Saturday, April 21, 2007

Admissions Ruminations

It is certainly true that conduct that would not get lawyers in serious trouble can create a real barrier to admission if committed by an applicant seeking bar admission. I have previously mentioned a Nebraska case from a few years back where an applicant was denied admission for having an obnoxious and "turbulent" personality. He had been admitted for a number of years in a number of states without ever being subject to discipline (including Nebraska, where he had let his membership lapse). The case is In re Appeal of Lane, 544 N.W.2d 367 (Neb. 1996). Few lawyers get in more trouble than an occasional contempt for such behavior, and then only when in the presence of a judge.

For better or worse, admission to practice as a gateway issue is considered in a fundamentally distinct way from sanctioning members of the club. It is worth noting that there are 50 states and each approaches admission in its own way. Some may be more willing to entertain the notion of a foolish mistake than others. Some may be more influenced by the politics of the situation than others. It is hard to predict the admission response to conduct that has not resulted in a criminal conviction, particularly if it appears an isolated instance and the applicant is appropriately remorseful (that would be, in my view, a non-negotiable prerequisite for admission).

I was involved in a case against a government attorney who was convicted of espionage. The issue was whether the crime involved moral turpitude per se, which is considered with reference to the statutory elements rather than the facts of the case. Because the conviction could have involved help to a friend rather than an enemy of the United States, Bar Counsel argued that she was entitled to a hearing (where disbarment would have been a forgone conclusion). However, a majority of the Board and a division of the Court found that summary disbarment was required. When a lawyer acts in a way that threatens public safety, the result is likely to be summary and harsh.

I found the linked case presented one of the most interesting issues I faced at Bar Counsel. To me, the moral turpitude per se issue involved a difficult question of moral relativism. Spying is morally repugnant if in the cause of your enemy. A spy for the U.S. may be considered a hero rather than a villian (as a Washington Senators fan, Moe Berg comes to mind). However, giving any process to one who spied against our country was not on the agenda of the D. C. disciplinary system.

Another historical note in the area of admission/disbarment/fitness to practice is the case of A. H. Garland of Arkansas. Garland was a prominent attorney who supported the South in the Civil War. After the war, and a Presidential pardon, the Supreme Court in a 5-4 decision held that he was qualified to practice law notwithstanding his acts of rebellion against the union and an oath requirement (that he had not been a traitor) to which he could not truthfully subscribe. The court majority held the oath requirement an unconstitutional  bill of attainder and ex post facto law.  The dissent of Mr. Justice Miller helps place the case in its historical context and remains a great read on the subject of fitness to practice. Garland went on to become Attorney General of the United States. (Mike Frisch)

April 21, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Interesting Inside Report From Hastings Law Student on Security Measures There: More on AutoAdmit Threat to Hastings

Posted by Alan Childress
After we posted this entry on the evacuation of UC Hastings in response to a perceived threat from AutoAdmit, a Hastings law student, Travis Hodgkins, posted this interesting comment on our blog, about current severe security measures on his campus.  It is worth a read.

Travis also wondered whether the perp can redeem himself or herself before bar admission time and pass C&F screening.  My own assessment is that this is very unlikely, in the current climate, at least without some massive rehabilitation and time delay before the character process is invoked (and even then...).  Bar examiners simply do not hold applicants to the same standards that their state bars do in disciplining (or not) an already-licensed lawyer.  Mike (with much more experience inside bar structures) and Jeff (with more worldly experience in practice than I) may see it differently, but my hunch (consistent with research) is that this student is toast for the bar.  [UPDATE:  See Mike's Admissions Ruminations, in the post above this one, which I puppetmastered him into with my prior sentence there.]

And I do recognize that, to his or her credit, the student came forward and fessed up -- and that some will say that this message by one "Trustafarian" was patently offensive but not a serious threat (the latter as another commenter does).  Still, the school in fact evacuated.  I doubt the C&F screeners will take seriously the student's own statements of intent and instead will use an objective test of how the message was perceived.  If it had been ignored by Hastings (unlikely in the post-VT world and the scathing criticisms of its administration), maybe it would not be treated as a threat.  But it was and, I think, that characterization is etched in stone and will not dissipate with time. 

It was an awful lapse of judgment and maybe even worse -- I do not know -- but there is something sad if the reality is that some immature kid has thrown his or her life away with just one thoughtless comment on an "anonymous" message board.  I have written before, in the context of "permanent disbarment," about the power of redemption and the need not to quit on people too soon.  John Dean learned from Watergate, I noted.  Travis's question left me, without knowing any more about the other facts and character surrounding "Trustafarian's" life, feeling sad. 

I think my sadness is in part that I doubt that the bar examiners will really evaluate all the other stuff, good or bad, and that this foolish or awful prank (or serious threat) will stand alone as sufficient to mean this person can never be a lawyer.  Even if he or she has learned more morality and consequences from this situation, in two days, than many lawyers learn in a lifetime.  To me, that is not at all the saddest thing that happened this week, but it is sad and societally wasteful.  More collateral damage.

Anyway, thanks for the thoughtful comments by Travis.   I hope he will keep us posted on the aftermath at Hastings and what he hears from Boalt, either on his group's blog or in further comments to ours.

April 21, 2007 in Blogging | Permalink | Comments (11) | TrackBack (0)

Student Pro Bono Award

The Virginia State Bar gave its annual student pro bono award to Maryann P. Nolan, a third year law student at the College of William & Mary who devoted over 1000 hours of uncompensated or minimally compensatated public service and supervised legal services to a variety of needy clients and causes. We congratulate a rising lawyer who has set such a fine example for the profession. (Mike Frisch)

April 21, 2007 in Pro Bono | Permalink | Comments (1) | TrackBack (0)

Ruminating on Essay Name Changes and Brown Bags

Posted by Jeff Lipshaw

I decided to change the name of my essay on contract theory, concluding that it did not truly capture the intertwined loops of paradox that I think underlie our simultaneous use of private law as subjective Kleinbottle_2 instrumentality and our attempt to make sense of it as an objective normative system.  In fact, I realize that I like the foregoing sentence as much or more as anything I have it in now, so I'm sure another revision is in store.  It's waiting to be approved by "SSRN Management" (what do they do to approve the revision?), and will reappear shortly as Instrumentality, Objectivity, Self-Reference, and the Futility of Justifying Contract Law.  (Until it's approved, this link will show the old paper.)

Speaking of paradox and topology (the Klein bottle above is a good representation of how I often see the world), I said goodbye to Tulane the other day in a brown bag lunch session.  (It was advertised as follows: "I will be in the Faculty Lounge about noon, muttering and/or babbling incomprehensibly on the subject 'Aboutness, Thingness, and the Viscosity of Rules.'")  I attended several of these over the course of the year, and I loved how people would float ideas not fully thought out, and without fear that the very half-baked-ness would somehow reflect on them.  A colleague here said that was one of the differences between being in academia versus the real world:  you could do stuff like that without fear.  I'm not so sure the gap is that wide.  There's no question that there was a palpable fear in the corporate world, particularly in the business review context (long tables of more senior management facing off against senior management in day-long mind-numbing sessions of endless Powerpoint slides) about appearing to know everything.  I'm not so sure that doesn't exist as well in the academy (see discussions in the blogosphere among young professors about whether they should let senior faculty see early drafts of papers), but certainly these brown bags, at least here at Tulane, accomplish the task of putting everybody at ease.

The other thing I've found is that, by and large, law professors are only slightly less concrete in their orientation to the real world than practitioners.  Do you remember the climactic scene in Tootsie, whereTootsie Dustin Hoffman in drag as Dorothy Michaels as Emily Kimberly reveals that he is really Edward Kimberly played by Michael Dorsey.  It happens when the crew has to reshoot a scene that is live, and Hoffman/Michaels/Dorsey/Kimberly goes off on another unanticipated ad lib:

Emily: I never in my wildest dreams imagined that I would be the object of so much genuine affection. It makes it more difficult for me to say what I'm now going to say.  I do feel it's time to set the record straight.  I didn't come here just as an administrator.  I came to this hospital to settle a score.

Dr. Brewster (as usual, vapidly puzzled):  What score?

Emily: My father built this hospital.  But to his family he was an unmerciful tyrant.   An absolute dodo bird.

Ron, the director (in the booth, aghast): Oh, no! Not live!

Rita, the producer (also in the booth, hopefully):  Let's see where she goes.

I'm pretty sure the reaction of Ron and Rita was the reaction of most of my colleagues every time I started to say something at a meeting in the law firm or the corporation.  I will admit that faculty colleagues are more tolerant.  But I know it's what they are thinking.

April 21, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Bar Admissions Character Screening and the New AutoAdmit Controversy: Please, Brad Wendel, Tell Me The Powerball Numbers Too

Posted by Alan Childress

Already Brad Wendel's prescient commentaries on LegalEthicsForum here and here, discussing bar admissions denials purportedly based on predicting future behavior (rather than focusing on the speech as such) are in the early stages of coming to pass.  (Our own analysis, distinguishing the Playboy TV "controversy," is here.)  Brad's point was made originally as to various anonymous posters to the AutoAdmit discussion board (a/k/a xoxohth).  These posters are not as anonymous as they think, and their racist and sexist comments may well become the grounds for denial of bar admissions for otherwise qualified applicants -- not because of their expressed views and opinions, but on the reasoning that this is all evidence of future inability to live up to the norms of the profession. 

This future-behavior mantra (justified or not over First Amendment arguments) has already started -- not in the context of racist and sexist speech, but in regards to an awful and offensive post onMiddlespread_2 AutoAdmit about the Virginia Tech murders which was regarded as copycat-threatening to UC Hastings College of the Law (left) and closed the school down for a while.  Turns out that they have identified the anonymous poster as a student at nearby UC Berkeley Boalt Hall School of Law.  The dean at Boalt sent a supportive and concerned letter to the community at Hastings, and the Hastings dean called off the highest threat-watch once authorities determined that the threat was either a hoax or had passed.  One account of the story is on WSJ Law Blog here.

In further detailing these events, the Brian Leiter blog states without qualifying it, "A Hastings faculty member tells me that the FBI has identified a Boalt student as responsible for the threat; his legal career is presumably finished."  Even the discussion board's owner used an analogy that provides the no-protection cue:  "Today someone yelled 'Fire!' on AutoAdmit, and some people took his word for it."  That owner adds that the student came forward himself and then the owner put the FBI in touch with him. 

A commenter at WSJ Law Blog adds:  "The Boalt student who made the fake threat might as well quit now, because he or she is never going to pass the California bar moral character determination after graduation with this on their record."  Another cues:  "This was exactly like shouting fire in a crowded theater; it’s outside the bounds of permissible conduct under any applicable legal standard." (Oddly, however, almost all of the 51 comments are devoted to the problem of getting hired to a big law firm job from a third or fourth tier school; even this incident devolves into USN&WR rankings talk.)

Although this kind of case will much more easily be cast in the prediction-of-harm mold (and has fewer traditional free speech equities given the Fire! cue), it will not be a big leap for the bar examiners to use their traditional reasoning on other forms of blog postings -- especially the rest of the infamous AutoAdmit comments section -- that get exposed before or during the licensing process.  And my own prediction is that this particular threat instance and its serious consequences will make examiners look more generally and intensely at AutoAdmit and its other comments.

Update:  A UC Hastings student here makes a thoughtful tie-back to Columbine and the Unabomber manifesto.

April 21, 2007 in Bar Discipline & Process, Blogging | Permalink | Comments (2) | TrackBack (0)

Friday, April 20, 2007

Abandoning Client Leads To Contempt

A finding of contempt against a North Carolina attorney was upheld on appeal. The attorney represented a client in a probation revocation matter. After a continuance of the hearing, the attorney met with his client in the courthouse on the rescheduled date. When she failed to pay him $200, he abandoned the client and the case without seeking leave to withdraw. The court clerk tracked him down by telephone and told him that the judge would likely issue a show cause or order his arrest. The reply: "he doesn't have the authority and I don't give a s... what [the judge] does."

The attorney was sentenced the 30 days in county jail, suspended, with a number of probation conditions including that he refrain from future cursing out of court personnel. There had been a prior incident of such behavior. (Mike Frisch)

April 20, 2007 in Clients | Permalink | Comments (0) | TrackBack (0)

Presumption Of Disbarment Overcome

The Florida Supreme Court entered an order yesterday declining to adopt the referee's recommendation for disbarment of an attorney who had been convicted of felony tax evasion and mail fraud. The presumption of disbarment was overcome due to evidence that the attorney's misconduct occurred in the wake of a physically and emotionally abusive relationship with her husband. She also had suffered significant health problems and devoted substantial efforts to providing legal services to indigent clients. The court rejected the finding that the attorney had acted with a selfish and dishonest motive and imposed a three year suspension. (Mike Frisch)

April 20, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Nicholson on the Under-Representation of Women in Corporate GC Positions

Posted by Alan Childress

Lisa Nicholson (Louisville), right, has posted to SSRN her article, "Making In-Roads to Corporate General Counsel Positions: It's Only a Matter of Time?"  It is also on 65 Md. L. Rev. 625 (2006).  Here is the abstract:

There were 40,018 law graduates in the class of 2004, of which almost half were women. Nicholson Many of these women, equipped with exceptional educational credentials, predictably have high hopes of ascending to the upper hierarchy of law practice. Unfortunately, their hopes of obtaining the fabled “corner office” may be dashed when they note who actually practices at the highest levels in those law firms and corporations. Indeed, by the end of 2004, women lawyers would only account for seventeen percent of law partners at the nation's major law firms and fourteen percent of the Fortune 500 general counsel.

This article focuses on the under-representation of women lawyers practicing in the upper levels of Fortune 500 corporations. Because law firm partners and senior associates are essential participants in any corporation's applicant pool for senior-level in-house positions, this article also addresses the promotional barriers encountered by women lawyers who practice at major law firms. To that end, Part I of this Article summarizes the reasons for the paucity of senior-level women lawyers at law firms and explains why corporations should be concerned. Part II proffers the beneficial impact of improving gender diversity throughout the upper ranks of corporate legal departments. In Part III, this article examines the assertion that in-house legal practice is better than law firm practice for women lawyers by questioning whether corporate legal departments do, in fact, provide better advancement opportunities, and work-life balance than law firms--particularly in light of the fact that those law firm pathologies have begun creeping in-house in recent years. Finally, Part IV provides solutions that may be implemented to address the limited gender diversity in the upper ranks of law practice at corporations.

April 20, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, General Counsel, In-House | Permalink | Comments (0) | TrackBack (0)

ABA Journal Story on Law Firm Marketing

Interesting story today in the ABA Journal's eReport about "pay to play" law office marketing, even for "conservative law firms."  It is called Shelling Out for the Spotlight:  Firms pay big bucks to get on-air, in-print or in-person attention.  [Alan Childress]

April 20, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Thursday, April 19, 2007

Top Ten - Legal Ethics & Professional Responsibility - April 19, 2007

It's been a long time since I've posted the top ten papers in the SSRN Legal Ethics & Professional Responsibility Journal as measured by downloads in the last sixty days.  I took a look, and lo and behold, there was one of my pieces.  So I have to post.

Plus, I criticized the number one paper, the Jensen et al. piece, on purportedly being able to measure integrity (which, in the paper, comes down to "honoring your word") as a measurable and testable attribute, in The Futility of Justifying Contract Law as Self-Referential System.

And here are the top ten.

1 Integrity:  A Positive Model with Applications to Corporate Governance and Finance (PDF file of Keynote Slides), Michael C. Jensen, Werner Erhard, Steve Zaffron, Harvard Business School, Independent, Landmark Education Business Development.

2 Tax Opinions, David T. Moldenhauer, Clifford Chance LLP.

Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies, Lester Brickman, Yeshiva University - Benjamin N. Cardozo School of Law

Explaining the Value of Transactional Lawyering, Steven L. Schwarcz, Duke University School of Law

Screed or Scholarship: The Days of Whine and Roses, Jeffrey M. Lipshaw, Suffolk University - Law School

The Relationship Between Law School and the Bar Exam: A Look at Assessment and Student Success, Lorenzo Alan Trujillo, University of Colorado at Boulder - School of Law

The Corporate/Securities Attorney as a 'Moving Target' - Client Fraud Dilemmas, Marc Steinberg, Southern Methodist School of Law

The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, Daniel Terris, Cesare P.R. Romano, Leigh Swigart, Brandeis University - International Center for Ethics, Justice and Public Life, Loyola Law School Los Angeles, Brandeis University - International Center for Ethics, Justice and Public Life

Incentivizing Institutional Investors to Serve as Lead Plaintiffs in Securities Fraud Class Actions, Charles Silver, Sam Dinkin,  University of Texas at Austin, Affiliation Unknown

10 On Full Economic Costing, Thom Brooks, University of Newcastle upon Tyne (UK)

[Jeff Lipshaw]

Continue reading

April 19, 2007 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

D. C. Discipline Debate

The Courts, Lawyers and Administration of Justice section of the District of Columbia Bar is sponsoring a panel discussion on proposed reforms to the bar disciplinary system. It should be a lively discussion with differing viewpoints (I am a panelist and think that the "reforms" perpetuate rather than help solve the serious shortcomings of the system). The event is free and will be held on April 26 at 12:30 at Morgan Lewis & Bockius, 1111 Pennsylvania Avenue, N.W. , Washington, D.C. (Mike Frisch)

April 19, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Admission Denied

The Massachusetts Supreme Judicial Court denied bar admission in two recent cases. An applicant who had received his legal education in Ghana was not permitted to waive into the Massachusetts Bar because his education was not deemed the equivalent of a degree from an ABA approved law school. Another applicant with a lengthy record of criminal matters and civil litigation was denied admission on character and fitness grounds. The court did not accept his explanation that a series of omissions on his application were the result of memory loss due to heart surgery rather than lack of candor. (Mike Frisch)

April 19, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Client Under Disability

The Massachusetts Supreme Judicial Court is considering amendments to its Rule 1.14 (client under disability). The proposed amendments, which generated majority and minority proposals, were initiated in response to the case of Care and Protection of Georgette, 439 Mass. 28 (2003). (Mike Frisch)

April 19, 2007 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 18, 2007

Lawyers Suing Lawyers

A law firm sued another law firm for misconduct by an associate of the defendant firm. The associate had intercepted telephone calls from potential clients and obtained information regarding the legal services sought by pretending to be associated with the plaintiff firm. The associate was convicted of criminal impersonation and disbarred. On appeal, the New York Appellate Division, First Judicial Department upheld the claim for compensatory damages for the lost business but overturned the punitive damage award against the defendant firm. (Mike Frisch)

April 18, 2007 in Ethics | Permalink | Comments (0) | TrackBack (0)

Justice Delayed But Not Denied

The New York Appellate Division for the First Judicial Department had accepted the resignation of an attorney several years ago. The resignation was tendered after the attorney had been charged in a bribery case and apparently was granted because the court was unaware of the pending charges. He pled guilty shortly after the resignation was accepted. On motion of disciplinary counsel, the order granting leave to resign was vacated and the attorney's name was struck from the roll of attorneys based on the felony conviction.

It is not unusual as a matter of disciplinary procedure for a court to refuse to accept resignation after disciplinary or criminal charges have been instituted against a lawyer. Here, the court ruled that a resignation that was granted in error can be undone even after the passage of many years. (Mike Frisch)

April 18, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Of Jewish Guilt and an Open Letter to Law Review Editors Expressing Gratitude and Caution

I am just finishing up the editing process on an article that I placed in a law review and, as always, the students are sincere and hard-working and thoughtful.  Moreover, to have taken my piece, they must have overcome some substantial hurdles, not the least of which is the tenuous link between most of my Space_oddity thinking and the physical universe (Cue:  David Bowie's Space Oddity - "this is Ground Control to Major Tom.")

I have spoken much of self-referential loops in the past few weeks, and have come to the tentative conclusion that my ability to feel guilty is in fact a self-referential and never-ending loop.  One of the good-faith edits changed the meaning of a paragraph quite dramatically, and I had what seemed to me like a moderate conniption.  Then I felt terrible because I had had a conniption.  Consistent with his kind and gentle wisdom, my classmate Douglas Baird once told me that he thinks of the interaction with student editors as an opportunity to teach, and that takes the edge off the tendency toward being a prima donna.  I always liked that.

Nevertheless, in the throes of working my way out of my psychological swirl, I composed the following open letter to law review editors, and it seems to have worked for me better than swilling down a Valium or a Xanax.

Dear Law Review Editor:

Thank you again for all of your work in editing my submission to your law review.  Before reviewing edits060930_fb_yomkippurtn of my articles, I always invoke the traditional Jewish Yom Kippur prayer that says to God "we are not so arrogant or stiff-necked as to say before You:  'We are righteous and have not sinned.'"  This puts me in the frame of mind appropriate to take the implicit and well-meaning criticism of the few people who will ever read this piece, much less engage with it, as you must, to have edited it so closely. 

At this point in the article's life, it is to me as though someone else wrote it; my review of the edits is, in many ways, as cold as yours of the submitted draft.  Indeed, the way I review the edited draft is to do a cold read of your version. I only go back to my last draft if something seems amiss, either in form or substance. So, for all I know, I have accepted most of your edits. 

But where something seems amiss, I do go back and check the last version I sent to you.  Invariably there has been some change from my draft that either impacted the meaning or made a stylistic change that I didn’t like at all.  I have pointed out a number of these examples.  I am certainly willing to concede that my original point may not have been clear, and, accordingly, I am taking your edit as a sign that I need to clarify. 

Some of your changes appear to be wholly stylistic.  A number of these suggest some discomfort with my willingness to use a more provocative or idiomatic turn of phrase.  It's interesting, because I have had pieces edited by professional editors in peer-reviewed journals, and they are invariably more tolerant of my unwillingness to toe the line than student editors.  Don’t be sucked in by false solemnity or seriousness in legal writing. I have been writing in litigation, corporate law, and non-legal business arenas for almost thirty years in every kind of environment – law firm, corporation, and academy – and I’m sure one secret to my longevity is that the writing has life.  Read some of Judge Posner’s work to see how seriousness does not have to be turgid.

Once again, it was an honor to have my piece selected by your review, and I have thoroughly enjoyed working with you.  I look forward to seeing the piece in the galley proofs.

Best regards,

Jeff Lipshaw

* Thanks to Slate.com for the drawing.

April 18, 2007 in Hot Topics | Permalink | Comments (8) | TrackBack (0)

Tuesday, April 17, 2007

McGowan and Wendel on the Torture Memos

Posted by Jeff Lipshaw

I have been remiss in not linking to a "dialogue" between two of my favorite thinkers (and people), BradMcgowand B_wendel Wendel (in this corner) and David McGowan (in that corner) over at Legal Ethics Forum.  I put the "dialogue" in quotes because Brad posted a note some weeks back on whether the Minnesota Law School could consider the "competence" of Robert Delahunty (who was being considered for a visiting professorship) in connection with the infamous "torture memoranda."  David has responded that there is in fact a colorable issue of interpretation of the Geneva Convention as to which any view of competence must be agnostic.  He suggests there is a problem of a self-referential loop in defining competence by what lawyers do, and, I think, accuses Brad of moving from the "is" of description - most lawyers would object to this - to the "ought" of a normative view - the majority is correct.   But Brad hasn't responded, so there really hasn't been much dialogue.

I was particularly intrigued by these paragraphs of David's post:

2.  Brad recognizes that this theory has to incorporate a theory of interpretation. One cannot tell evasion from avoidance, or from a good-faith conclusion that a law does not apply, without knowing how laws are supposed to be read.  He thinks the text of a rule often does not answer questions, particularly in “hard” cases. Thus, interpretation must aim at “recovering the spirit, purpose, or normative background underlying a set of textual rules, not merely the meaning that the textual expression of these norms might plausibly bear.” Toward this end, interpretation is dynamic and necessarily requires reference to “an interpretive community of lawyers, judges, and scholars that is constituted by fidelity to law as a cooperative social enterprise.”

3. Brad’s theory plays favorites among interpretive methods.  He rejects the view that interpretation is, almost by definition, a search for the intention of an author.  He rejects more grammatical notions such as “original public meaning originalism.” Both these theories see interpretation as having a fixed reference point; they reject the dynamic interpretation he posits as an element of competence.  They reject the notion that meaning comes from an interpretive community, at least insofar as that idea means more than some sort of “public meaning.”

4.    Brad justifies his theory on the ground that it promotes settlement, which is good.  But why should settlement be better promoted by a dynamic theory than one with a fixed reference point, such as some flavor of originalism? Even if, as sometimes will be the case, no original meaning can be found it does not follow that it is incompetent to try, especially when trying might force change to go through recognized procedures rather than (unsettling) judicial ukases. (To be clear, I am not an originalist; my use of it here is to make a point about Brad’s theory, not to defend it as such (I am a legal-process purposivist).)

I will throw in another perspective.  The "debate," as David has framed it, is over the criteria by which we can determine that a lawyer's interpretation (in advocacy) of a text is competent.  I have just started into John Searle's Speech Acts, and his initial discussion is to fend off a particular criticism of concepts (in Searle's case, analyticity of propositions and synonymy of words; here the equivalent would be competence of interpretation):  the critics contend that these are not helpful because we cannot establish good criteria for classifying borderline cases (here it would be between competent and incompetent).  The interesting paradox Searle observes is that we are able to accept or reject criteria only when we have a pre-supposed notion of the concept they are supposed to illustrate, meaning that - what? - we already have some knowledge about the concept before we begin to use language to define it.

The concept at issue is the one Brad mentions:  "the objection is that a lawyer who simply acquiesces in a client's demand, where the client has no legal basis for its proposed course of action, is failing to carry out the fundamental professional obligation of providing competent, independent, candid legal advice and to refuse to assist the client in an illegal course of action."  We can only view a particularAli interpretation of a text (whether a "dynamic" interpretation or one from a "fixed reference point") as borderline competent if we have a notion of competence that precedes this particular debate.  I think David is arguing (and I'm sympathetic to it) that we have a concept of competence that precedes any attempt to define it by criteria of interpretive methods.

When this is over, who between these legal ethics heavyweights will still be standing?

UPDATE:  Now the battle has been joined!  See Brad's response:  Wendel on McGowan on Wendel on Delahunty.  The thrilla in Manila!

April 17, 2007 in Blogging, Ethics, Hot Topics, Lawyers & Popular Culture | Permalink | Comments (2) | TrackBack (0)

Unreasonable Fees

The Illinois Review Board recommends a 30 day suspension of an attorney who charged unreasonable fees in two matters. He had charged one client $10,000 to represent her in connection with rock-throwing incidents that led to a deferred prosecution agreement. The lawyer had warned the client that she could be charged with attempted murder. Although he had no involvement in securing the deferred prosecution, the lawyer refused to refund any part of the fee. The second matter involved a fee of $7,500 for a juvenile case. The attorney was discharged after a week. The hearing board found that he was not entitled to the full fee, but only for the value of the services performed. Because he had only devoted five hours to  the case, a $10,000 fee was deemed unreasonable. The lawyer's attacks on his former clients-- he called the overcharged clients "harden [sic] criminals" and wrote a letter to another complainant that "impugned her mental health"--was considered an aggravating factor in the recommended discipline. (Mike Frisch)

April 17, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More On Metadata Mining

A recent opinion from the Alabama Office of the General Counsel holds that an attorney must scrub any information protected by Rule 1.6 from metadata before transmitting a document in order to comply with the duty of confidentiality. An attorney who receives any inadvertently unscubbed document cannot take advantage of the breach of that duty. (Mike Frisch)

April 17, 2007 in Privilege | Permalink | Comments (0) | TrackBack (0)

Pastry and the National Portrait Gallery: Off Topic But You'll Thank Me If You Live in DC

Posted by Alan Childress

A series of disparately-envisioned portraits of Sandra Day O'Connor is the latest special exhibit in the recently-reopened National Portrait Gallery in DC next to the Verizon Center (take Gallery Place Metro), a free museum known more for its Washingtons and Jeffersons.  I hear good things about it and will check it out soon.  I hope they captured her steely gaze.

But readers from DC should know about a more personal portrait exhibit nearby, unshowingly plopped down at the pastry and coffee shop Au Bon Pain at Metro Center station on G at 13th NW.  A remarkable woman named Mary Rand (no relation to the CIA, she says, oddly) usually hangs out there in the mornings, sits at a table with her coffee, and is willing to draw for you, from a photo or two you bring her (the more angles and detail, the better, though I have seen her work from snapshots and school photos).  The renditions are amazingly accurate and visually arresting, better than any of those expensively-hired artists we yuppies usually get to do this sort of thing to our children or dogs.  (I am actually too old and in debt to be a yuppy but whatever--no doubt I am the target market for her if she had any marketing expertise.  She doesn't seem to, as you'd have to stumble onto her as I did looking for streudel, and she prices way too low but I am talking her up on that and it'll still be a huge bargain.) 

Despite her talent, or perhaps because of it in an expensive city that does not easily support its most gifted, Mary has fallen on hard times and you will have to negotiate around her cart which holds most of her life to be able to retain her.  When you negotiate that retainer, please be generous (these works take care and time), but mainly because it will still be well worth it to you and the loved one to whom you present her work.  With even a modest frame added, this could be the most personal and wonderful gift you give yourself or a grandparent.  And cheaper than a couple Nintendo games.  I doubt any of the O'Connor artists have more talent. My experience from looking at other family portrait renditions is that they usually are reminiscient or evocative of the subject--you can guess who that is.  These are dead on.  Oh, and Mary likes cheese danish too and is genuinely surprised and pleased when you throw that into the deal.  Thank me later in comments (that's my kickback).

April 17, 2007 in Blogging | Permalink | Comments (1) | TrackBack (0)