Monday, April 23, 2007

Hayward on Election Day Volunteerism as Unauthorized Practice of Law

Allison Hayward (George Mason, right) has posted Election Day at the Bar on SSRN.  Here is the abstract:Hayward

Since the 2000 election, national parties and a number of special interest groups have changed how they "lawyer up" for election day. They recruit nationally for attorneys to work in whatever "hot spots" develop. Yet in key jurisdictions their activities may amount to the unauthorized practice of law ("UPL"). UPL discipline of these attorneys may seem unlikely so long as all participants in elections desire to mobilize these volunteers. Yet enforcement could be triggered once local interests who rely on suppression or fraud recognize that outside volunteers will cause them to lose their edge. Or an isolated instance of selective enforcement in one jurisdiction (perhaps a place that allows private actions to enforce professional ethics rules) could inspire actions elsewhere. 

As in so many other aspects of American political life, volunteers are valuable and necessary here. By imposing uneven jurisdiction-by-jurisdiction standards, state-based UPL rules confuse participants. They also discourage the development of trained national election-day experts, skilled in the federal rules applicable to elections and voting, familiar with the kinds of issues that arise on election day, and – perhaps most overlooked – with a stake in the smooth functioning of American elections over time. In an area of increasing federal concern, it makes sense to move away from relying on election-day lawyering from local partisan non-specialists and regional political supplicants. 

Can the situation be improved, or are these vagaries the necessary consequence of an intransigently parochial election – and ethics – regime? While a national ethical code would alleviate the disparities, for many reasons that particular reform is unlikely. This paper suggests a much more modest proposal, through established ethics reform channels (i.e. the American Bar Association) that would not just clarify the position of election-day volunteer attorneys, but insulate other very limited and casual "practice" situations from professional discipline. Without some change, the enforcement of UPL rules against election-day attorneys would seem to be a matter of time. Then the following chill on participation will be felt everywhere and ultimately voters will lose the benefit of this activity.

Interesting subject.  I'd assume that there are lots of activities that are not legal in nature - poll watching, etc., but that giving advice as to the legal significance of circumstances that arise in the course of the day would be practicing election law.  Then the question would be whether one of the exceptions applies.

[Jeff Lipshaw]

April 23, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

MacLachlan on Higher Professional Duties of Legal Research in the Info Age

Posted by Alan Childress

Lawrence MacLachlan (UMKC) has recently posted to SSRN his 2000 article: "Gandy Dancers on the Web: How the Internet Has Raised the Bar on Lawyers' Professional Responsibility to Research and Know the Law." Here is his abstract:

Until recently a lawyer's professional responsibility of “ordinary skill” to research and know the law at a level higher than of the general public was not particularly challenging due to the unfamiliarity of the general public with the traditional sources of legal materials. However, emerging trends in federal policy are promoting increased public access to government and legal information on the Internet.

This article argues that the extent of information available on the Internet, the degree of public access to that information and presumed or constructive knowledge of what is in the public domain challenges the traditional assumption that lawyers are more competent researchers than the general public and will substantially elevate the minimal level of a lawyer's professional responsibility to research and know the law. The standard of care in negligence actions for legal malpractice will increase correspondingly.

Unless lawyers and law schools rise to that challenge, the profession will lose control over the standards by which legal services are evaluated and the Internet will have transformed the minimal standard of professional competence in legal research from that of the ordinary lawyer to the higher standard of the “intelligent layman."

April 23, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Northwestern Colloquy Surrebuttal: Hopeless Goo Goos Make Nice

We have been linking to the ongoing debate between Professors Lininger and Bagenstos over at the Voltaire Northwestern University Law Review's Colloquy.  For the final installment, Professor Lininger avoids ad hominem after being called a hopeless goo goo, but invokes Voltaire on the theme: "Le mieux est ennemi du bien."  Voltaire, La Begueule, in 3 Recueil des Meilleurs Contes en vers 77, 77 (1778).  I did not know that Voltaire was the source of that epigram, and the response is worth a read for that alone, apart from the last word on the mandatory pro bono issue.

[Jeff Lipshaw]

April 23, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Sunday, April 22, 2007

Disclosure Obligations In Bar Admission

For those who are unclear as to the nature of a state bar character and fitness inquiry, we provide this link to the form used by the National Conference of Bar Examiners. A well-prepared law student will start gathering the information sought by the state bar as soon as a choice of bar is reached. As previously noted, the inquiries extend well beyond criminal and school discipline matters. It is universally recognized that full candor (see Model Rule 8.1 on the affirmative obligation of an applicant to correct any misapprehension) is essential to admission. A post -admission discovery of misleading/concealing answers can be career suicide, even if truthful disclosure would not have led to denial of admission. (Mike Frisch)

April 22, 2007 in Bar Discipline & Process | Permalink | Comments (6) | TrackBack (0)

Bar Admissions, C&F Reality Check, and the Sad Hastings/Boalt Situation

Posted by Alan Childress

I am just dumbstruck at the naivete of some of the [Gen Y?] commenters (about us and our posts) just now on the Xoxohth message board.  I often wish they were right that we live a world (or bar) with such forgiveness and redemption -- and consequences that extend as far as the beam of a cheap flashlight.  Do I have to be the messenger that says "We do not"?   Am I starting to sound like my Dad now?  By the way, I now know he was right almost all the time he said something like this.

Most of the posters seem to think the Boalt student's legal career is intact and fixable because his transgression did not involve dishonesty or may not result in criminal charges.  Or the threat was obviously a joke.  They do not seem to get that the bar license is still treated as a "privilege" -- and thus that its keepers are the ones who define "character" (much less "dishonesty" and "threat") and consider whether criminal charges even matter for their purposes.  Then one poster writes:

Has anyone even bothered to ask the question of how the C&F will find out about this? It is unlikely that a criminal charge will result, so 'trustafarian' won't have to report it on that part of his bar application. The only way I can see it coming to light is if the law school reports it on the form that gets sent to them. In 2 full years, will Boalttt make a huge deal of this with no charges and time to cool down?

I just have to say Wow to about five parts of that.  The typical LPB reader likely sees two or three more Wow parts but my head is already hurting.  Just one Wow:  you think this student will have a student record at Boalt two years from now?  OK, one more:  Has this student commenter not looked at the 37-page bar application?  You don't think it asks about disciplinary charges short of crimes?  Many make you detail your speeding tickets!  And if you bend the truth on that, you will be excluded for "lack of candor in the application process."  Wake up and smell the white-out.

Oh, and when a responder to that post says that Boalt will have a CYA letter in his file (they will have more, BTW), the original poster responds, "Your idiocy is painful," and adds the F word.  Another poster writes:  "i thought the bar tended to give law students a break? did that one post really show trustafiran to be unfit to practice? i really dont think so and i doubt most state bar comms would."  Yeah, bank on that.  As Mike has cataloged well throughout this blog, bar boards may be giving bad-apple lawyers a break.  On what planet did someone get the impression that they give law students a break?

As for Jeff's excellent point that lawyers-to-be need to process now that lawyer accountability, at odds with anonymity, is "just about 24/7," I would add that their confidence in anonymity is an unbelievable illusion worthy of The Matrix.  They stake their careers and non-incarceration on anonymity?  Several of the messages confidently explain the technology to make a truly anonymous post (and threat).  Even if that is technologically true (and I still call Naive on it), it is foolish to think that the way secrets get revealed in this country is all about technology.  Everyone but me already knew who "Trustafarian" was, in his community, and they did not have to run some IP search to authenticate him. Joe Klein was outed for writing [the great book] Primary Colors by a lowly English professor running a program matching phrases Joe liked to use from time to time.  Unabomber was fingered by his brother after the manifesto was published.  The truly frightening part about 1984 was not the TV set that watched its watchers--it was the neighbors. I simply cannot believe that these aspiring lawyers, whatever the merits of their personalities and culture, readily hinge their entire lives on the hubris of technological cloaks and assume away community daggers.

Note to aspring lawyers re the C&F process:  accountability is "just about 24/7."  And please write everything you post or email as if it is a postcard addressed to the bar with your name in Sharpie instead of the Wish You Were Here part.

April 22, 2007 in Blogging | Permalink | Comments (6) | TrackBack (1)

Why Lawyers Should Take Up Knitting

Posted by Jeff Lipshaw

In a Herculean effort somehow to make my daughter Arielle's new blog on knitting, Mrs. Fairfax Knits, fallCrw_5302 within the topic here, I offer the top ten reasons (some of these are Alan's) why lawyers should take up knitting.  (That's Arielle below at the yarn store.)

10.   In a deposition, nobody is going to mess with somebody holding two large needles.

Gse_multipart20025 9.    If you do it to your brows, you look wise.

8.    You can say that, in addition to DUIs, you do "jaywalkers."

7.    On one hand, it keeps one hand busy, while on the other hand, it keeps the other hand busy too.

6.  Because crocheting is so Lochner v. New York.

5.  Even Jack McCoy would appear cuddly to some of the jurors with a soft ball of pink yarn lying demurely on the counsel table.

4.  "Pearl two?  Are you sure it was 'pearl two?'  Couldn't she have been saying 'pearl too?'   And how do you know she meant 'pearl'?  Did you actually hear the defendant say 'pearl?'"

3.  You can produce a hideous sweater vest to go with your red plaid pants and Santa bow tie for the office Christmas lunch.

2.  You can turn your war stories into long yarns.  (Ow.  Quitting poking me with the needle.)

And the number one reason I do not understand at all, but Alan gave it to me, and he is a good friend:

1.   Because doing it will unnerve Arlen Specter and Pat Leahy during your Senate confirmation hearings for Supreme Court Justice but they will not be able to comment on it negatively for fear of certain constituency groups sending telegrams over the transom.

April 22, 2007 in Hot Topics | Permalink | Comments (3) | TrackBack (0)

The NYT's Misapprehension of the Role of Law Firms in M&A Deals: Law Firms Don't Talk to Boards, Lawyers Do

Posted by Jeff Lipshaw

I was bemused by the shallow analysis in theSorkin_video "Dealbook" column by Andrew Ross Sorkin (right) in the New York Times business section this morning ("When Conflicts Arise, Lawyers May Be a Source").

It's not completely clear, but I think the point of this column is to suggest another reason why the well-publicized alleged conflicts of investment bankers firms (i.e. representing multiple parties; wanting M&A fees; simultaneously doing M&A work while doing "buy-hold-sell" analysis) should also be imputed to the Wall Street law firms with big M&A practices.

Here's Mr. Sorkin's hypothesis (I think).  A public company agrees to a private equity buyout arranged by an investment banker like Merrill Lynch or Citigroup.  The board meets over a period of time, in accord with its duties under Van Gorkom, Revlon, Unocal, and the myriad of Delaware cases that defines the board's obligation in connection with the sale of the company.  There are lengthy presentations by the company's management and the investment bankers.  The lawyers expound at length on the fiduciary obligations of the board, but it's all a show because they are going to say that it's okay to go forward with the deal.  Nobody on the company side, including the board members who continue to serve in the "post-Enron" "post-Sarbanes" environment, or the general counsel, really does any thinking at all, being content to be able to say that because they relied on the advice of their advisors, everything is copacetic.   And the lawyers from Wachtell, or Skadden, or Weil, or whomever, are saying go ahead because the big investment banking firms are their clients as well (in other transactions as to which there is no conflict under the PR rules, or as to which, by and large, there has been disclosure even if there is no technical conflict) and the investment banking firms want the lawyers to approve the deal.

Hooey.  I'm not saying that well-advised board can't make mistakes.  I also know almost nothing about the specifics of the Zell-Tribune deal that sparked the column.  I do know that one of the toughest calls for lawyers and boards is the issue of proving that the board maximized shareholder value in a Revlon situation (where the company is or will be in play) when the bid in front of you appears to be pre-emptive, and may even be conditioned on a "no-shop" agreement with some kind of fiduciary "out" if another bidder appears after announcement of the deal.  In the vernacular, you have a bird (and a quite tasty one, at that) in the hand, and sometimes the law looks like you have to let the bird go in order to prove that it's tasty (actually, the analogy at this point is backwards because you are letting the bird go to see if another bird thinks your hand is tasty, but what the hell, reporters don't need precision, so why should I?).

The one thing that I feel pretty sure about is that there wasn't a single mindless automaton sitting in the Tribune board meeting digesting all the information.  I know from my own experience as a public company general counsel that, in the midst of the consideration of a public company deal, I was on the phone almost endlessly, not with some noumenal entity like WeilSkaddenKirklandSidleyWachtell, but with a real human being with a name, whom, if I thought for one second had an interest other than complete, total, experienced, knowledgeable, nuanced, wise, loyal, cautious but realistic advice to the board (and the shareholders), I would have fired in a heartbeat.

As far as I can tell, there isn't a single fact cited in this column to suggest any GC would do otherwise.  Of course, no reporter has ever witnessed a vigorous board debate, so it can't have happened.

April 22, 2007 in Ethics, General Counsel, Hot Topics, Law Firms, Lawyers & Popular Culture, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Anonymity, Chatboards, and the Imus Defense

Posted by Jeff Lipshaw

Both of my blogging partners here at LPB have offered up views on the Boalt-Hastings situation.  I don't feel qualified to comment on the likelihood vel non of an applicant's passing character and fitness muster.  I do, on the other hand, have a moderately strong feeling about the anonymous trash-talking culture on chat boards generally, particularly in light of the comment from one reader (who, I should note, had the courage to sign his name to his comment).

There is an equivalent to Xoxo in the corporate world, and it is every public company's Yahoo! Message Flat2_finance Board.  The Yahoo! message boards were, I assume, originally meant to be places where investors or traders could talk about the stock. They quickly morphed into virtual water coolers or, worse, bathroom stall walls, where you might find the occasional bit of investment talk (more likely, ignorant day trading garbage when it was anything), but more likely some combination of current disgruntled employees and former disgruntled employees, with a strong flavor of juvenile (almost always male) locker room idiocy.  It was no-holds-barred, and I used to advise our most senior management that it pretty much came with the territory.  But every so often you would get just awful misogynistic or homophobic or anti-whatever directed at people within the organization whose pay grades just couldn't possibly include taking that kind of abuse.

And the sine qua non, in my view, was the anonymity.  Moreover, if anybody objected, on line or otherwise, the response from knuckleheads on the message board (anonymous, of course) would be that nothing could be defamatory, because, as the commenter observed below for Xoxo, nobody would take seriously anything written on a message board.  That, of course, is something like a cross between puffery and the Imus defense - first, it can't be serious because nobody would ever read that forum looking for the truth and, second, we are equal opportunity "phobes" and so nothing we say really matters notwithstanding its impact on others.  Moreover, there really isn't a way to create deterrence because no rational senior executive is going to waste the shareholders' money pursuing an anonymous knucklehead (and simply stirring the publicity pot to boot), and no abused employee wants to endure the continued pain.  (It's interesting as well to read the message board squawking when the rumors start that the company is tracing the postings back to company computers - as though it were Big Brother violating an inalienable right to "express oneself.")

Advice to law students:  anonymity is a neat way to avoid accountability.  But as a lawyer (and a law student), you are accountable just about 24/7.  It goes with the privilege.   

April 22, 2007 in Bar Discipline & Process, Blogging, Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)