Saturday, April 7, 2007
The Connecticut Supreme Court has held that disciplinary proceedings may properly go forward nothwithstanding the attorney's disbarment on unrelated charges. The allegations involved conduct that had occurred while the accused was still a member of the bar. The court reasoned that, because the accused was not permanently disbarred, it was appropriate to adjudicate the charges rather than wait for a reinstatement proceeding. (Mike Frisch)
The House of Delegates of the New York State Bar Association has unanimously approved a recent report that decries age discrimination in the legal profession. The report calls for an end to mandatory retirement policies of law firms. (Mike Frisch)
Posted by Alan Childress
Following up on Jeff's much-visited March 26 post querying about lawyers as legislators, and my post on a Knoxville, Tennessee bar panel on the subject: here is a new posting to SSRN of a 2005 article on the subject by Cleveland Ferguson III (Fla. Coastal--Law), entitled "Increasing the Number of Lawyer-Legislators Begins with an Understanding of Campaign Finance Regulation." It was in 79 Florida Bar Journal 1 (Oct. 2005). His abstract:
This article discusses the potential impact of fewer lawyers serving in state legislatures with specific emphasis on Florida. The article highlights various laws that have led to the largest fines among candidates. The article concludes with an exhortation for the increase of lawyer-legislators in state government.
A recent judicial ethics opinion from Massachusetts holds that it is not improper for a judge to umpire softball games for a fee during off-hours or vacation time. The opinion states that such activity does not detract from the dignity that is required of judicial officers in outside activities. (Mike Frisch)
Friday, April 6, 2007
The April e-brief of the D.C. Bar has this post about an inexpensive DVD training program (or self-study) available, explaining the bar's revised (2/1/07) rules of professional conduct. The DVD programs will soon be free as well. The post also links resources to download redlined and amended versions of the new rules (drawn on the Ethics 2000 Model Rules) and comparing the previous ones. [Alan Childress]
The Iowa Supreme Court recently decided a disciplinary case that serves as a cautionary tale for young lawyers who enter solo practice without adequate preparation or a safety net of mentors. The attorney, who had enjoyed great personal success prior to launching his legal career, was ill equipped to manage his law practice. His inexperience led to instances of neglect, escrow violations and misrepresentations (for example, he forged client signatures to a bankruptcy petition after travelling to a court to file the document without noticing it was not already signed). There were also indications of mental health issues. The court was not entirely unsympathetic and ordered an indefinite suspension of not less than twelve months.
Here's a link to an article about the lack of training provided by law schools to students interested in striking out on their own.(Mike Frisch)
The California State Bar is presenting an ethics symposium on May 19 at Southwestern Law School in Los Angeles. Among the panel topics are ethics issues in family law practice, transactional practice and an update on proposed revisions to the California ethics rules. More here. (Mike Frisch)
Posted by Jeff Lipshaw
Okay, over at MoneyLaw, somebody commented that "there appears to be a 'coastal bias' going on. Schools on the coasts probably get more employers interviewing students and more exposure than most schools in the 'fly over zone.' How many lawyers/profs/judges in the 'fly over zone' get to answer this survey?"
Casting aside all the philosophical BS in which I am usually engaged, I got to work assessing this claim. I did so by taking map of the United States and assigning what I refer to as "Coastal Bacon Numbers" to each state. This refers to the degree of separation from either the Pacific or Atlantic Coast (I didn't count either the Great Lakes or the Gulf Coast) by the number of states you have to go through to get to a coast. (The allusion is to six degrees of Kevin Bacon numbers, something Alan and Nancy are far more concerned about than I.) So if you are in Massachusetts or California, you have a Coastal Bacon number of 1. The highest Coastal Bacon number is 5, and Minnesota is the only state that gets it.*
What you see above is a scatter diagram (click on it to see the detail) showing lawyer/judge assessment scores on the X-axis, and the average Coastal Bacon number of the schools at that rating on the Y-axis. Again, I would need to channel Bill Henderson to do a regression analysis on this, but it appears to me that there is no correlation between coastal bias and lawyer/judge assessment.
My agent is available for invitations to participate as co-blogger over at ELS.
UPDATE: For a competent analysis of the data, see Bill Henderson's post at ELS.
* I arbitrarily gave the District of Columbia a Coastal Bacon number of 1, even though it doesn't border on the Atlantic, because it embodies the East Coast Ivy League Prep School Liberal Establishment. I also gave Hawaii a 2 because you aren't really on the West Coast until you get to California. On that measure I should have given a 2 to Oregon and a 3 to Washington, but I didn't because it's really cool to be in Seattle. I also excluded the top 16 schools in lawyer/judge assessment because it seemed to me they were unquestionably "national" and didn't fit my original bell curves anyway.
The South Carolina Supreme Court recently suspended a magistrate for 60 days. The magistrate's son-in-law was involved in a child support dispute. An issue arose regarding whether the child was enrolled in day care. After his daughter found that relevant information would be released pursuant to subpoena, he created and faxed subpoenas with a directive that the documents be sent to him. When he pressed the day care center for a response, counsel for the center questioned the magistrate's authority to issue the subpoenas. The magistrate then advised counsel to shred the subpoena. The magistrate had a prior record of judicial misconduct. (Mike Frisch)
Posted by Alan Childress
D. Daniel Sokol (Wisc.--Law) has posted to SSRN, "Globalization of Law Firms: A Survey of the Literature and a Research Agenda for Further Study" (March 2007). It is forthcoming in the Indiana Journal of Global Legal Studies. His abstract is:
The international expansion of law firms plays a critical role in understanding the business of law and the nature of globalization. This article responds to two articles on law firm expansion in the Indiana University - Bloomington Law School symposium on the Globalization of the Legal Profession. The article utilizes management studies' theoretical work on internationalization and applies it to law firm expansion to explain law firm strategic decision-making. The author creates a six part taxonomy for types of law firm expansion and provides a snapshot of the increasing U.S./U.K. dominance of capital markets, corporate and mergers and acquisitions legal work around the world. Finally, the article proposes an interdisciplinary research agenda that incorporates law, economics, sociology, economic geography, and management studies to better understand law firm expansion.
Posted by Alan Childress
Renee Landers (Suffolk--Law), right, has posted to SSRN her article, "Pluc Ca Change, Plus C'est La Meme Chose: The Representation of People of Color (and Women) in Boston Law Firms." It is also in 50 Boston Bar Journal 15 (Nov./Dec. 2006), and her abstract is:
In this short article the author analyzes the reasons why increased representation of people of color and women among law school graduates has not been matched by proportional increases in the representation of women and people of color in the ranks of large law firm partners in Boston and nationally. The article attributes this lack of progress to the factors identified in the recent report of the ABA Commission on Women on the situation of women of color in law firms and to other deeply imbedded structural and economic practices of firms, such as the highly leveraged structures and the ever rising demand for billable hours. Pipeline issues may further impede progress of lawyers of color.
The article concludes by challenging law firms to realize the investment they have made in diversity programs and in recruiting and training associates by examining assumptions about law firm cultures and practices that erect barriers to the achievement of women and people of color.
Update: while perusing the Suffolk website, I came across this announcement of new hiring coups, featuring our own Jeff Lipshaw. Oddly, it does not mention either his available vacation rental home in partial Michigan, or even the nearby bigger house one can rent as a better deal especially when subsidized by Jeff and Alene. But the school otherwise seems proud to have snagged him.
The Ohio Supreme Court recently decided a case that appears similar to the one from the District of Columbia that was posted yesterday on this blog. The attorney abandoned the case of two clients (one was deemed "vulnerable") and failed to participate in the disciplinary investigation. Ohio apparently takes a dim view of the fitness of a lawyer who does not honor the ethical obligation to respond to a bar investigation. First, the charges are admitted by default. Second, the court imposed an indefinite suspension. It appears that, under Ohio disciplinary procedure, an attorney suspended for an indefinite period must wait two years to petition for reinstatement and prove fitness to practice law. (Mike Frisch)
It took almost nine days from the time I submitted a piece until it moved from "Author-Approved" to "Approved." I submitted a revision on April 3 and it's now April 6, and it's still sitting there as "Submitted." During most of the year, revisions seem to get approved in a matter of hours. I'm assuming, on account of "submission season," SSRN is also inundated.
Posted by Jeff Lipshaw
My wife and I own a wonderful little house in Charlevoix, Michigan. It is available for vacation rentals this summer. We hired an agent to rent the place, but we can also do it on our own (and not pay the commission). We are still working through some of the growing pains of being vacation landlords, and screwing up certainly puts my contract theorizing to the test. (Prime weeks in beautiful Northern Michigan still available, by the way.)
Here's the not-so-hypothetical. We rent the house for $1,500 a week during the summer. We listed it not only with our agent, but on GreatRentals.com. We and the agent did not do a good job of communicating with each other (actually, in this instance, my fault), and we each rented the house, signed contracts, and received deposits for one of the weeks. In our case, we had actually agreed to rent the house for only six days for $1,300. We had agreed to rent the house to another client for eight days and that rental overlapped by one day, but did not have a signed agreement or a deposit. What was the role of contract law in the resolution of this problem?
The answer follows the fold.
Thursday, April 5, 2007
The D.C. Court of Appeals suspended I. Lewis "Scooter" Libby on April 3 based on his recent conviction. The court ordered the Board on Professional Responsibility to determine whether the crimes for which he was convicted involved moral turpitude. If so, disbarment is mandatory. The precedent where the court held that disbarment is the only sanction for a crime of moral turpitude involved proceedings based on the conviction of Charles Colson. Libby had previously been administratively suspended for non-payment of bar dues.
If Libby is pardoned, he may still be sanctioned for misconduct, but not for the conviction. The court so held in the bar discipline case against Elliott Abrams. (Mike Frisch)
Following on my earlier chart using the peer assessment data from US News, I have superimposed the lawyer/judge assessment data. (Click on the picture to get a better view.) Note that the lawyer/judge data also appears to describe a bell curve, albeit one whose mean is shifted significantly (I say that in a visceral and not a statistical way) to the high side. My wife had a interesting observation on this. The data set for "peers" comes largely from people who graduated from schools at the far right, hence their possible "disdain" for the schools at the left. The data set for "lawyer/judges" no doubt reflects a more representative sample of alma mater law schools, and hence a more centered distribution.
The appalling disregard for the integrity of the legal profession by the District of Columbia's Board on Professional Responsibility is once again on display. The D.C. Court of Appeals has remanded the case of In re Brian Godette (April 5, 2007). Godette took a fee from a client who was incarcerated at the time of the complaint and abandoned the case. Despite proof that he was aware of the complaint and ensuing charges, he failed to participate in the disciplinary proceedings in any manner. A hearing committee found, at least by implication, that he had evaded service of the disciplinary charges. The Board rejected that finding and recommended a 30 day suspension with no requirement that Godette prove fitness to practice prior to reinstatement. Bar Counsel filed an exception.
The court, over a dissent, rejected the Board's proposed sanction, stating that "it is not the function of the Board... to create hypothetical excuses for [the accused lawyer]." This referred to the Board's speculation that the noises heard from inside the lawyer's home when service was attempted could have been from a minor or "for aught we know, an animal." The court was a little more concerned than its Board about a complete disregard of the duty of a lawyer to cooperate with the disciplinary process.
Unfortunately, as mentioned above, the court remanded the case, which is my experience is a utter waste of time. The Board is ordered to consider whether the evidence established that Godette deliberately evaded service of the charges (there were seven attempts to serve him). I have never seen a remand to the Board that did anything but delay the imposition of sanction and allow them to create a new excuse/explanation for why leniency is appropriate.
When will there be a sufficient public outrage over the actions of the Board (which should be rechristened the Board on Lawyer Forgiveness) to get the court to restructure the disciplinary system to actually focus on protection of the public? It can't be soon enough. (Mike Frisch)
My general feeling has always been that there is a very small nugget of useful information in the USNWR rankings. I apologize for the JPG format at left, but if you click on the picture, you can see the detail. The x-axis represents peer assessment scores from 1.2 at the far left to 4.9 at the far right. Each column represents the number of schools at that score. (I have reversed the data on the x-axis in response to Nancy Rapoport's request below.)
My understanding is that the peer assessment score is derived from the result of a survey that US News sends to the "select" voters at each school (deans, associate deans, FAC chairs, etc.). So if you do as I did, and re-order the rankings solely by peer score, WYSIWYG: a distribution of law schools that accurately reflects wholly subjective and probably either visceral or uninformed impressions on the part of the select group of voters, probably more akin to consumer branding than any rigorous analysis. (My empirical basis for saying this is my one interview with such a voter who will remain nameless, but who told me in fact he had no clue how to rank most of the schools.)
My hypothesis going in was that there would be something of a bell curve, and by God, I was right. I'm not enough of a statistician to do a standard deviation analysis on this, but it's pretty clear what this is saying, as least as to that uninformed and visceral reaction:
1. There are roughly 16 schools at the top end that shouldn't even be included in the bell curve. There aren't many of them, and they are separately by a quantum from the rest of the pack. I haven't done a comparison over time, but I'll bet it changes very slowly.
2. The top 100 (or the "first tier") on this distribution ends somewhere inside of a 2.2 peer assessment. That is somewhere in the apex of the main body of the curve. (Reflecting the weight I understand US News gives to the peer assessment, I guess it's not surprising that there are only five otherwise "Tier 3" or "Tier 4" schools that work into the top 100 on this reordering.)
3. For large groups of schools, there is no perceived difference in reputation, and getting all worked up about a move up or down by a couple of digits seems misplaced.
4. Just like there probably isn't a whole lot of difference between the performance of the students who get between 3.1 and a 2.6 GPA equivalent on your exams with a mandated mean of 2.85, there really isn't a whole lot of difference between the group bunched between a 2.8 peer assessment score (the schools at that level are BYU, Florida State, Alabama, Miami, Oregon, Pittsburgh, and San Diego) and a 1.7 peer assessment score (schools at that level are California Western, Capital, New England, Northern Illinois, Roger Williams, South Texas, St. Mary's, Texas Wesleyan, and Touro). Perhaps a jump from a 1.7 to a 2.8 would be meaningful, but most of the moves inside that block are essentially meaningless.
5. I haven't done the same thing for lawyer assessments, but I'd be surprised if it doesn't come out about the same way. Assuming it came out exactly the same way, it would tell me, were I applying to law school nowadays, that in fact there is a significant brand value that attaches at the far right, but that the distinctions quickly evaporate as you move left through the main body of the curve. Indeed, as the deans keep telling us, there are myriad other reasons to select a school than where it happens to plop down between number 36 (Alabama) and "Tier 4" (see above).
Wednesday, April 4, 2007
Law.com's New York Law Journal has this story and cautionary tale about the Wilson Elser firm and its conflict between two insurance-company clients, N.Y. Judge Orders Wilson Elser to Disgorge Fees Over Ethics Breach. The court actually granted summary judgment to plaintiffs, a relative rarity.
Here it was on a fiduciary duty claim, while other claims (such as malpractice) were permitted to continue to trial. The remedy for the fiduciary breach was to return over $3 million in fees.
Engler on Pros and Cons of the Civil Gideon Movement's Methods: Shaping and Focusing a Civil Right to Counsel
Posted by Alan Childress
Russell Engler (New England) has posted to SSRN his article, "Shaping a Context-Based Civil Gideon from the Dynamics of Social Change." Here is his abstract:
In this paper, I outline a strategy of an incremental, context-based approach to achieving a civil right to counsel. I do so against the backdrop of the renewed interest in, and increasing calls for, such a right, also called a “Civil Gideon.” Despite my support for a Civil Gideon in a broad array of cases, I believe that litigation or legislative strategies that seek as the next step the establishment of a broad-based right to counsel, rather than a more targeted approach, will be difficult to achieve.
I reach this conclusion because I see the problem primarily as one of effectuating social change, not of developing constitutional or statutory doctrine. I therefore do not focus here on the legal arguments that might support a civil right to counsel. Instead, I examine initiatives of the past forty years to understand why those efforts did not achieve a Civil Gideon. I also look beyond the Civil Gideon history for more successful examples in which litigation played an important role in strategies designed to effectuate systemic change. Using the past as a backdrop, I explain what I mean by a context-based approach to an expanded right to counsel, and explore strategies to achieve that result. If the recent surge of activity is to bear fruit, we must first understand why we made so little progress in the first forty years. The dynamics of the first forty years must shape the strategies for the immediate future.
Recognizing the interrelationship between Civil Gideon strategies and the dynamics of social change is particularly important at a Symposium named for Edward V. Sparer. A giant in the early years of the “poverty law” movement, Sparer's aggressive and affirmative use of the “law as an instrument of social change” became the credo of his legal services office in New York City. Over twenty years after Sparer's untimely death, a renewed focus on Civil Gideon should ignore neither Sparer's vision nor the first 40 years of Civil Gideon initiatives.
April 4, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)