April 11, 2007
All Charges Dropped in Duke Lacrosse Case: Overreaching by DA Nifong Cited
AP story here. The state attorney general is quoted as saying the athletes were innocent victims of a "tragic rush to accuse" by an overreaching district attorney. The AP adds: "Portraying Nifong as a 'rogue prosecutor,' [AG Roy] Cooper called for the passage of a law that would allow the North Carolina Supreme Court to remove a district attorney in the interest of justice." [Alan Childress]
Character Screening for Fitness to Practice Law and the Playboy "Controversy"
Posted by Alan Childress
Over at Discourse.net, Miami's Michael Froomkin asks, "Does Posing Naked for Playboy TV Have Anything to Do With Your Fitness to Practice Law?" In a word, No, says he. Despite all the hype and hypothetical questions about the effect on bar admission, particularly at WSJ Law Blog, of one Brooklyn Law Student's posing, Froomkin has it right that protected First Amendment activity cannot be the basis for denying bar admission.*
Most of the WSJ comments (61!) also say it's about judgment and being taking seriously, not the NY bar screening process. [Though one nicely asks the real question buzzing around law faculties these days: "Did she use a laptop in her law school classes and was it online?"]
Even more insightful is Froomkin's ending: "...well, really, who in the end cares?"
Correction: The photo left is of Froomkin, not the Brooklyn Law Student. LPB apologizes for the error and any initial confusion.
Froomkin has an even better post (admittedly unrelated to this blog), quoting a 1797 U.S. treaty with Tripoli and Barbary promising not to use religion as "pretext." A unanimous Senate approved it, and this part, all read aloud:
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
*But cf. Brad Wendel's excellent post (and comments) on Matthew Hale and bar prediction of unethical acts, linked here, e.g., for racist and sexist rants (now arising because of "anonymous" xoxohth posts). I still think the Playboy TV example would be distinguished from prior cases of denial where there is a common thread Brad sees: "The bar committee was able to characterize speech as evidence of a propensity to violate the norms governing the legal profession."
UPDATE: More from Brad here, and he's tied it to the Playboy TV non-controversy: "[E]ven given these deficiencies in the [C&F] process, there's no way the applicant in the Playboy videos should have any difficulty with the character and fitness process." Still, he is right that Eugene Volokh and others overstate the First Amendment protection that state bar C&F committees (and courts) traditionally afford in matters more related to the practice of law, e.g., Hale, filing complaints, oaths of allegiance.
More on Law Firm Rejection Letters: The Best One I Heard
Posted by Alan Childress
Jeff's post on succinct or painful rejection letters reminded me of a story by a colleague of ours at Tulane who, as a law student seeking a law firm summer job, once received a rejection letter from a firm that she later tacked on her office door (the letter, not the firm). It is also a cautionary tale in removing metadata. The letter was standard in every way, even commenting that the firm had an unusual number of qualified applicants that year, these decisions are difficult, and the rejection does not mean the candidate does not have outstanding credentials or should avoid applying again in the future. The firm forgot to remove the document name at the bottom of the Word document, duly printed out on their letterhead: kissoff.doc.
Readers, hear of any other great rejection letters or faux pas? Getting rejected from a place you never applied to does not count. I think we all have stories of getting rejection letters out of the blue from law firms, judges, and law reviews despite the fact that we never actually applied. Please post your story, or one you've heard, in Comments.
Reading the Tea Leaves and Other Useless Exercises in the Denial of Being Rejected
Posted by Jeff Lipshaw
Our friend Gordon Smith at Conglomerate has a nice post about one of his articles being selected as a top corporate and securities article for 2006. We congratulate him, but what caught my attention was his introductory comment about expecting the letter from Vanderbilt to be a rejection of his article submission "the old-fashioned way."
I still remember the incomparably funny Rob Biniaz, a year or two ahead of me at Stanford, describing at a panel discussion on summer jobs what we used to call "bullets": rejection letters from law firms. Rob, I think, had sent a letter to some glam outfit like NBC or CBS, and received back the following (by return mail): "Dear Rob: In a word, no."
We can, of course, rationalize and even joke about rejection from student-edited law reviews. I somehow persuaded the editor of a mega-university press that I had a book idea, but my mistake was sending him the manuscript. As a matter of learning and courage, I forced myself to read the reviews on which he based his rejection, but I still start to curl into the fetal position thinking about it. (Once you come to grips with the fact that they were right and it sucked things start to improve, psychologically speaking.)
I have spent the last couple weeks trying to persuade a very analytical colleague that NOTHING you receive from a law review other than something entitled "Offer to Publish" is meaningful. It is meaningless if the law review acknowledges receipt of your piece via ExpressO. It is meaningless if you get a nice acknowledgment letter. It is meaningless if the Articles Editor tells you he/she is looking forward to reading your article. It is meaningless if you get a little postcard saying that the law review has received your submission. It is comforting and fulfilling to have an e-mail dialogue with an editor whose last name you recognize, and discover she is the second cousin once removed of a student you taught during a visiting stint at Wossamotta U, but it is meaningless in terms of the likelihood the review will take your article.
Our incoming editor-in-chief here at Tulane is a brilliant and very nice young man, and ought to be a law prof someday (note to academy). We chat in the hallways from time to time. The piece I have into the reviews right now ponders fundamental assumptions in contract law, and plays with analogies to number theory. I like number theory, even though I can barely make my way through the symbols. When I was seventeen, I managed to place in a mathematics competition in Michigan by getting one proof out of five on an incredibly difficult exam (I answered this: prove that the expression "n squared + 1 can never be divisible by seven"). I mention it to Haller, our new EIC, and he immediately said, "oh, you can do that in mod 7 arithmetic," bursting my bubble, because that was my "brilliant" insight. Anyway, the point is that even this personal kind of exchange is MEANINGLESS: within a couple of days, I received an e-mail beginning: "um, highly awkward moment here. . ."
Alan follows this up with his own rejection thoughts above.
April 10, 2007
Business Law Prof Blog Note on the Accountability of Lawyers
Posted by Alan Childress
Several recent new items suggest that lawyers are being held accountable for their roles in the recent financial scandals. Several of Enron's house counsel have been indicted and Jenkins & Gilchrist has dissolved, due to the involvement of attorneys in an acquired Chicago law firm in the marketing of tax evasion schemes. Modern financial scams, due to filing requirements imposed by both state and federal authorities, necessarily involve the participation of lawyers and often involve lawyers in the planning. High profile prosecution of lawyers who have misbehaved should help to sober up the practice and give some cover to lawyers who want to resist pressure from clients.
Nice point about using new law as cover against client demands, though of course it would be better if clients did not have to be so cajoled. As a further aside, I note that Dale went to college and law school at Michigan and teaches at Ohio State--making me think of that ESPN commercial about the cute cuddly couple on the couch that we soon see are wearing an OSU (he) and a Michigan (she) sweatshirt: "Without sports, this wouldn't be disgusting." I wonder who Dale cheers for. I know who Jeff cheers for.
A disciplinary case decided today by the Maryland Court of Appeals strikes a fair balance between promoting respect for the judiciary by the practicing bar while not harshly sanctioning zealous advocacy. An attorney was reprimanded for engaging in conduct before judges in two cases that crossed the line from aggressive to disrespectful. In one instance, he repeatedly interrupted the judge; in another, he walked out of court during an adverse ruling to show his displeasure. He also was late for court in an unrelated matter. The court rejected Bar Counsel's contention that such behavior must invariably result in a period of suspension, indicating that reprimand was a sufficient sanction under the circumstances. (Mike Frisch)
The Ohio Supreme Court recently entered an order indefinitely suspending an attorney who had engaged in misconduct as an appointed acting judge in municipal court. He had ordered payment of a fine. While paying the cashier, the person paying the fine said "the judge is a crook." The person was arrested on the judge's instruction, brought back into court and berated by the judge, who told him "You'll get a chance to prove whether you're guilty or not guilty." The person pleaded no contest to contempt and was fined (and presumably made no further remarks when paying the fine). He then complained about the judge, who falsely responded that he had personally heard the remark. The judge had also been convicted of attempted possession of drugs and had engaged in misconduct as an attorney by accusing opposing counsel of being a "pathological liar" and taunting another opposing counsel with "invectives, including profanities and racial slurs." (Mike Frisch)
Confidentiality And Support Staff
The Virginia State Bar seeks public comment on a proposed ethics opinion that deals with the situation of a potential client disclosing confidential information to a lawyer's support staff. The lawyer decided not to take the case and thereafter agreed to represent the opposing party. The opinion states that the lawyer has an ethical duty to establish a screen between the secretary and himself in the matter. If the screen is breached, the lawyer be be obligated to withdraw. The opinion recommends that support staff be trained to minimize the receipt of confidential information to that necessary to allow the lawyer to perform a conflicts check. (Mike Frisch)
April 9, 2007
Court Clerk Ethics
Massachusetts has promulgated a Code of Professional Responsibility for Court Clerks. There is also an advisory committee that renders ethical opinions regarding court clerk conduct. A recent opinion holds that a Clerk Magistrate who is an ordained Deacon of the Roman Catholic Church and who ministers to prisoners on a volunteer basis may continue to do so, but that individual circumstances may warrant disqualification from matters where his personal relationship with a prisoner who appears before him is such that his impartiality might reasonably be questioned. (Mike Frisch)
I have new respect for the MPRE. This is slightly lower than Alan predicted. All the NCBE tells you in the "How to Interpret Your Scaled Score" is that the high is 150, the low is 50, and the mean is 100. I don't know what the standard deviation is. I am in the midst of rationalizing why I didn't get a 150.
Richmond on Ethical Duties of Law Firm Associates
Posted by Alan Childress
Douglas Richmond (Sr. VP of the insurer Aon Risk Services-Professional Services Group) has posted to SSRN the article, "Professional Responsibilities of Law Firm Associates." It is also in Brandeis Law Journal, vol. 45, p. 199, 2007. Here is his abstract:
Most American lawyers practice in law firms. Although firms are variously structured, the lawyers who practice in them can generally be divided between partners and associates. While associates and partners share professional duties and problems, in several key respects associates' professional responsibility concerns and problems differ significantly from partners'. This article has its genesis in those differences and the common perception that associates are increasingly pressured to act unethically.
The article begins by examining law firm culture because it is culture more than ethics rules or other professional standards that influences associates' behavior. The article then discusses associates in the professional responsibility framework, focusing on Model Rule 5.2 and section 12 of the Restatement (Third) of the Law Governing Lawyers, before examining professsional responsibility subjects of special importance to associates: the duties of competence, diligence, and confidentiality; overbilling; ethics issues associated with legal writing, including the duty of candor to the tribunal, plagiarism, and the duty to diclose directly adverse authority in the controlling jurisdiction; the duty to report serious misconduct by other lawyers, focusing on difficulties associated with reporting misconduct by partners; and associates' duty of loyalty to their firms.
The article concludes with a call for further research into associates' professional responsibility problems by groups positioned to conduct empirical studies of the subject, such as the ABA or NALP.
Forget Gitmo: Judge Proclaims Indigent Defense in New Orleans a "Legal Hell"
Posted by Alan Childress
Brian Privor has the story and links an article on the threat to release prisoners, and quotes from a Louisiana criminal court judge, on his carpetblogging site Do Not Pass Geaux:
How's this for a judicial cold shower and pot of coffee: "Indigent defense in New Orleans is unbelievable, unconstitutional, totally lacking the basic professional standards of legal representation, and a mockery of what a criminal justice system should be in a Western civilized nation." In short, it's a "legal hell."
Northwestern's Colloquy Hosts Review of Deborah Rhode's Pro Bono
Colloquy has posted a Review Essay by Professor Tom Lininger (Oregon, right) forthcoming in the Law Review, of Pro Bono in Principle and in Practice: Public Service and the Professions by Deborah L. Rhode. Professor Lininger will stir the pot by advocating that the legal community exceed Professor Rhode's rather modest suggestions for curing our current pro bono crisis. He suggests several courses of action aimed at mitigating our current dearth of altruistic legal representation â a dearth that is indisputable whether measured against other professions or other nations. His suggestions include greater focus on pro bono practice in law schools and a mandatory minimum pro bono time commitment by members of state bars.
Anand on Asking Where's the Law in Legal Ethics?
Posted by Alan Childress
Rakesh Anand (Syracuse--Law) has posted to SSRN his article,"Toward an Interpretive Theory of Legal Ethics," and published it in 58 Rutgers Law Review 653 (2006). Here is the abstract:
This Article is organized around a simple question: Where's the law in legal ethics? The most powerful contemporary thinking about lawyer behavior tells us that there is nothing uniquely “legal” about a lawyer's professional responsibility and that his or her obligations are simply the common moral obligations of us all, and nothing more. In the abstract, this position may seem shocking enough. But, the real astonishment comes when one reflects on the prescriptions for lawyer conduct that follow from this line of thought. For example, imagine a plaintiff who has a clearly “just” claim but for which the statute of limitations has run. In this circumstance, the prominent voices in legal ethical theory tell us that it is professionally unethical for the defense lawyer to assert the affirmative defense on behalf of his or her client (because common morality requires an individual to act in a manner consistent with the production of “justice”).
This Article offers the definitive response to this extant view. Appealing to the insights of philosophical-anthropology, as well as more generally of the liberal arts, this Article explains that at least in America, law is a symbolic form of political life, i.e., a form of cultural activity that generates its own complete world of meaning, while also reminding the reader that political life and moral life are incommensurable spheres of human experience. Acknowledging these facts, it follows that a “lawyer” is, by definition, an individual whose behavior supports the symbolic form of law and, therefore, he or she must act in a manner consistent with this cultural activity and the set of beliefs upon which it is grounded (e.g. that “the People” rule). Because of this existential condition, a lawyer's professional responsibility will not always be consistent with the demands of common morality - for example, requiring him or her to assert the statute of limitations to frustrate a plaintiff's “just” claim.
April 9, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack
Brown on Ramsey Clark's Legacy and Representing Saddam
Posted by Alan Childress
Lonnie T. Brown, Jr. (U. Georgia), seen below left, has posted to SSRN his article, "Representing Saddam Hussein: The Importance of Being Ramsey Clark" (April 2007). His abstract is:
This article examines the professional life of former United States Attorney General Ramsey Clark in an effort to understand the many controversial representations and causes that he has undertaken during his post-government career. I do so through the vehicle of perhaps his most perplexing client choice — deposed Iraqi President Saddam Hussein. Although Hussein had other competent attorneys prepared and willing to represent him, Ramsey Clark nevertheless felt compelled to volunteer his services to the defense team. Why would he do so, and was his decision an ethically proper one under the circumstances?
These are the specific questions that this Article endeavors to address; but more significantly, it critically explores the evolution of one of the most enigmatic and fascinating legal figures of modern times. Whether or not one agrees with Clark's views or the manner in which he has chosen to utilize his license to practice, a holistic assessment of the entirety of his professional career makes plain the critical importance of being Ramsey Clark.
April 9, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Peeps are one thing, but nothing beats the Rice U. T.W.I.N.K.I.E.S. experiments!
Posted by Nancy Rapoport.
Alan and I are on the same page when it comes to Peeps (and probably to our own peeps, as well). On my blog, I've also included a post on experiments on Peeps and on Twinkies--the latter done by students at my beloved Rice University. Little did I know that there's a whole subculture on Peeps Dioramas, including examples here, here, and here. I'm sure that there's a law review article about all this somehow....
April 8, 2007
20 Scientific Myths, the Science of Peeps, and The Hoax
Posted by Alan Childress
I've already blogged on my search for false myths and urban legends, as well as hoaxes, of the legal profession and of history (the latter proved to be a fairly weak list). Continuing the theme and my quest, here's the Top 20 Scientific Myths, including the widely assumed theses that: dog mouths are cleaner than human ones, hair and nails grow after death, water drains backwards in the Southern Hemisphere, humans only use 10% of their brains, and (unrelated) chickens live on, headless. The site allows you to vote your faves.
The surprise is that some myths of science turn out to be true. The site reports that the chicken one pans out: "True, and not just for a few minutes. A chicken can stagger around without its noggin because the brain stem, often left partially intact after a beheading, controls most of its reflexes." I wonder if that is also true of marshmallow chicken Peeps but do not find the answer even from the scientific-experiment peeps site www.peepresearch.org, which humanely reports that before testing, "all peep subjects are thoroughly examined and sign a disclosure form explaining the potential risks of their volunteer service." Predictably, tests using alcohol and cigarettes caused a "synergistic effect," and ultimately a condition "which scientists call 'ball of charred goo.' " I'd prefer placebo.
I am relieved to hear that the penny-dropped-from- tall-building-is-lethal legend is false. I always hated the irony that a little sculpture of Lincoln could pierce your head behind the ear and kill you. He of all people.
In the bad history post, I promised to go see The Hoax, a movie about Clifford Irving's 1972 "autobiography" of Howard Hughes. I did and enjoyed it. I liked the theme, obviously, but I also think it worked as a movie, and Richard Gere and especially Alfred Molina were quite good in it. It seems to be in "limited release" (groan; I guess we need even more screens for The 300--which on the posters looks to me like The Zoo), but catch it if you can. Critics like it too.
One history myth that turns out to be settled fact: Napoleon had very nice legs.
Rankings, Leiter, and LSAT: "The Tyranny of Lists"
Posted by Alan Childress
Jeff Lipshaw has posted helpfully on whether law school rankings have blue-coastal bias (a torch carried on by ELS Blog here and good comments here), and he has charted the largely-clumped distribution of the reputational scores in USNWR both by judges/lawyers and by "peers," i.e., law school Players.
Since then, on April 5, Brian Leiter posted this updated 2007 rankings of law schools by student numerical quality, which is based on LSAT. Leiter ranks the top 40 schools according to 75th LSAT percentile, and then 25th LSAT percentile. Tulane faculty got an email from a colleague alerting us to this and noting our school made the list (as #40) in terms of 25th percentile. In reply, another colleague emailed a response for which I asked permission to post here, as long as we are on the subject of rankings and law school "quality." The response reminded me of some of Nancy Rapoport's cautions, and said what I wish I had said.
So welcome to our distinguished guest blogger Raymond T. Diamond, Tulane's John Koerner Professor of Law and the coauthor of a prize-winning legal history book on Brown v. Board's origins and legacy (right). We appreciate his allowing us to reproduce his email:
Interesting survey, but I wonder about drawing normative content from it. It's bad enough that so many schools, not excluding our own, make choices on the basis of the perceived need to improve or maintain their US News rankings, but this one is based almost to the point of exclusion on the the norm that a high LSAT class is better than a low one.
Surely there are other norms -- gender, racial, and geographical diversity for one, the desire to serve friends and alumni of the university, the desire to serve a host city, region, or state, and the choice to serve particular areas of legal inquiry and practice -- that influence and that should influence the admissions practices of law schools, including our own.
Having said all this, Leiter doesn't add anything not previously available to the body of information available to the public. One can figure this out by trolling through US News or ABA data -- undoubtedly what Leiter did. But I do worry about the tyranny of lists.
An attorney was recently suspended based on a determination that his delusional beliefs and statements demonstrated that he was not capable of practicing law or defending himself in the bar proceedings. Originally charged with a conflict of interest, the matter was converted into a disability proceeding after he made statements suggesting that, among other things, the "Christian Right Mafia, a Seattle law firm and his former law professors had fixed the disciplinary hearing" and that disciplinary counsel was an imposter. The Washington Supreme Court found sufficient evidence that the attorney's mental condition affected his ability to practice and placed the attorney on disability inactive status. (Mike Frisch)