Saturday, March 24, 2007
Posted by Alan Childress
After I learned from a website last week that our blog may be censored in China -- explaining a lot but depressing me -- I was cheered by another website, phonespell.org. This one provides a long list of possible words for any 7 or 10 digit phone number, one that you enter. My own number came up pretty fruitless, gibberish even. I hate mnemonics that are harder to remember than the subject. No one is going to call me, certainly not anyone in China.
But Jeff's number works great. I won't say it exactly since Emily Post declared it impolite to post people's numbers on the internet for anyone to see and stalk. Suffice it to say that he can have people remember his number easily by cheering for a team and a sandwich. They also may have to remember that there is no i in team. (There is an i in signing bonus, though -- two of them, even.) On the other hand, Mike's is fairly obscene in two proposed ways, and one (without his area code) implies he is quite the loner.
Unbelievably, but true, my father's full phone number -- with a few other additions in it that make it easy to remember but impossible for you to call him based on this -- includes "my daddy."
The White House phone number, 202-456-1414, came up jabberwocky like mine. But tellingly, Karl Rove's listed White House phone number (from the official website of The President and His Leadership Team) comes up "Globe My." (Just remember the DC area code first.) Or dial "i lob fowl" or, hard to fathom, "i job doze." My memory will stick with world domination. Warning: don't call that direct-dial number if you are Tim Russert or, for that matter, you are Chuck Schumer. Unless you are at a pay phone.
My law school classmate Alberto Gonzales is pictured and nicely bio'd on the "Leadership Team" as well, but his phone number is not listed. I then checked the alphabetical listing, and -- like i -- there is no "Scooter" or "Kyle" in team. Anyway, too bad Mike Battle was the one who had to make the U.S. Attorney you're-fired phone calls on Pearl Harbor Day last year, because the Attorney General's photo has The Donald written all over it.
But before Senator Schumer gets judgmental about Rove's plans for Globe His, he should consider that constituents are encouraged to call the Senator, unbeknownst to them, at either "AA I'm Liar" or, worse, "AA ho kick." Must feel that way to some in Globe His this week. Or simply dial "bag-o-lice." (Like Dan Ackroyd's Bag-o-glass Christmas gift. But more willing to keep on giving to others.) That's in DC. The senator's NYC office can be accessed at "hung if 0." Oddly, his Syracuse office continues the itchy theme with "31-lice-lip-1" including area code, while his local Buffalo office (Buffalo being the hometown of Tim Russert, of course) is "Tim, I-111." Is I-111 an interstate in the city? Did Tim tell Chuck about Plame? There? Anyway, the Senator has several glass houses of phone numbers and cannot make fun of Karl. But these are presumably named unintentionally. His "About Chuck" webpage name (plus associated pic left) is not. Let's hope he does not get the Up With People singers to support him. Thankfully, there's no "Talk With Chuck" ad here.
Maybe we should be censored in DC instead of China. Or at least Syracuse, where locally "Ice Lip 1" will reach Sen. Schumer.
As for the post title: my ethics students tell me, in the class on lawyer advertisements and billboards, that one guy proudly uses 1-800-Bastard -- I think he's a lawyer in Florida. I have not checked to see whether that is true but I believe them.
Posted by Alan Childress
The ABA Journal has this Friday e-Report on federal charges filed against New Orleans attorney James Perdigao, alleging billing bilking of clients and also diversion of legitimate client payments from the firm Adams & Reese. The scheme sounds like one out of the ending to the movie version of The Firm, minus the mob but including client overbilling and the charge of mail fraud. (Ed Harris: "Mail fraud?!! Tom Cruise: "Studied it for the bar exam.") Perdigao actually is alleged to have diverted mail from a subsystem, which would sound like actual mail fraud to even non-lawyers.
Here, 59 various counts in all, but still his maximum sentence would be merely 1,023 years. That is not nearly enough, since obviously he may serve those quite quickly at his present billing rate (stealing the old joke with the lawyer facing St. Peter at Pearly Gates who must be as old as Methuselah according to timesheets). Need to make it 1,120 or more, I figure.
Like with all alleged embezzlers, suspicion started that one day he skipped work (a
temp sent a routine billing inquiry to accounting instead of him). First rule of embezzling:
there is no Fight Club No Days Off. Even his his heavy hourly billing was not enough to prevent that one day of absence to cover his tracks.
The law firm "reported Perdigao to the U.S. attorney’s office and the Louisiana State Bar Association’s Office of Disciplinary Counsel. In 2004, Perdigao was suspended from the practice of law on an interim basis." One legal ethics lawyer in Louisiana is quoted as saying, “He’s obviously in trouble now, and if any of this is true, I’m sure the state ethics system is watching him like a hawk.” Hmm. What would Mike Frisch say? Maybe they should do more than just watch him, like a hawk or any other sighted animal (though maybe they are, slowly, like a slow-seeing hawk).
Friday, March 23, 2007
We're sitting here watching the Butler-Florida game (go Bulldogs!) and just saw the Coke Zero commercial. It turns out that those "actual lawyers" really are in-house Coca-Cola lawyers being set up with hidden cameras. I love this exchange:
Marketing 1: "Do we have a case? I'd like to sue Coke
Zero for taste infringement."
Lawyer: "For what?"
Marketing 2: "We want to sue them back to the Stone Age to send a message that they can't mess with the flagship brand."
Lawyer: "It's the same company. It's like suing yourself."
Marketing 1: "Yeah, but they're on a different part of the floor."
Posted by Jeff Lipshaw
Some weeks back, I posted something on the blog about a new Harvard Law Review article on contract theory entitled The Divergence of Promise and Contract by Professor Seana Shiffrin (UCLA). I thought it was a marvelous article, but I didn't agree with everything in it, and so I wrote a little 3,000 word response for the HLR Forum, which is the on line "respond and comment" site akin to the Yale Law Journal Pocket Part. I don't know quite why, but the editors in their sublime wisdom chose to publish a response by Charles Fried (Harvard), author of the classic Contract as Promise. His response is entitled The Convergence of Promise and Contract, which certainly had it all over my working title Looking for Law in All the Wrong Places (with a dutiful cite to Johnny Lee).
But in the words of my heroes from Galaxy Quest: Never Give Up, Never Surrender! The piece, now essay length, is posted (provisionally, mind you) on SSRN under the far more distinguished title The Futility of Justifying Contract Law as Self-Referential System. (The point of the post title is that most of the expansion came during spring break to the chagrin of my wife who expected me to tear myself away from the computer for a couple seconds. But when the muse hits....)
The essay is the latest in my seemingly never-ending attempt to articulate my idiosyncratic (but absolutely correct) view about the "morality or fairness versus welfare" debate among legal philosophers in contract theory. Should contract law reflect in its fundamental approach (where all cannot be accommodated) the sanctity of promise (Fried), or the affirmation of freely given consent (Barnett), or maximizing of material well being (Schwartz, Craswell, Posner, and a host of others)? I, of course, think they are either all correct or all misguided, and keep trying to explain why. (To be fair, the accommodationists out there are Jody Kraus and my friend Nate Oman.) What was really fun about this was digging into Douglas Hofstadter's Godel, Escher, Bach, and Godel's Theorem,* and the back and forth in the literature about the applications and misapplications of a proof in number theory to the law. (To go beyond that, you have to read my essay.)
Here's the abstract:
All heretofore proffered justifications of the institution of contract law founder on the shoals of the implicit paradox of systems that attempt to justify their own assumptions. There is a paradox, or antinomy, of the subjective and objective in the resort to contract law – the parties couch first-party wants or needs in justifications that would make it appear that those wants or needs are consistent with objective truth. The quotidian result is that the only objective truth about the positive law of contract is that it exists to resolve private disputes peaceably. The ironic conclusion is a recognition that formalism – the resolution of disputes to some lesser or greater degree without acknowledge of the specific context – is consistent with a view that the law has limited efficacy as a social mechanism. This is because law itself is a model that cannot ultimately contain its own assumptions. It must look outside itself, and when it does it sees a myriad of justifications for particular results, all of which sit apart from what law will never know: how the parties would have resolved the problem had it never been objectified.
* I apologize but I am too lazy to transport an "o" with an umlaut over here.
Congratulations to Jerry Larkin on his appointment as Administrator of the Illinois Registration and Disciplinary Commission("ARDC"). Jim Grogan was named Deputy Bar Counsel. These two longtime bar prosecutors will continue the fine work of the ARDC. I had the privilege of working closely with both Jerry and Jim during my association with the National Organization of Bar Counsel. (Mike Frisch)
A decision by the D.C. Court of Appeals is a useful cautionary tale about the ethical dangers of uncontrolled "romantic" impulses. The attorney was attracted to a fellow passenger on a Metro train. After they had exchanged names and places of employment, he started to rub his leg against hers. She decided to change seats and, as she did, he touched her buttock. He followed her to her new seat and she moved again. He then moved directly across from her. When he reached his stop, he dropped his business card in her newspaper and uttered the immortal phase "Give me a call sometime, baby." She elected to call the police instead.
As noted in the Board report, her place of employment was the Office of Independent Counsel. Oops.
Result: conviction for misdemeanor sexual abuse, 30 day suspension. (Mike Frisch)
The New York Appellate Division, First Judicial Department affirmed a surrogate's decision directing Chadbourne & Parke to return over $720,000 in fees plus interest of over $376,000 to JPMorgan Chase Bank. The lower court had found the charged fees reasonable "only to the extent of the...award." The firm was not entitled to a success premium because "Chadbourne actually opposed the result for which it... [sought] a 'premium', and delayed the consummation of the settlement while it sought releases for its individual clients, providing no benefit to the estate." The firm's claim for disbursements also was held to be properly reduced. (Mike Frisch)
Thursday, March 22, 2007
Posted by Alan Childress
Irreplaceable or rickets. That was the eternal conundrum facing me this morning in one email as I read my inbox's Re lines. I realized there was a deep thought going on here, beyond my capacity. I worry that I may never truly understand the antinomy that is presented. I would have guessed that it could be possible to have Vitamin-D deficiency rickets and still be at least a little irreplaceable. (Or that some people whom I find utterly replaceable likely do not have rickets.) But apparently not, and somehow it is related to investments overseas and a list of stock prices.
It does remind me of a story comparative law giant Thanassi Yiannopoulos at Tulane (right) once told me about taking Torts with William Prosser at Berkeley in the 1950s (by the way, for Thanassi's second of three doctorate degrees in three countries, but he did not tell me that). He told me that the most diligent student sat in the front row and took notes religiously, even nodding a lot in deep agreement like at a revival meeting. I get that: Prosser on Torts must have been quite a show. (For this blog's purpose, I add that Prosser is reported to have said he would never teach legal ethics because he would not waste a semester telling people not to lie, cheat, or steal.) Anyway, this kid was a rising star. At the end of the course, Prosser was approached by the student (without particularly inviting any questions) and said to the Dean, "I just have one question. What is the difference between a tort and a demurrer?"
If you get that joke, you are way too legal. The best party of the story, really, is Thanassi's belly laugh after telling it. He is also irreplaceable, with no sign of rickets. I thought of that story (tort or demurrer?) when confronted with this email's dilemma.
WebMD has an interesting related article I found while linking rickets: Emailed Health Warnings: Hoax or Fact? I am already big into legal hoaxes and emailed urban legends of "law," as you may know from prior posts here and here. This article is the same debunker from the world of real doctors, unlike us. As it turns out, the story reports, there is no asbestos in tampons, and there's no cancer-causing lead in lipstick. Take that back: "And lead levels in lipsticks are low and not regarded as dangerous by the FDA," the story assures us. OK, now I am worried again.
Wednesday, March 21, 2007
Posted by Alan Childress
Speaking of David Giacalone (as I did, last post), his other site f/k/a features a sad and extremely informative post -- a fundamentally important post -- about an aging generation of lawyers and the early[er] onset of Alzheimer's and other memory/function issues. David extends his thoughts to the ethics considerations too. It is called The Graying Bar: Let's Not Forget The Ethics. Highly recommended and thought-provoking.
Here is a new Law.com (N.J. Law Journal) story on that federal court's (per U.S. Magistrate Judge Tonianne Bongiovanni) refusal to allow silent attorney ghostwriting for a pro se litigant (and by implication, some other "unbundled" representations). See our original post here. David Giacalone at SHLEP was kind enough to alert me to this new article about the decision which we, David, and originally William Freivogel had noted before. Here is David's original post too, plus Carolyn Elefant's follow-up post on Legal Blog Watch.
Notice that the N.J. decision seems to rest on the lack of authorization in N.J. rules for such discrete-task or "limited" representations, and thus may extend beyond undisclosed ghostwriting. The judge wrote, "This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC [in New Jersey], ghostwriting is antithetical to the public interest." The affected lawyer says he will seek reconsideration.
Updated 3/25: Nice post by Suffolk's Andy Perlman on the N.J. case, over at Legal Ethics Forum. See also his exchange with a thoughtful commenter, Steve Berenson at Thomas Jefferson. Further views and reader comments at Divorce Law Journal.
The annual United States Congress v. Georgetown Law profs charity basketball game tonight in Washington, D.C. offers a diversion for those wish to raise money for the homeless by seeing basketball's version of March Geriatric Madness. The game is at Gonzaga High School. We predict a victory for this Hoya team although Congress is well known for stocking their team with ringers. (Mike Frisch)
Tuesday, March 20, 2007
A recent disciplinary case decided by the Iowa Supreme Court underscores the potential ethics pitfalls of lawyer overzealousness in pursuing a fee action against a client. The lawyer had served as an Air Force JAG officer and had overseen a clinical program between Legal Aid and Washington University of St. Louis. He also had created an "ecumenical legal assistance ministry" that aided impoverished areas of St. Louis. All went well until he entered private practice.
The court found that the attorney assessed finance charges to fees without advance written agreement to such charges. He either reported or threatened to report clients to the IRS based on the contention that his unpaid fees should be treated as income to the clients. He placed unauthorized liens on client real property. Finally, his retainer agreements were unethical in obligating clients to contest charges within 10 days and providing indemnity for legal negligence claims. The court ordered suspension for an indefinite period with no possibility of reinstatement for six months. [Mike Frisch]
Monday, March 19, 2007
Posted by Jeff Lipshaw
In the last top ten from SSRN's Legal Ethics & Professional Responsibility Journal, I noted that Michael C. Jensen, one of SSRN's founders, along with Werner Erhard and Steve Zaffron, had posted a slide view of a thesis purporting to state an empirically-based model of performance as a function of integrity. More controversially, the authors claim to be able to separate integrity, as a positive phenomenon, away from the putatively related virtues of morality, ethics, and legality. I had not read it at the time.
I've now begun to go through the underlying paper, and think it is propitious that Douglas Hofstadter, author of the renowned Godel, Escher, Bach: The Eternal Golden Braid is about to release a new book entitled I am a Strange Loop. As a Kantian dabbler, I am fascinated by the Unconditioned, the final proposition for which there are no conditions, to which our reason propels us but which is paradoxically unreachable. Hofstadter, as physicist, mathematician, computer whiz, and poet, swirls around this in the context of self-referential systems that, as Kurt Godel showed in his incompleteness theorem, cannot contain their own assumptions. (I wish I were mathematician enough to understand the number theory proofs, just as I wish I knew more about symbolic logic and computer code.) This was Stephen Hawking on the self-referential loop problem in an interview in Discover magazine from October 2005:
There are other, purely theoretical, reasons to believe that an ultimate theory of everything might not be possible. For instance, there is Gödel’s theorem, which says you cannot formulate a finite system of axioms to prove every result in mathematics. A physical theory is a mathematical model, so if there are mathematical results that cannot be proved, there are physical problems that cannot be solved. But the real relevance of Gödel’s theorem is its connection to the fact that inconsistencies can arise if you try to prove statements that refer to themselves. One of the most famous of these is the assertion “This statement is false.” If the statement is true, then according to the statement itself, the statement is false. But if the statement is false, then the statement must be true. Since we are not angels who view the universe from the outside, we – and our theories – are both part of the universe we are describing, and hence our theories are also self-referencing. And so one might expect that they, too, are either inconsistent or incomplete.
That was how I felt about Jensen's project. Before I jumped back into academy I spent a long time in business, and listened to a lot of management and leadership consultants propose the silver bullet that would do as much as humanly possible were one to abide by it to insure success. For those of you who are golfers, I have an analogy to golf instruction. There are thousands of ways to learn how to hit a golf ball, but there are really only two things that need to be going on. The club face needs to be square to the line, and it needs to be accelerating when it hits the ball. Everything else you learn is a way of getting to that essence.
I'm willing to posit that something - Jensen et al. call it integrity - is that silver bullet. Other consultants and theorists have their name for it. One of the best from my experience was something done by an outfit called The Arbinger Institute, and capsuled in a popular trade press book called Leadership and Self-Deception. These consultants used "way of being" for what Jensen et al. call integrity. in the end, I don't think any are empirically testable, and that leads me to the second point. Kant also made a fundamental epistemological distinction between what we can know and what we believe. He predated Popper in saying that all we can know is what we can test against experience, scientifically; it isn't to say we can't feel like we know God, but unfortunately no proposition about God can be tested. Kant said, however, that "ought" or "value" statements - universals - while not knowable as truth can be ascertained through reason. Ought statements that are universal, like the golden rule, or the heuristic on integrity (which is really "you ought to have integrity, because without it, nothing works") are not truth statements. At the end of the day, I think the authors are still making an ought statement.
So by suggesting an involved definition of integrity as "honoring [not keeping] one's word," do Jensen et al. really think they can, as they claim, resolve the paradox of honoring one's word even when it is appropriate not to keep one's word? I wrote a paper on the mystery inherent in trying to decide to do exactly what the authors pose as the central problem - when do you honor your word literally, and when do you not, but do it in a way that is integral? It's a paradox or antinomy to say that you can honor your word by not honoring your word. But we understand transcendentally that there is some higher value we are honoring - God? - by making the right decision. That paradox is ancient and never-ending. The prophet Micah said paradoxically that one must both act justly and love mercy. How? It's a mystery. Thousands of years later Jensen et al. point out the paradox that doing a cost-benefit analysis of integrity will lead to not acting with integrity. (The logical implication of that is deontological rather than consequential - we do what is right, even though we know there is no guarantee of positive consequence - with a noumenal, not phenomenal, idea that there ought to be a relationship between acting rightly and being rewarded.)
The ultimate paradox is our attempt to know ourselves objectively. Jensen et al. touch on the aspect of self-deception when we act inconsistently with our theory of ourself. That merely brings us back around to what Hawking observed of closed systems and Godel's Theorem - maybe there are some things we may just never resolve.
The point of the above is - even if I were fully to understand the concept of integrity and honoring my word, would it be any easier for me to apply the rule to a decision facing me ex ante? I don't think it would. (Chris Korsgaard addresses this problem with "scientism" in The Sources of Normativity.)
Having said ALL of this, I agree with the fundamental point of the paper completely. Lousy managers in great businesses can succeed. Great managers in lousy businesses can fail. But the very best managers, the ones who are going to do the best in every circumstance, are the ones who have that "something" Jensen calls integrity, or others call the way of being. I just think it's like trying to describe God.
March 19, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack (0)
I was tremendously saddened to learn just a few minutes ago of the passing of a great lawyer and good friend, Jeff Liss, one of the managing partners, and indeed one of the architects, of what is now known as DLA Piper. I came to know him because Piper Marbury, one of the predecessors of DLA Piper, had done work for Great Lakes Chemical for a long time, and Jeff led a team in for one of our "dog and pony shows" as we pruned our outside counsel relationships down to a few. We quickly became friends.
Jeff was a loyal alumnus of the University of Michigan Law School, and a fierce supporter of the Michigan football team. We met to talk during the occasion halftime on the upper level concourse on the east side of the stadium. He taught Remedies as an adjunct professor at Michigan and Georgetown, and introduced me to his friend Lincoln Caplan, who was the editor of Legal Affairs, the hybrid practice-academic journal loosely associated with the Yale Law School. (Unfortunately, I was too theoretical for that journal, an ironic twist!) I confided in him as I started to act on my own academic impulses. Indeed, I have a piece in the DePaul Law Review that began as a conversation with Jeff about a presentation he wanted me to give at the firm's Marbury Institute, a speaker's series bridging practice and academics. His son, Harry, and my son, Matt, are both currently students at Michigan, and Jeff was responsible for a special treat accorded Matt. During the summer of 2004, while Matt was doing a summer program at Harvard, the Democratic National Convention was going on in Boston, and Jeff got him and a friend access to a special Goo Goo Dolls concert and a reception the law firm was hosting for the Democratic senators.
Here's what the firm had to say on its website:
In many ways, Jeff embodied the soul of our firm. Not only was he deeply dedicated to his clients as a leading environmental and business litigator, he was particularly passionate about building the quality and quantity of our pro bono work around the world. For many inside and outside the firm, it was Jeff's advice on a difficult issue, in the end, that mattered most. Outside of DLA Piper, Jeff had been a top student, a favorite clerk to one of the leading judges in the country, and a trusted advisor to various national political leaders. Most important, Jeff was a devoted husband and father.
DLA Piper is blessed to have known and worked with such a remarkable leader, colleague, mentor, and friend.
Jeff fought pancreatic cancer for over two years, and while that's an uphill battle, he seemed to be beating it. I am just so sad to lose a friend, and for all of Jeff's family, friends, partners, and clients who knew him to be a kind, funny, wise, good, honorable, smart, tough, caring person and lawyer.
Joe Hodnicki of our sister blog Law Librarians Blog has a link to a Ninth Circuit opinion holding that a web-based "expert system" used to prepare bankruptcy filings for a fee made too many decisions to be considered a clerical tool. Accordingly, the court's view was that the software was effectively practicing law without a license.
Posted by Jeff Lipshaw
The most recent issue of Stanford, the magazine of the university's alumni association (not the law school alumni magazine) has an article about Professor Carol Dweck and her work in the psychology of success and failure. (HT to my wife on this one.) She was interviewed on NPR about her book Mindset. (Interestingly, if you follow the link to Professor Dweck's web page, it will take you to a link that includes a decidedly mixed review - praising the idea underlying the book, but not the execution of the book itself, which appears to written more in popular self-improvement than scholarly style.)
The thesis is that there is an additional outlook, or mindset, wholly unrelated to intelligence, that frames how we look at problems. The distinction is between a "fixed mind-set" that sees intelligence as static, and a "growth" or "mastery" mind-set that sees intelligence as something that can be developed. The fixed mind-set about wanting merely to be smart, but the mastery mind-set is about wanting to learn. As a result, if you simply are smart but not a learner, you would have a tendency to discount effort, avoid challenges, give up easily in the face of obstacles, and be defensive, particularly about making mistakes. Learners, on the other hand, like challenges, persist in the face of setbacks, embrace effort, and tend to find lessons in mistakes. I thought one of the conclusions in a diagram of the model was interesting - it generalizes that fixed mind-set confirms a deterministic view of the world but a mastery mind-set gives a greater sense of free will.
When I was in business I thought the creation of learning organizations was a great aspiration. Learning organizations are or can be quite different from schools. There are, of course, four possibilities (per the consultant's four-quadrant matrix): that a school is or is not a learning organization, and that a "not-school" (like a business) is or is not a learning organization. And one of the critical things making something a learning organization was its orientation to mistakes. (See Peter Senge's The Fifth Discipline, and particularly his anecdote about the Japan Air Lines pilot who landed his plane in San Francisco Bay a couple miles short of the SFO runway.)
I was going to pose a thought-provoking question here about your organization, but I decided not to because I didn't want to get criticized. And it's not worth the effort. I give up.
Posted by Alan Childress
This blog is being blocked from internal access by the government of the People's Republic of China. At least so claims this website, greatfirewallofchina.org. It runs a test that tells you whether your URL is being blocked in China (I am hoping our tech-savvy reader Simon Pride will try it, read its caveats, and report whether it's for real). Our site is blocked, the tester repeatedly says. So is the blog by Frank Snyder et al. at ContractsProf -- but not some other blogs on the LPBlogNetwork that I tested. Which I won't name because I don't want the Chinese government surfers who built in their own backdoor to know which ones, but let me just say that this finally explains Paul Caron's numbers on TaxProf relative to ours).
The official Disney site comes up "available." Known fascists. Also available to China is Sesame Street. Commies, them, particularly Bert and Ernie. And I simply don't trust Bert's online game, Your Amazing Body (though I plan to still be a consumer of his sponsoring letter, "G" -- I'm not biG into sponsor boycotts for questionable proGramming). Perhaps unrelated, I once caught my son's pre-school teaching him the song, "Touch Your Nose." I spent the next week teaching him my new song, "Hey! Stop Touching Your Nose."
I found out about the testing site from reading Miami's Michael Froomkin at discourse.net (that site is not blocked but his other is, he reports). But two commenters question the accuracy and methodology of the testing site, and have no problem accessing either Froomkin site from China. Blocking issues, one writes, are technological not one big firewall: "this is an overblown topic. It is not a big deal; frankly everyone and their mother knows how to work around it." That gives us at LPB hope.
I very much appreciate the technological and political explanation why so much of the world's population does not read this blog. This world population site runs a counter telling us the total is, this moment, 6,697,415,882. China's population is 1,319,733,329 of that, says this site that lets you track by country.
Now I am using my law prof reasoning: ergo, the other odd 5.4 billion not reading LPB fail to do so for purely technological or political reasons. There is some support for this obvious conclusion: my mom and dad never read the blog, and it is because their Intel-486 based computer we brothers generously gave up for them sits dusty in the basement. I once caught my dad clicking the mouse like a remote but the screen he was pointing it at never flickered on. And my mother, unlike those in China, is unlikely to work her way around a firewall. That explains them, like China.
Then there are the citizens of France. Fundamentally, fifty million Frenchmen can't be wrong, and it is obvious their government is blocking our site, too, just to maintain the truth of that vital political maxim (at least as to the men). Reading our posts would threaten the very foundations. It is not that we are always or often wrong, but there was no way the French could allow viewing to continue once they read my 12/6/06 post Jeff Is Wrong, also subtitled I Am Right. Either way, they'd be exposed to something wrong and might succumb. They could solve the dilemma, as I always do, simply by believing me over Jeff, but they clearly won't risk that. I understand: in many circumstances I would bet good money that Jeff is wrong, but I just don't have the arrogance to stake my nation's very identity on the statistical likelihood, though high, of that.
Given these data points, I am confident there is also an oppression and/or technology reason behind every moment our sitemeter does not click. That clearly accounts for nearly 6,697,414,000 of the world's population of LPB non-readers. But to those who see this: thanks for defying The Man by reading LPB.
Minnesota has reinstated an attorney who had been suspended for six months for "engaging in a sexual relationship with a client and entering into a series of business transactions with the same client without written disclosure of the potential conflicts and without providing for fair and reasonable terms for the client." Presumably the business transactions did not involve sex. The attorney was placed on two years probation. Interestingly, one of the probationary conditions requires supervision by a licensed attorney who must sign a formal consent to supervise any client matter undertaken by the lawyer. (Mike Frisch)
Sunday, March 18, 2007
At Law.com's Legal Blog Watch, Robert Ambrogi posts "Keeping Track of 'Track Changes,' " on the usefulness and risk to lawyers of using Word's Track Changes collaboration function. "The bottom line, of course, is that what goes into a document as metadata should come out of that document before you send it as final," Robert writes.
He links this abanet tech piece on Track Changes as embedded metadata (essentially electronic footprints). That piece contains several great "horror stories" worldwide of embarrasing or compromising metadata that just would not die and wound up on the wrong retinae -- like the instance in 2004, when "hidden text in a Word document revealed that the SCO Group's lawsuit against Daimler Chrysler was originally intended to target Bank of America." The defendant and location of filing the lawsuit was switched starting at 11:10 a.m. on 2/18/04. [This is the art of suing sort of like how Radar used req forms in M*A*S*H: Delete "incubator" and insert "pizza oven."]
Another poster child for this advice, after Robert's post, is from a commenter noting this linked example from Australia: embedded data in a footer revealed that an opponent had drafted anti-sue legislation and led to a costly contempt charge and settlement.
Ethics rulings conflict. Recall from Mike's post that the ABA has considered it pretty much the producing lawyer's responsibility to scrub documents and files of metadata before sending to opponents and courts, not the receiver's (against the position of some ethicists like David Hricik). The ABA's original position is sternly followed in Maryland (also here), where the receiver may ethically mine metadata in documents without an issue of inadvertent disclosure (subject perhaps in federal courts to new civ pro e-discovery rules effective Dec. 2006). New York, by contrast, makes it unethical for the receiver to mine metadata and requires notice to the other side of inadvertent disclosure. This Florida opinion places intitial reponsibility (Hricik's comments are here) upon the producer but disallows mining for inadvertent revelations. Even the ABA now warns that reading metadata and mining it may run afoul of the more general Ethics 2000 rule about inadvertent disclosure. Developing that line of ethical inquiry may ultimately bring the ABA position more in line with that of New York and Hricik (though not in Maryland, which so far lacks the inadvertent disclosure aspects of Ethics 2000).
Some of the more embarrassing ways metadata ghosts can haunt a lawyer, however, don't really involve such competing ethics positions, since they involve sending drafts to clients. Every lawyer should have in place a clean-up mechanism before sending any final draft anywhere, whatever ethics rules are eventually adopted for placing where that responsibility ultimately falls.
Of course part of the dilemma, I think, is that the Track Changes function is so hard to turn off and scrub, in my experience. I have previously tried multiple Help searches to find an easy way to accept all changes, turn it off, and produce a final document with no history or metadata. It always seemed that one has to go bubble-by-bubble to accept changes -- and even then it seems any new work starts up Track Changes again. Does anyone know an easy way how to stop this process and make the document truly "final"? "Jane, stop this crazy thing!" The abanet tech article recommends this Microsoft website sidebar, "Get rid of tracked changes and comments, once and for all"; I will check it out and see if it finally works. [More general Microsoft "About tracked changes and comments" stuff is here.]
But even cleaning up tracked changes does not necessarily scrub whatever you put it in a footer, whether in Melbourne or America. You have to view those, too, before a document is sent out.