Saturday, March 3, 2007
Perry Reich was convicted of forging a magistrate judge's order and faxing it to an opposing attorney. His section 505 conviction was just affirmed by the Second Circuit. Here is the Law.com story on it, reporting that the ruling "put an end to a case that surprised and saddened many in the New York legal community who knew Reich as an accomplished appellate lawyer." The appeals court found that no intent to defraud, in the monetary or property sense, was required. [Alan Childress]
Stephanie West Allen of idealawg blog has this post, including helpful links and her comments, about ethical standards and practices in elder mediation -- and specifically a symposium on this emerging subject to be held by Temple's law school on April 19-20, 2007. [Alan Childress]
Friday, March 2, 2007
Posted by Alan Childress
Recently posted to SSRN are two articles examining the traditional "agency" model of the role of lawyers as to clients and the legal profession generally. One, by Grace Giesel (Louisville--Law [right]), entitled "Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship," argues that courts are unjustifiably reluctant to carry through on a strong notion of the lawyer as agent binding the client. We have posted on this previously (nonetheless its abstract is after the jump below, for ease of comparison).
By contrast, another article, written by Lorenzo Sacconi (Univ. of Trento--Econ.), challenges the traditional principal-agent paradigm from a law and economics standpoint. It is called "Good Law & Economics Needs Suitable Microeconomic Models: The Case Against the Application of Standard Agency Models to the Professions," and its abstract is:
Notwithstanding its widespread acceptance, agency theory could not be the most suitable microeconomic modeling for designing efficient and fair economic transactions. The case against the standard principal-agent modeling is made about liberalizations of professional services that introduced schemes of professionals' remuneration contingent on outcomes - i.e. “contingent fees” for lawyers. If the relationship between the professional and clients is seen according to the principal-agent model, contingency fees can be an efficient incentive for the professional's effort. The case is quite different, however, if the situation is seen as one of bounded rationality and unforeseen and asymmetrically gathered events. In these contexts they can generate pathological incentives.
The professional relationship is an authority relationship based of contractual incompleteness, which requires the reliance on trustworthiness of the authority position's holder. Hence I propose a model for understanding the professional relationship which extends the “formal vs. real authority” model proposed by Aghion and Tirole (1997). This leads to underline the essential role played by behavioral hypothesis on professionals' “endogenous” adherence to ethical standards that induces the professional's identification with her clients' interests.
A game theoretical thought experiment is then carried out. It shows that (i) in the case of a self-interested lawyer contingent fees lead to not respecting the fiduciary obligations with at least one client for only the ex post mostly remunerative cases are litigated. (ii) In the case of the lawyer's willingness to comply with deontology standards, contingent fees lead nevertheless to neutralization of the deontological motivation and to a loss of efficiency. A Pareto optimal, impartial, as well as efficient, arrangement aimed at maximizing the total volume of damage compensation is then considered. Nevertheless under a contingent fees contract, even if these motivations were available, the professional could not carry out them because of the logic of the contract.
March 2, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Economics | Permalink | Comments (0) | TrackBack (0)
Three of my colleagues to be at Suffolk have posted a new empirical piece on SSRN. Richard Buckingham, Diane D'Angelo, and Susan Vaughn have posted Law School Rankings, Faculty Scholarship, and Associate Deans for Faculty Research. Here is the abstract:
The authors contend that a boom in law school rankings has encouraged many U.S. law schools to take new measures to encourage and publicize faculty scholarship. The establishment of associate deans for faculty research is one such measure. The authors conducted a study to determine the number of law schools that have these dean-level positions. They argue that many law schools have established these positions as part of their efforts to improve their standing in the increasingly important rankings.
The authors begin with a historical overview of the original law school model and discuss how that model evolved over time. They focus on how those changes led to a competitive law school market that helped lay the groundwork for U.S. News & World Report and other law school rankings. They then explore numerous alternative ranking methodologies and conclude with a study of ABA-accredited law schools that have appointed associate deans for faculty research.
The authors have kind words for the assistance of our own Peerless Leader, Prof. Caron, in
accumulating data on the institution of research deanships. I also note that one such associate dean for faculty research is blogger extraordinaire Mike Madison of Madisonian.net. Note, however, that when Mike is the research dean his picture is at shown at left. When he is on his own web site, he is as shown at right. Just keep that in mind.
March 2, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack (0)
A series of decisions issued yesterday by the District of Columbia Court of Appeals highlight the fundamental flaw in the jurisdiction's approach to bar discipline cases. The culprit is the court's Rule XI, section 9(g)(1), which requires the court to adopt the sanction proposed by its Board on Professional Responsibility "unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted." This rule has led to acquiesence in the present Board's lenient response to dishonest conduct that has ill served the public interest.
The first case involved an attorney who had falsified his resume and altered his law school transcript. Sanction: 30 day suspension with automatic reinstatement. The second matter was an attorney who had made false statements to a tribunal, engaged in unauthorized practice, dishonesty and conduct that had seriously interefered with the administration of justice. Sanction: 90 day suspension with automatic reinstatement.
The third case is the most distressing one-- the attorney had engaged in serious neglect of a client's matter and had thereafter actively concealed the errors from the client. The hearing committee rejected as incredible the attorney's attempt to shift the blame for the misconduct. Bar Counsel sought a greater sanction than the Board's proposed 60 days with automatic reinstatement. The court felt that Bar Counsel's sanction views "carrie[d] some persuasion" but imposed the lenient sanction in the name of deference.
These battles to get the Board to take serious dishonesty seriously are not just of recent vintage. I consider the cases where I challenged the Board's leniency as among the most important ones I handled at Bar Counsel. It is time for this court to take moral responsibility for its bar and to take to itself the authority to determine sanction de novo. Until that happens, an attorney who contemplates bad behavior in the District of Columbia may well conclude that it is an acceptable risk. (Mike Frisch)
Thursday, March 1, 2007
John Steele over at Legal Ethics Forum has touched off a very interesting dialogue on the subject of lawyer happiness and unhappiness, and the scholarship of it. Both John's observations and the comments of other really first-rate thinkers (including John) on ethics are recommended.
John credits the book we have both reviewed as "cultural criticism in the mode of Roland Barthes." I would also (and did) give it credit as one instance of anthropological or cultural narrative, but, in fact, the author and its publisher market the book as something more: "empirical" and as involving "painstaking analysis." I suppose in the very broadest sense that might be true, but I leave that to the reader. I have said about as much as I want about it.
John also referred to an article by Patrick Schiltz published in the Vanderbilt Law Review back in 1999. My reaction to the Schiltz article was about like Brad Wendel's in the comments over at LEF: there was certainly more beef and balance to it. And it stressed personal choice and accountability as a normative recommendation. Plus, Schiltz had the benefit of a relatively extended stay in a big firm. But Schiltz had his own bouts with hyperbole - I thought the description of the cocktail party was pretty funny, but it IS hyperbole, and having hors d'oeuvres at a partner's house isn't unethical, which is what it seemed to suggest it helped lead to. (A couple shrimp wrapped in bacon, and the next thing you know you are a heroin addict!) I used to go to a party like that just about every Christmas hosted by the head of the litigation group. He and his wife are still married after forty years or so. And while he was a fearsome litigator, he was one of the most honorable people I ever met. (He did like his Dewar's, on the rocks and with a twist.) Only to say, as law professor-anthropologist John Conley does, you have to be careful what you infer from this kind of data.
And Schiltz's intro on depression and lawyers is highly suspect. As my wife, an MPH, advised this morning, there's no way you can tell (as Schiltz admits, but only fleetingly) whether depression-inclined people self-select to be lawyers, or being a lawyer causes or exacerbates depression. Given depression's biochemical etiology, I'd be inclined to think the seeds are there to begin with, but we may never know.
Finally, Bill Henderson (Indiana) of "Young Associates in Trouble" and Empirical Legal Studies passed on the following
references. The Harvard Law Bulletin has an article in the fall 2006 issue on the "After the JD" study being undertaken by David Wilkins (Harvard, right) and the HLS Center on Lawyers and the Professional Services Industry. This is a ten year longitudinal study tracking nearly 4,000 new lawyers. Says the Bulletin: "Job satisfaction is one aspect of the responses that Wilkins finds most interesting. According to the study, and contrary to what most believe, there is 'no evidence' of 'any pervasive unhappiness in the profession,' he says - at least not among those who began practicing in 2000." Bill also suggested John P. Heinz, Kathleen E. Hull, and Ava H. Harter, "Lawyers and their Discontents: Findings from a Survey of the Chicago Bar," 74 Indiana Law Journal 735 (1999), which found that lawyers were no unhappier than any other profession or job.
Again, all of this to say that we need to be very careful, particularly as law professors, in describing the world as we think it is, and in figuring out how our view of the "ought" affects it, if that is at all possible.
Posted by Alan Childress
Can a will be kept fresh with just a burp and a seal? Paul Caron at TaxProf posts Tupperware Tax Practice, on a will-signing party that a Massachusetts solo practitioner has instituted to service five or so couples, in-home, at a time. (Paul links this National Law Journal story.) The Tupperware-like idea does offer convenience for clients and marketing advantages for estate planners. But the lawyer will have to be very careful to avoid issues of solicitation, confidentiality, and even conflicts by such group invitations and meetings.
At first blush, I don't think those issues are insurmountable; after all, where there's a will, there's a way. And I noted that the lawyer here requires much client homework before the home meeting. But the eventual success of this marketing format -- I absolutely predict huge success and mimicry -- will likely spark bar scrutiny, so the salespeople/lawyers need to be thorough in covering their ethical bases. They should keep detailed contemporaneous records for when the bar comes calling (e.g., to show that only advertising is used, that no third-party referrals were solicited at the meetings, and that appropriate confidentiality protections and waivers were in place). No "tell your friends!" is either advisable or really necessary to articulate.
Plus sub-marketing the idea via pyramiding [ironic, since pyramids were the original ultimate in estate planning] would raise lawyer-referral and fee-splitting issues that the bar particularly scrutinizes when done on a routine basis. (But there's no indication that this lawyer is trying to Mary Kay this idea or even drives a pink Cadillac. I'm just saying.)
One can only hope that no client gets confused and shows up at the estate planning meeting with her beloved's head in Tupperware.
There is a new story and details this morning in the New York Times related to the recent replacement of several U.S. Attorneys, apparently not always "for cause." This one concerns a New Mexico prosecutor, David Iglesias, who claims he resisted pressure to target (or hurry up and try, before the mid-terms) a Democratic defendant. The story is Ex-Prosecutor Says Politics Was Motive For Dismissal.
The previous WSJ Law Blog post (Feb. 7) is linked here. It portrays the larger trend of such replacements, Paul McNulty's testimony that most firings were for cause, and his emphasis (like the AG's) that U.S. Attorneys serve at the pleasure of the President. In the Washington Post story that day, Deputy Attorney General Defends Prosecutor Firings, New Mexico's Iglesias was specifically named as one of the six or seven supposedly fired for "performance-related" issues. McNulty had acknowledged, by contrast, that one of the firings, in Arkansas, was not for cause. [Alan Childress]
UPDATE: New WSJ post, specifically on Iglesias, here.
Wednesday, February 28, 2007
Posted by Alan Childress
Steven Berenson (Thomas Jefferson), left, has posted to SSRN's Law & Soc'y: The Legal Prof. his review essay, "Institutional Professionalism for Lawyers: Realizing the Virtues of Civic Professionalism." It is also in 109 West Virginia Law Review 67 (2006), and reviews Work and Integrity: The Crisis and Promise of Professionalism in America (2004). Here is the abstract:
In Work and Integrity: The Crisis and Promise of Professionalism in America, author William M. Sullivan laments the continuing decline in civic participation on the part of both American professionals and the public at large that has resulted from the combined forces of technological change, globalization, and rampant materialism. Sullivan contends that professionals can point the way toward a renewed era of civic engagement by embracing a vision of professionalism that places a commitment to civic participation at its core. Though Sullivan's focus is on the professions generally, rather than the legal profession in particular, lawyers and legal academics have much to gain from considering Sullivan's views in conjunction with their work. The following review essay represents an initial effort to compare Sullivan's views with existing scholarship regarding the appropriate professional roles and responsibilities of lawyers.
February 28, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Posted by Jeff Lipshaw
One of the wonderfully rewarding aspects about jumping into academia after so long in the practice is to realize that part of the job description of professional teacher is (or should be) to be a professional learner. (That we are professional learners even in business was part of my management philosophy, so perhaps that says something, but I don't know quite what.)
That's an introduction to my recommendation of a tremendously interesting article, methodologically and substantively, by John Conley (North Carolina, left), who I featured in a post yesterday. The article is "Tales of Diversity: What Lawyers Say About Racial Equity in Private Firms," 31 Law & Social Inquiry 831 (2006). Professor Conley is an anthropologist and law professor, so the first part of the paper is an explanation of the scholarly discipline of ethnographic narrative - what you can learn and just how much you can generalize from what people say about their culture - in this case, lawyers about their jobs and their firms. The second part is a report on what lawyers in different kinds of firms actually say about racial diversity. The abstract follows below the fold, but as Larry Solum would say: download it while it's hot!
Sara Benesh (Wisc.-Milw., Poly Sci.) over at Empirical Legal Studies blog posts on the topic here and links a new empirical study of their impact and success rates. The study was done by John Szmer, (UNC-Charlotte), Tammy Sarver (Benedictine), and Erin Kaheny (Wisc.-Milw.). The ELS post's comments are interesting, too, as ELS readers suggest better multivariate controls for the type of client or causes that women may be representing. [Alan Childress]
February 28, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
The Michigan Attorney Discipline Board ordered a 180 day suspension of a lawyer who mishandled a client's retainer check. The attorney had cashed the check rather than escrow it. The hearing panel found that he had earned the fee prior to cashing the check, thus defeating charges of misappropriation from the client. However, the retainer was firm property and the failure to properly escrow the check in the firm's account violated the attorney's duty to the firm under the "third persons" language of Rule 1.15. The sanction was deemed appropriate even though the firm owed the attorney substantially more than the check amount because of a written agreement that the amounts due to the attorney were payable at the firm's discretion. (Mike Frisch)
More tech news: According to this site's methodology, using Technorati links over 6 months, LPB doesn't [yet] rate the A-List status of Paris Hilton and, previously, TaxProf Blog. We do have 'medium-authority status,' however. Sort of like Middle Earth. Or 89 octane. And Jeff's recent book review was pronounced simply "Beautiful" by David McGowan at LegalEthicsForum. [Alan Childress]
Posted by Alan Childress
The recent effect or mirroring of pop culture and Judge Judy within the legal profession has been a recurring theme of LPB. It was initially raised by Nancy Rapoport in her previous scholarship (e.g., on lawyer images in popular culture causing effects on lawyering) and continued by her on this blog, and then picked up by me with a post or two on the behavior of judges who seem to be emulating Judge Judy.
There is actually more scholarship related to the specific subject of Judge Judy: Steven Kohm (Univ. of Winnipeg--Criminal Justice) has published in the Law & Society Review an essay on her show and also People's Court, and their competing visions of law and justice. It is called "The People's Law versus Judge Judy Justice: Two Models of Law in American Reality-Based Courtroom TV," and was published in 40 Law & Soc. Rev. 693–728 (2006). It is not downloadable gratis, as far as I know, but can be ordered here. Unfortunately [my characterization], as he demonstrates, Judge Judy "wins." Here is Kohm's abstract:
This essay examines the popular American daytime courtroom programs Judge Judy and People's Court and comparatively analyzes two distinct models of law and justice developed in these shows. Using the techniques of qualitative media analysis, I argue that Judge Judy represents a shift in the way popular culture imagines the role of law in the lives of ordinary people. This shift accords with neoliberal notions of governance and individual self-responsibility for protection against risk. Conversely, People's Court represents an older, liberal-legal model of law that emphasizes individual rights, public participation in the court process, and due process. By demonstrating the supersession of Judge Judy justice over that of People's Court, I argue that this shift in the way law is imagined in American popular culture signals wider shifts in American and indeed international attitudes toward the law in our everyday lives.
A few years before, Kohm had written his doctoral dissertation on TV judges after studying 200 hours' worth. (Ouch. Sort of like the Michael Caine-Gene Hackman thesis in the movie PCU.) The dissertation is available as a PDF file from this link (though the file is so big it froze my tiny laptop--man I hate PDF--so better luck to you). It is cleverly called "I'm Not A Judge But I Play One on TV: American Reality-Based Courtroom Television." Its 2004 abstract and alternative download info are linked here.
Closer inspection of the Review Department report that was posted yesterday reveals a couple of points of interest. The California Bar "waited nearly five years to file disciplinary charges" despite the fact that the underlying contempt order identified all information necessary to prosecute the case. The delay was treated as a mitigating factor and suggests that the California Bar may have fallen back into its old bad habits of delay. if so, that merits closer scrutiny. The accused attorney's attempt to blame the judge and suggestion that the indigents she had abandoned were not her clients were treated as aggravating factors.
Reminder: if possible, do not represent yourself in a bar discipline case: "At oral argument, [the attorney] presented a tangled web of excuses and sought to shift responsibility... for the procedural gridlock that was occasioned by her actions." (Mike Frisch)
First, a whine. Is it just me or has spamming increased significantly over the last few months? Despite filters and blockers up the gazoot, I'm getting flooded (and, no, Alan, I don't frequent those sites).
Second, here is a service to professors and practitioners alike. Starting several weeks ago, my computer starting popping up the following message "Generic Win32 Host Services has encountered an error and shut down." What I noticed was thereafter I could not sync my cell phone/PDA off Windows Mobile. I don't know if the two were related or not. But I stumbling onto a Microsoft support page with a fix for the error message this morning, and I offer it to all LPB readers if they have encountered the same issue.* [UPDATE just a hour later: I got the same error message again - so much for the patch.]
* Legal Profession Blog and Law Professor Blogs Network hereby disclaim all responsibility for anybody else's use of the Microsoft support page, and all express and implied warranties INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE are hereby disclaimed. UCC 2-316(2). In fact, you use it as is and with all faults, and we hope that this is language which in common understanding calls your attention to the exclusion of warranties and makes plain that there is no warranty. UCC 2-316(3)(a). If you are a professor (and hence the only kind of person who would know there is actually an amended Article 2 out there), we also take no responsibility for the quality of the goods. Okay, now I feel a lot better. And click on the picture for a treat.
Tuesday, February 27, 2007
Interesting story Sunday in the San Francisco Chronicle about a Kern County DA who started a blog and responded to a Bakersfield newspaper's criticisms about his office and some of its cases. The story reports that other prosecutors and city attorneys in California have started blogs and replied to public criticisms. The story is "Blogging Prosecutors Raise Some Eyebrows," and includes criticism of the practice from an ethics columnist for the California Bar Journal. [HT: It was linked by Howard Bashman in How Appealing.]
In any event, to the extent such blogs inevitably meander into comment on cases, the writers should learn from the ethical hot water that N.C.'s Mike Nifong created for himself with his public pronouncements on the Duke case. [Alan Childress]
Posted by Alan Childress
Jacqueline Nolan-Haley (Fordham) has posted to SSRN her article "Finding Interior Peace in the Ordinary Practice of Law: A Teresian Approach to Contemplation." The abstract is:
This article focuses on some of St. Teresa of Avila's writings, as part of a symposium series that examines how the lives of extraordinary Catholics can inform the practice of law. Against the background of Rambo litigation hoopla and the excesses of adversarial justice, scholars in the Catholic legal community such as Maryann Glendon and John Noonan have written powerfully about the need to humanize the practice of law and demonstrate greater civility in lawyering. Professional reform projects have developed at a rapid pace and we have witnessed the growth of new directions in lawyering, all aimed ultimately at helping lawyers find an interior peace that will have positive spill-over effects in their professional lives. Some of the more prominent correctives include humanistic movements such as holistic lawyering comprehensive law, therapeutic jurisprudence, preventive law, restorative justice, collaborative lawyering, transformative and narrative mediation, and mindfulness meditation.
Given the multiple legal reform projects currently underway, one might reasonably ask--why focus on a reformer of religious congregations? What could a 16th century Castilian Catholic female mystic possibly add to this reform regime? In this article I suggest that Teresa's writings on self-knowledge and humility offer a rich reservoir from the Catholic mystical and meditative tradition that have to potential to provide a deeper, fuller and more grounded foundation for transformation than the generic spirituality offered by current efforts to resolve the legal profession's vocational crisis.
February 27, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)
Posted by Jeff Lipshaw
Several weeks ago, I posted some thoughts (not positive!) about The Destruction of Young Lawyers, by Douglas Litowitz, which had gotten some play on the blogs of several well-regarded professors, including Legal Ethics Forum, Leiter's Law School Reports and Balkinization. I have since written, and now posted on SSRN, a more fulsome review of the book, summarized by this abstract:
This is a review of The Destruction of Young Lawyers: Beyond One L by Douglas Litowitz (Akron: University of Akron Press, 2006).
While the book may be a credible (if tiresome) account of Mr. Litowitz's own unhappiness as a law student and large firm new associate, and evidence of the fact there are unhappy lawyers in the world, it overpromotes itself on two counts. Although it is written by a law professor and published by a university press, and makes broad and universal claims about evils in the legal profession, it is largely a slapdash pastiche of hyperbole and anecdote. Nor is it a balanced view of the profession. Rather, it is one man's attempt to transpose his own journey through hopelessness and despair into a universal truth under the patina of scholarship.
What you cannot tell from the abstract is that the review juxtaposes good work by Bill Henderson (Indiana-Bloomington, left) and David Zaring (Washington & Lee, above right), as well as an interesting piece by John Conley (North Carolina, below right) to which they cite briefly: "How Bad Is It Out There?: Teaching and Learning about the State of the Legal Profession in North Carolina," 82 N.C. L. Rev. 1943 (2004).
My piece will appear in Hart Publishing's Legal Ethics, of which Brad Wendel (Cornell) is the book review editor.
UPDATE: One of the book's themes is how the unholy cabal of elite law schools and big law firms force law students to keep taking those $160,000 starting salaries to pay off the six-figure student debt. Somebody forgot to tell NYU. Today from Peter Lattman at the Wall Street Journal's Law Blog is a summary of Crain's New York's "The Business of Law Report" which includes:
A Q&A with Joshua Perry, a recent NYU Law grad who took a job as a public defender in New Orleans. When asked about his law-school debt, he explained that at $40,000 per year there’s no way to repay a six-figure debt bill, but NYU has a generous loan repayment program. As long as Perry stays in the public interest for five years, he says that NYU picks up his loan debt and making his payments as long as his salary stays below a certain cap.
February 27, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Billable Hours, Law & Business, Law & Society, Law Firms, Lawyers & Popular Culture, Lipshaw, Partners, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)
Posted by Alan Childress
Peter Margulies (Roger Williams Univ.--Law [right]) has posted to SSRN an article, "Lawyering for Children: Confidentiality Meets Context." It's forthcoming in St. John's Law Review. His abstract:
The lawyer's role in representing children has inspired discussion and debate for over a quarter of a century. The scope of the lawyer's duty of confidentiality to a child client is a crucial component of that debate. Advocates of a “best interests” approach generally favor either a relaxed duty of confidentiality or recognition of the lawyer's ability to advocate for a position against the child client's wishes. Champions of a zealous lawyering conception favor a more stringent duty of confidentiality. Each camp must also grapple with ethical rules that permit a lawyer to act to protect the interests of a client of questionable capacity. This article argues that lawyers for children should consider the local competencies of all of the players in the child welfare system, including courts, child welfare agencies, and lawyers themselves. Based on this assessment, lawyers should apply pragmatic criteria for disclosure, centering on the likelihood and gravity of future harm, the child's understanding of the consequences of the decision, and the availability of alternatives.