Tuesday, February 13, 2007
A notable and positive trend in the regulation of the legal profession is the use of professionally trained investigators to assist disciplinary counsel in proving ethics violations. My former colleagues at the District of Columbia Bar Counsel heap praise on their two investigators, whose ability to uncover facts aids in determining whether a complaint merits prosecution or dismissal. A new organization of bar investigators has recently been founded. The organization will promote interstate cooperation and an investigatory network that will likely improve the quality of disciplinary prosecutions nationwide. (Mike Frisch)
Monday, February 12, 2007
He May Not Have Been Representing GE, But We Thank Him Nevertheless for a Timeless Apparent Authority Hypothetical
“On behalf of Jeff Immelt and other sane people at GE, I say, ‘f**k you.’” I'm hoping Alan is right, but if he is I'm going to have to delete what I've just put into my Agency, Partnership & LLC class notes. And if it came from prankmail, unless the Gibson, Dunn press comment was also a prank, why didn't it say so? Instead of admitting that it was sent, but was not authorized?
Color me skeptical. The Law Blog of the WSJ is reporting that a retired Gibson Dunn partner sent a "FY" note on behalf of GE to a prevailing litigant. Nice press and all, and definitely involves the civility and professionalism issues we have been raising lately. But I think we will soon find out that it was sent out by a prankmail site and is not really his. It's just too easy to do this now.
I am not naive about the possibility of somone saying the fword in an email, but I honestly do not see an experienced lawyer naturally saying "on behalf of" a client when he or she does not personally represent someone. Even if the fword is now reflexive in society and even in the profession, I just believe a lawyer's DNA has no room for such gratuitous agency lingo. That is the alarm to me. Prove me wrong.
[UPDATE: I now have it on very good authority that I am wrong, that the email is real, and that Jeff
can still use the example in teaching apparent authority. And my off-the-record source is not even named Scooter or Deep Throat, nor for that matter is it Tim Russert.]
An on-line MCLE seminar on Avoiding Malpractice Claims: Things to Do (and NOT Do) on the First Day You Represent a Client is provided by David Hricik, who teaches at Mercer and contributes to Legal Ethics Forum. It runs at all hours, offers 1.5 ethics credits, and ends Feb. 28. It costs only $29 and should count as 'participatory.'
Professor Hricik also offers a longer CLE called Ethics for Litigators, similarly through 2/28, for up to 3 hours of credit. [Alan Childress]
Happy actual birthday to lawyer Abraham Lincoln, holder of patent number 6,469. He also ran for president -- and somehow the Illinois and national electorates looked past the fact that his name was "too ethnic," certainly more than names like that of James K. Polk and his wife. Abe would be 198 today, if not for temperamental actor types or, eventually, the inevitable effect of trans fats. Smart man generally, but should not have attended any theatre across the street from a house named that. [Alan Childress]
Posted by Alan Childress
On Friday, the U.S. Court of Appeals for Fifth Circuit, in an unpublished opinion, let stand an "abuse of discovery" sanctions order against an Assistant U.S. Attorney (while reversing as to another because that lawyer was home injured and not really involved). The order was modified to make the attorney pay the court, not the plaintiff. Such judicial oversight of litigants' out-of-court behavior relates somewhat to the Seventh Circuit's recent and more blogfamous imposition of sanctions against private lawyers doing inappropriate deposition deeds.
There is a good synopsis of the Fifth Circuit decision [Hat tip to Jane Hicks] authored by appellate litigator Robert McKnight, who permitted me to quote his summary from the Fifth Circuit Civil News resource [a very useful publication I have used countless times in print form--it now has an online daily service]. Bob's summary is below the fold...
Posted by Alan Childress
With much blogosphere attention (rightly so, I think) recently given to the issue of treating law blogs as advertising, and the new efforts of the New York bar to regulate them as such, one might flashback to a similar debate last year in Kentucky. It seemed to resolve itself into a reasonable situation after Kentucky lawyer and ethics leader Ben Cowgill submitted his blog for review (nicely supported publicly by Eugene Volokh, John Steele, and others), forcing the bar to think the matter through. Now, although the "About Us" page has to be submitted for bar review just as any similar page would from a static website, the bar found no need for recurring submissions and payment of fees for updated postings whose further purpose was informational. As Ben updated his readers, it wound up in a "fair and sensible" place.
New York should similarly interpret or re-write its newly effective regulations in a sensible way as well -- and especially spend its ethics energy on the real professional problems that the public perceives and actually suffers from the bar's predators and bad apples, who are not likely to be found blogging away or at least their core rottenness is not about the blogging as such.
A more subtle aspect of the new regs also needs to be reconsidered: its mandate that blogs or websites disclose the physical location of an office. Like FedEx: no P.O. boxes or general descriptions allowed. As argued well here by lawyer/blogger Nicole Black (from Somewhere, NY): that's not so safe an idea for a lawyer working out of her home who may not want the [nuts of the] world to know exactly where that is. The bar should not be forcing lawyer websites to become mandatory GPS for stalkers.
John Steele and others have been lauding the book, The Destruction of Young Lawyers, by Doug Litowitz, the young associate turned law professor turned investment fund manager. If the interview to which John linked is any indication, I think I will pass on the book.
I don't doubt that many lawyers are unhappy. I have no way of knowing whether they are unhappier than dentists, bricklayers, auto workers, or paralegals. But it's a pretty good living. I was a litigator for ten years at the outset of my career, and I was unhappy. Many of my friends loved being litigators (I have no way of knowing if more loved it than hated it), but it's not for everybody. It wasn't for me. Still, I know I had more options than the guy who works for Orkin killing bugs.
John Steele's comment that Litowitz "swings wildly at anything that moves" appears to be accurate if this interview is any measure. Let's see:
- Why do companies get taken private and then go public again? "It always came down to benefiting the insiders of the corporation. . . . You are pretty much trying to protect these insiders against workers and against consumers."
- Do any lawyers have integrity? "Yeah, the prevailing ethos among lawyers is that your job is to serve the client, whatever their needs are. It's not for the lawyer to say that the client is overreaching, or being unfair - your job is just to do what they want you to do."
- And what are you doing now, Doug? "I needed to earn some money, so I quit teaching recently and came back to Chicago, where I grew up, to work at an investment fund." [Note to self: a foolish consistency is the hobgoblin of little minds.]
I have a couple questions.
(1) How much responsibility does a lawyer-human have for his or her own ethics-happiness-integrity-courage-balance? Why is the lack thereof somebody else's fault? I sat in on my friend Professor Andy Achenbaum's Honors College U.S. history seminar at the University of Houston last week, and watched as a student questioned whether it was correct to use a work of fiction as a means of teaching immigrant working class social history at the turn of the 20th century. Andy's comment at the time was: "great question, but I'm asking you to accept for now that in my judgment it's an accurate rendering." But he said to me later "imagine the guts it takes to question the professor's selection of a text." I agree, and can't imagine that student, if she were to become a lawyer, agreeing that it's not her job to say what is unfair or overreaching.
(2) Will there be a sequel in which Professor Litowitz tells us how his experience in academia helped him, in his second working world go-round, cure, or at least deal with, the oppression he perceived coming from the "System" and the "Man" the first time?
Sunday, February 11, 2007
I visited a friend in Houston over the last couple days, and was trying to figure out why there was so much traffic on I-10 East when I got within about 25 miles of New Orleans yesterday. Stupid me. The Mardi Gras parades have started. I walked over to Napoleon Street, and saw the Sparta and Pegasus parades. Double stupid me. I forgot to take my good camera, so I snapped a bunch of pictures with my cell phone. Hence, the pictures are not very good. These are of the floats as they wait on Napoleon Street for the parade to begin. The parade turns right on St. Charles Street and goes all the way downtown and, I am told, concludes at the site of the Mardi Gras ball of the krewe (the parade club) sponsoring the parade. The floats are kept in warehouses around town called "dens" and repainted every year in that year's parade theme.
To the left we have the King of Sparta before he takes his place on his horse (no, this is not the dean before a faculty meeting). In addition to the King, there is a Queen, and maids. To the right we have a local high school band assembling. Below, the maids are preparing "throws" - beads and other tchotchkes that the participants riding on the floats throw to passersby.
I got to the parade site about an hour below it was to start, and it was well-populated but not overwhelming. Holly (right), a born and bred New Orleanian, filled me in on a lot of the details, and said that it will be substantially more crowded next weekend. Accordingly, there will be more of the "ladder seat" devices you see below left.
As it got dark, my beleaguered cell phone was doing the best it could, so the pictures of the parade itself leave something to be desired. We have the King of Sparta on his steed, and the Queen following on her float. Being moderately tall, it was pretty easy to snare the throws as the float riders tossed them, although there is a hierarchy to the "value" of the throws: the longer the chains, and the heavier the beads the better, and some of the beads have the medallions of the krewes. I got two of the Sparta medallions, and Holly told me that was a good catch. Even giving away a good portion of what I caught, I was soon wearing what felt like about twenty pounds around my neck. The really good throws are things like plush footballs and animals, but I didn't get any. One difference between the more family-oriented uptown parades and the French Quarter parades is that Uptown you do not find the phenomenon of flashing some part of one's bare anatomy to provoke a good throw in one's direction. But you do need to stay alert. The throws often come out of nowhere, and sometimes there's a whole chunk of them stuck together, and you could get hurt.
There were bands and other music interspersed between the floats, some good, and some not so good. Each parade took about twenty minutes to pass in front of me, with there being about twenty minutes between the two evening parades that were following the same Uptown route.
The walk back up Magazine Street to my house was about a mile and a half, and I was burdened but unbowed by the neckwear. I got a couple waves from waiters in the restaurants, and nobody seemed to make anything of it at the Whole Foods. Amber, another spectator (22, LSU MBA student, Southern Miss grad, native of Gretna) told me you can collect the throw to "rethrow" the next year. Here's the stash in the living room after I sorted it out.
If you aren't Catholic, have never participated in Lent except as a spectator, and aren't quite sure why you need to party hearty in anticipation of it, the whole thing is a little weird, and about as far removed as you can be in the same country from the propriety of Boston in mid-January we had experienced only a couple weeks ago. And I'm told that although the hotels are doing much better, there are still rooms available!