December 23, 2006
NORAD Tracks Santa in 6 Languages, Plus Dreidels
I loved it as a kid when Walter Cronkite used radar to track Santa's early-evening movements. Here is the internet equivalent, including German, French, and Japanese: NORAD Tracks Santa. In fact this half-century tradition was born of a misprinted phone number a Sears store had used in a 1955 'hotline' promotion. Today all sorts of celebrities tell their own stories (including a hairless Joey Lawrence--woaa--and the ubiquitous Edward James Olmos).
This and other great new traditions are linked on the cool blog Electronic Ephemera, including: neat new toys; the history and gallery site Just Dreidels (my understanding is that they make them out of clay); a Toy Story remix with Requiem For A Dream (my understanding is that they make them out of claymation); a 4096 Color Wheel that just might cause seizures; and the Church of Dudeism with the option of being ordained. Two years ago EE linked an Ernest Hemingway version of 'Twas The Night Before Christmas, by one James Thurber -- plus a pumpkin waffles recipe.
And last year EE posted this still-viable link to another Santa tracking system--this one by NASA. Unlike NORAD's service, this tracker apparently requires additional plug-ins (but inspires the line, "North Pole, we have a problem"). Either way, let's hope this generation of kids gets hooked on tracking Santa's and Rudolph's worldwide progress.
No Bah Humbug Here!
Point of Personal Privilege Posted (alliteratively) by Jeff Lipshaw
My grading is done; I'm waiting for the SSRN "Revision Acceptance" e-mail on an article (more to come on that when there is something on the other end of the link); the boys are still sleeping; and I already finished the NYT crossword puzzle this morning. So it's time to kick back, turn off the annoying Christmas songs like "I Want a Hippo for Christmas," and not get irritated over things like sweeping generalizations from tenured academics about untenured CEOs (this is no apologetic for CEOs, but not every financial restatement requires the CEO to be fired).
Instead, I want to list, just arbitrarily, five good things:
1. I had no clue when we started this that Alan Childress (right, as Nietzsche) would be an Ubermensch of a blogger. Thanks, Alan and Mike, this has been fun.
2. Family. My wife, Alene (brilliant, talented, and as beautiful mother of the bride, left), and I met thirty years ago this past summer. This year our daughter got married to a great guy (Arielle & Simon, right), our older son got his name on a published scientific paper from working in the lab at Michigan this summer (he poo-poos it, but I'm still proud), and our younger son will be a classmate of Michelle Wie next year.
3. Colleagues. Tulane presently and Suffolk upcoming.
4. The virtual office. As a result, all of the people in academia I consider friends, many of whom I have never met (indeed, one of whom was a reference in the recent job market).
And just to prove I can be more sensitive than Alan: Merry Christmas, Happy Kwanzaa, Happy Chanukah, Happy New Year, Seasons Greetings, Happy Holidays, or my best wishes for whatever syncretic celebration (including pagan rituals) of the winter solstice suits you.
Law Professors Suffer Bad Lightbulb-Replacement Jokes Too
Posted by Alan Childress
Aproposner my previous post which referenced lawyer lightbulb humor, I would be remiss if I left us law professors undissed, especially in light of the professor/sloth analogies currently flying around Jeff's other blog stomping grounds, MoneyLaw. I wrote these four, but you can do better:
Q: How many law professors does it take to change a lightbulb?
A: Dean, how many RA hours am I budgeted this year?
Q: How many law professors does it take to change a lightbulb?
A: I happened to notice that Professor Reegitzer's office does not need lightbulbs, what with the big bay windows and all, but he was hired after me and graduated two years behind me, from a school not in the top four even.
Q: How many law professors does it take to change a lightbulb?
A: What is a "lightbulb"? Is that related to Bayes Theorem, or Foucault perhaps?
Q: How many law professors does it take to change a lightbulb?
A: Hey, they make lightbulbs in Budapest. Shouldn't we start a new summer school in Budapest? I'll be the director, and will learn some Czechoslavakian before I go. It'll focus on human rights.
As for the other problem I noted, that it may be too late to take advantage of blog gift ideas, I heartily recommend Armenian Christmas Day: January 6. The kids won't mind waiting. Not only do you take advantage of all those pre-Christmas sales from Dec. 26-Jan. 5, but law professors can regift all sorts of free commercial goodies we score at the annual convention around January 4. What child wouldn't prefer a handheld whirling fan sporting the West TWEN logo over a Nintendo Wii?
Steele on DA Nifong and Kolber on Ethics Issues of More Open Westlaw
Posted by Alan Childress
Over on Legal Ethics Forum, John Steele wrote some insightful, detailed, and timely posts (especially here, here, and here) raising serious ethics questions (and disqualification issues) regarding recent actions by prosecutor Mike Nifong in the Duke lacrosse rape charges. 'Timely' in part because John was arguing for more attention to the ethics issues of the DA under settled and specific rules, for all lawyers and for prosecutors, before the case got national attention again yesterday [some linked here] by Nifong's decision to plug ahead with several serious charges while dropping the rape charge. [UPDATE: More on Nifong's "admitted critical ethical lapses" here.]
One of John's readers asks, Why do prosecutors seem to always get away with their own ethics issues? The answer may be partly in the whipsaw reasoning nicely suggested by Monroe Freedman in this comment after one of John's posts:
What happens in practice is that the courts affirm the convictions, deferring to the disciplinary process for the prosecutorial misconduct. Then the disciplinary committees defer to the prosecutors' offices, who say that they police unprofessional prosecutorial conduct. And then the prosecutor avoids discipline (and, indeed, garners praise) because, after all, the conviction was upheld.
On the relationship between prosecutorial misconduct and convictions--and the institutional causes of such misconduct--John recommends the recent article by Wash U's Peter Joy (and our own earlier post on that is here). John cites other useful articles on prosecutorial ethics here.
Meanwhile, at PrawfsBlawg, Adam Kolber is arguing for a more open and correctable Westlaw or LEXIS service, sort of like Wikipedia. But he noted that such an idea "also raises some interesting professional responsibility issues," and mentions billing the time used to help others by fixing errors, as well as confidentiality issues if adversaries and others can figure out who is doing the fixing. Also at Prawfs here, and not really about the legal profession as such but the relevance will soon be apparent: Syracuse's Jeremy Blumenthal argues that practice and the academy need to pay more attention to 'standards of review' -- and in the process sort of plugged and linked my treatise on the subject. That's an unexpected and generous gift to me (and coauthor Martha Davis) this time of the year! And when buying, do remember the pocket part for each of the little ones. When rolled, they fit in a stocking. The pocket parts, I mean.
Even better gift ideas for members of the legal professoriat (we posted on some for lawyers here) are now found--if it's not too late--at this post by Orly Lobel on Prawfs. To arm yourself for holiday table talk, here are linked several new "lightbulb" jokes [HT to Discourse.net], one of which is:
Q: How many art directors does it take to change a light bulb?
A: Does it have to be a light bulb?
The one on 'focus group members' totally rocks. For lawyers, other commenters there offer two, the shorter of which is:
Q: How many lawyers does it take to change a light bulb?
A: How many can you afford?
The other one begins, but goes on for two screens, this way:
A: Whereas the party of the first part, also known as "Lawyer", and the party of the second part, also known as "Light Bulb", do hereby and forthwith agree. . .
December 22, 2006
"...And The Force Be With Us, Everyone" (Closing Line From Diminutive Tim)
Posted by Alan Childress
As Jeff Lipshaw posted on cloying Christmas carols [what is this "Christmas" of which you speak, Jeff?], and our reader hotly debated which ones annoy most, I was reminded that my brother Rory last week attended a fourth grade presentation in Dallas of Dickens' "A Holiday Carol." It featured The Ghost of Holiday Past, The Ghost of Holiday Present, and...you get the picture. It also had kids dressed up as trees and forest animals. I don't remember that in the original Dickens either but congratulate the Dallas schools for uncovering that long-lost Dickens original draft and using it instead of the usual and better-known one that was the result of blatant over-editing and product placement. As Rory points out, as to the holiday carol, it is literature. (Honestly, though, we agree that the trees and woods creatures were a nice touch, and Rory did not find the performances at all cloying--that was just my segue added.) I think "carol," anyway, is way too gender-identified. Maybe "A Holiday Rap"? "A Holiday Wrap"?
Professors out there may have already noticed, but it is a natural law of The Craft that when we profs are at an airport or on the plane, we always run into a student or former student. If we are actually stuck in an airport for a day and have our exams with us (never checked through), we still can't pass the day grading them with a student around. That is so (or the perfect excuse) even if the student is not one in our own class -- something about no customer-tour windows in the sausage factory. So instead I recounted 'A Holiday Carol' yesterday to Tulane 3L Jason Hammer, a student in Professor David Katner's Juvenile Clinic (David's clinic, you can imagine, is doing especially heroic work right now representing accused and troubled teens during a time in New Orleans when the criminal justice and related systems are Katrina-impacted). I meant to add that the new, improved Dickens line-up now also offers:
- "A Tale of Two Suburbs"
- "David Copperfield Without the Magic"
- "Moderately Depressed House"
- "Oliver Twist: Not That There's Anything Wrong With That"
...and of course the classic "Some Expectations: But Mainly We Want You To Have A Good Time, No Pressure."
Anyway, Jason told me something more inspiring than Dickens and on-point to the blog (not that he knew about it): he told me how appreciated the 70 McGeorge law student volunteers and those from other schools are to the Gideonizing project he (with other clinics from Tulane and Loyola, as we posted here and here) is working on. But he added a point that, to me, shows that such pro bono activity is not just grass roots sacrifice, though it may start that way: Jason says that part of the funding (over $10k), to make those 70 students' volunteer trip to New Orleans possible, came from a decision by the McGeorge dean [that's Elizabeth Rindskopf Parker] to forego mailing alumni holiday cards this year and instead support the student initiative. Now that's a holiday carol, or an update on Dickens, I'd never get tired of hearing.
Here's a link to a real-time student blog of two of the McGeorge volunteers in NOLA on their holiday break. It's fascinating and detailed. For example, 3L Drummond McCunn reports on "a new run-around today" and notes, "We ended up in Magistrate’s Court. This is where we had met the heavily accented Commissioner the day before. The two public defenders were glad to see us." 3L Kimberly Slater writes : "Especially humbling were the tales from Angola State Penitentiary, site of the movies, 'Dead Man Walking' and 'Monster’s Ball.' The inmates there were brought to the interview room in shackles, wearing orange jumpsuits. Most of the inmates have been writing their own motions, and have yet to see an attorney. It was very difficult for most students to imagine what their daily lives were like." Keep up the good work, Kimberly and Drummond, as well as David and Jason in their own much-needed clinical projects. Worthy of an end-of-play toast from Ideopathic-Short-Stature-with-Growth-Hormone-Deficiency Tim.
December 21, 2006
How to Interpret Evaluations
I had coffee this morning with my good friend Rick Kinsley (left), formerly my colleague when he was the Senior Vice President - Human Resources of Great Lakes Chemical Corporation and I was his sage GC. Rick is simply the best human resources executive on the planet, and I never exaggerate about something as serious as this. Like me, he is a recovering corporate running dog, and has a burgeoning recruitment, executive assessment, and leadership consulting practice.
Lisa Fairfax's thoughtful post on student evaluations over at Conglomerate this morning made me think of some of Rick's wisdom. In the corporate world, we had evaluations up the yin yang, the classic being the "360," in which everyone around you got to take a shot. Lisa says (accurately, by the way, because I cannot remember many positive comments, but I can remember almost every negative one since my summer associate review in 1978): "it would inevitably be the case that no matter how many nice comments I received, there would always be that one."
Rick would say if you have 50 evaluations, cut out the top two or three and the bottom two or three, and only look at the rest. That is probably going to be the best reflection of you.
The Louisiana Supreme Court dismissed ethics charges against an attorney who also is a stockbroker. The attorney rented office space to another lawyer who represented an elderly woman who had substantial assets. The woman sought a greater return on her funds and consulted with the lawyer-stockbroker, who entered into an agreement that was not reduced to writing. The agreement provided that the lawyer would retain a portion of the funds (that were held in his escrow account) and pay a monthly amount to the woman. The woman later obtained new counsel, discharged the lawyer and sued for her losses, resulting in a substantial settlement.
The woman filed ethics charges. The attorney contested the allegations based on the defense that his conduct was as a stockbroker not an attorney. The hearing committee bought the defense but was overruled by the Disciplinary Board, which was in turn overruled by the Supreme Court, which dismissed all charges. The court found that the putative client had no reasonable basis to believe that the accused was her lawyer. Rather, investment services were not the practice of law. The court "recognize[d] there can be a potential for confusion when an attorney wears a multitude of hats." Given the age and vulnerability of the "client" (who had died and did not testify in the bar case) and the absence of a written agreement, perhaps the confusion should have been held against the lawyer.
When a member of the bar purports to act in a non-lawyer capacity, it should be that lawyer's burden to clearly advise that lawyer ethics rules will not protect the person he is working for. [Mike Frisch]
Top Ten - Legal Ethics & Professional Responsibility - December 21, 2006
We post our final top ten of the year with a complete non-sequitur. "Have Yourself a Merry Little Christmas" and "I'll Be Home for Christmas" are worth listening to just about any time or any place. The most annoying Christmas song is "I Saw Mommy Kissing Santa Claus."
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 To Make or to Buy: In-House Lawyering and Value Creation, Steven L. Schwarcz, Duke University School of Law
3 Options Backdating, Tax Shelters, and Corporate Culture Victor Fleischer, University of Colorado at Boulder - School of Law
4 How an Instrumental View of Law Corrodes the Rule of Law, Brian Z. Tamanaha, St. John's University School of Law
5 Scholarship Advice for New Law Professors in the Electronic Age, Nancy Levit, UMKC School of Law
6 The Strict Character of Fiduciary Liability Robert Flannigan, University of Saskatchewan
7 Enlisting the Tax Bar David Schizer, Columbia Law School
8 Open Access, Law, Knowledge, Copyrights, Dominance and Subordination Ann Bartow
University of South Carolina - School of Law
9 Fear, Legal Indeterminacy and the American Lawyering Culture Michael Hatfield, Texas Tech University School of Law
10 Popular Culture and the Adversarial System Michael Asimow, UCLA School of Law
December 21, 2006 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (4) | TrackBack
December 20, 2006
ABA Guide to Attorney-Client Privilege and Confidentiality
Here is an ABA link to information on its third edition of Attorney-Client Privilege in Civil Litigation, edited by Vincent Walkowiak. It was published by the TIPS tort law section in 2004, but has enormous utility to corporate representation, and is "revised and expanded with many new chapters, including Sarbanes-Oxley, confidentiality/communications and ethical problems." The publisher has a 20% discount on this and other books ordered by Dec. 31, using source code PAB5ELBY. [Alan Childress]
Cancer Causes Smoking: The Post Hoc Error and Real People's Reputations
Posted by Alan Childress
Jeff did not ask for elaboration on today's post on Amtrak billing, but here is my $ two one-hundredths (where's the cents sign on this thing?). I enjoy a good correlation error. I always thought the CEOs of tobacco companies should be arguing that cancer causes smoking. At least surely there is some expert on retainer who would prove that even if smoking correlates with cancer, that's not proof of causation--maybe the same gene that causes cancer carries a desire to smoke! My favorite pop culture example of Post Hoc, Ergo Propter Hoc error (in a West Wing season-one episode of the same name, quoted below the fold): Jeb Bartlet did not lose Texas just because he made a joke about big hats.
I think Jeff's caution or insight is especially important because we are dealing with real humans here who have public reputations: the fired in-house lawyers who are now being treated as if they are part of a clean-up from an "ethics scandal" when, to me, no one has yet shown any specific ethical breach like overbilling.
It is quite possible they were let go as part of a routine management change. I think it more likely this is connected to the swirling ethics concerns and rumors, but I don't assume it is because they did anything wrong. I assume, so far and until some proof otherwise, appearing to clean house is the politically (and public relationsally) expedient thing to do right now. The GCs may be sacrificial lambs, scapegoats, or other animal offerings to a nationally enquiring press and Congress.
In the original reports, such as those we linked here, the basic accusations seemed like many things were being presented as scandalous when they may not be--and many look exactly like how lawyers work in the non-choochoo world. One instance of that may be Jeff's detailed example of "block billing," which may be at its worst a breach of some billing arrangement in the retainer, and possibly federal regulations of billing specificity--if Amtrak is subject to the government-client ones, but they were negotiating about that all along. But it does not by itself mean overcharging. Indeed, if I were going to overbill this particular client, I would be fastidious about following their procedural requirements and just specify a lot of made-up work--I would not fall into the lapse of writing my time the way I do all the other clients. [My if-I-were-overbilling conceit with apologies to O.J.]
That's Jeff's example, and it is a good one I think, because my own experience in billing clients with two big [reputable] law firms is in line with his: we usually did block billing and everyone was fine with it as long as the time was real. I'd add that we had occasional banking or insurance clients who wanted more specificity and line-itemization (maybe more often than Jeff's 99% suggests), and we tried to comply. But the inevitable lapses were never seen as unethical or sneaky; they led to calls for reminders to be clearer and of course to client renegotiations--perhaps even excuses but hey we asked for it--about write-offs. The only scandal would be a possible write-off of actually-earned time and some client-relations hiccups.
My own example of the possibly-false scandal in the original reports is their suggestion of something awry from the fact that some of the in-house counsel came from the very law firms that were now doing Amtrak work. Imagine that! How cozy!! I am shocked, shocked to find that--you get it. Not only is that uber-typical in the trackless world (yet here it was presented as if it is by itself a conflict of interest and unethical). But indeed the changing-roles relationship has its own built-in checks: Jeff has previously argued, in different words and citing an empirical article that supports the point, that there is no more virulent anti-smoker than a reformed smoker.
Without more, these Amtrak lawyers don't deserve to be treated as if there is something inherently wrong with the fact that they left a law firm to go in-house to the firm's corporate client--and then eventually accepted and paid some time sheets that did not separately itemize each legal task but instead grouped them with the same level of billing detail as if they had been on separate lines.
Vintage Aaron Sorkin, adapted from an unoffical continuity site here, my favorite line underlined:
A few minutes later C.J., who's trying to put out a fire caused by a joke the President told, tells him:
"Sir this may be a good time to talk about your sense of humor."
"I've got an intelligence briefing, a security briefing, and a 90 minute budget meeting all scheduled for the same 45 minutes. You sure this is a good time to talk about my sense of humor?
"...It's just that this isn't the first time it's happened."
"...She's talking about Texas, Sir," Toby says.
"...USA Today asks you why you don't spend more time campaigning in Texas and you say 'cause you don't look good in funny hats.' "
"It was 'big hats'," Sam corrects her. . . .
"...The point is we got whomped in Texas," she says.
"We got whomped in Texas twice," Josh adds.
"We got whomped in the primary and we got whomped in November."
"I think I was there."
"And it was avoidable. Sir."
"C.J., on your tombstone, it's going to read, Post Hoc, Ergo Propter Hoc."
"Okay, but none of my visitors are going to be able to understand my tombstone."
"Twenty-seven lawyers in the room, anybody know Post Hoc, Ergo Propter Hoc," he asks. When no one answers, he calls on Josh like the professor he claims he has been. Josh fumbles with the little Latin he knows. The President calls out "Next!" but he gets no volunteers so he calls on the one person he knows would know. Leo hasn't volunteered, but when called on he translates:
"After it, therefore because of it."
"...It means," the President lectures, "one thing follows the other, therefore it was caused by the other. But it's not always true; in fact it's hardly ever true."
Amtrak Changes: Post Hoc Ergo Propter Hoc?
I commented on the so-called "block billing" matter a couple weeks ago: the congressional investigation of the possibility that Amtrak was paying legal bills that looked a lot like 99.9998% of the legal bills sent to major corporations. Law.com is now reporting that the new CEO at Amtrak has replaced the general counsel along with most of the rest of the senior management team. "New Amtrak President Alex Kummant engineered a major management restructuring Monday, firing five top officials and naming Eleanor Acheson [right], assistant attorney general for policy development under President Bill Clinton, as the passenger rail's general counsel."
Of course, the news stories have linked the two. Note the Law.com headline:
Amtrak Fires Five in Midst of Congressional Probe
That points out the need, particularly in our information age, not to believe everything you read. I can't help but think the linkage to block billing is a case of the post hoc ergo propter hoc fallacy. And the response from Amtrak seems plausible to me:
Amtrak spokesman Cliff Black says the changes were not a response to the inspector general's report on its legal department. "I can't associate it directly with the report. Corporate reorganizations are common under new CEOs. This is no different than that of any other large corporation under new leadership."
What is more interesting are the career bona fides of this new general counsel for a major business corporation. According to Law.com, Acheson headed the Justice Department office responsible for reviewing federal judgeship nominees under Clinton, and since then has been a government affairs lawyer for a prominent public interest group. Worthy pursuits all, and I'm sure Acheson is a crackerjack lawyer, but this hire suggests the critical legal job at Amtrak is about lobbying, not business.
December 19, 2006
Bandes on Judging and Judicial Accountability
Posted by Alan Childress
Susan Bandes (DePaul), right, has posted on SSRN her article, "Judging, Politics, and Accountability: A Reply to Charles Geyh." It will be published in Case Western Reserve Law Review in 2007. Here is the abstract:
This paper was written for a symposium on judicial accountability and independence, in response to Charles Geyh's paper, "Rescuing Judicial Accountability from the Realm of Political Rhetoric." Geyh's article is a valuable and ambitious effort to bring some substance and clarity to the overused, under-theorized notion of judicial accountability. In service of this goal, Geyh suggests a taxonomy for organizing judicial accountability into three categories: institutional, behavioral and decisional. He argues that sanctions for decisional errors may be appropriate in the rare instances in which those errors are not honest mistakes but deliberate usurpations of political power.
In this article I raise concerns about both the taxonomy and the defense of sanctions for intentional error. As to the first, I argue that Geyh's proposed taxonomy both overstates the demarcation among the types of accountability it lists, and fails to adequately define the underlying notions of politics and activism so essential to the author's argument. My second concern follows from the first. Without a theory for what counts as political in the sense of inappropriately non-judicial, it is difficult to evaluate whether willful disregard of the law should be characterized as a deliberate usurpation of political power or whether sanctioning such acts will further accountability's proper purposes. I conclude that it is neither possible nor desirable to isolate the category of decisions that are inappropriately political and deserving of sanctions.
December 19, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Accepting My Honor With Humility and Casual Diffidence
Posted by Alan Childress
Apparently I have been named Time Magazine's "Person of the Year," and my mother is beaming with pride. My father still is not impressed. I can't thank enough all the little people, like Jeff and Mike, mostly because who has time now that I have to go update my curriculum vitae. (I try to put out of my mind the fact that Adolph Hitler was named their Man of the Year like in 1937.) Avid reader of LPB knows that this latest honor follows on my being named "a popular law professor," not by my students of course but rather by the haute tattoo community. I accept all such honors with the same sort of pride.
Announcing a New Rumpole Novel
John Steele's post over at Legal Ethics Forum on alternative law school models (e.g., the return of the true undergraduate LLB) reminded me that if I had to do it all over again, I would have become an English barrister, called to the bar in a haze of port over dinners in the Middle Temple, arguing cases at London Sessions and the Uxbridge Magistrate's Court, if not the Royal Courts of Justice and the Old Bailey.
And that reminds me I saw in the newspaper this morning that John Mortimer has just released a new Rumpole of the Bailey book: Rumpole and the Reign of Terror. I thought the stories had gotten just a little tired in the couple of books that preceded Rumpole and the Penge Bungalow Murders, but with that latest offering Mortimer seemed to be back on his game.
I confess that on almost every trip to London I take a walk through the Inner Temple Garden to find the chambers entrance that has John Mortimer's name on the doorway.
CLE: West Webcasts of Year-End Ethics Programs
Posted by Alan Childress
West LegalEd is announcing some last-minute CLE ethics programs, via live web audiocast, particularly handy for those whose eligibility runs out Dec. 31. They are, with links:
- Dec. 27 - Asset Protection: Criminal, Civil & Ethical Considerations (audio) 1.25 hrs.
- Dec. 27 - Ethics in Advocacy: Litigation Perspective (audio) 1 hr.
- Dec. 28 - Everyday Ethics: Real World Dilemmas (audio) 1 hr.
- Dec. 29 - Confidentiality and Attorneys' Fees (audio) 1.5 hrs.
- Dec. 29 - Stopping Malpractice in its Tracks (audio) 1 hr.
Plus on Dec. 26, there's a live webcast on corporate Lawyer Liability: Personal Exposure of Inside and Outside Counsel, for 3 hours (2.75 credits and it looks like 2 of them are ethics hours).
Three Word Proof That Punctuation Matters
"Call me, Ishmael."
Discipline for Drunk Driving
The Oklahoma Supreme Court (here) suspended an attorney for six months followed by two years probation for multiple violations of criminal laws prohibiting operation of a motor vehicle while under the influence of alcohol. The attorney had abstained from alcohol use for over two years. Bar Counsel recommended a combination of censure and probation, which the Court rejected. A special concurrence suggests that the case should have been brought under provisions that govern suspension for personal incapacity to practice law. The case contains a discussion of how criminal conduct unrelated to the practice of law may violate ethics rules as well as the particular issues that relate to disciplining of alcoholic lawyers who are working on recovery. [Mike Frisch]
As a disciplinary prosecutor in the District of Columbia, I was always shocked and dismayed that reciprocal discipline (supposedly summary sanction based on an adjudication of misconduct in a jurisdiction that shared disciplinary authority of a D.C. lawyer) took so long, consumed so much attention and often resulted in a different sanction than that imposed by the tribunal that conducted the proceeding. The proper way to impose reciprocal discipline is demonstrated by a recent order of the Nebraska Supreme Court, which received a D.C. disbarment order, directed the attorney to show cause why discipline should not be imposed, and imposed final discipline in a few months. In D.C. under present practice, such a routine case would require a brief from Bar Counsel, a Board report and final court action, which would likely take a year or more. [Mike Frisch]
December 18, 2006
...And the Lucky Directors Data
Posted by Jeff Lipshaw
Several days ago, I commented on the assumptions by which Professors Bebchuk, et al., constructed their data set for the "Lucky CEO" study - which purports to show that stock option grants to CEOs too often fell on the date of the lowest trading price of the month (or the quarter in the case of "super-lucky" grants) to be mere coincidence. Hence, the authors infer not just causation, but a particular kind of causation - there must have been backdating or something like it.
The same group has now issued a second paper entitled "Lucky Directors," and is making the same point, but now more broadly about option grants to independent directors. I had made the point earlier that the first paper seemed to assume many grants as unscheduled that, in my experience, would otherwise be considered scheduled.
Having now done a quick thumb through this second paper, it looks to me like we have a similar issue. The authors state: "Practitioners with whom we discussed the subject told us that in their view, director grants have been unlikely targets for opportunistic timing because many of them coincide with the annual meeting and because the monetary stakes are substantially smaller than in executives' grants." (Paper at 2). Accordingly, we find that only certain grants are excluded as scheduled: "Some firms provide grants to directors on the date of the annual shareholder meeting. These grants are scheduled in advance, and they thus cannot be expected to be the product of opportunistic timing. The Investor Responsibility Research Center (IRRC) database provides information on the annual meeting dates for a subset (about 25%) of the firms in our sample, and using it we are able to identify 2,555 grant events (about 9% of the total) that fell within +/- one day of the annual meeting."
As I read this, the ONLY grants excluded from the ten year study as "scheduled grants" are the 9% of the option grants for the 25% of firms for which an annual meeting date could be identified. Interestingly, the authors concluded that there is no evidence of non-random pricing as to these grants.
Once again, I find myself stepping back to do a sanity check. Do the authors really think it is plausible that 91% of all directors' option grants were unscheduled? I was surprised to learn that director option grants were considered scheduled only if granted within one day of the annual shareholders meeting. As I pointed out in the previous post, the board can, and usually does, grant options at regularly scheduled directors' meetings, and those are far more frequent than the once a year shareholders' meeting. And for all we know, there are more firms that issued option grants on annual meeting dates not retrievable.
To repeat, I don't know how the statistics would come out if the sample set assumptions were different. It seems to me plausible that the data on other "scheduled but deemed unscheduled" grants would come out just as random as those for the "annual meeting grants." It certainly bothers me when this very preliminary, unquestioned, and untested study supporting a particular agenda is quickly released to the Wall Street Journal and other media.
Moreover, I suppose one might chalk up these assumptions to the possibility that the authors are just not familiar with the way boards work. But the authors must know something I don't to be able to proffer this study as support for an op-ed in the Financial Times to the effect: “The patterns we have studied reflect persistent, widespread and systematic governance problems: the existence of incentives to provide executives with increased compensation below the radar screen; the prevalence of pay-setting processes not geared to maximise shareholder value; the the failures of internal monitoring systems.”
Maybe 1,400 directors deserve to be tarred. But I still can't tell from this data.
December 18, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Bashman on Gift Ideas For the Appellate Lawyer and Others
Posted by Alan Childress
Appellate lawyer-blogger Howard Bashman recommends, at this Law.com story, a few gift ideas for the appellate lawyer--two of which seem to be transferable to other lawyers and legal historians too. One is a subscription to the Supreme Court law journal The Green Bag, which traditionally includes a sports-illustrated-like subscription prize of a bobblehead doll of one of the Justices. (The Annotated Justice Anthony Kennedy [right] is the current model, says its website, which also has a store.)
The second such idea is membership to The Supreme Court Historical Society. Membership has its rewards. They include the glossy magazine-like Journal of Supreme Court History. The website has a nice on-line gift shop, too, featuring a 2006 ornament. I doubt the shop includes bobbleheads, but you never know what other artifacts and memorabilia you'll find there for the unusual gift idea, beyond membership (think pewter, paperweights, bookends, ties, scarves, scales, mugs, and history books for young adults [with no mention of The American Girls]). Something for everyone on your holiday to-do list.