Wednesday, March 14, 2007
Posted by Alan Childress
Laura Rovner (U. Denver--Law) has posted to SSRN her article, "The Unforeseen Ethical Ramifications of Classroom Faculty Participation in Law School Clinics." It will be published in the law review of the University of Cincinnati, vol. 75, in 2007. Here is the abstract:
The past decade has seen an enormous expansion in both the types of clinical programs offered by law schools and the role of clinical education in the law school curriculum. With this development has come greater involvement on the part of classroom faculty in clinical programs, who are increasingly collaborating with clinic faculty and students in clinic cases in a variety of ways. In this article, Professor Rovner asserts that such collaborations, as desirable as they may be for the practical and pedagogical benefits they offer, also may present significant ethical issues for faculty, students and clients.
This article analyzes some of the most common professional responsibility issues that may develop when classroom faculty work with law school clinics, focusing in particular on the areas of unauthorized practice of law, confidentiality and conflicts of interest. In the article, Professor Rovner identifies the multilayered ethical considerations that arise from classroom faculty involvement in clinics, develops a systematic taxonomy that promotes a better understanding of these concerns, and proposes a series of best practices that law schools might adopt to address, and perhaps prevent, ethical violations from arising.
March 14, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (1)
Tuesday, March 13, 2007
Posted by Alan Childress
As if right on cue to Mike's post on APRL's view on amending the ABA's Model Rule 3.4 to prohibit requiring waiver of privilege, Daniel Richman (Fordham), shown right, has posted to SSRN his essay, "Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem." Here is the abstract:
This symposium essay explores the contestable empirical and normative assumptions that underlie criticisms of the Justice Department's policies with respect to the waiver of corporate attorney-client and work-product privileges. And it considers how authority with respect to prosecutorial decisionmaking in this area ought to be allocated.
March 13, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Privilege | Permalink | Comments (0) | TrackBack (0)
Every UCC teacher knows that Section 2-313 of the Code deals with express warranties in a sales transaction. As the Official Comments note, these warranties are rightly difficult to disclaim because they go to the basic ******ed terms. Unfortunately, every time I say the word ******ed, there are ******s in the classroom, despite Karl Llewellyn's obvious endorsement of the term.
Yesterday, I learned there is another completely innocuous and politically neutral adjective not to use in describing an argument: **********. With this, there were more than ******s; the entire class broke down into the pedagogical equivalent of ******ing protoplasm.
In addition to commentary and recent sources cited in our previous post about the new Colorado bar opinion on "collaborative lawyering" agreements, see this worry by John Steele at LegalEthicsForum that Colorado is pushing adversarialness. See also Robert Ambrogi's thoughts at Legal Blog Watch of Law.com. Robert cleared up with the Colorado bar people that the opinion is indeed 2007, and the bar has now (thanks to blogging) reissued its Ethics Opinion 115 on the website to correct the misdate. [Alan Childress]
...I like Bluebooking. Maybe it's the pure anality of it, like mowing the lawn with a rearbagger (yes, I know, I switched to a mulcher for the environmental friendliness of it). Maybe it's that you are near the end of the writing process, and about to submit. Maybe it's the cool way the large and small cap font looks. Maybe it's the fawning law review editors (sure, in my dreams) saying, "oh, professor, thank you, thank you so much for being attentive to our needs."
Adrian Monk [Jeff Lipshaw]
Posted by Jeff Lipshaw
I can't remember if I have ever posted on this subject, but getting a raft of different small "to do" requests - read a colleague's draft of a letter, write a recommendation letter, do an evaluation of a student's law review comment - over the last few days reminded me of a counter-intuitive "customer satisfaction" methodology I adopted a long time ago. (I cannot remember any more if I learned it from somebody else or it is merely a reflection of my somewhat abbreviated attention span.)
Imagine being out of the office for a couple days and having a stack of those pink phone message slips stacked up (like in the old days), or listening to your voice mail and jotting the return calls you need to make in the order you listen to the calls. Most people, I'm guessing, would organize the return calls, as they would most tasks, on a FIFO - first in, first out - basis. (That's assuming you don't use another personal organizing method, which a former colleague at AlliedSignal, Ken Pickar, named the "Scream-O-Meter." You only get to any task when somebody starts screaming at you about it above a certain decibel level. This is how I approach most household chores.)
I always organized these tasks, particularly returning phone calls or e-mails, on a LIFO basis - last in, first out. My theory was that there was something really impressive and outstanding about an almost immediate response, but there was a geometric, not arithmetic, dilution for every hour and every day that you delayed (with perhaps some limit - was three weeks any better, really, than three months or three years?). So while nobody would notice if your response varied by a matter of hours or days once several hours or days passed, the geometric response time function would hugely value those occasions when you could respond quickly.
The trick, of course, is weaning oneself of the habit of responding on a FIFO basis. The use of LIFO response, combined with the geometricity of human reactions to response time, means that at least half the time you are going to blow somebody out of the water in amazement at how quickly you respond to their needs.
* The pictured book has nothing to do as far as I can tell with this theory, but the title seemed apropos. If you are interested in it, you can click on the picture and get to the website of Elsevier Publishing. If you read the description of the book's content and understand it, then the better question is what the hell are you doing reading this blog?
Carolyn Elefant's comment on a recent post linked to a document that suggests that attorney discipline in New York is doing more to protect predatory lawyers than the public. It is worth a read as it proposes some thoughtful reforms. It also suggests that concerns about self-regulation of the legal profession are not limited to a few rogue jurisdictions but are a widespread problem that needs to be addressed in a meaningful manner. If we do not keep our own ethical houses in order, eventually the privilege of self regulation will be taken away. Lawyers will not enjoy outside regulation and may wish we had operated disciplinary systems in the public interest rather than the "parochial or self-interested concerns of the bar." (Mike Frisch)
Posted by Jeff Lipshaw
There is another variant on this discussion if you teach at a school like Tulane that does not permit adjustment of anonymously determined exam grades on account of participation. You can pre-announce an attendance policy (which can include non-preparedness) but even then you are only permitted to lower the grade, and even that is done automatically through the academic services office. All of which is to say that none of the above makes any difference.
Several colleagues here and I have discussed the general issue of unpreparedness in the last few days. We have tentatively identified three theses. One: the expectation of participation from the Socratic model of teaching is unrealistic in many courses. I am teaching two Code courses - Article 2 (Sales) and Article 9 (Secured Transactions). Unlike many other courses, there are right answers (as Miranda points out for her tax classes), and "policy debates" are far fewer than in classes like criminal law or constitutional law. I will pose questions, and often use the students as foils, but the idea of dragging the Code materials out of them, rather than teaching it to them, doesn't seem to make much sense. [I took Securities Regulation in the spring semester of 1979 from Professor Kenneth Scott at Stanford. I am teaching the class this coming fall. Now granted that many things, in terms of the regulatory specifics, have changed in twenty-eight years, but the basic bones of Section 5 of the '33 Act and the exemptions and exceptions under Section 4 are still the same. His lectures - lectures, mind you - were so organized and, as I recall, interesting, that I retained my class notes all these years, and I expect to be able to go back to them for at least some pieces of class prep. What's wrong with that???]
Two: large "required" upper level courses (e.g., evidence, business associations) can have a surly audience. Many of them are there under a sense of duress, and unlike the 1Ls, they realize it doesn't make any difference any more how surly they are.
Three: what is the proper expectation in a grad school? Do professors in other disciplines at this level take attendance? Grade on participation in class discussions? Put tick marks and such on the seating chart for good comments? When I was a practicing lawyer, I couldn't take notes on my own questioning because I would lose the thread of the examination. I can't imagine trying to teach a class and administer points at the same time!
Monday, March 12, 2007
An attorney who accepted an 18 month suspension in Georgia has been recommended for the same reciprocal discipline by the District of Columbia Board on Professional Responsibility. The misconduct? After being terminated by his former law firm, the attorney accessed the firm voice mail message system, listened to and deleted messages. This conduct took place for about eighteen months. Georgia found a violation of the prohibition against dishonesty, fraud, deceit or misrepresentation. There is no mention in the D.C. report about the motive for the misconduct. (Mike Frisch)
Posted by Alan Childress
Richard Danner (Duke), shown left, has posted to SSRN's Law & Soc'y: Legal Profession his article, "Legal Information and the Development of American Law: Writings on the Form and Structure of the Published Law." He draws on previous foundational work by Berkeley's Robert Berring, below right. Danner's tribute and analysis will appear in 99 Law Library Journal (Spr. 2007). The abstract is:
Robert C. Berring's writings about the impacts of electronic databases, the Internet, and other communications technologies on legal research and practice are an essential part of a larger literature that explores the ways in which the forms and structures of published legal information have influenced how American lawyers think about the law. This paper reviews Berring's writings, along with those of other writers concerned with these questions, focusing on the implications of Berring's idea that in the late nineteenth century American legal publishers created a "conceptual universe of thinkable thoughts" through which U.S. lawyers came to view the law. It concludes that, spurred by Berring and others, the literature of legal information has become far reaching in scope and interdisciplinary in approach, while the themes struck in Berring's work continue to inform the scholarship of newer writers.
March 12, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
As a favor to professors and lawyers everywhere, let me know, or post a comment if you have encountered this problem over the last couple days.
To update a Windows Mobile 5.0 device (like my Motorola Q from Verizon) with the Daylight Savings Time patch from Microsoft, you had to download ActiveSync 4.5. If (a) you downloaded ActiveSync 4.5 and installed it on your device, and (b) you sync the device through Microsoft Outlook 2003 to a Microsoft Exchange Server (i.e., where many large institutions like universities and law firms keep all your data), you find that you can no longer sync your calendar, contacts, etc. between the two.
I just spent ninety minutes over at the tech support center trying to make it work, all to find, I think, that this is a problem with the university's program and not my device. But I'm willing to do anything to help the IT people in exchange for the joy they have brought to my life on so many occasions.
The Association of Professional Responsibility Lawyers ("APRL") has submitted comments to the ABA on a proposed new Rule 3.4(g), which would make it unethical for government lawyers to request waivers of the attorney-client privilege and work product protection as a condition to assessing a party's cooperation with the government in a civil or criminal regulatory action. APRL does not support the adoption of the proposed rule at present. (MIke Frisch)
As I was sitting in the airport yesterday in Atlanta, having wrapped up the crossword puzzle in the New York Times Sunday Magazine, I read Jeffrey Rosen's article on the law and neuroscience rage. I was tempted to write some comments, but then got engrossed in what I thought was far more interesting: the article on George Smoot, Saul Perlmutter, cosmology, and "dark energy." (Somebody from Harvard or MIT: isn't George Smoot, besides being a Nobel Laureate, the guy in whose size the Harvard Bridge across the Charles River near MIT is or was measured? This may date me but I recall that there was a sign saying the bridge was so many "smoots" long.)
But I digress. The point here was to provide a link to Donald Braman's apropos comments on the neuroscience article.
UPDATE (only minutes later): One forgets the power of the search engine. I typed "smoots harvard bridge" into Google and came up with this from George Smoot himself setting straight precisely how many smoots (plus an ear) it took.
ANOTHER UPDATE (only seconds later): As is known, I am taking a position at Suffolk, and my wife and I are moving to Cambridge (an undisclosed location near Porter Square). My wife is a Harvard alumna, and I have to admit, despite having gone to two institutions that claim that Harvard is in each case the "X" of the East (my son now has such a tee shirt), and recognizing the implicit inferiority/superiority complexes inherent in all of that, I have nevertheless all these years had a soft spot for the two Cambridge universities sandwiching Central Square, first, on account of the "smoots" and, second, on account of the spring raft races on the Charles, particularly the rafts equipped with their own "funnelators."
Sunday, March 11, 2007
The Montana Supreme Court affirmed the grant of summary judgment in a matter where a former state senator was found to have engaged in unauthorized practice. He had never been admitted to practice and had not attended law school. In response to the bar's request for information prior to the filing of charges, he responded "you had better bring along your chains and restraints." The former senator had been adjudicated in contempt and enjoined from the practice of law for advertising himself as a licensed paralegal under the attorney yellow page listings. He claimed to be duly licensed in the Blackfeet and Confederated Salish and Kootenai Tribal Courts. The Blackfeet court had allowed him to participate in proceedings as a lay advocate; the other tribal court revoked his status. (Mike Frisch)
Posted by Jeff Lipshaw
If you have been marooned for the last twenty years or so on a desert isle, you might not know that the fate of the "bubble teams" (alas, Michigan, ours is burst once again) and the seedings for the NCAA Men's Basketball Championship - in my view, the most engaging sports event of the year because it is the most national - will be determined by a group of people (all men, but I'm not sure) holed up under tight security in the Westin Hotel in downtown Indianapolis, about five miles from where I sit typing this. A couple of days ago, I opened the Indianapolis Star (our local "newspaper") to find a full page ad taken out by Appalachian State University (located in Boone, North Carolina) making its case to that committee. Clearly a sign of the apocalypse.
The business section of the Star, obviously not wanting to be left out of the hoopla, today features an article headlined "The Sports Bar," focusing on those lawyers in Indianapolis involved in making it the nation's amateur sports capital. The NCAA's general counsel is Elsa Cole (previously the general counsel of the University of Michigan), and the president of USA Track & Field, Craig Masback, is a lawyer. But the article features my friend and Stanford classmate, Jack Swarbrick (above left), a partner at Baker & Daniels, and who is described as "a pioneer of sorts because of his role helping Indianapolis secure a position as one of the leading cities in the country for amateur sports."
There is also this about the new dean at the Indiana University School of Law - Indianapolis:
Indianapolis' growing reputation in sports law was just one of the pluses that drew Gary Roberts [above right] to accept a job as dean of the law school at [IUPUI], where he hopes to establish a center that studies legal and other aspects of sports.
I should note that the "powerhouse" referred to above can only, as far as I can tell, be Gabe Feldman (above left), sports law expert extraordinaire, who will remain at the sports law tiller in New Orleans.
Finally, one of the local luminaries of the bar is Melina Kennedy (right), former deputy mayor and candidate for Marion County Prosecutor (and now a partner at Baker & Daniels). Melina was a runner at Indiana University, and her husband is Bob Kennedy, generally considered the greatest 5,000-meter runner in the history of United States track and field. [UPDATE: Alan C. chides for not saying "male" - thus dissing Mary Decker.]