January 20, 2007
Rosen on Anger and Incivility in "A Few Good Men"
Posted by Alan Childress
Robert Rosen (U. Miami--Law) has posted on SSRN a paper, "A Few Good (and Angry) Men (and Woman)." It is a chapter in the 2006 book about lawyers on film, Screening Justice--The Cinema of Law: Significant Films of Law, Order and Social Justice (Rennard Strickland, Teree Foster & Taunya Banks, eds.), and examines the 1992 Reiner-Sorkin movie A Few Good Men. (More on this interesting book to come...) Here is Rosen's abstract, in which he apparently can handle the truth:
I discuss the privilege of lawyers to display anger and to evoke anger in others. For example, in this film's dramatic climax, an angry lawyer angers a witness during cross-examination, who angrily “confesses.” I consider the uses of anger in acting like a lawyer as well as the emotional lives of lawyers.
I also discuss the normalizing of the angry lawyer. In A Few Good Men, anger is accepted as necessary to motivate lawyers to perform at their best. As with some athletes, there are unfortunate spillover effects. But, A Few Good Men instantiates cultural norms that reinforce angry lawyers.
These norms both help foster the “incivility crisis” in the legal profession and inhibit efforts to mitigate it. I argue that recognizing and attacking these norms must be part of the legal profession's response to the incivility crisis.
January 20, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack
January 19, 2007
The Ontology of FAS 5 - Thoughts Provoked by the E-Mail from RateMyProfessor.Com
Posted by Jeff Lipshaw
I confess to something of a recurring ontological crisis about the creation of business value, something that got aggravated this morning when I received notice from "firstname.lastname@example.org" that RateMyProfessor.com has been sold to MTV Networks, owners of among other things, VHI and Comedy Central, no doubt for an ungodly sum of money. (Disclosure: I have looked to see if any student has ever rated me on RMP out of what can be no more than a strange prurient interest.)
Here is the question at the heart of the crisis. Does the value of a business have "being" such that you can lie about it? Is it real? Can you touch or feel the value of RateMyProfessor.com? I have started to read some of the vociferous debate between advocates of historical accounting methodology (no doubt employed by Mr. Cratchit, left), on one hand, and advocates of forward-looking finance theory, on the other, as to which best captures the inherent value of a business. Historical financial statements purport to "fairly represent, in all material respects, the financial condition of the business according to generally accepted accounting principles consistently applied." But we only need look at the gap between the book value of the net assets (or, more colloquially, the net worth) and the market capitalization of almost any company to know that net asset value does not equal market value. (On Wednesday, my research assistants and I randomly picked Merck, which had a net asset value on its financial statements as of the end of 2005 - determined by accounting - of something like $17 billion, and an enterprise value - determined by the market - of something close to $100 billion.)
Since my impromptu talk at the AALS, I have been thinking about accounting (particularly when the word precedes "fraud"), and what precisely the lie in more complex cases might be. It is one thing to have a case in which management gets a number in the roll-up of the quarterly financial reports, doesn't like it, erases it, and arbitrarily substitutes another. But what about all the judgment calls along the way - rates of depreciation, capitalizing versus expenses, bill and hold, etc?
How lawyers factor into this metaphysical mess below the fold.
I want to focus on one microcosm of the issue here (cobbled in part from my article The Bewitchment of Intelligence, 78 Temp. L. Rev. 99 (2005)). There is a dialogue that goes on between auditors and lawyers about when a contingent liability, like a claim in a lawsuit, moves into the footnotes, and then from the footnotes to an actual accounting charge as a liability. And the words "probable," "reasonably possible," and "remote," as, in the lawyer's view, they apply to that contingent liability, are critical.
Under the Statement of Financial Accounting Standards No. 5 (“FAS 5”, issued by the Financial Accounting Standards Board), part of the definition of generally accepted accounting principles (“GAAP”), auditors use the word “probable” to indicate one of three different states of likelihood – the other two are “reasonably possible” and “remote” – that future events will confirm the incurrence of a liability. If an event is probable and the amount of the loss is reasonably estimable, FAS 5 requires that the obligation be booked as an accrual (an expense, and hence a charge to earnings) on the income statement and a liability on the balance sheet. “Probable” is defined as “[t]he future event or events are likely to occur.” Telling an auditor one has a better than even chance of losing a case in which the amount of the loss can be estimated is tantamount to incurring the expense.
Lawyers, on the other hand, use loose language of probability to convey a sense of the outcome to their clients on a regular basis. “Your odds of winning are 50-50, 60-40, one in ten, etc.” The ABA has attempted to cover these conflicting uses of language in its Statement of Policy Regarding Lawyers’ Responses to Auditors’ Requests for Information:
Concepts of probability inherent in the usage of terms like “probable” or “reasonably possible” or “remote” mean different things in different contexts. Generally, the outcome of, or the loss which may result from, litigation cannot be assessed in any way that is comparable to a statistically or empirically determined concept of “probability”. . . . Lawyers do not generally quantify for clients the “odds” in numerical terms; if they do, the quantification is generally only undertaken in an effort to make meaningful, for limited purposes, a whole host of judgmental factors applicable at a particular time, with any intention to depict “probability” in any statistical, scientific or empirically-grounded sense.
So if the lawyers tell the accountants the likelihood of a loss is remote, the item never hits the financial statements at all. If it is reasonably possible, it shows up in the footnotes. And if it is probable, then GAAP requires that the lowest probable outcome be booked.
Financial statements are a mathematical model of some other independent reality (whatever it is). By just a touch of lawyerly judgment, we can impact the model significantly (and who is to say whether that judgment is in good faith or not?) If we are not lying about what would generally be considered to be a piece of independent reality incorporated into the financial statements ("we shipped 10,000 widgets in the month of December"), but are manipulating the model (grossly or mildly), are we lying?
Top Ten - Legal Ethics & Professional Responsibility
The bad news is we've been less than diligent, at least the beginning of the year, in posting the top ten articles, as measured by SSRN downloads in the Legal Ethics & Professional Responsibility Journal over the last sixty days. The good news is that it is interesting to see all these new pieces as a result of the SSRN turnover.
While we were gone, Mae Quinn's (Tennessee, left) wonderfully titled but nevertheless pointed article (see the abstract) jumped to number 2 on the hit parade.
1. How an Instrumental View of Law Corrodes the Rule of Law, Brian Z. Tamanaha, St. John's University - School of Law
2 An RSVP to Professor Wexler's Warm TJ Invitation: Unable to Join You, Already (Somewhat Similarly) Engaged, Mae C. Quinn, University of Tennessee - College of Law
3 Popular Culture and the Adversarial System, Michael Asimow, University of California, Los Angeles - School of Law,
4 Open Access, Law, Knowledge, Copyrights, Dominance and Subordination, Ann Bartow, University of South Carolina - School of Law
5 When the Lawyer Knows the Client is Guilty: David Mellinkoff's 'The Conscience of a Lawyer', Legal Ethics, Literature, and Popular Culture, Michael Asimow, Richard Weisberg, University of California, Los Angeles - School of Law, Cardozo Law School
6 The Internationalization of Public Interest Law, Scott Cummings, University of California, Los Angeles - School of Law
7 The Promise of Compelled Whistleblowing: What the Corporate Governance Provisions of Sarbanes Oxley Mean for Employment Law, Elizabeth Chika Tippett, Harvard University - Harvard Law School
8 Lawyer Satisfaction in the Process of Structuring Legal Careers, Ronit Dinovitzer, Bryant G. Garth, Bryant G. Garth, University of Toronto, American Bar Foundation, Southwestern Law School
9 The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, Peter A. Joy, Washington University School of Law
10 Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in EC-Biotech, Tomer Broude, Hebrew University of Jerusalem - International Law Forum
January 19, 2007 in Weekly Top Ten: SSRN Legal Ethics & Professional Responsibility | Permalink | Comments (0) | TrackBack
Return to Practice
In most jurisdictions, disbarment is not necessarily a permanent condition. Many disbarred lawyers never seek reinstatement, moving on to other work. It is rare to see a disbarred attorney who is able to regain the license after the passage of many years. Yesterday, the D. C. Court of Appeals reinstated an attorney who had been disbarred in 1990 for a single instance of misappropriation of client funds of less than $500. It was not an entirely unsympathetic case, as the attorney was relatively inexperienced (he handled appointed criminal cases almost exclusively), had never previously handled client funds and made prompt restitution. The attorney had been denied reinstatement several times due to evidence of ongoing financial responsibility issues, but finally persuaded Bar Counsel, the Board and the Court that reinstatement was appropriate. (Mike Frisch)
January 18, 2007
Childress Named Meyer Professor of Civil Procedure at Tulane
My friend and co-editor, Alan Childress, has been named to the Conrad Meyer III Professorship in Civil Procedure at the Tulane University Law School. There are so many things one could say at this moment that would be wholly inappropriate to the tone of great honor, dignity, and solemnity I want to invoke.
Let's just review the bidding for a moment. In addition to his Harvard law degree, Professor S. Alan Childress has a Ph.D. in Jurisprudence and Social Policy from the University of California at Berkeley. Alan has been a member of the Tulane faculty since 1988, where he has taught "The Legal Profession" since 1990, and "Comparative Legal Professions" since 2002. He is co-author of the classic treatise Federal Standards of Review. While visiting at George Washington this year, he has mastered TypePad technology, and his contributions to this blog are widely admired (other than in certain quarters of the body art community).
Please join me in congratulating Alan on this honor.
Solum on Sea Changes to Scholarship in a Post-Net Profession
Posted by Alan Childress
Lawrence Solum (U. Ill), who also edits Legal Theory Blog, has posted to SSRN's journal on Law & Soc'y: Legal Profession his new article, "Download It While Its Hot: Open Access and Legal Scholarship." The article is also published in 10 Lewis & Clark Law Review 841 (2006). BTW, the title's "Its" was, I'm deducing, deliberate and must have driven the hives of student editors crazy. (Gotta like an SSRN piece with a keyword of 'disintermediation' that then disexemplifies it). Certainly other blogs now posting about the article are quietly adding the apostrophe--too subtle, I guess. Irregardless, hear is it's abstraction:
This Article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested laypersons worldwide.
January 18, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Loyola Offers Theatrical, Fun Ethics CLE in New Orleans on Ground Hogs Eve
We previously posted on the Colorado Bar's evening of musical comedy and ethics CLE extravaganza. In a similar though dramatic vein, this announcement from Loyola-N.O.'s CLE people:
Womens Lawyer Club – A Theatrical CLE Performance
February 1, 2007 (Thursday evening)
6:30 pm to 9:15 pm (doors open at 6:00 pm)
Loyola University Main Campus: Nunemaker Auditorium in Monroe Hall
1.0 Ethics and 1.5 Professionalism/$60 with credit; $25 guest; Free to students
The brochure and registration form are available by clicking PROGRAM BROCHURES at: http://law.loyno.edu/cle. To register, please fax or mail the form on the brochure.
The hours apply beyond Louisiana, as well. [Alan Childress; HT to Jeanne Carriere]
Findley on Innocence Projects as Clinical Exercises Raising Ethical and Judgment Questions
Posted by Alan Childress
As the blogosphere buzzes with renewed fervent talk of the Sixth Amendment and the 'issue' of representing possibly guilty people, there is always the conundrum of Innocence Projects, whose mission is to free the innocent. They necessarily raise ethics questions and inverse issues about representing the guilty.
Keith Findley (Wisc.--Law) has posted on SSRN the paper, "The Pedagogy of Innocence: Reflection on the Role of Innocence Projects in Clinical Legal Education." It is forthcoming in the Clinical Law Review. Here is the abstract:
The service and policy missions of innocence projects have received considerable scholarly attention. Relatively little, however, has been written about the pedagogical mission of innocence projects as law school clinical programs. This article examines the pedagogical challenges and opportunities presented by clinical programs that investigate and litigate large, complex innocence cases.
First, the article analyzes what innocence projects can and should teach law students, including lessons about facts and investigation skills; about the need for thoroughness and skepticism, and what that means in practice; about essential values of the profession, and about the risk that the narrow focus on representing only the innocent might convey unintended messages about the value of legal representation to all criminal defendants; about ethics; about doctrine and a critical perspective of legal institutions; and, finally, about judgment.
Second, the article considers how innocence projects might meet those educational objectives. Among other things, the article probes how innocence projects -- and other similar large-case clinical programs -- can manage the traditional tensions between the goal of nondirective student supervision, including the need to allow students to gain ownership of their cases, and the responsibility of ensuring quality representation to the clients in these complex cases, in which so much is at stake.
January 18, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
January 17, 2007
A Nice Reply by Weil Associate on How Can You Represent Terrorists?
Posted by Alan Childress
Every blawg has taken up the clarion flugelhorn in reply to DOD's Cully Stimson who told U.S. businesses to pull their law work from law firms who do pro bono work for "terrorists." To a blogger on the role of the legal profession in society, his comments come across as so asinine that one would have hoped they would have been mostly ignored and the employee relocated and de-powered for such an outlandish and incompetent misunderstanding of the basic and best norms of our (and his) profession. But apparently no such governmental repudiation and correction is forthcoming.
Either we believe in lawyers or we don't. I do. I do for corporations and their employees who want to be fully represented and assert whatever privilege is allowed. I do for young associates and big law firms who give of their time for pro bono representation of all sorts of people, including Stimson's enemy-combatants. I wish no one felt the need to reply to Stimson's comments. Many have, and of course they all make more sense than the comments.
Here is a very good reply from one such associate, from the Weil Gotshal firm's office in DC, published on Salon.com. (HT to Jane Hicks, who has represented corporations, football stars, and convicted murderers.) And MyShingle's Carolyn Elefant notes here, "Stimson's remarks are offensive only if there's the potential that they might work." She implores biglaw not to cut and run, even as she notes that sometimes it's biglaw making the same kind of suggestions about others' clients.
Ray Ward at Minor Wisdom here quotes the 6th amendment and says, "Some guy named Cully Stimson would apparently like to repeal that last infinitive phrase, if not the entire amendment. That wouldn't matter if Stimson were just some wingnut. But he's not just a wingnut. He's a lawyer, which means he ought to be familiar with the Sixth Amendment."
Ultimately I guess I am used to the usual public question asked of criminal defense attorneys, "How can you represent guilty people?" (The defense attorneys that I know say it's representing the innocent ones that makes them puke in panic.) I am not used to the American government asking it. And then asking for those who do to be punished into submission by their other clients. And suggesting that selfless volunteers are secretly funded by terrorists. How does he still have a position of power and responsibility in a system devoted to the rule of law?
As any decent anarchist would say, "First we do, let's kill all the lawyers." In a democracy, I say, "First we do, let's not empower anarchists."
Blom on Cause Lawyering and the Role of Solos & Small Firms
Posted by Alan Childress
Brenda Bratton Blom (U. Maryland--Law) has posted to SSRN's journal on Law & Society--The Legal Profession this paper: "Cause Lawyering and Social Movements: Can Solo and Small Firm Practitioners Anchor Social Movements?" Here is her abstract:
As the demand for affordable legal services grows, law schools and the legal profession struggle to respond. By examining lessons from successful social movements in the last century, [this paper] looks at the Law School Consortium Project and its potential to participate in and anchor the social movements of our time. The collaboration of the law schools, networks of solo and small firm attorneys and activists at the local, regional and national level provide key elements for powerful change given the technological developments of the 21st century.
January 17, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Exception to Confidentiality
The Supreme Court of Appeals of West Virginia has held that a guardian ad litem appointed to represent the best interests of a child in an abuse and neglect proceeding does not owe an absolute duty of confidentiality to a child who has disclosed information regarding allegations of sexual abuse. The court's analysis should be of great interest to attorneys who are faced with an ethical dilemma in determining the best interests of a minor client in such a situation. The analysis also illuminates the meaning of Rule 1.14 (client under disability). (Mike Frisch)
A Kindler, Gentler Pfizer
Posted by Jeff Lipshaw
I thought yesterday's take in the Wall Street Journal on the "first 100 days" (so to speak) of the Jeffrey Kindler (left) administration at Pfizer was interesting, particularly in view of the Alan Murray column a week or so ago. There he implied that companies turn to lawyers as CEOs to bail them out of trouble. And the trouble at Pfizer was the departure (and severance package) of Kindler's predecessor, Henry McKinnell. I suggested then the Pfizer directors were not going to put someone in charge of the largest pharmaceutical company in the world simply because he would choose his words carefully and manage the litigation well.
Yesterday's article (co-authored by Joann S. Lublin, whose writing both as reporter and columnist I have liked) provides a nice perspective. Here are some of the comments on his tenure so far:
- "Mr. Kindler has won high marks from the board for his boldness, speed of action and frequent communication with directors. . . ."
- He has reshuffled the executive team, cut the U.S. sales force by 20% and raised the company dividend by 21%.
- "He has come across as likeable and accessible with Wall Street and has pacified critics of the company's transparency by putting its drug pipeline online."
- He has replaced the top human resources executive, and is "tapping Korn [Consulting] to help him rework the company's culture and aid in its transformation."
Once again, a personal note. When I was the general counsel at Great Lakes Chemical, we had a piece of litigation (Great Lakes Chemical Corp. v. Monsanto, for those of you who used it to teach the Howey test for "what is a security" under federal securities law) that had dragged on for years as the defendants were, seriatim, gobbled up by bigger companies (Monsanto to Pharmacia to Pfizer). I had come to the conclusion that we needed to reset our sights, and get the case settled for an honorable amount. At the time, Jeff Kindler was my counterpart at Pfizer (if counterpart doesn't over-flatter me), and at about 7:00 p.m. one evening, I called Pfizer's headquarters in New York, got the automated attendant, selected Kindler from the directory, and rang his line. To my surprise, he picked up the phone. I introduced myself, and proposed that he and I step in and get the case settled. Within a day, he had delegated it to one of his lieutenants, who wanted to come up to speed, and within a couple weeks, we had the case settled on terms that pleased me.
All of that demonstrated a decisiveness (not the lawyer-bashing canard, "on one hand, but on the other hand") that is consistent with what I am reading now. There is a myth of CEO-dom, particularly coming out of the GE culture (as noted earlier, Kindler was a Ben Heineman protege) that one person can hold back the tsunami if one is a good enough leader and manager, so I don't know whether Kindler will succeed or not at Pfizer, but this is a good story for now.
January 16, 2007
Dishonesty in D.C.: No Big Deal
The District of Columbia Court of Appeals (Associate Judges Reid and Fisher, Senior Judge King) heard oral argument this morning in In re Scanio. The Court reviewed a Board report recommending public censure of an attorney who had been injured in a minor traffic accident. The attorney treated the accident as a winning lottery ticket, creating a wildly inflated claim for lost income with intent to deceive the insurance company. He then lied to his law firm about the circumstances; the firm discharged him. He repeated the same false story in the disciplinary hearing.
The D.C. Board found that the attorney's pro se representation did not involve the practice of law (representing yourself is not practice-related?) and seems to suggest that an insurance company should expect dummied claims. The Board cited a series of cases where attorneys had been suspended for dishonest conduct to justify its non-suspension sanction recommendation. A single Board member dissented in favor of a 60 day suspension. The dissent is worth a read for those who want a sense of the D.C. Board's lenient agenda.
I only hope that the Court firmly rejects this most recent attempt to lower the ethical standards of my own Bar. Note: the dissenting member's reward for her views that one of the judges aptly called "eloquent"? She was denied reappointment to the Board as a result of the machinations of the author of the abominable majority report.
Disclosure: I advised this Board member in connection with her attempt to be appointed to serve a second term. I remain disappointed that Bar politics trumped integrity and public protection, denying a Board member a second term for the first time in the history of the D.C. Bar. Read the dissent and ask yourself why a person who advocated for a higher standard of honesty than the Board appears willing to tolerate is deemed unworthy to serve. The answer reflects poorly on the concept of a self-regulating profession. (Mike Frisch)
Surprise, Surprise: Correlation Between Exam Grades and Intelligent Engagement
I have now received back the number key that allows me to figure out which grades I gave to which students. There is something nicely affirming about this, as I look at Class #1, which had 41 grade exams. I only wish that I had made a prediction beforehand, based on constructive class engagement, really to test this, but it seems to me there is pretty good correlation between that and the final grade on the exam. Of the eleven grades of A and A-, I would say I was not surprised by any of them, and certainly not by at least nine of them. There were three I would have predicted to have gotten an A who did significantly below that (i.e. B or below).
And it seems like there was a significant correlation between disengagement, unpreparedness in class, and getting a C. Again, there were a couple surprises on the negative side, but not many.
Based on a quick scan of the grades and the people, it looks to me like the same holds for Class #2.
Both of these classes were upper level. When I taught first semester Contracts at Wake Forest last year, it seemed a lot more random.
Note: I did not use the dartboard after all.
"So, Has Tulane Moved to Baton Rouge?"
Posted by Jeff Lipshaw
That was a question I got while traveling this weekend. On what was otherwise a dreary, rainy day, I heard what sounded like an authentic New Orleans jazz band coming from the newly-opened Lavin-Bernick Center for University Life (i.e. the student union) just across McAlister Street from the law school. The food court and bookstore have been moved from their temporary quarters in a bubble structure just up the road, and the place was jam-packed with students on this, the first day for the undergraduate of the THIRD full fall or spring semester at Tulane since Katrina.
I apologize for the poor quality of the pictures, but I was carrying my salad, and quickly pulled out my cell phone camera to take them. The picture just above left capsules my only regret about the whole affair: if I had come in this door rather than the other, I would have seen that Tulane Dining Services (a division of Sodexho Marriott), in addition to providing the aforementioned brass band, was also serving red beans and rice gratis as a "welcome to the new union" gesture. I would have gladly traded my salad for the free food, proving that I truly have been co-opted into law professordom.