Saturday, February 10, 2007

Seventh Circuit Discourages Unprofessional Lawyer Behavior at Depositions

Posted by Alan Childress

Chief Judge Easterbrook's recent opinion on the subject offers a list of lawyer "don'ts" at depositions -- and 252940_strange_sign_1 explains when, under the federal rules, a lawyer may instruct the witness not to answer.  The court "censured" or "admonished" various attorneys involved.

Reports on the opinion are found at Legal Blog Watch's Inside Opinions, How Appealing, and Illinois Trial Practice Blog.  Plus "Robert Loblaw" had it as his Decision of the Day, warning lawyers to "choose clients wisely."  And the Indiana Law Blog also links to YouTube and to a law prof's analysis [Stephen Bainbridge, here] of the "infamous" Joe Jamail deposition to which this court compares the conduct.   

[UPDATE:  I cannot get the 7th Cir. link or even its "opinions" site to work at all, sorry. The case is Redwood v. Dobson, Nos. 05-4324, 06-1165 (2/7/07).  I suspect the circuit requires FindLaw now.  I read it on Lexis {2007 U.S. App. LEXIS 2606} and it is, sadly, eye-opening.]

[FURTHER UPDATE:  Try this link Download 0L0UIP57.pdf to download a PDF of the opinion.]

February 10, 2007 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Judges Gone Wild: An Emo Judge Gets His Cue From Judy's Ra[n]tings?

Posted by Alan Childress

I am stealing from Nancy Rapoport when I raise (yet again, by me) the professionalism problem of the Judge Judy-fication of the profession or, in particular, of judges' impatient behavior exemplifying her "style" from the bench--possibly spurned on by the known presence of TV cameras and folks at home watching.  Here may be a video example ("may" because perhaps there's some preliminary context that the news channel is not reporting--some exchanges, perhaps, that make this dress-down seem inevitable--which tempers the Judyrific aspect of this "exchange" [well, I still think it's rude]).

On the news website of Atlanta Channel 11 ("11 Alive!"--I guess other channels offer news from Sherman's pyromaniac days) is this video snippet and judicial smack-down [HT to Electronic Ephemera's What not to say to a judge...].  Note the camera doing a close-up on the judge as he gets himself going.  I don't doubt that the lawyer's statement could have been worded better.  I can see how it might have been interpreted insultingly to the judge (or could just as easily be interpreted much more benignly). But the latter's rant 140725_38505813 assumes the worst about the statement -- and clearly misheard the essential point of the prior matter not being "on the record."  So the judge's demand that the lawyer show him where the statement is found in the record misses the point -- or even proves the point about it not having registered with the judge, who seems to react and emote before processing (at least with this snippet, and aren't snippets a problem too?).  The lawyer does not even get a chance to apologize for the misimpression and re-clarify that the prior matter was not on the record. 

Am I the only one that thinks this judge is just being rude and imperious rather than trying to defuse the situation or answer the concern (or just dismiss it, judiciously, if he is ruling that prio219617_crown_toyr matters must be on the record)?   Am I the only one that reads the tone of the lawyer as more benign and the actual wording of his statement as way less flame-throwing than the judge does?  The lawyer, btw, could do a great Bill Clinton voice impression.  I also am curious about the result of this -- did the judge apologize to the lawyer for mishearing him and not paying attention?  Tell me the context, please, 11alive or anybody.

I have this same reaction when baseball umpires walk right up to a manager after throwing him out.  Why not act like the judge instead of a porcupine?  Except here the lawyer isn't even kicking dirt, really, toward the judge, if he were paying attention to the lawyer's substantive point.  As my 14-year-old would say, this judge is being way too emo for me.

February 10, 2007 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Zacharias on Expanding the Ethical Role of the Lawyer in Pre-Retainer Consults and Obligations to Prospective Clients

Posted by Alan Childress
Fred Zacharias (San Diego) has posted to SSRN his article, "The Pre-Employment Ethical Role of Lawyers."  (He also just posted, and we posted on it, the one on lawyers' reputations--sort of like Leo DiCaprio competing against himself in the Oscars.)  The 2002 version of the Model Rules finally clarifies in Rule 1.18 that the conflict of interest rules and of course confidentiality both kick in for prospective clients.  But Fred envisions an obligation more comprehensive and educational to the client than simply preventing future contrary representations and similar obvious abuses.  Here is the abstract:

This article considers the nature and extent of lawyers' obligations to prospective clients. Most jurisdictions have rules forbidding certain kinds of representation, requiring that particular information be given clients in writing, and regulating fees. But professional code drafters, courts, and commentators have never addressed the broader issue of the lawyer's role at the retainer stage of representation, including whether lawyers have responsibility for providing prospective clients with candid Zachariasfc_3 advice regarding the course they should pursue.

The issue is important to clients. A lawyer's action may determine whether a client obtains any representation, competent representation, or a lawyer well-suited to the task. It also affects the client's consideration of alternatives - including alternative methods of resolving the legal matter and whether lower cost or specialized representation might be available.

The issue is equally important to the bar. Most legal ethics codes free lawyers to compete for all types of legal work, regardless of how experienced or qualified they are. The fiction that lawyers are fungible, or (at some level) equally competent, underlies the current regime of lawyer regulation and is designed, at least in part, to protect the guild. Although legal ethics regulation places restrictions on how lawyers may solicit business, once a prospective client comes to a lawyer, virtually the only explicit constraint on the lawyer's ability to accept the case is that the lawyer provide minimally competent service.

This article argues that the professional regulatory scheme should clarify and facilitate enforcement of lawyers' pre-employment obligations. Depending on one's view of existing law, this can be accomplished either through refined interpretation of the professional rules and common law standards or through amendments to the legal ethics codes. The article then analyzes the significance of defining a lawyer's pre-employment role for the legal ethics regime and external law regulating the bar. The article concludes by offering options, some designed to enhance enforcement of lawyers' pre-employment obligations and others that might serve as independent alternatives for achieving client protection.

February 10, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Clients, Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

Friday, February 9, 2007

Risky Business

The New York Times has an article today about the particularly nasty allegations and counter-allegations in the Coudert Brothers bankruptcy.  The one thing about which we can be sure is that the highly paid but oppressed and alienated associates at Coudert ought not to be concerned about, among other things, having the salaries paid to them in the last twelve months before bankruptcy voided as preferences.

Corwin The story quotes Leslie Corwin (left), a lawyer at Greenberg Traurig:  "If you look at major bankruptcies among professional services firms, the facts are remarkably similar.  They grew, they were not able to get adequate capital infusion and they borrowed money to bring in practice groups."

This is not to minimize the dislocation for the associates in a dissolving law firm, but being the equity claimant on the profits and assets of a law firm is not a riskless business.  [UPDATE:  Report on Coudert at WSJ Law Blog here.]

[Jeff Lipshaw]

February 9, 2007 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Prosecutors Walk

We have previously posted information concerning disciplinary cases against state prosecutors in North Carolina that suggests an institutional disinclination to impose bar sanctions. Attached is an order of the Supreme Judicial Court of Massachusetts dismissing charges against two state prosecutors, taking Bar Counsel to task for what is characterized as an unfair attempt to use issue preclusion based on findings in the criminal proceeding. The discussion of the use of collateral estoppel in disciplinary proceedings is an interesting one that deserves scholarly analysis. (Mike Frisch)

February 9, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Critical Lawyers" Conference in UK Feb. 24-25 Includes Critical Legal Ethics and Bar Reform Topics

Posted by Alan Childress

The National Critical Lawyers Group in the UK will hold its next conference, called "Human Rights and Human Wrongs," from Feb. 24-25, 2007, at the University of Kent in Canterbury.  (Its last was in 2004, on Justice.) The CLG organization "brings together academics, practitioners, politicians and students in an explosive forum which is designed to extend the critical teaching that is fostered at Kent and remains the main alternative to 'Black Letter' legal education."

Updated information on the 2007 conference is linked here.  Entrance is very affordable.  In addition to broader topics of critical studies, reproductive rights, and human rights, the scheduled topics and speakers include (particularly as to this blog's theme):

Critical Legal Ethics: Kim Economides, Peter Fitzpatrick, and Emilios Christodoulidis

Law Society and Bar Reform: Richard de Friend and Khawar Qureshi

Law & Medical Ethics: Barbara Hewson, Kenny Veitch, and Mary Ford

Law Clinics: Catherine Carpenter and John Fitzpatrick, plus law students at Strathclyde and Northumbria

February 9, 2007 in Comparative Professions, Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

Zacharias on the Reputation of Lawyers: Effects on the Profession, Clients, and Ethics Rules

Posted by Alan Childress

Fred Zacharias (U. San Diego--Law) has posted to SSRN his article, "Effects of Reputation on the Legal Profession."  In part it is a follow-up to the analysis he began in his Images of Lawyers article, on which we posted here, though that of course was more about the image of the profession itself Zachariasfc_2 and the identified roles lawyers play (and the effect on rules conceptions). His new article's abstract is:

This Article considers the role that the reputation of lawyers and signaling between lawyers and clients plays in determining the impact of the professional rules. Academics who have written about the relationships between lawyers and clients and the ways lawyers typcially act have not adequately considered how much of a role reputation and signaling between lawyers and clients play in ordinary attorney relationships. The empirical issues are key to a proper analysis of many professional rules, as well as the approach bar associations should take to mechanisms that match lawyers and clients.

The article will focus primarily on lawyers' reputations as a proxy for what clients want, or need, to know about their representatives. Part I offers a taxonomy of the ways in which lawyers' reputations are important. Part II discusses what we do, and do not, know about lawyers' reputations in today's real world. Part III identifies a series of questions about reputation that academics and the bar might do well to consider more seriously than they have in the past.

February 9, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Teaching Biglaw at the Non-Elite Schools?

Posted by Jeff Lipshaw

The always-interesting Carolyn Elefant over at has a take on the revamped curriculum at University of Detroit Mercy Law School.  It ties into the recent flurry around associate alienation in the big law firm world, provoked by the multiple posts from David Luban, and commented on by others, including me.  Carolyn's reaction brings to mind John Steele's observation over at Legal Ethics Forum about the pyramid structure of law schools feeding into the pyramid structure of the law industry.  John notes "if we're talking about fundamental structural change in the legal profession we have to discuss the school-firm complex."

Carolyn has a link and reaction to a National Law Journal article on the new third-year curriculum at SempleUDM in which all students will be required to practice what appears to be "big firm" law, in a program designed in conjunction with lawyers from firms like Baker & McKenzie and Skadden.  (Disclosure:  I know Craig Roeder from Baker & McKenzie, who is mentioned in the article, and the former chairman of Dykema Gossett in Detroit, Lloyd Semple (left), who is the distinguished visiting professor running the program, is my former partner.)  The gist is the question why a school like UDM, which is unlikely to place more than a small minority of students in big law firms, is making a "big law" program its capstone experience.

I don't know enough to make a judgment.  It's entirely possible that it's the big firms that have the time and resources to devote to UDM, and the skills being taught are universal.  And you certainly have to give a nod to UDM for its willingness to break out of the mold.  And Lloyd, who is a big guy with a Chris Berman like booming voice, will certainly do a good job of playing senior partner.  Indeed, when I started at Dykema in 1979, he was the partner in charge of the associates, and he scared the crap out of me.

But check out Carolyn's post and the interesting comments.

February 9, 2007 in Blogging, Law Firms, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Thursday, February 8, 2007

Using Quicken Lawyer To Help A Third Party Write Her Will Is UPL

Santa Clara's Eric Goldman blogs here on a South Carolina case terming it the "unauthorized Will_and_testament_3practice  of law" for an insurance agent to use Quicken Lawyer's wills function in order to help a customer to write her will.  [Alan Childress]

February 8, 2007 in Ethics | Permalink | Comments (0) | TrackBack (0)

Two Strikes, You Are Out!

The Supreme Court of Louisiana ordered the permanent disbarment of an attorney who had been disbarred in 1985 for a federal conviction of "being a principal to the interstate transportation of a counterfeit security." The attorney was reinstated in 1991 (the disbarment had been imposed retroactively to 1981, when the attorney had been suspended). Finding numerous incidents of post-reinstatement ethics violations, the court concluded that the attorney "lacks the good moral character and fitness to practice law in Louisiana and should be permanently disbarred." The court did not admonish itself for letting him back in after the criminal conviction. (Mike Frisch)

February 8, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Texas Two Step

The Supreme Court of Texas held that a termination-fee clause in a contingent fee contract was unconscionable and thus contrary to public policy and unenforceable. The clause provided that the client would pay the present value of the contingent fee on termination of the representation. The lawyer had been discharged after a proposed settlement and sought a fee based on the offer. Thereafter, the case settled for far less. A jury had found that the lawyer had not been terminated for cause and that the fee was not unconscionable. The Supreme Court held that the termination provision penalized the client for changing counsel, created an impermissible propriety interest, and "subverted several policies underlying the use of contingent fees." Justice Hecht, joined by two colleagues, dissented. (Mike Frisch)

February 8, 2007 in Ethics | Permalink | Comments (0) | TrackBack (0)

Hualing Fu on China's Lawyers: How Prosecuting Them Shows They Are Active and Vital

Posted by Alan Childress

Hualing Fu (Univ. of Hong Kong--Law), shown right, has posted to SSRN his 2006 article on the legal profession in China, entitled "When Lawyers are Prosecuted: The Struggle of a Profession in Transition."  It is an ironic and interesting argument about a profession going through fundamental change (a transition discussed in this previousFhl1 post on an article by Ethan Michelson).  Here is Dr. Fu's abstract:

The principal argument of the paper is that abuses of Chinese lawyers are in some ways signals of (or result of) the progress that is being made in establishing China's legal system. Lawyers are intimidated and prosecuted because lawyers have become more proactive, aggressive and innovative in defending the rights of their clients and of their own, posing serious legal challenges that prosecution has never encountered before. This challenge is possible because criminal justice reform in China in the past ten years have created opportunities and incentives for a growing legal profession. Thus, the predicament of lawyers today should be examined in the context of a profession in fundamental transition.

February 8, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 7, 2007

Rubinstein on the Possibility of Lawyer Labor Unions

Posted by Alan Childress

Fitting with Jeff's post on young associates and their place as labor or proletariat in large law firms -- as well as David Luban's original marxist musings, John Steele's view here from inside the institution, and Nancy Rapoport's own considered response to the pay-gap issue -- there is an article recently posted to SSRN by Mitchell Rubinstein (who teaches workplace subjects at New York Law School and St. John's), called "Attorney Labor Unions." Its abstract:

Attorneys may be interested in joining a labor union for the same reasons as other employees. Although there is relatively little precedent or history in the area of attorney unions, the federal National Labor Relations Board has asserted jurisdiction over law firms since 1977, provided a firm has $250,000 in gross revenue. The general process of establishing a union would be the same as it is for employees in other fields.

There are instances where such unionization has occurred without contest. Many reported cases involving law firms actually concern support staff, although there are those that also involve attorneys. What if there is a contest? As a general proposition, attorneys enjoy the same legal rights as other employees in deciding whether or not they want to be represented by a union. The employer's or law firm's desires are irrelevant. However, attorney-employers are likely to raise certain points in opposition to attorney unionism. They may argue that staff attorneys are not eligible to unionize because they are either confidential employees, or supervisors, or managerial employees. They might also claim that attorneys should not organize because the ethics of the legal profession will impede the collective bargaining process. Each of these is discussed in turn.

Rubinstein is also senior counsel to the New York State United Teachers union.  Here is a version of the paper without need to download from SSRN. 

[UPDATEHere is where Paul Secunda also discusses Luban, and excerpts more from him, at Workplace Profs.  And an empirical look at associate satisfaction and partner profits, by Bill Henderson, is found here.]

February 7, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (2) | TrackBack (0)

Internal ABA Debate Goes Public Over "Appearance of Impropriety" as Judicial Ethics Rule

One committee member has resigned -- and made a noisy withdrawal, at that -- over revisions to the ABA's proposed judicial code and particularly its more recent placement of the "appearance of impropriety"541128_judje_hammer_3 caution into its precatory guidelines. This rather than making it a party-enforceable rule.  The story here from, and our own background on prior versions here.  The new code will be debated at the upcoming ABA mid-year meeting in Miami, and this issue is sure to be the main point of departure.  [Alan Childress]

UPDATE:  NYTimes editorial here.

February 7, 2007 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (1)

Multivariate Techniques of Feline Epidermal Extraction

Posted by Alan Childress
Just why is there more than one way to skin a cat?  I think one methodology is more than necessary.  The necessity of alternatives escapes me.  Either the first few methods were thought to stand improvement, or--worse--alternatives refers not to procedure as such but rather varying statuses of the cat (live, semi-conscious, dead, etc.) at the time of skinning.  Perhaps at this point I am beating a dead horse.  Can't say I see the efficacy of that either--I guess to show the other horses you mean business?  They might clue into that from the mere fact you are standing over a dead horse.

February 7, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)

ABA's National Conference on Professional Responsibility and Client Protection: Chicago May 30-June 2

Link here to the ABA conference, which is touted thusly:  "The American Bar Association National 214537_29635913_1 Conference on Professional Responsibility is the preeminent educational and networking opportunity in the field of ethics and professional responsibility."  It is held along with the annual forum on client protection.  This year's conference is in Chicago from May 30-June 2, 2007, at the Fairmont Hotel.  More schedule and speaker  information here.  Up to 15 CLE credits may also be available.  [Alan Childress]

February 7, 2007 in Conferences & Symposia, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

ABA's National Conference on Legal Malpractice To Be Held in DC Apr. 25-27

Link here to information on this year's "Spring 2007 National Legal Malpractice 660398_washington_monumentConference" by the ABA. It'll be held April 25-27, 2007, in Washington, DC.   Its full brochure in PDF is here.  Special events include the evening of Thursday, April 26: Special Ticketed Event at the National Museum of Women in the Arts. [Alan Childress]

February 7, 2007 in Conferences & Symposia | Permalink | Comments (0) | TrackBack (0)

D.C. Bar CLE 3/26 on Ethics and Rules Changes Lately Sings the Blues

We have posted on other music- or drama-driven programs on legal ethics, in Colorado and Louisiana.  Now the District of Columbia Bar offers to set its ethics CLE to song –- the program is "Ethics Blues:  A Musical Ethics517856_pure_music_3 Experience."  And it promises (really) to ease the Stormy Weather of professional responsibility, particularly in light of the significant amendments to the rules effective Feb. 1 (on which Mike blogged here).  The program is upcoming Monday afternoon, March 26, and offers up to three ethics credits.  [Alan Childress]

February 7, 2007 in CLE | Permalink | Comments (0) | TrackBack (0)

Days of Whine and Roses, or the Strangled Cries of Lawyers in Love

Posted by Jeff Lipshaw

David Luban at Balkinization has a Marxist take on the economic structures of law firms.  (HT to Brian Leiter at our sister blog within the growing Caron empire.)  More precisely, it's a worm's-eye view (as William Baxter said of Gilbert's on Antitrust on the first day of class) of very large financialMarx center law firms with staggering first year associate pay and high associate to partner ratios.  And guess what?  The partners make a lot of money off the backs of the highly paid associates!  (This, by the way, did not originate with law firms.  Any service firm, including the large accounting firms, work the same way.  Ask my wife, who was a FYP ("first year person") at what then was called Arthur Young & Co.)

You have to scroll through the comments to get a balanced view of this.  And, in the interest of full disclosure, I come at this as someone who had the worm's eye view, the bird's eye view, the partner's eye view, the of counsel's eye view, and the client's eye view.  The only view I never had was the rainmaker's eye view.  On the other hand, when I was the client, I got to have the rainmakers suck up to me, and some of them became my friends, so I have privileged access to the dark places in their souls.

So here are some observations about what is right and what is wrong:

1.  There is or at least was a significant difference in associate-partner ratio in the "fly-over" parts of the country.  While that may have changed over the last twenty years or so, I think in the midwestern large firms associates are still hired with the expectation that they will become partners.  My guess is that natural attrition pares the group down to the point that you don't have a Ponzi scheme - i.e. that the firm has to keep doubling in size to keep the associate-partner ratio at about one to one.

2.  The commenter about "service partners" is on the money.  The real divide in a law firm is not between partner and associate, but between net takers and net givers.  I guess if the leverage ratio is so high that immediately upon becoming partner you are raking in money faster than you can spend it you don't notice this, but net-net, when I became a partner in 1987, what with self-employment tax, capital contributions, paying for my own parking, borrowing to make up for the lack of special distributions, if the cash flow wasn't there, around estimated tax time, I'm pretty sure I made less in the first year of partnership than I did in the last year of associate-dom.  The line between net takers and net givers can be masked as well by partnership structure and compensation policy, i.e., multi-tiered partnerships, equity partners, salaried partners, base point systems with discretionary bonus versus straight return on equity.

3.  The commenter who says it's a free country is on the money.  It's quaint now, but when I graduated from law school in 1979, you could go to Detroit and make a base pay of $22,000, to New York and make a base pay of, as I recall, about $30,000, or become a consultant at Bain and make $44,000.  Even then you made a life style choice, and traded money, prestige or whatever the Cravaths of the world offered for whatever the Detroits, or St. Louises, or Pittsburghs of the world offered.

4.  The commenter who notes that there is something, let's call it a brand, that makes an associate worth all that pay because of the brand (and not just the associate's labor) is on the money.  The associate contributes to the maintenance of that brand, as do the partners, but it's a nice and touchy question when the lawyer or the brand is worth more.  When David Boies perceived himself as more valuable than the benefit that the Cravath brand bestowed upon him, he left.  The same applies to Fred Bartlit and Kirkland.  (That's an oversimplication but I think it's basically true.)

If I were to put some social science jargon around what's going on here, I'd forsake the Marxist economics, and go with path dependency.  And view the bitching and moaning as the voices of those stuck in the path.  Or go with Jackson Browne's take:

I can't keep up with what's been going on
I think my heart must just be slowing down
Among the human beings in their designer jeans
Am I the only one who hears the screams
And the strangled cries of lawyers in love

February 7, 2007 in Associates | Permalink | Comments (0) | TrackBack (1)

Super Bowl Ad Product Synergy

I've gotten used to product placements in movies, and synergistic TV commercials meant to tie two products together and advertise both (Target is very big on those:  Target! and Wrigley chewing gum!!).  But I have to say: I did not understand that show-stopping Super Bowl commercial for both Tang and Depends.  [Alan Childress]

February 7, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)