street at Dewey Ballantine. The story highlights the more general issue of mandatory retirement ages, largely falling away in the face of the aging baby boomer population, but still in place at many law firms.
At 68, Victor is not a boomer. I am. But his situation sends chills down my spine. I can't imagine ever "retiring," whatever that means. I can imagine regenerating, but I've done that several times now. But "retiring" sounds like living death.
My hope is for a wave of old fart re-invention. What is the old saw? "Learn, then earn, then return." One of my best friends in Indianapolis took early retirement from Eli Lilly, then went back to school, got his Master's in Social Work, and spends part of his time counseling troubled teens in inner city schools. One of my former partners (he was one of the "old guys" in his forties when I started in the law firm) does alternative dispute resolution, and teaches it as an adjunct professor.
December 7, 2006
A Texas Sidebar on Internet Referral Services As Solicitation
Following up on Mike's report earlier of an Arizona ruling finding certain internet referral services (more than listings) to run afoul of its solictation rule: Here linked is a similar opinion from the Texas Center for Legal Ethics and Professionalism. It concludes: “Under the Texas Disciplinary Rules of Professional Conduct, a lawyer may not pay a fee to be listed on a privately sponsored internet site which obtains information over the internet from potential clients about their legal problems and forwards the information to one or more lawyers who have paid to be listed on the internet site." [Alan Childress]
Specter Bill To Alleviate Point 7 of Thompson Memo
It is actually called "The Attorney-Client Privilege Protection Act of 2006," and Ellen Podgor of White Collar Crime Prof here describes, and helpfully links to, the exact bill proposed by Sen. Arlen Specter today. It is in reply to the forced-waiver uses to which the Thompson Memo has been put by DOJ.
Do Lawyers Collaborate (And Don't Law Schools Teach Them Not To)?
As part of Law.com's Blog Watch, here, the prolific and always insightful lawyer-blogger Carolyn Elefant asks whether lawyers are behind the curve of other industries in maximizing collaboration, or even setting up offices and work structures to encourage that. She also wonders whether law schools encourage lone-wolf mentality and let atrophe some useful collaboration skills. Fair question. And she elsewhere posts a nice story and links about Burn-Out and the Practice of Law. One study suggests that part of the solution is encouraging pro bono work. [Alan Childress]
ABA Teleconference 12/21 on Ethics in Managing Multistate Practices
CLE in DC 12/11 on Corrupt Practices Act; One 12/14 on Privilege; 12/28 on Chess
The D.C. Bar as linked here is putting on a CLE on Monday Dec. 11, from 6:00-9:15 pm, on "A Practical Guide to the Federal Corrupt Foreign Practices Act," including how to conduct internal investigations. On Thursday, Dec. 14, also 6:00-9:15, the bar here is featuring, "Understanding the Intricacies of the Attorney-Client Privilege," including 2 hours of ethics in its 3.
Finally, on Thursday Dec. 28 (1:30-4:45 pm), there's this: "Ethics Chess: Thinking Ahead to Avoid Ethical Dilemmas." Topics, including conflicts and new clients, "are addressed through interactive, hypothetical scenarios." All 3 hours are ethics credits. [Alan Childress]
GGU Law Students Who Helped Out In New Orleans
We previously featured McGeorge law students planning to help out in post-Katrina New Orleans as part of their post-exam break, and GW law students helping reach their local community's needs. Here is further proof that such efforts are inspiring and ultimately fun: It's the report and photo shoot posted from Golden Gate University law students who spent spring break in NOLA pitching in. [Alan Childress]
A Little Charity is Not Unethical
The Lawyers Manual on Professional Conduct reports a recent ethics opinion from Virginia holding that small gifts to needy clients motivated by humanitarian purposes do not run afoul of the ethical rules that restrict financial assistance to clients. The opinion acknowledges that it was in the minority of jurisdictions that so hold, finding charity permissible where the lawyer maintains appropriate independent professional judgment in the representation. [Mike Frisch]
The Tricky Ethics of Business Gifts
The New York Times has a business section article (under the heading of "Small Business") on "The Tricky Etiquette of Business Gifts." In my former neck of the woods, etiquette was not as much a concern as compliance with our ethics policy. Under my authorship, we eliminated the $25 limit on gifts received from suppliers, and replaced it with something like "seasonal and ceremonial gifts of a nominal and appropriate nature." (The economists out there are screaming "agency costs, agency costs.") I didn't think many heads would be turned by a gift basket containing what I am sure was the French version of Two Buck Chuck, some fancy crackers, and a tin of liver pate, but I think those thing go for a pretty penny. The good thing about gift baskets (and I got a lot of them) was that I would snarf the thin Italian bread sticks, and put the rest of the thing in the lunch room, and generally nothing was left but the basket and the excelsior in about thirty minutes.
And, as several "preferred provider" law firms can testify, we never let a gift basket get in the way of declining a request for a premium on a bill, nor our assiduousness in the annual "vendor performance review."
* I'm hoping gift basket supplier extraordinaire Fabiene is okay with my use of the picture in exchange for a link.