Thursday, December 28, 2006
I suspect that there may be a widespread public perception that the disbarment of a lawyer is permanent. In the vast majority of states, disbarment is in fact a five-year suspension from practice with the opportunity to thereafter seek reinstatement. The District of Columbia Court of Appeals today ordered, here, the reinstatement of an attorney who had consented to disbarment in 1993 after misappropriating $76,000 from two estates that he served as court-appointed guardian. His practice had experienced a "reduction in work" and he was found to have only intended to "borrow" the entrusted funds. He repaid $65,000, with the balance paid by sureties.
The report attached to the case sets out the standards applied in reinstatement cases and the analysis of each factor. The Court adopted the Board and Bar Counsel's recommendation for return to practice, finding that "sustained and strenuous efforts [by the disbarred lawyer] justify the recommendation." [Mike Frisch]
Wednesday, December 27, 2006
If you are planning a trip to Boston around Tuesday, May 8 (as I suspect Jeff is, about then, just after Jazz Fest in New Orleans), or live there, one trip to plan may be the local bar association's 3-hr. program on "Ethics and Professional Liability." It's part of this save-the-date announcement for all sorts of CLEs the bar offers in '07. [Alan Childress]
Tuesday, December 26, 2006
Posted by Alan Childress
Minoru Nakazato (U. of Tokyo, Law), Mark Ramseyer (Harvard Law [pictured right]), and Eric Rasmusen (Ind.-Bloomington, Dept. of Bus., Econ. & Pub. Pol'y [below]) have posted on SSRN their comparative and empirical study of the Japanese legal profession: "The Industrial Organization of the Japanese Bar: Levels and Determinants of Attorney Incomes." [And my earlier post is here on significant changes in bar admission, and counting lawyers, in Japan over the past two years.] In 1999, Ramseyer and Nakazato published the book, Japanese Law: An Economic Approach [pictured left, since I cannot find Nakazato's photo anywhere].
An easier-to-access version of the new article, in very legible PDF form, is also found here from Harvard's Olin Center website. Here is their SSRN abstract:
Using micro-level data (from tax records) on attorney incomes in 2004, we reconstruct the industrial organization of the Japanese legal services industry. These data suggest a bifurcated bar. The most talented would-be lawyers (those with the highest opportunity costs) pass the bar-exam equivalent on one of their first tries or abandon the effort. If they pass, they then opt for careers in Tokyo that involve complex litigation and business transactions. The work places a premium on their talent, and from it they earn appropriately high incomes.
The less talented face lower opportunity costs, and willingly spend many years studying for the exam. If they eventually pass, they tend to forego the many amenities available to professional families in Tokyo and disproportionately opt for careers in the under-lawyered provinces. There, they earn monopoly rents not available in the far more competitive Tokyo market.
Earlier this month, the three posted elsewhere on SSRN an empirical paper on executive compensation in Japan (considering total income, executives earn far less than their U.S. analogs). Its abstract is below the fold and the paper is linked here in a handier PDF version.
December 26, 2006 in Abstracts Highlights - Academic Articles on the Legal Profession, Economics | Permalink | Comments (0) | TrackBack (0)
Monday, December 25, 2006
Posted by Alan Childress
That's the question asked by Chapman's Tom Bell over at MoneyLaw, in "Law School Rankings as if the Public Mattered." He can't answer the question, since those are not data with which the ABA readily correlates its recently-collected malpractice and bar discipline statistics (which he helpfully links). But it's a question worth asking -- even acknowledging the difficulty of measuring ethicalness and competence, and the coarseness of the proxies one might use (as Tom adds here in comments).
And of course it's not part of typical law school ranking systems. Tom Bell knows ranking systems: previously he meticulously examined the U.S. News & World Report process and offered these meaningful reforms. Even with the factors it purports to measure, it fails considerably:
I discovered that almost no safeguards exist to correct or prevent such errors. I think it fair to say that, but for my peculiar obsession with the USN&WR rankings, nobody would have noticed the errors I've documented. That won't do. We cannot rely on one nutty professor to keep the rankings honest.
Until his newly suggested scoring factors are known or approximated, or if you "find that lack of interest [by law school ranking sources] troubling," Tom thinks one thing to do is support the tax-exempt HALT, a legal-profession-watchdog group (also watching the disciplining bar institutions and processes) on which we previously posted here. As Mike Frisch commented then, "HALT performs a most useful public service in its attempts to bring scrutiny to bar discipline. Unfortunately, it is very difficult for outsiders to know how truly bad a system may be."
Tom Bell's addendum is that outsiders can't truly assess law schools' most fundamental performances either--until the institutional production of ethical, competent lawyers is part of the ratings calculus.
Posted by Jeff Lipshaw
We have what in Massachusetts nee Freedonia is called an "accepted offer" on a house. I was going to post something on the classic libertarian-caveat emptor-full employment for lawyers-1700s vintage way it seemed to me residential real estate deals were closed in Massachusetts (at least if I believe my real estate agent, Max Remax). But then I thought, who am I to judge? To quote from Richard Ford's recent great addition to the Frank Bascombe trilogy, The Lay of the Land (no joke, this is at page 122 of the hardcover, and I think it is the answer to every dilemma in my life): "Perhaps you had to go to Harvard to understand this. I went to Michigan." (I should note this may also be the answer to my relationship with my wife who did go to Harvard.)
Instead it seemed to me an opportunity for a little MPRE training, on the Law of the Land (note the multi-leveled entendres here). (Disclaimer: the author is merely an MPRE trainee himself, as noted previously. He makes no representation or warranty that the following made-up examples do in fact represent how the NCBE would interpret the sample questions, although he has undertaken the exercise both in a serious and humorous vein.)
So here we go:
1. Jeff Lipshaw, a member in good standing of the bar in the states of Michigan and Indiana (also the 6th and 10th Circuit Courts of Appeal, the Eastern District of Michigan, and the United States Supreme Court), plans to take a job in Massachusetts, and goes about making an offer to purchase a home. His real estate agent, Max Remax, tells him that he will be getting a quitclaim deed, and that he, the buyer, is responsible for insuring the title. This is contrary to Lipshaw's experience in his home states, where seller is responsible for delivering a warranty deed, as well as a title policy under which the buyer is the beneficiary. Lipshaw is confused. Should he hire a Massachusetts lawyer?
(a) No, because he will likely be joining Max's synagogue and so he can trust Max.
(b) Yes, because he will likely be joining Max's synagogue and so he can't trust Max.
(c) Yes, because a lawyer who represents himself has a fool for a client.
(d) Yes, because he has recognized the limits of his competence.
Answer: d. Rule 1.1 of the MPRE states "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." The comment states: "In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question." Lipshaw recalls that, even in his licensed jurisdictions, he probably hacked up his own purchase agreements. Plus, it is obvious that the local customs are designed to ensure that one always refers the matter to a Massachusetts lawyer with established competence. Many MPRE examinees are fooled by (a) or (b). The main problem here is not professional responsibility, but the fact that a fellow temple member will know how much you paid for your house, for purposes of "fair share" dues and your Campaign contribution.
More sample MPRE questions after the fold.
Sunday, December 24, 2006
Posted by Alan Childress
The Colorado Bar Association's annual "Preventing Legal Malpractice" seminar earns four credits (all ethics hours) and is offered live in these locations: 1/25 and again 2/7 in Denver, 1/26 in Colorado Springs, and 2/9 in Grand Junction. Webcasts are 1/25 and 2/7. Here is the brochure in PDF.
"A California appeals court has held that a party in mediation cannot disqualify a lawyer who jointly represents two other parties with different interests," summarizes Ben Cowgill here in his Legal Ethics Newsletter, and links the opinion helpfully.
More than anything, the decision to reverse the trial court's order of disqualification in this context came down to standing--the lack of an ability to complain by the party having no affected confidentiality interest. The Court of Appeal said: "We have identified no ethical consideration that would mandate application of a mediation-disqualification rule whenever parties who knowingly consent to joint representation participate in mediation, particularly where the Legislature expressed no such intent." [Alan Childress]
A U.S. District Judge in D.C. is pondering a ruling that could find unconstitutional Sarbanes-Oxley's creation and use of a "public company accounting oversight board." The Dec. 26 story here from Donna Block of The Deal via Law.com. Judge James Robertson heard arguments on Dec. 21 and assured the parties he would rule "as soon as I can." [Alan Childress]
Posted by Jeff Lipshaw
Some time earlier this year I posted a short essay, developed from a blog conversation among Gordon Smith, Frank Snyder, and me, about contractual disclaimers of truth-telling and reliance.
Larry Ribstein was kind enough to comment on it over at Ideoblog. Since then I have given several talks about it (as has been noted, I am about to move on to my next gig, and as has further been noted elsewhere, you can't get move on to your next gig without giving a job talk). As job talks are really just faculty colloquia on training wheels, it turns out I have gotten immeasurably valuable comments, corrections, brickbats,
Bronx cheers, well-aimed tomatoes (you say tomahtoes), and other affects of opprobrium and praise.
I have now substantially redrafted and converted the essay into an article, now renamed (slightly) Of Fine Lines, Blunt Instruments and Half-Truths: Business Acquisition Agreements and the Right to Lie, which is available on SSRN. While it still discusses (in even more gory detail) the Abry case that was the source of the original blog discussion, I had the good fortune of the new book by Ian Ayres & Gregory Klass, Insincere Promises, being published in the interim, and that provides a nice complement and, I think, support to my thesis. Here is the abstract:
In this article, I expand upon a happy coincidence (for scholars) in reconciling the overlap between contract and fraud. Both the recent book by Ian Ayres and Gregory Klass and the Delaware Court of Chancery in Abry Partners Acquisition V, L.P. v. F& W Acquisition, LLC addressed the issue of promissory fraud – the making of a contract as to which the promisor had no intention of performing. Each treatment, however, in focusing on fraudulent affirmative representations, falls short of (a) recognizing the fundamental aspect of deceptive promising in a complex deal, namely the half-truth, (b) articulating an appropriate doctrinal principle to address it, or (c) capturing the social and linguistic context that makes the deceptive half-truth so insidious.
The archetypal facts in Abry frame the issue. When the parties to a business acquisition agreement purport to limit the buyer's reliance to those representations and warranties set forth in the agreement, just what obligations of truth-telling have the parties contractually released? We need to grapple with the inter-relationship of law, language, mutual understanding, and trust. The language of the law (and the contract) is a blunt instrument by which to map to track the subtle fine lines of a complex agreement. I will contend that there is a kind of special arrogance in the illusion onto which lawyers hold – that the uncertainties and contingencies of the world are in their power to be controlled, and to the winner of the battle of words go the spoils. The correct doctrinal result is to presume in the transactional speech acts (including the contract), as we do in everyday life, a default of truth-telling, to permit the parties freely to contract around the rule, but to require narrow construction of the exceptions and disclaimers.
I know it's not that time of the year just yet, but if you happen to be a law review editor reading this and want to save me some trouble (and forking over the ExpressO fees), feel free to give me a shout.
* The picture is of a book of cartoons entitled Treasures of Half-Truth, by Pat Bagley, the editorial cartoonist for the Salt Lake Tribune. You can see the original the book at SignatureBooks.com.