Wednesday, January 31, 2007
Kudos to attorney Brian Privor who left his practice in D.C. for six months to help out in the difficult criminal defense and public defender situation in New Orleans, on which we had posted here. You can follow along with his eye-opening account -- including many interesting local observations beyond the criminal defense situation -- at his blog [great name!], Do Not Pass Geaux.
Recently Brian has linked to the funny Onion story on the final rebuilding of New Orleans, and has posted the harrowing true tale of a juvenile court judge briefly jailing defense attorney and clinical-prof hero Steve Singer of Loyola for, in essence, not having enough help to do all the work that needs to be done. At least Brian is there. He writes on that standoff, "As if the criminal justice system isn't under enough strain, here's an example of how not to solve the problem."
Speaking of law firm slogans and also "Boston Legal," as we did, the two subjects melded today in a trademark decision in the S.D.N.Y., as reported today in the New York Lawyer (and here). The U.S. District Judge found fair use and no TM violation in ABC's promoting the show with the fake slogan "What's Your Problem?" for the fake law firm headed by Denny Crane. The suit was brought by a NYC cable show creator who uses that catchphrase, for real, in interviewing people on the street. No word yet on a potential suit against both ABC and the cable show to be brought by Rocky and Bullwinkle's hometown university.
UPDATE: The Wall Street Journal's Law Blog, and Peter Lattman, have the story here too.
The current issue of the ABA Lawyers' Manual on Professsional Conduct highlights some interesting recent decisions. The New Jersey Committee on Unauthorized Practice opines that a lawyer not admitted in New Jersey may represent a party in an arbitration proceeding when there is no pending related litigation before a New Jersey court, subject to conditions specified in Rule 5.5. Wisconsin suspended a lawyer for 60 days for, in addition to other misconduct, pressing litigation in the face of apparently overwhelming evidence that the claim was utterly meritless and that supporting documents had been forged. The Court viewed the matter not as a failure to uncover the forgeries but as incompetent representation. The Ohio Supreme Court, by a 5-2 vote, imposed a suspension of a year for the attorney's failure to pay court-ordered child support and to respond to the ensuing bar investigation. (Mike Frisch)
Cincy's Barbara Black (left) has started the Securities Law Prof Blog. In her first two days and seven hours of blogging she has posted 21 newsy posts. She has got to stop speeding up the assembly line (right) for the rest of us. This will of course cause the guys at Workplace Prof Blog to call for all the bees in our Law Professor Blogs Network hive to unionize, if only to be able to pressure Professor Black into work-pace conformity. And of course to influence local pols. I can already see Paul Secunda wearing a smock and standing on top of his computer, holding a magic-markered Union Now! sign while all the other network hard disks are whirring around him. His successful gadfly efforts will prompt him to say, "You like me, you really like me." The lone unionization holdouts are the Aviation Law Prof Blog editors, still smarting from Reagan's hiring of scabs who thought that traffic control radar was a new version of Space Invaders and kept wondering why people were so upset when they "won." And of course TaxProf.
Inevitably Pottersville's Paul Caron will threaten to outsource all the legal blog work. You'll know this has happened when various LPB blog postings are signed by people named "Skippy Smith" and "Abraham Lincoln" (or they are just more insightful). And the unionbusting outsource coup will be complete when one "Brian Lighter" reports that using a new set of more accurate criteria for rating U.S. law schools, it turns out, surprisingly, both that the Number 1 school is Amity Law School and that they don't know where your luggage is either are you sure you even checked any bags?
At the end of it all, as it completely unravels, Paul Caron is left pondering how it all began and what happened to his empire, indeed his very life. It did not help that the WSJ law blog forced an LBO of the network and reduced Paul to blogging about what he had for breakfast (oatmeal, 10.3 oz., and prune juice) and how he feels about the 2000 election. Law librarian Joe Hodnicki (who himself once excelled in his class on The Theory and Practice of Shhh) will find Paul nearly passed out in the stacks at the University of Cincinnati, whispering but one unintelligible word: Roseblawg.
To Sec Law Prof, Welcome! [Alan Childress]
Tuesday, January 30, 2007
“[T]he legal profession used not to be so entirely selfish, self-seeking. The profession has become very greedy and materialistic. The amount of money that some lawyers earn is obscene. There’s now a kind of ruthlessness in dealings between lawyers which is unpleasant, not good for the client or for justice.”
-- Sir Geoffrey Bindman, newly-knighted solicitor at age 74, on the state of the profession in the U.K. (from this interesting story on him today in The Times of London) [Alan Childress]
L.A. attorney Bret Fausett has analyzed as an issue-spotting "exam" the first episode of David E. Kelley's TV drama "Boston Legal." He originally published it in the legal newspapers of L.A. and S.F., but his blogged version here improves on that by providing links to some relevant rules (well, numbered for California and not Massachusetts, but the analysis seems universal). [Alan Childress]
I can't recall why this file is on my computer, or where it comes from, but my sneaking suspicion is that I wrote it at some point in my checkered past. It is a top ten list of social skill warnings of which law firms need to take note when interviewing law students (particularly those who are going to be making $150,000 or more to start).
10. Candidate appears to believe “finger food” means biting one’s nails.
9. Pulls out cell phone and sends text message to friend who is interviewing upstairs.
8. First ten minutes of interview is spent discussing the relative merits of Old Spice and Axe body sprays.
7. Candidate unbuttons suit jacket, revealing four inches of exposed Homer Simpson boxer shorts.
6. In response to “what can I tell you about us?” candidate inquires whether the firm has a policy on downloading internet porn.
5. “Most significant accomplishment” answer involves the phrases “college drunk” and “blow chunks.”
4. Concession to “business attire” is a backwards fitted baseball cap.
3. Candidate refers to contracts professor as a “law weenie.”
2. Seeing picture of family on male partner's desk, candidate asks “was your wife pregnant when they took this?”
1. On belching at lunch, instead of simple apology, chants: “Excuse me, please it was so rude, it was not me, it was my food, it got so lonely down below, it just popped up to say hello.”
Posted by Alan Childress
Peter Henning (Wayne State, and coeditor of the White Collar Crime Prof Blog) has posted on SSRN an article, "Lawyers, Truth, and Honesty in Representing Clients." It is forthcoming in Notre Dame's ethics law review. Here is the money quote: "While truth and honesty are certainly related, they are not identical." His entire abstract follows:
To say that the rules governing lawyers do - or should - reflect a commitment to truth is a worthy goal, but it misapprehends how the professional standards should be applied. Many accuse lawyers of being liars with little devotion to the truth, while the law imposes on them a fiduciary obligation to put their clients’ interests ahead of their own. References to “truth” tend to obfuscate rather then clarify the role of the lawyer. The core of the lawyer-client relationship is trust, protected by the attorney-client privilege that prevents an attorney from being compelled - with limited exceptions - to reveal what a client communicated in the course of the representation. That privilege, of course, frustrates the search for the truth because the lawyer ordinarily may not reveal what has been learned during the representation of the client, even after the client’s death. Dedication to the truth cannot be the lawyer’s paramount goal when every attorney is equally compelled to keep the truth hidden, at least if it is in the client’s interest and there is no basis to avoid the protection afforded client communications.
Finding the truth is the object of the judicial system, but it is not the governing principle for the lawyer. Instead, the focus for the lawyer should be honesty in dealing with clients, opponents, and the system. The principle of honesty governs the attorney in all forms of representation, not just when he is acting on behalf of a client in the course of an adjudication. While truth and honesty are certainly related, they are not identical. In this article, I use honesty to cover assertions - both verbal and non-verbal - by the attorney on behalf of a client, such as expressions of fact, legal argument, or a negotiating position. While truth is focused more on determining the existence of an historical fact, honesty focuses on the accuracy and authenticity of the lawyer’s current assertions on behalf of the client. An attorney’s honesty will assist a tribunal in ascertaining the truth, yet that is not the core function of the lawyer acting on behalf of a client. Whenever a lawyer communicates, whether it is to the court, to an opposing party or attorney, or even to a client, that communication must be honest.
I do not offer honesty as a heretofore unrevealed agenda in the professional responsibility rules or as a curative measure for resolving every conflict among duties a lawyer can face in practice. Instead, the idea that lawyers must be honest when they offer information or take a position can provide a guide to understanding how to resolve some of the difficult issues in practicing law. Lawyers do not operate in a vacuum, and the professional responsibility rules and other guidelines that regulate attorneys provide only limited assistance in resolving difficult issues. The principle of honesty, rather than truth, can provide a further means, in addition to the lawyer’s own ethical judgment, to accommodate the dual roles of the attorney as an advocate for a client and an officer of the court.
January 30, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack (0)
Stephanie West Allen has this post on Idealawg about a conference--Feb. 9 in Minneapolis--on leadership, ethics and innovation taught from a narrative or storytelling perspective. Unrelated, I enjoyed the knock-down debate she posted between two legal writing teachers over the use of the passive voice and whether shorter is always better. The debate was enjoyed by me. [Alan Childress]
Texas Tech's Ann Graham, on our sibling Banking Law Prof Blog, reports here on several "expected" [bland or banal] watchwords for attorney-officers of the Oklahoma Bar Association (like "Live well. Laugh often. Love much.") that she came across in reading her recent copy of the Oklahoma Bar Journal.
But she wonders if a new motto is needed for the law firm that proclaims, "Calcitromus gluteas sordes vilis."
Something of a contrast to Josiah Quincy's practice and marketing in 1763, though by 1768, with business down a tad, he too had to bring the Latin. [Alan Childress]
Posted by Alan Childress
Daniel Coquillette (B.C.--Law) has posted this article to bepress's NELLCO collection: "The Legal Education of a Patriot: Josiah Quincy Jr.'s Law Commonplace (1763)." It will appear in Arizona State Law Journal, sum. 2007. The paper can be downloaded (free and without subscription) from this site. Here is the abstract:
This article is based on the exciting discovery of a never before printed Law Commonplace, written by the 18th-century lawyer and patriot, Josiah Quincy, Junior. Quincy was co-counsel with Adams in the famous Boston Massacre Trial, a leader of Committee on Correspondence and the Sons of Liberty, and author of the first American law reports. His Law Commonplace provides an exceptional window into the political, racial and gender controversies of the evolving American legal system, and profoundly challenges our conventional views on the origin of American legal education. In certain areas, particularly jury trial, it also has present constitutional significance, as compelling evidence of the state of the law referenced by the Seventh Amendment.
Professor Coquillette discusses the advocacy of Quincy and Adams, and relates it to Cully Stimson's controversial comments, in this Boston Globe op-ed.
Posted by Jeff Lipshaw
Rick Garnett (Notre Dame, left) has a neat post over at PrawfsBlawg reacting to a Wall Street Journal op-ed piece about the purported failures of legal education in training students to be problem-solvers.
The part to which I am most sympathetic, given my eclectic background and orientation, is Rick's reaction to the suggestion that we'd turn out better lawyers if we stopped accepting English majors, and started accepting more mathematicians and economists. Rick has responded to this better than I could - and it would just start me another Dennis Miller-like rant anyway.
What I liked best was Rick's epigram about lawyering being moral philosophy at the retail level. That's absolutely the right way to look at it. Indeed, the irony is that the legal academy has a scientific/reductionism bent, which lends itself to thinking that issues are not only problems to be solved, but that all issues are merely problems. Some issues are in the nature of polarity or paradox, and inherent unsolvable, and only, at best, manageable. I speak from experience when I say that those are issues that can flummox mathematicians and engineers and economists in real life: "the function doesn't work! the model doesn't work? what do we do?" The application of wisdom - which may include law, or functions, or models, or may not - to real problems is, as Rick says, moral philosophy at the retail level.
Which is consistent with another characterization - this being my own - that law professors have this wonderful license to be social philosophers, or applied philosophers. I suppose we could say that is moral philosophy at the wholesale level, which means that we intervene between the retail stuff, and the moral philosophy at the manufacturing level, which must be all that epistemology and ontology stuff that you have to have a Ph.D. to practice.
Posted by Alan Childress
A follow-up to yesterday's LPB post about lawyer misconduct in argument and the courts' [increasing?] response to and policing of it: Here is a recent example from Nevada in which its highest court rebuked insurance defense attorney Phillip Emerson for arguments he had made before the jury in four cases, comments which seemed to be inappropriately personal or "vouching"--intentionally so, the court added. The decision was noted and helpfully linked today on How Appealing blog here.
Writes the Las Vegas Review-Journal in "Court Ruling Might Yield Caution Among Lawyers," the December opinion of the Nevada "Supreme Court concluded that Emerson's arguments amounted to misconduct because they 'encouraged the jurors to look beyond the law and the relevant facts in deciding the cases before them.' The court imposed monetary sanctions and referred Emerson to the State Bar of Nevada for disciplinary proceedings." The story quotes UNLV's Jeff Stempel (nationally known for his work on civ pro and ethics) that "he expects the decision to have the dual effect of empowering judges 'to run a little tighter ship' and of making lawyers more reluctant 'to edge toward making arguments based on evidence outside the record.' "
Posted by Alan Childress
We welcome new product information from any company or author related to the teaching of (or practice in) legal ethics or, more broadly, the legal profession and its responsibilities. West just sent a general email and link which announces the second edition of the casebook Ethical Lawyering by Paul Hayden of Loyola-L.A, right. It is available early March for adoption this summer or fall, with a teacher's manual to come. A list of features and comp-copy or contact information is below the fold.
The extent to which professional discipline is appropriate for private misconduct was addressed in a recent decision of the Maryland Court of Appeals. The attorney had submitted false documents to the Motor Vehicle Administration to avoid paying sales tax and having the car inspected. The attorney also had engaged in practice related lack of diligence in failing to record a deed transferring title to real property. The Court looked to the ABA Standards for Imposing Lawyer Sanctions as well as prior Maryland cases in determining that indefinite suspension was the appropriate discipline. (Mike Frisch)
I am prepping for what at Tulane is known as Contracts II, the required course in the second semester of the first year in which we teach Articles 2 (Sales) and 2A (Leasing) of the Uniform Commercial Code, and the United Nations Convention on Contracts in the International Sale of Goods. I decided to switch books, and am using Daniel Keating, Sales: A Systems Approach (on which the jury is still out). One of the points in the book's favor is its attempt to place sales law within a real-life business context, and it does so in part by relating interviews with real lawyers about their use of the various provisions of the law.
We will begin discussion of the UCC's version of the statute of frauds (Section 2-201) next week, just after I finish completing bamboozling them with the "battle of the forms" (interested pedagogues may write in for my handy-dandy 2-207 flow chart!). Here's what stopped me in my tracks. The first couple pages of the assignment discuss why it is that many businesses do not bother with written agreements, notwithstanding Section 2-201's general rule that any contract for the sale of goods of more than $500 ($5,000 in the revision), subject to certain exceptions, must be evidenced by a writing sufficient to indicate there is a contract, including a quantity term, and signed by the party against whom the contract is asserted. In many cases, the cost of putting it in writing exceeds the value obtained, or non-legal or relational remedies (like not doing business with somebody who reneges) suffice.
Of course, there are responsible opposing views. This is the one that gave me pause:
"Although our contracts to purchase clothes from wholesalers or manufacturers are probably formed on the phone, we insist that our purchasing people always follow with a signed written purchase order for at least two reasons: first, for purposes of our internal record-keeping, and second, because it makes me feel comfortable as a lawyer to think that we have something in writing."
Is it just me, or is there something odd here? Why would "comfort as a lawyer" be relevant? Is that because lawyers are naturally anal-retentive, slightly obsessive-compulsive nitpicking butt-coverers? Or it because "lawyer comfort" is shorthand for some actual value in the world? Do this lawyer's business people also feel more comfortable to think they have something in writing? Or are they doing their own internal cost-benefit analysis to try to understand what planet this person is coming from? And has the lawyer ever advised his people that, being on the purchasing side of the purchase order-invoice boilerplate battle, if there's a performed contract, there IS an exception to the statute of frauds, and all the remedies of the UCC, including consequential damages run in the purchaser's favor?
I would agree, as a purchaser, that sending a form saying nothing more in the boilerplate than "PURCHASER RESERVES ALL RIGHTS AND REMEDIES UNDER THE UNIFORM COMMERCIAL CODE, AND THIS PURCHASE ORDER IS EXPRESSLY CONDITIONED ON SELLER'S ACCEPTANCE OF THIS RESERVATION" would achieve precisely the stalemate than any competent UCC lawyer ought to achieve for a purchaser. But if the industry custom is not to use any paper at all, you don't need it. And you certainly don't need it for your own comfort.
Of course, that's just my opinion. I could be wrong.
Here are the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal (edited by the intrepid Brad Wendel), as measured by downloads in the last sixty days.
1. How an Instrumental View of Law Corrodes the Rule of Law, Brian Z. Tamanaha, St. John's University - School of Law
2 The Challenge to the Bench and Bar Presented by the 2005 Bankruptcy Act: Resistance Need Not Be Futile, Jean Braucher, University of Arizona, James E. Rogers College of Law
3 An RSVP to Professor Wexler's Warm TJ Invitation: Unable to Join You, Already (Somewhat Similarly) Engaged, Mae C. Quinn, University of Tennessee - College of Law
4 When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature, and Popular Culture, Michael Asimow, Richard Weisberg, University of California, Los Angeles - School of Law, Cardozo Law School
5 Young Associates in Trouble, David T. Zaring, William D. Henderson, Washington & Lee University - School of Law, Indiana University School of Law - Indianapolis.
6 Open Access, Law, Knowledge, Copyrights, Dominance and Subordination, Ann Bartow, University of South Carolina - School of Law
7 The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, Arthur D. Hellman, University of Pittsburgh School of Law.
8 Lawyer Satisfaction in the Process of Structuring Legal Careers, Ronit Dinovitzer, Bryant G.Garth, Bryant G. Garth, University of Toronto, American Bar Foundation, Southwestern Law School
9 Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in EC-Biotech, Tomer Broude, Hebrew University of Jerusalem - International Law Forum
10 The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, Peter A. Joy, Washington University School of Law
January 30, 2007 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack (0)
Monday, January 29, 2007
[This is excerpted from information sent by UGA in Athens. This conference is free to most registrants, and open to students/profs/practitioners. Note that the link so far provides only 2006 information (and says it is "closed," but it is not), so watch it fresh for updated registration and hotel info for 2007. Athens housing may be free for students attending on a road trip. Sounds like a great idea. --Alan Childress]
The University Of Georgia School Of Law cordially invites you to attend the Second Annual "Working in the Public Interest: Challenging Poverty through Law " conference on March 30-31, 2007.
The conference commences on Friday, March 30 with our keynote speaker, Stephen B. Bright, President of the Southern Center for Human Rights. On Saturday, March 31 we will have an entire day of panels and roundtable discussions with speakers drawn from all parts of the country.
This year we will be offering CLE credits for a small registration fee. We can also arrange free housing for student attendees who would like to stay with other students here in Athens.
Panel discussions include:
"What is Public Interest Law and Why Do We Care?" (Plenary)
"Universal Health Care: Political Priority or Pipe Dream?"
"Sheltering the Poor: Solving the Affordable Housing Crisis Through Government and Community Initiatives"
"The Immigrant Narrative: Day to Day Struggles of Legal and Illegal Immigrants in America Through the Lens of State Social Services and Health Care Access, Labor Laws, and the Scope of Legal Aid"
"Juvenile Delinquency Prevention and Responses: What Works?"
"Felon Disenfranchisement: How States are Mandating Change and Restoring Voting Rights"
"Are Labor Unions Obsolete?" (Workers' Rights Panel)
Roundtable topics include:
Public Defenders and District Attorneys
Governmental service and the public sector
Grassroots organizations and faith based charities
Pro bono work in the private sector
Financing a public interest career
Non-traditional law practice
Impact litigation and lobbying
....Registration will be available online in a few weeks, at our website: www.law.uga.edu/wipi.
Posted by Alan Childress
Paul Tremblay (Boston College--Law) has posted on SSRN--Law & Soc'y: Legal Prof. his review essay, "Critical Legal Ethics." It will be published in the Georgetown Journal of Legal Ethics, vol. 20. His abstract is:
In this essay, Professor Tremblay reviews the book Lawyers' Ethics and the Pursuit of Social Justice: A Critical Reader, edited by Susan D. Carle and with a foreword by Robert W. Gordon, published by New York University Press in 2005.
Legal ethics should be far more than a set of rules on professional responsibility; they can serve as a means for changing power relations, empowering the disenfranchised, and advocating progressive social change. Lawyers' Ethics and the Pursuit of Social Justice broadens the discussion on legal ethics by first introducing the historical and theoretical background and then connecting it to real world issues while addressing lawyers' ethical obligations to work for social justice.