Thursday, December 7, 2006

Update on Limited Representations: "Unbundling" Discrete Legal Tasks

As a follow-up to our posts here and here on "unbundling" and various states' movements toward limited representations, consider this ABA Journal eReport story on the Massachusetts pilot project for 201392_63340356family courts we previously noted here.  The Louisville, Kentucky blogger Divorce Law Journal urges here that her state consider such a status, especially in divorce court:  "Sounds like a promising solution to the courts being overwhelmed with unrepresented litigants," she writes.  [Alan Childress]

December 7, 2006 in Clients | Permalink | Comments (0) | TrackBack (0)

Legal Profession Blog Not in Finals for Best Blog

Alas, neither were most of the blogs I read (but congrats to Concurring Opinions of the blogs up there on my Firefox bookmark toolbar; it almost doesn't count as a blog to me anymore since I actually have met five of the six protagonists!).

Who are the people who organize these awards?

Ariellesimon I can't speak for Alan or Mike or the people representing the 11,000+ plus discrete hits on this site since we started it in late September, but I'm going to enjoy the wedding of my brilliant and beautiful daughter, Arielle, and our newest family member, Simon Pride, this weekend, and not let this disappointment rain on our parade.

[Jeff Lipshaw]

December 7, 2006 in Blogging | Permalink | Comments (2) | TrackBack (0)

GCs, Not Just CEOs, All Over Backdating Options Fallout

This morning's's "In-House Counsel" reports, "Stock Option Scandals Take Down a Record Number of GCs."  Says the story, "These legal chiefs constitute about a quarter of the 40-plus executives who have lost their jobs in the steadily expanding options controversy. Indeed, backdating has forced out as many GCs as CEOs."  While "the casualty list will only grow," the story adds that "in some cases, the GC appears to have been little more than a fall guy."  More bad news for GCs:  "At least seven ... have been named as defendants in shareholder derivative actions." 

And the Wall Street Journal today, here, adds Home Depot to the list of companies reporting, via internal investigation, "routine" backdating, from 1981-2000.  [Alan Childress]

December 7, 2006 in General Counsel | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 6, 2006

Joy on Systemic Prosecutorial Misconduct

Posted by Alan Childress

Peter Joy (Wash. U.) has posted on SSRN the article, "The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System." It is also in 2006 Pjoy Wisc. L. Rev.  399.  The abstract:

Prosecutorial misconduct is one of the leading causes, or contributing causes, of wrongful convictions. This paper contends that prosecutorial misconduct is not chiefly the result of isolated instances of unprincipled choices or the failure of character on the part of some prosecutors. Rather, prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutor misconduct. These three conditions create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct.

In order to reduce the number of wrongful convictions, it is essential to understand the institutional conditions that facilitate prosecutorial misconduct. This paper identifies and analyzes these institutional conditions and makes modest, concrete proposals to reduce the incidence of prosecutorial misconduct. The ultimate purpose of the proposals is to prevent wrongful convictions and not to impose unnecessary obligations or unrealistic expectations on prosecutors.

December 6, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Toys For History-Buff Tots Just In Time For Generic-Holiday Giving

Posted by Alan Childress

Beyond the always-recommended tattoo maker, LPB submits for your consideration toy U.S. Grant_figure_3Presidents.  Such "political action figures" actually speak famous quotes, but have small parts so they cannot be used unsupervised by kids under age 8 (unlike the tattooer's age 6).  Legal historian Philip Katz (GW [shown right, not actual size]) recommends the Ulysses S Grant as "a president who believes in what he says."

The maker says:  "Our products endorse the democratic system of government itself."  Does your toy do that?  This company knows stuff the rest of us are only guessing at:  its replicas of Jesus or Moses each are an "action figure...realistic down to the finest detail and comes with an Individual Certificate of Authenticity."  As, by the way, with Hillary Rodham Clinton, Laura Bush, and Arnold Schwarzenegger. I don't know if the Hillary action figure runs.  But I do know that "Jesus Ships Immediately!"  Ah, what would Linus say about that?

December 6, 2006 in Blogging | Permalink | Comments (0) | TrackBack (0)

Rand on Teaching The Practice of "Social Justice" & Defining It Via Empowerment

Posted by Alan Childress

Spencer Rand (Temple, Law) has posted on SSRN (L&S: Leg. Prof.) the following:  "Teaching Law Students to Practice Social Justice: An Interdisciplinary Search for Help Through Social Work's Empowerment Approach."  It is also at 13 Clinical Law Review 459 (2006).  Its abstract:661062_power_lines_1

In clinical classes, students should learn that working toward social justice in their practice is both good and possible. After looking at the ABA Model Rules of Professional Conduct's lack of a clear definition of social justice and the way that this can hamper teaching students about social justice, this paper looks at social justice definitions from other professions and how social work in particular has demanded that their definition of social justice be actualized in practice. Discussing social work's “empowerment approach,” the paper describes the way it develops social work's definition of social justice and demands that social workers practice toward it. The paper suggests ways that we can adapt the empowerment approach to law practice so that our students will develop a strong sense of social justice toward which they can strive and by which they can evaluate their work.

December 6, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

The Moving Finger

A student just stopped by, having just turned in a take-home exam for someone else, and now doing a post-mortem on everything that went wrong, no doubt to the detriment of study for the next exam.  I Johnkaplan turned to the adages I store on my PDA, and pulled out one we were taught by the late great John Kaplan* at Stanford:

"The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it."

- The Rubaiyat of Omar Khayyam

[Jeff Lipshaw]

* For a lovely remembrance of Professor Kaplan (the first law professor ever to call on me), see "A Student Remembers," 42 Stan. L. Rev. 847, 852 (1990), by my friend and colleague at Tulane, Jancy Hoeffel.   

December 6, 2006 in Lipshaw | Permalink | Comments (0) | TrackBack (0)

Does the Privilege Extend to the Interviewed Corporate Employee Too?

That was the question facing U.S. District Judge Lewis Kaplan in the KPMG tax-fraud matter, and on these facts he ruled that it did not, according to a New York Law Journal story reported here.  Her subjective belief that she was covered, too, was not enough. [Alan Childress]

December 6, 2006 in Privilege | Permalink | Comments (0) | TrackBack (0)

When in Doubt, Be an Empirical Scholar

Posted by Jeff Lipshaw

To recap the bidding, I suggested last night a hypothesis that if you looked at "tort" and "employment" lawyers in the regional elite law firms, the breakdown of "top 25" versus "non-top 25 schools" would look like Bill Henderson's data comparing the law schools of elite plaintiffs' lawyers Duranversus the more traditional corporate big firms.  Alan, being the great scholar and teacher that he is, attacked my thesis at its weakest, the admittedly visceral and non-rigorous appeal to tort versus contract jury instructions.  I hereby cry "no mas, no mas"* on that point; it's a red herring, I admit.

But I decided it would be interesting to look at just a little bit of data to test my hypothesis; after all it is falsifiable, and hence legitimately empirical.

Let me also add that I'm making generalizations, not value judgments.  Among my former colleagues, the best mergers and acquisitions lawyer I ever met (Martin B.Feeney_1 Cohen, formerly of Skadden, Arps, and AlliedSignal/Honeywell) did not go to a top 25 law school; one of the best tort trial lawyers I have ever met,** Jim Feeney (right, who went up against super-plaintiffs' lawyer and former gubernatorial candidate Geoffrey Fieger in the Jenny Jones "outing" wrongful death case in Michigan) did go to a top 25 school.  Nor am I making judgments about the exam-taking skills that get you into law school or through it with "distinction;" I have here on my desk a book just in from entitled Appreciative Intelligence:  Seeing the Mighty Oak in the Acorn, which is about the creative and leadership abilities.  I don't claim any relationship between traditional measures of intellectual achievement and "appreciative intelligence."

But on to the data below the fold.

Continue reading

December 6, 2006 in Law & Society | Permalink | Comments (2) | TrackBack (0)

Ethical Externship

Peter Joy reports on the legal externship listserve that Yale Law School is offering an externship Logo_11 experience that enables student to get a real world exposure to the Connecticut bar discipline system. This could be a model for other law schools to follow in creating programs that give students a sense of this little-known and widely misunderstood area of the law.  Link here.  [Mike Frisch]

December 6, 2006 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Justice Reprimanded

by Mike Frisch

The Supreme Court of Ohio issued a public reprimand to a Justice of the Court who had been convicted of driving a motor vehicle while under the influence of alcohol. The case was presented based upon a stipulation entered into as to the facts of misconduct and mitigation. The panel 67066_columbus_ohio consisted of the Chief Judge of the Ohio Court of Appeals and the presiding judges of each of the 12 appellate districts (the governing rules disqualify the Supremes from adjudicating a complaint against a member of the Court). Notably, the stipulation did not mention allegations that the judge, while under the infuence, made statements "that might be construed as an attempt to persuade the officer to release her because of her high judicial office" that had been reported by the media. One concurring judge felt that a hearing should have been conducted to address "some unanswered questions as to how the investigator came to the conclusions and recommendations that he presented to the panel."

December 6, 2006 in Ethics | Permalink | Comments (0) | TrackBack (0)

Jeff Is Wrong: I Am Right

Posted by Alan Childress

Alternate and more accurate title, "Jeff May Be Right But Not For His Wrong Reasons:  I Am Still Right."  Bill Henderson's post proposing further research on the plaintiffs' bar (including the "elite" of the plaintiffs' bar, and stretching beyond stereotypes of what plaintiff lawyers do) struck either a chord or a nerve in lots of people and is getting blogosphere attention out there.  Jeff's reaction to it here suggests that maybe the demographic and credentialism differences Henderson is preliminarily seeing are less about the "plaintiff" client represented and more about the subject matter of practice.  In this sense he is making a very non-elitist statement that even "defense" attorneys in respected and important law firms will shake out to have similar stats as Henderson attributes to the plaintiffs' elite. 

To that extent I suspect even Henderson would say that such a proposition--not the usual stereotype of the plaintiffs' lawyers vs. their law firm insurance-defense bar opponents--is worth considering when he crunches all the numbers.  It is a factor that ought to be part of his eventual multiple regression analysis.  Further, their subject matter focus--whether on the plaintiff or defense side--ought to be sorted out as well, again as just good follow-up in the studies that Henderson is proposing.  I suspect Henderson agrees and I know I do:  that would be interesting to figure out and would have some explanatory power beyond the categorization of "plaintiff" bar.  And Henderson might find that the credential-differentiation, whatever that means and however useful that stat is--gets reduced a lot or down even to zero, when compared to more narrowly defined counterparts in "prestigious" firms.

But then Jeff proposes what he thinks would be the explanation, or part of it.  This is where, I think, his wheels start coming off.  And that seems to be that the big divider will be subject matter or focus of the trial work, because tort and employment trial practice is--I caricaturize his argument because that's what bloggers do--plugging emotional facts into an accepted legal framework that 416810_11652902_1 may require and reward various skills, but complex legal analysis is not at a priority there.  This unlike heavy duty securities fights or those contracts cases where consideration instructions are all over the place and must be deciphered and analyzed before one can even try that kind of case.  My problems with this (especially after I frame it for him that way) below the fold.

Continue reading

December 6, 2006 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Reimbursing Theft Victims in Ohio

The web site of the Supreme Court of Ohio reports that its Client Security Fund has awarded over $350,000 to 26 victims of attorney theft. Ten former or suspended Ohio lawyers were found to have misappropriated entrusted funds. The amounts awarded by the Fund comes solely from the registration fees that are paid by all members of the Ohio Bar.  [Mike Frisch]

December 6, 2006 in Ethics | Permalink | Comments (0) | TrackBack (0)

Solum, Constitutional Possibilities, and the BCS

Posted by Jeff Lipshaw

Every once in a while, I like reading an article completely out of my field, if for no other reason than to shake the cobwebs loose, and to focus on learning! Larry Solum (Illinois) has posted a new article Aristotle_1 called "Constitutional Possibilities" (highlighted over at Legal Theory Blog, left).  I thought it was an accessible and non-ideological introduction to the subject of constitutional reform.  Here's the abstract:

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable - whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans for constitutional reform or revolution. Frequently, normative constitutional theories are criticized on the ground that they are undesirable, unwise, on inconsistent with the best theories of political morality and legitimate legal authority, but sometimes one hears a very different form of criticism, expressed in locutions such as the following: “That is unrealistic.” “That's not possible.” “That is pie in the sky.” “You are imagining castles in the air.” “Your suggestion is utopian.” “That isn't feasible.” These objections invoke the idea of ephemeral constitutional possibility - constitutional options that are not real or actual possibilities. 

What are our constitutional possibilities? How should we think about the feasible choice set for constitutional change? What are the differences between ideal and nonideal theory? What role should the ideas of path dependency and second best play in constitutional theory? These inquiries cross the lines between normative, positive, and conceptual constitutional theory. At the conceptual level, we can ask what phrases like “constitutional possibility,” “ideal theory,” and “the feasible choice set” mean. At the level of positive constitutional theory, we can ask about the forces and institutions that condition constitutional possibility. At the level of normative constitutional theory, we can ask about the implications of constitutional possibility for political morality.

“Constitutional Possibilities” proceeds as follows. Part I introduces the idea of ephemeral constitutional possibilities. Part II will cobble together a conceptual toolkit for thinking about possibility and necessity in constitutional theory: the tools will range from the familiar distinction between ideal and nonideal theory to a quick a dirty guide to the metaphysics of modality. Part III will explore the implications of the resulting proto-theory of constitutional possibility in two stages: stage one will investigate the normative implications, whereas stage two will reconnoiter a set of standards for making modal claims in constitutional arguments. Part IV provides a case study in constitutional possibility by examining Sanford Levinson's proposal for a constitutional convention. Part V concludes with the problem of false constitutional necessity.

I confess that I feel like a quotidian clod when the constitutional theorists elevate to high theory.  But I was actually able to put one part of it in terms even I can understand (and over which I have obsessed just bit here and here over the past week or so):  reform of the Bowl Championship Series.  Sanford Levinson's proposal for reform in Our Undemocratic Constitution is Professor Solum's case study in using social science and philosophical tools to assess the feasibility of any constitutional reform proposal.

Not to trivialize the subject (but I'm a trivial person), but, among others things, what struck me in the analysis was the similarity to assessing the possibility of college football reform:

- a constitution-like structure
- highly independent and multi-leveled institutional and individual participants, plus an interested public (e.g. bowl organizers, conferences, schools, coaches, etc.)
- significant stakes in the present system
- a present system that is largely the product of historical accident
- wide perception that the system needs reform

Is the call for a playoff system among large portions of the public, many football coaches, and some college administrators, in opposition to the interests of bowl organizing committees, conferences, university presidents, and the NCAA, a parallel to Levinson's call for collective action by individual citizens to overcome Congressional and other institutional inertia?  Can Professor Solum's toolkit - of feasible choice sets, path dependency analysis, agent relativity, and the like - be employed to assess "Football Championship Possibilities?"   

December 6, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Top Ten - Legal Ethics & Professional Responsibility, Dec. 5, 2006

It's changeover week at SSRN, and we have four new entrants to the top ten this week, includingShizer_headshot Michael Hatfield (Texas Tech), whose article we highlighted yesterday, and David Schizer (Columbia, right), whose article addresses the imbalance between government and private tax counsel we noted here a couple months ago.

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

4 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.

5 To Make or to Buy:  In-House Lawyering and Value Creation, Steven L. Schwarcz, Duke University School of Law

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

7 The Strict Character of Fiduciary Liability Robert Flannigan, University of Saskatchewan

8 Enlisting the Tax Bar David Schizer, Columbia Law School

9 Fear, Legal Indeterminacy and the American Lawyering Culture Michael Hatfield, Texas Tech University School of Law

10 The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes Oxley Mean for Employment Law Elizabeth Chika Tippett, Harvard University - Harvard Law School

[Jeff Lipshaw]

December 6, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 5, 2006

Plaintiffs' Lawyers or Trial Lawyers?

Posted by Jeff Lipshaw

180pxhorace_rumpole At the risk having of having me provoking tort and employment lawyers into doing for our page hit statistics what Alan managed with the tattoo gemeinschaft, I am going to make an observation from many years of big firm practice on Bill Henderson's intriguing hypothesis about the educational pedigree of big-time plaintiffs' lawyers and big firm lawyers.  Alan has already commented below, and Bill's post is getting lots of blog play at sites like MoneyLaw and Concurring Opinions.

Here's a hypothesis.  Go down the lists of big regional firms, not the mega-firms based on the coasts (I'm thinking firms like my old firm - Dykema Gossett in Detroit, and its comparable firms in other midwestern cities, Thompson Coburn in St. Louis, Reed Smith in Pittsburgh, Ice Miller or Baker & Daniels in Indianapolis, and the like).  I am willing to bet that if you compare the schools of lawyers describing what they do as tort or employment litigation to everyone else, you will see a similar split pattern of educational pedigree.

This is not in any way to disparage the complexity of tort or employment law.  But TRYING tort and employment cases is, frankly, less an intellectual and more an emotional quotient game.  I angered an academic colleague some time back by making this comparison, but if you take the standard jury instruction on negligence across the country, it doesn't vary by five words (that may be hyperbole, but not much), whereas the standard instructions on consideration, where they exist at all, are all over the lot.  This is not to diminish the particular skills it takes to be a great personal injury lawyer.  But the reality is that you are generally laying the factual story onto an off-the-shelf, pre-packaged "law."

My all-time favorite fictional character, the Old Bailey hack Horace Rumpole (above), the world's cleverest and most ferocious cross-examiner, the barrister who never let a client plead guilty, who trumpeted the golden thread of British justice, said over and over again he, like most great trial lawyers, had no particular use or calling for the "law."

December 5, 2006 in The Practice | Permalink | Comments (1) | TrackBack (0)

Student/Young Lawyer Essay Contest on Legal Ethics: ABA Prize of $5000

Law students and young lawyers are eligible to compete for a $5000 prize and an April trip to D.C. for the prize ceremony.  It's the ABA's 2007 Bert W. Levit Essay Contest, mean to generate interest in professional liability issues among students and young lawyers (who have joined the ABA by 2/14/07 [ignore flyers that suggest the join deadline was 2/06 -- it's really 2007, I checked]).  The essay is based on a provided Hypo, and this year's theme is aiding and abetting a client's breach of fiduciary duty.  Deadline:  Feb. 16, 2007.  See the Hypo, rules, and details at this link.  [Alan Childress]

December 5, 2006 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

St. Mary's Symposium on Legal Malpractice & Professional Responsibility 2/23/07

Here is the program and brochure for the St. Mary's Law Journal's next symposium on legal ethics Slice_1 and malpractice law.  It will be held Fri., Feb. 23 in San Antonio.  [Alan Childress]

December 5, 2006 in Professional Responsibility | Permalink | Comments (0) | TrackBack (1)

If Adopting New Casebook by Zitrin, Langford and Mohr...

For those professors planning to assign, for Spring 2007, the new third edition of Zitrin, Langford, and Mohr, Legal Ethics in the Practice of Law, the publisher LEXIS has announced that it will be available 0820558559 in time for student use.  More immediately, professors can download chapters now in page proofs so they can prepare for the course or design the syllabus, and need not wait till the book comes out.  Contact Sean Caldwell here for directions to do this. Or they will ship a hard copy of page proofs for those adopting it, by asking Pali Chheda here.  [Alan Childress]

December 5, 2006 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Videocast CLE 12/19 by West/PLI on Privilege and Internal Investigations

Link here to a CLE webcast and video by PLI sold through West, for Dec. 19 and running 2 hours 10 min., entitled The Attorney-Client Privilege & Internal Investigations 2006.  [Alan Childress]

December 5, 2006 in CLE, Privilege | Permalink | Comments (0) | TrackBack (0)