July 30, 2008
Tenth Time Is A Revocation
The Michigan Attorney Discipline Board rejected a proposed 120 day suspension consecutive to a three-year suspension presently being served by a disciplined attorney. The case involved mishandling a matter and providing false information to the client. The attorney also failed to participate in the disciplinary process. The board concluded that revocation was the correct sanction, noting that the attorney had an "abysmal" record of prior discipline that included nine earlier sanction orders. (Mike Frisch)
Settlement Does Not Preclude Malpractice Claim
The New Jersey Appellate Division reversed an order granting summary judgment to the defendant in a legal malpractice case. Plaintiff and his uncle had agreed to pursue a joint business venture with plaintiff as a full-time employee. The lawyer handled the purchase transaction, creating two business entities and attending the settlement. Thereafter, a dispute arose between plaintiff and his uncle. He claimed malpractice in the failure of the lawyer to properly document the agreement with his uncle.
The present suit was filed after the plaintiff and his uncle had settled. Consistent with another recent decision that we reported, the court held that the trial court erred in holding that the settlement barred the malpractice claim. The court notes the uncle also has sued the attorney for malpractice and that the case had survived summary judgment. Here, the court concludes that the fact that only uncle paid for the representation does not matter in evaluating the viability of the malpractice claim. (Mike Frisch)
Recusal Not Required
A litigant in a hotly-contested defamation suit sought the recusal of a Wisconsin Supreme Court justice on a variety of grounds that included political support of the justice by opposing counsel and the judge's appearance at a fund raiser in support of lesbian, gay, bisexual and transgender rights. The petition was filed after the court had rendered an adverse judgment in the underlying case. The supreme court today denied the recusal motion in the attached opinion. The court determined that the justice had not sought the endorsement of counsel and did not engage in any impropriety in attending the rally:
In addition to there being no requirement that a judicial candidate disclose all contributions to his or her campaign, the record before us does not support Donohoo's assertion that Justice Butler violated his campaign promise regarding contributions. According to the materials Donohoo has submitted, Justice Butler said he would refuse contributions from parties with pending cases before the court, but would accept and disclose donations from attorneys with pending cases. From the record before us, it appears this is precisely what happened. Justice Butler accepted and disclosed a $300 contribution from Attorney Pines. As the Judicial Commission noted, Bock and
Irvings were not parties to a pending action. In addition, nowhere does Donohoo assert that Justice Butler knew that Bock or Irvings were board members of Fair Wisconsin. The code of judicial conduct does not require judicial candidates to attempt to research every possible organization with which contributors may have an affiliation. Such a requirement would be unduly burdensome to candidates for judicial office and we decline to impose it.
As to Donohoo's claim that Justice Butler acted improperly in attending the fund raiser, the Judicial Commission noted that "[j]udges and candidates for judicial office can announce their views on political and legal issues as long as they are not pledges or promises to decide cases in a certain way."
The court also was troubled by the timing of the motion. (Mike Frisch)
Both Sides Now
An attorney with a record of prior discipline was suspended for 18 months by the Wisconsin Supreme Court. The case involved a husband and wife who were each represented by counsel in a divorce case that was scheduled for trial. Husband suggested to wife that they would be better off with a single lawyer. Respondent agreed to be that lawyer. The other attorneys withdrew and Respondent did not promptly enter an appearance. His attempt to postpone the trial failed as he was not yet counsel of record in the case.
At trial, he purported to represent only the husband. He failed to secure financial information pertinent to wife's rights and otherwise favored husband:
...the referee found that the "credible evidence establishes that Attorney Gamiño did not advise N.B. before the final hearing that he would not be representing her in the divorce action." Attorney Gamiño thus violated SCR 20:1.9(a), which provides that a lawyer who has formerly represented a client in a matter shall not represent another person in the same or a substantially similar matter in which the person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation. The referee observed:
N.B. had no real information regarding her husband's pension accounts. She was disabled under Social Security and likely could not work. She had been a past victim of domestic abuse by E.B.. The marital settlement agreement did not give her the $98,000 that she was to get from her husband's known pension accounts. Under the guise of maintenance, she was to get $500 per month toward her share (the $98,000) of the property division. However, those payments were not guaranteed in the event of E.B.'s death. This approach meant that the alleged maintenance was a tax deductible expense for E.B. and N.B. would be obligated to pay taxes on what in fact were payments to her over time of her share of the marital estate. Attorney Gamiño knew or should have known all of this information. It was as expert witness Hickey said. The conflict was not waivable by Attorney Gamiño regarding the adverse position of these parties. Under Attorney Gamiño's duty of loyalty to N.B., he was obligated to disabuse N.B. as to the patently unfair divorce agreement that was being offered to the court. N.B. could potentially waive the conflict had she been informed of her rights, but there was no such advice given to N.B. by Attorney Gamiño and no written waiver ever was prepared or signed. Attorney Gamiño had critical knowledge as to N.B. that created an insurmountable conflict and made it impossible for him to continue to represent E.B., an adverse party to N.B., his former client, in the divorce.
Thus, the referee concluded that the OLR established by clear, satisfactory and convincing evidence that Attorney Gamiño violated [conflicts rules].
In imposing sanction, the court considered the fact that this conduct occurred in the same time frame as the earlier sanction, which involved an improper sexual relationship with a client and the mother of a juvenile client. The court's order includes a CLE requirement, but I think it will take more than CLE to educate him if he did not see the non-waivable conflict here. (Mike Frisch)
Sokol on Obama as Teacher
Posted by Jeff Lipshaw
Danny Sokol (Florida, left), over at Antitrust and Competition Policy Blog (A Member of the Law Professor Blogs Network), provides additional detail (he was also quoted in the New York Times story) on his experience with Barack Obama while Danny was a student at the University of Chicago Law School. His account confirms other stories I've heard about Obama's genuineness. When I was helping out (somewhat) back in the early primary season, some of the people who were working up in New Hampshire told me about the Senator coming out of a building and throwing snowballs at the volunteers, leaving them in something of a quandary - "do we throw snowballs back? are the Secret Service agents going to object if we do?"
It's also interesting to see peers and acquaintances go from being private figures to public figures in full view, particularly when, as Danny points out, part of your appeal and, indeed, charisma, is your individual attention to people. I've experienced the "looking beyond me to the next person" sense in talking to a number of politicians, and in fairness, the number of people who make demands on a mayor's or governor's or senator's or candidate's time simply forecloses the possibility of that now public person being everybody's friend.
Pitting Client Against Client
A criminal defendant ("petitioner") who was represented jointly along with her spouse in connection with drug charges established that counsel labored under a conflict of interest. Thus, the South Carolina Supreme Court concluded that the trial court improperly denied post-conviction relief:
At the PCR hearing, both plea counsel and Petitioner testified that counsel spent more time preparing Husband’s case despite the fact that Petitioner was pleading guilty to a majority of the charged offenses and faced a more severe sentence.
In terms of the conflict of interest, plea counsel acknowledged that she discussed this issue with Husband, but could not recall specifically talking to Petitioner about such a conflict. Plea counsel also admitted that she argued for leniency in Husband’s case and requested the plea judge reconsider his sentence. In contrast, plea counsel did not make these arguments on behalf of Petitioner. Moreover, Petitioner’s and Husband’s interests were adverse to one another given Petitioner pleaded guilty to the majority of the drug charges whereas Husband pleaded guilty to a single charge of PWID marijuana within proximity of a school. Significantly, plea counsel stated at the plea proceeding that Husband was originally “charged with everything,” but she “was able to get the solicitor who had the case at the time to dismiss all of his cases.” A review of the plea proceeding also reveals that plea counsel argued for leniency on behalf of Husband by comparing his more limited involvement in the crimes to that of Petitioner. We believe plea counsel’s approach essentially pitted Husband against Petitioner, which was clearly detrimental to Petitioner’s interests.
Under the circumstances, the court held that the petitioner need not demonstrate prejudice in order to establish entitlement to relief. (Mike Frisch)
July 29, 2008
Class of 2007: A More Extreme Bi-Modal Distribution
[By Bill Henderson, cross-posted to ELS Blog]
NALP just published its 2007 edition of Jobs & JD's. One topic of interest to students, lawyers, law firms, and legal educators is the change in salary distribution from 2006 to 2007. The now famous 2006 bi-modal distribution was vivid evidence that the U.S. legal profession is undergoing significant structural change. As shown in the graph below (from this NALP webpage entitled "Another Picture Worth a 1,000 Words"), the underlying stressors are even more pronounced for the class of 2007.
The sample is based on 23,337 law school graduates from the class of 2007 who reported salary information. Note, however, that 197 ABA-Accredited law schools graduated 43,518 students in 2007. Although we know the types of jobs taken by 40,416 grads, only 57.7% of this group provided salary information. If I had to wager on the direction of underreporting, I would predict it was under-inclusive of graduates with lower salaries and those who did not pass the bar. Why? Aside from the human psychology that it is easier to share flattering rather than embarrassing information, the roughly 7,500 jobs under the second mode are fairly close to figures I have seen from ALM and NALP data, which are provided by large law firms rather than individual students. See, e.g., charts in this NLJ article.
This bias, however, is not necessarily good news. In the above graph, 32.5% of the law graduates took jobs with starting salaries in the $100K+ range; but the true percentage for the class of 2007 is probably lower. Some facts and then one normative observation. The facts first:
More after the jump ...
- 91.9% of 2007 graduates were employed 9 months after
graduation, which compares favorably to 2006 (90.7%), 2005 (89.6%),
2004 (88.9%), and 2003 (89.0%). I would like to believe these numbers
- 76.9% were in jobs that required bar passage. [It would be useful to disaggregate the jobs in the remaining 23.1% of law school graduates. Who are these students? How many entered law school with no intention of practicing law? ]
- The median salary in the above distribution is $65,750; the mean is $86,396. But these measures of central tendency are not reliable guides of future earning power.
- 38% of all starting full-time salaries were less than $55,000 per year, including 18% of all jobs in private practice, 27.5% in business, and 70.0% in government (excluding judicial clerkships).
- 79.6% of law firm jobs in NYC, 80.3% in Washington DC, and 74.9% in Boston were in firms with 100+ lawyers. Even in Indianapolis, 50.4% were in 100+ lawyer firms. Wow! those are big numbers.
See also NALP Press Release, July 24, 2008. On the normative front, I have a simple thesis: the bi-modal distribution is bad for students, bad for law firms, bad for clients, and bad for law schools. [When I showed the 2007 distribution to one law school dean, she shielded her eyes!]:
- Students. It is bad for students because at $160,000 per year, many corporate clients will ask that you not be assigned to their matters. And if your initial work experience is document review, a $160K job can quickly become a dead-end because your skill set is not growing with your billing rate (avg. 1st yr billing rate in a $160K+ firm is $225 to $255/hr). So the atmosphere among associates at $160K+ firms is probably becoming more competitive. It would be better in the long run to start at $95K, learn your craft, and become a great lawyer who commands top dollar. And young lawyers should think long run.
- Clients. This is bad for clients because the short term solution of requesting only midlevels and partners will eventually constrict the supply of incoming legal talent. When clients and law firms try to externalize the cost of mentoring and training--here I mean observation, contact, and feedback from partners and clients--associates are more likely to leave.
- Law Firms. Actually the bi-modal distribution is only bad for firms trying to keep pace with the Am Law 200 salary pay scale. In contrast, boutiques and organizations like Axiom will find general counsel more interested in their value proposition. For Am Law 200 firms, the difficulty is getting partners to commit themselves to the future of the firm by spending more time and money investing in associates. This will reduce attrition and protect the brand. But the $160K+ cost structure provides partners with strong incentives to bill hours rather than investing in the long term future of the firm.
- Law Schools. The economics of the bi-modal distribution take the pressure off elite law schools--indeed, they can raise tuition! Thus, for many law professors, the best outcome is lateraling into a Top 15 law school. But more/better law review articles--a precondition of a lateral offer--is not going to solve the difficult institutional problems of lower ranked schools. Now more than ever, all law faculty members need to understand the structural shifts taking place in our profession. When faculty at Harvard and Yale ignore these changes, it does not mean that these changes are not important. It just means that Harvard, Yale, et al. are not affected.
I don't have any solutions to these issues, though I did write up some useful insights in my prior post, "Part II: How law firms misapply the 'Cravath System.'" Our situation reflects difficult collective action and coordination/signaling problems. For example, how a firm gracefully bows out of the salary wars is an immensely difficult problem. I do think, however, that permitting nonlawyer investment would provide law firms with the financial wherewithal (and psychological courage) to experiment with more innovation. And that would be good. Larry Ribstein's scholarship is now more timely than ever. See, e.g., here and here.
When I was an interim associate at Sidley & Austin the summer after the 2000 salary wars, a partner told us that "we are all going to hell" based of the jump in salaries from $95K to $125K. I now worry that he may have been right.
Sanction For Crimes Unrelated To Practice
The Pennsylvania Supreme Court has adopted a recommendation of a three-year suspension of an attorney retroactive to December 2005. The attorney had been involved in a series of drug-related crimes during a period of unemployment after graduating from law school in 1999 and completing clerkships in 2001. She has been in a recovery program since 2004. Although the attorney had not reported criminal convictions as required by Pennsylvania bar rules, she had been otherwise cooperative with the disciplinary process. The report of the disciplinary board is appended to the court's order. (Mike Frisch)
New Edition Out of Handbook on Privilege
The book is an edited collection of input from various lawyers. It is in one volume and geared to practitioners, and also considers work product privilege.
Burke and McCouch on Ethics of Tax Shelter Attorney for Jenkins & Gilchrist
Posted by Alan Childress
Karen Burke and Grayson McCouch (both at U. of San Diego) recently posted to SSRN an article on the tax lawyer Paul Daugerdas, whose shelter opinions led to the Jenkens & Gilchrist firm's collapse, Cobra Strikes Back: Anatomy of a Tax Shelter. Here is a post on it at TaxProf. Our readers might be interested in the legal profession aspects of the article. The abstract is below the fold.
Paul Daugerdas gained notoriety for himself and his erstwhile firm, Jenkens & Gilchrist, as the designer of a tax shelter that uses contingent liabilities to generate artificial tax losses on a grand scale. The basic shelter transaction is surprisingly simple. In essence, it uses offsetting options to inflate the basis of property that is distributed by a partnership and then contributed to and sold by another partnership, resulting in a large tax loss without any corresponding economic loss. In principle, this type of shelter could be replicated indefinitely and generate unlimited tax losses. Mr. Daugerdas is by no means unique. The transactions that he approved as shelter counsel on behalf of Jenkens & Gilchrist differ only in trivial details from myriad other transactions peddled by other lawyers and accountants.
Contingent-liability tax shelters are a highly risky business. Mr. Daugerdas and others like him reaped enormous rewards for themselves and their clients, but some of the tax shelters they designed for credulous and wealthy clients have backfired spectacularly. Congress and the Treasury have taken remedial action to shut down abusive tax shelters, and several courts have invoked the longstanding judicial doctrines to strike down transactions that lack economic substance and have no real business or investment purpose, despite purported compliance with the literal terms of the tax laws. The proliferation of abusive tax shelters could never have gotten off the ground without the active participation of high-priced counsel. Upon discovering that the anticipated tax benefits failed to materialize, disgruntled clients have rushed to sue the lawyers, accountants, investment advisers, and banks that created and marketed defective shelters.
This article discusses several challenges faced by Congress, the Treasury, and the courts in dealing with contingent-liability tax shelters. The article examines the role of Daugerdas and his firm in creating and marketing contingent-liability shelters, against the broader background of the tax shelter industry. The article explains the basic structure of the offsetting option transaction and its attempt to manipulate the partnership tax provisions. The article analyzes the contrasting rationales of two recent judicial decisions involving defective tax shelters, and argues in favor of applying Treasury regulations retroactively to shut down contingent-liability tax shelters.
July 29, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
Billing Misconduct Alleged
The Illinois ARDC has filed a complaint alleging that the attorney, while a general litigation associate as Kirkland and Ellis, falsely billed a client for legal services. The complaint alleges, in part:
In March 2006, and from June 2006 through July 2007, Respondent prepared timekeeping records and the firm sent invoices for his purported services to Ernst & Young in the In re: American Italian Pasta Company Securities Litigation matter. On the timekeeping records Respondent provided to the firm, Respondent indicated he expended 736.2 hours providing legal services to Ernst & Young in the In re: American Italian Pasta Company Securities Litigation matter. At Respondent’s hourly rate, these hours resulted in billings of $221,766.
Of the 736.2 hours recorded by Respondent in March 2006, and from June 2006, through July 2007, on his timekeeping records and on the invoices to Ernst & Young, as set forth in the table below, approximately 344.3 hours totaling $106,361 were false.
I could not tell from from the complaint how this matter came to the attention of disciplinary authorities. That is always interesting to me. (Mike Frisch)
Litigation For the Yacht Club Set
In an opinion issued today, the New York Appellate Division for the First Judicial Department resolved an issue regarding the appropriate Challenger of Record for the coming America's Cup race. The court found in favor of the Golden Gate Yacht Club ("GGYC") and against a Swiss entry("SNG"). The legal issue turned on the phrase "having for its annual regatta" in the Deed of Gift for the race. The full governing language:
"Any organized Yacht Club of a foreign country, incorporated, patented, or licensed by the legislature, admiralty, or other executive department, having for its annual regatta an ocean water course on the sea, or on an arm of the sea, or one which combines both, shall always be entitled to the right of sailing a match of this Cup, with a yacht or vessel propelled by sails only and constructed in the country to which the Challenging Club belongs, against any one yacht or vessel constructed in the country of the Club holding the Cup."
The court's majority gives us a grammar lesson:
This appeal turns on the meaning of the words "having for its annual regatta" as used in the Deed of Gift. In making its determination, the motion court found that the phrase is "plainly understood to mean that it is an on-going activity; the activity has taken place and is continuing." The court further found that the phrase "implies that the organization has had one or more regattas in the past, and will continue to have them in the future." Accordingly, the court reasoned that CNEV was not a qualified Challenger of Record because it had not held an annual regatta as of the date of its challenge. The Deed of Gift, a trust instrument, "is to be construed as written and the settlor's intention determined solely from the unambiguous language of the instrument itself" (Mercury Bay Boating Club, 76 NY2d at 267). As SNG would have it, the annual regatta requirement can be satisfied where the yacht club "intends to hold an annual regatta and does so prior to the date of its proposed match." GGYC disputes SNG's construction, arguing that " [h]aving' as commonly used in the law does not mean not having now.' It means possess.' And, in this context, it means, possess' an annual regatta." GGYC's argument is untenable because, as a matter of standard English usage, the noun "regatta" cannot be the proper object of the verb "possess."
The record includes an excerpt from An English Grammar For the Use of High School Academy, and College Classes, by W. M. Baskervill and J. W. Sewell . According to this treatise, participles, such as "having," "express action in a general way, without limiting the action to any time, or asserting it of any subject." Participles "cannot be divided into tenses (present, past, etc.), because they have no tense of their own, but derive their tense from the verb on which they depend." An example given in the treatise is "fulfilling," which depends on the past-tense verb, "walked," in the following: "He walked conscientiously through the services of the day, fulfilling every section the minutest, etc." A further example is "dancing," which depends on a present-tense verb in the following verse:
"Now the bright morning star, day's harbinger,
Comes dancing from the East."
In accordance with the foregoing, "having for its annual regatta" can only be interpreted through strained English usage. If explicable at all, the phrase is subject to conflicting interpretations. We therefore hold that the Deed of Gift's annual regatta requirement is ambiguous. GGYC argued below that the participle, "having," in the Deed, derives its tense from the words "shall always be entitled." "Shall," however, is a word used to form the future tense (Lutz and Stevenson, The Writer's Digest Grammar Desk Reference § 1C, at 16-17). Accordingly, GGYC's argument only confirms the ambiguity of the annual regatta requirement.
A court may resort to extrinsic evidence to construe an ambiguous provision of a trust instrument (see Mercury Bay Boating Club, 76 NY2d at 267). In this instance, the Cup's recent history is a source of relevant extrinsic evidence. SNG challenged for the 31st America's Cup by letter to the Royal New Zealand Yacht Squadron (RNZYS), the then trustee, on August 18, 2000. SNG, a Swiss yacht club, is situated on Lake Geneva and, as of the date of its challenge, had never held a regatta on an ocean water course, as required by the Deed...
A dissent would find against the Swiss yacht club:
I am also in agreement with the motion court that GGYC's Notice of Challenge is in compliance with, and therefore valid under, the provisions of the Deed. In Mercury Bay, the Court of Appeals noted that the Deed "broadly defines the vessels eligible to compete in the match" (76 NY2d at 266), and "permits the competitors to both construct and race the fastest vessels possible so long as they fall within the broad criteria of the deed... [which document makes it] clear that the design and construction of the yachts as well as the races, are part of the competition contemplated" (id. at 269).
Here, GGYC's notice and certificate contain all the information required by the Deed, although SNG takes issue with GGYC's description of the challenging vessel in the certificate as a "keel yacht" while specifying dimensions suggestive of a multi-hulled vessel, such as a catamaran, thereby creating an ambiguity and rendering the challenge invalid. It is clear, however, that even if the certificate contained a possible ambiguity, SNG was not at any time actually confused or misled by the Certificate, as the record indicates that SNG fully understood that GGYC was going to race a catamaran. The general counsel of SNG's representative racing team, in an affidavit submitted in support of SNG's motion for summary judgment, averred that the dimensions delineated in the certificate "can only be for a multi-hulled vessel - presumably a catamaran," while not referring to any confusing or inconsistent language on that point. Moreover, SNG's protestations of confusion are belied by its own reply brief in which SNG acknowledges that GGYC has proposed to compete with a "catamaran goliath."
"An Unfortunate Truth"
In another entry in the long-running war in the West Virginia Supreme Court of Appeals, the Acting Chief Justice yesterday issued a concurring opinion defending his decision not to recuse himself in a matter and lamenting the state's judicial election process:
The opinions of the judge of a highest court of a state are no place for intemperate denunciation of the judge's colleagues, violent invective, attributings of bad motives to the majority of the court, and insinuations of incompetence, negligence, prejudice, or obtuseness of fellow members of the court.
Roscoe Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent, 39 A.B.A. J. 794, 795 (1953).
There is an important difference between a thoughtful, well-reasoned separate opinion or order and one which is grounded in the political manipulation of legal doctrine; and in the case of ensuring a stable, predictable and fair judicial system, that difference matters. Judges who use their opinions and orders simply as sensationalistic bombast by which to convey partisan agendas or who pander to emotion rather than legal reason do a disservice to the rule of law and to the institution they serve.
It is a testament to the strength of our justice system that judges may disagree and do so openly in separate opinions. A well-reasoned and legally sound separate opinion carries with it the opportunity for pointing out differences with the opinions of the other members of the court without undermining public confidence in the judiciary. Hon. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.L. Rev. 1185, 1196 (1992). By furthering positive progress in the development of law, a well-honed opinion serves as an invaluable instructional tool to judges, lawyers, legal scholars, law students and even to a judge's colleagues. “[T]he effective judge . . . strives to persuade, and not to pontificate. [He] speaks in 'a moderate and restrained' voice, engaging in a dialogue with, not a diatribe against . . . [his] own colleagues.” Id. at 1186 (internal quotations omitted). A separate opinion should never “generate more heat than light,” but rather should “'stand on its own footing,' . . . spell[ing] out differences without jeopardizing collegiality or public respect for and confidence in the judiciary.” Id. at 1194, 1196 (internal quotations omitted).
If the touchstone of a judicial system's fairness is actual justice, which I believe it is, its legitimacy is measured in actualities, not in the manipulation of appearances or the vagaries of sensationalism. Actual justice derives from actual impartiality in decision-making and is conveyed in well-written legal opinions which are founded in the rule of law -- not in orders, opinions or public pronouncements by judicial officers reflecting partisanship, contempt for other members of this Court, or their staff, bias toward or against the parties, or a pre-judging of the issues.
It is an unfortunate truth that judicial officers in West Virginia must stand for office in political elections. Notwithstanding this political selection method, the public's confidence in our system of justice is necessarily undermined and the stability and predictability of the rule of law is compromised when politics cross the threshold of our Court. The most important factors therefore affecting the public's perception of actual justice in this Court necessarily are the actual decisions of this Court, and its members, over time, the professional demeanor of this Court's members, and the quality of the written opinions and orders which we produce in specific cases.
By baiting emotions, I believe the Dissenting opinion adopts a distinctly “political voice” rather than a “judicial voice.” With due respect to my dissenting colleagues, this case does not present a close call on the basis of the rule of law. Because the Majority decision possesses such a deep strength of legal authority, I do not believe that the Dissenting opinion in any way weakens the authority or substance of the Court's decision.
Collateral Estoppel In Bar Discipline
The full Massachusetts Supreme Judicial Court ordered an indefinite suspension of an attorney who had received into escrow funds specifically designated to pay a settlement. Instead, the lawyer sought to establish a basis to pay his firm and his father's consulting business out of the funds received. The father was a retired lawyer and shareholder of the son's law firm. The court concluded:
The respondent had no right to use GPFC's escrowed funds to pay past or anticipated future legal and consulting fees owed by Commonwealth Snack to Brauer & Brauer. Nonetheless, the respondent transferred an additional $23,000 of GPFC's escrowed funds to a separate escrow account for Brauer & Brauer to pay $19,628.90 in fees and expenses that Commonwealth Snack owed to the law firm for past work, plus another $3,371.10 to cover anticipated fees for future work. On September 5, 1996, the respondent wired the remaining $650,000 of GPFC's escrowed funds to the China Trust Bank, without explaining the $100,000 shortfall. The next day, the respondent notified GPFC by letter that he had placed $77,000 of its escrowed funds in a separate escrow account pursuant to a court order, and that he had put an additional $23,000 of its escrowed funds in a different escrow account for the payment of legal fees that Commonwealth Snack owed to Brauer & Brauer.
The court rejected the attorney's claim that he was improperly collaterally estopped from challenging findings in prior court proceedings:
Here, when bar counsel filed the petition for discipline, attached thereto were the determinations of the Superior Court judge and the Appeals Court, which subsequently would be reviewed by the board's chairman for their preclusive effect. In its action before the Superior Court, GPFC alleged that the respondent had converted GPFC's funds, and it sought to recover $100,000 that had been misappropriated. "The elements of conversion require that a defendant be proved to have 'intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal property to which he has no right of possession at the time....' " Grand Pac. Fin. Corp. v. Brauer, 57 Mass.App.Ct. 407, 412 (2003), quoting Abington Nat'l Bank v. Ashwood Homes, Inc., 19 Mass.App.Ct. 503, 507 (1985). In concluding that the elements of conversion had been satisfied, the judge determined, inter alia, that (1) the respondent knew that he had received the $750,000 from GPFC in accordance with the terms of the escrow agreement between GPFC and Commonwealth Snack pertaining to the use of such funds; (2) the respondent was obligated to return such funds to GPFC on request; (3) the respondent had no legal right to retain such funds to pay past or future legal or consulting fees owed by Commonwealth Snack to Brauer & Brauer and Decnos; (4) the respondent intentionally exercised dominion over the funds and deprived GPFC of their use; (5) the respondent intentionally delayed returning the funds to GPFC so that Decnos could obtain an attachment; (6) the respondent's father knew that GPFC had demanded the return of its escrowed funds and that Commonwealth Snack had instructed Brauer & Brauer to return those funds to the China Trust Bank; and (7) the respondent failed to inform the Dedham District Court of the facts surrounding the escrow agreement. On appeal, after reviewing the judge's "comprehensive" findings, the Appeals Court stated that such findings were "amply supported in the record." Grand Pac. Fin. Corp. v. Brauer, supra at 409.
We agree with bar counsel that the factual circumstances pertaining to the issue whether the respondent had converted funds belonging to GPFC were actually litigated, and the judge's findings of fact and conclusions of law on that issue were essential to the final judgment in GPFC's favor on its conversion claim. The judge's findings were mirrored in the allegations of misconduct set forth in the petition for discipline, with the exception of paragraph 17 of the petition, pertaining to purported conflicts of interest. See note 8, supra. Accordingly, the board's chairman did not err in concluding that the respondent should be precluded from challenging the factual allegations set forth in the petition for discipline (except paragraph 17), where those facts were established adversely to the respondent in proceedings before the Superior Court.
If the link does not work, the case is Matter of Brauer, decided July 28, 2008. (Mike Frisch)
Removed Magistrate Reprimanded
The South Carolina Supreme Court issued a public reprimand of a now-resigned Beaufort County magistrate for the following misconduct:
Respondent admits in the Agreement for Discipline by Consent that he made inappropriate statements in commenting on a warrant. Specifically, respondent referred to the use of crack cocaine and addiction thereto as a “black man’s disease.” On another occasion, respondent reacted in an overly harsh manner to comments made by a speaker at a seminar on criminal domestic violence.
Respondent also admits that during a bond hearing, he directed a defendant in a criminal domestic violence case to look at the victim, which was contrary to instructions given to the defendant by the transportation officer from the detention center. While conducting bond court on another occasion, respondent incorrectly advised a defendant of the penalty for the charge against the defendant.
Finally, respondent admits engaging in behavior that, while unintentional, could reasonably have been viewed as inappropriate by female employees.
Part II: How most law firms misapply the "Cravath system"
[Posted by Bill Henderson, cross-posted to ELS Blog]
In my last post, I discussed the linkage between the bimodal distribution and the emphasis on credentials under the "Cravath system." I also stated that most law firms misunderstood the internal logic of the original Cravath model and promised to elaborate in a subsequent post. This is the promised entry.
One note of context: this post is not a history lesson. The
Cravath system reflects a profoundly powerful method of developing
human assets. Cravath started with very good associates/inputs and
turned them into truly exceptional lawyers who were in high demand by
clients and other firms. Moreover, the Cravath system required
lawyers to work together collaboratively to further the clients'
interests. This resulted in efficient and highly effective legal
services that engendered the abiding loyalty of clients and more demand
for the firm's services. See Results or Résumés at
4 & n. 13 (discussing concept of firm-specific capital). In other words, under
the true Cravath system, everyone comes out ahead. Two caveats: (1)
the first-mover--here, Cravath 108 years ago--garners the most benefit;
(2) if a firm neglects a key element--e.g., investing in
associates--the model generates no competitive advantage.
[Sources: The Cravath system described below come primarily from Robert Swaine's 1948 history of the firm and other contemporaneous sources from the 50s, 60s, and 70s, which I will cite as appropriate.]
Recruiting Elite Law School Graduates
One of the hallmarks of the Cravath system is the recruitment of elite law school graduates. As of 1948, Cravath, Swaine & Moore and its predecessor firm had employed a total of 454 law school graduates as associates. Of this total, 67.7% attended Harvard (128), Columbia (124), or Yale (54). According to Swaine, "in recent years there has been an increasing number from the law schools of the Universities of Virginia and Michigan." These two schools rounded out the top five : (UVA 30, Michigan 26).
Cravath's emphasis on credentials, however, had a clear economic logic that was designed to compensate for the deficiencies of early 20th century legal education. During this period, most law schools required little or no college education. In contrast, Harvard, Columbia, and Yale grads typically had a college degree before entering law school. Swaine writes,
Cravath believed that disciplined minds are more likely to be found among college graduates than among men lacking in formal education ... .
Cravath believed in seriousness of purpose--a man with a competent mind, adapting to practicing law according to Cravath standards, should have made a good scholastic record at college. But he recognized, without full approval, the tradition of the early decades of this century--that "gentleman" went to college primarily to have a good time and make friends. Hence, while a good college record was always a factor in favor of an applicant, lack of such a record was not necessarily an excluding factor. ... [I]n the stern realities of the depression of the '30s, however, college records of applicants came to have added importance.
Yet, "[f]or a poor law school record Cravath had no tolerance." Candidates who "had not attained at least the equivalent of a Harvard Law School 'B' either had a mind not adapted to the law or lacked purpose and ambition ... ." Thus, the "first choice" was a "Phi Beta Kappa man from a good college who had become a law review editor at Harvard, Columbia or Yale."
Note, however, that Cravath's emphasis on credentials had a clear business purpose designed to compensate for the limitations of legal education. During the first half of the 20th century, going to an Ivy League law school did not guaranteed legal aptitude. Prior to advent of the LSAT in 1948, college grades were the only predictors of success in law school. In 1955, The "LSAT Handbook" included cross-tab tables of LSAT scores versus law school performance for several individual law schools. At Harvard Law, roughly 1/3 of the class scored below the 50th percentile. On the west coast, UC Berkeley had a similar wide range of LSAT scores. See The Law School Admission Test and Suggestions for Its Use (ETS 1955). The clear relationship between LSAT and grades subsequently encouraged law schools to revamp their admissions criterion. But that process took decades. See Lunneburg & Radford, The LSAT: A Survey of Actual Practice, 18 J. Legal Educ. 313 (1965).
In a talk at Harvard Law School, Cravath stated that a successful "lawyer of affairs" (aka corporate lawyer) assumed "the fundamental qualities of good health, ordinary honesty, a sound education and normal intelligence." On top of these attributes, a candidate must have "character, industry and intellectual thoroughness, qualities that do not make for charm but go far to make up that indefinable something that we call efficiency. Brilliant intellectual powers are not essential."
More after the jump ...
Developing Human Assets
Under the Cravath system, the inputs themselves (i.e., qualified associates) had little value to clients. Rather, they needed to be trained by the investment of intensive training. Over a period of years, that investment created the remarkable efficiencies and superb quality that bonded clients to the firm.
The Cravath system was build upon an incentive structure that encouraged young lawyers to acquire skills at an optimal pace. Further, the firm was intent on inculcating its superior work habits. "Cravath believed that a staff trained within the office would be better adapted to its methods of work ... and hence he insisted that the staff be recruited, so far as possible, from men just out of the law schools." Cravath also ended the practice of associates having their own clients and working on firm's matters in exchange for a desk room. "Cravath could not tolerate the inefficiency and divided loyalty implicit in such an arrangement. ... [E]very associate, including the man fresh from law school, was put on a salary."
Once in the firm, associates where placed on matters in a way that rounded out their professional training. According to Swaine,
Cravath preferred that men should not specialize in such branches of the law as real estate or administration of estates or, later, taxation, until they had attained a general experience over several years. This objective required that a man should not be confined to the work of one client or be assigned to one partner for any undue length of time.
At the outset of the practice Cravath men are not thrown into deep water and told to swim; rather, they are taken into the shallow water and carefully taught strokes. The Cravath office does not follow the practice of many other offices of leaving small routine matters entirely to young men fresh from law school without much supervision ... . Under the "Cravath system" a young man watches his senior break a large problem down into its component parts, is given one of the small parts and does thoroughly and exhaustively the part assigned to him--a process impracticable in the handling of small routine matters. Cravath believed that a man who learns to analyze the component parts of a large problem involving complicated facts, and to do each detailed part well, becomes a better lawyer faster than the man who is not taught in such detail.
As the professional competencies of associates grew, their level of responsibility increased. Ideally, these competencies included the ability to effectively delegate, supervise, and train other lawyers. Swaine observed, "The art of delegation in the practice of the law is difficult, requiring the nicety of balance which many men with fine minds and excellent judgment are unable to attain. ... The more nearly he attains the right compromise between [doing all the work himself or turning everything over to an assistant], the greater the amount of effective work a man can turn out, and hence the greater his value to the firm."
Obviously, the Cravath system as conceived by Paul Cravath
envisioned a process that spanned several years. Therefore, "[m]en who
are willing to stay only a year or two are not desired, for the
'Cravath system' cannot train a main in that short time. They are
expected to remain as long, but only as long, as they are growing in
responsibility." In today's high attrition environment, this temporal
component has been completely disrupted at most firms.
Another tenet of the Cravath system was up-or-out after six to ten years, primarily because a "man who is not growing professionally creates a barrier to the progress of younger men within the organization ... . It is much better for the man, for the office and for the clients that he leave while he still has self-confidence and determination to advance. The frustrated man will not be happy, and the unhappy man will not do a good job."
The genius of the Cravath system was the interlocking incentives that made the model sustainable: every person involved in the process--associates, partners, clients-was made better off. In the case of associates who were not destine for partnership, Swaine reported:
The firm constantly has requests from clients and other leading industrial and financial organizations to supply men for legal and executive positions. Other high-ranking law firms of the City and elsewhere have taken Cravath men as partners; many Cravath men have formed successful firms on their own [many of which are now Am Law 100 firms]; and quite a number have become members of law faculties. It is often difficult to keep the best men long enough to determine whether they shall be made partners, for Cravath-trained men are always in demand, usually at premium salaries.
Almost without exception, the relations between the Cravath partners and the men who have left the office to compete professionally have remained friendly, and often intimate. Cravath partners take great pride in the success of alumni. ... [N]ew business if often referred to former associates.
One such Cravath alumni was Charles Reich, a Yale law professor who gained fame for the influential book, The Greening of America (1971). One of Reich's close friends recently took at job at Cravath, Swaine & Moore, and Reich used the occasion to reminiscence on this own experiences. It a letter to his friends daughter, which was subsequently published in The American Lawyer in December 2007, Reich's relates impressions strikingly similar to Swaine's account:
In the Cravath of 1952, I felt no pressure whatever concerning billable hours. ... The only pressure was to complete an assignment on time. ... We were all told that while few associates could expect to remain permanently at the firm itself, we could all count on well-paid future employment at one of the many corporate legal offices or regional law firms that had ongoing relationships with Cravath. The message was: Excellent work is expected, but the pressure is off. Associates were safely and comfortably on the inside for life. Inclusion was more important than competition.
In the terrific book Lions of the Street
(1973), journalist Paul Hoffman quoted another former Cravath
associate, who observed, "The [Cravath] fraternity takes care of its
own. ... Nobody starves." Going to work for Cravath and following the
program guaranteed a certain minimum level of professional success.
And that minimum was, in the bigger picture, pretty darn high.
Further, with some luck, you could become partner at Wall Street's most
Interlocking Incentives for Partners
It is noteworthy that the Cravath system reflected a business philosophy that encompassed the entire firm, including the partnership. According to Swaine, "Probably the most rigid feature of the 'Cravath system' has been insistence that for every man in the office, from the senior partner to the neophyte law clerk, the practice of law much be the primary interest and that that practice shall be solely as a member of the Cravath team." Associates and partners were trained in the tradition that:
All the business in the office much be firm business. ... The problem of the firm is to do effectively the business that comes to it; by so doing that business, more comes in. Hence, business-getting ability is not a factor in the advancement of a man within the office at any level, except in so far as that ability arises out of competence in doing law work ... .
Every partner is expected to cooperate with every other in the firm's business, through whichever partner originating, and to contribute to all the work of the firm to the maximum of his ability. The formation among the partners of cliques practicing independently of each other, which developed under Gurthrie [a partner who left the firm in 1906], would not be allowed today.
To maintain this interlocking system of incentives toward high quality work product, Cravath very rarely hired lateral partners or associates. Thus, "Young partners and young associates are seldom subjected to the discouragement of seeing someone come in over them from the outside." [A Cravath tenet broken by most law firms today.] Swaine also claimed that the firm discouraged work habits that crushed interests outside the law. "Cravath wanted his partners and associates to have such interests, and believed that the few who allowed office work to pre-empt all their energies where harming themselves and the firm."
The Cravath firm history has a interesting passage on the the firm compensation system. Today, Cravath Swaine & Moore is often cited as one of the few remaining examples of lockstep compensation, in which a partner's profit share is a function of years with the firm. See, e.g., Paul C. Saunders, When Compensation Creates Culture, 19 Geo. J. Leg. Ethics 295, 296-97 (2006) (partner at Cravath Swaine and Moore discussing deleterious effects of eat-what-you-kill compensation system and noting "[m]y firm's model for partner compensation is, and has been for a very long time, completely based on the lockstep approach."). Yet, the passage excerpted below suggests, at best, a modified lockstep approach:
Attainment of partnership does not mark either the limit of potential growth or accession to any automatic hierarchy. The younger partner who evidences capacity to win the confidence of clients with whom he or she works so that they continue with the firm, or impresses others who come into contact with his work so that other business comes to the firm through him, and who takes responsibility for a number of varied matters, at the same time supervising the work of members of the staff and sometimes of other partners, may well raise, and indeed often has risen, with the firm more rapidly than his seniors. The partners are judged inter se just as are the associates, and adjustments are made to reflect the evaluation of the young partners by their seniors.
My co-author, Marc Galanter, tells a story--possibly apocryphal--that the Cravath partners approached Paul Cravath about the possibility of moving to a pure seniority-based compensation system. Cravath stated that he had no objection to the proposed plan, "as long as I get my half." I have no idea if this story is true, but it is (a) amusing and (b) consistent with idea that rules required to build a franchise may be very different than those required to maintain it. Certainly, the lockstep system may be the best way to preserve a cooperative ethos at a firm that has earned the top position in the market.
One objection of my above characterization of the Cravath system is that I have been too willing to accept, at face value, the words of Robert Swaine and Paul Cravath--that these lawyers are spinning the history to show themselves in their desired light. I understand the criticism but I think it is premature and possibly misguided. The best way to ascertain the reliability of Swaine's historical account is to examine the various pieces of the Cravath system and ask ourselves if it holds together as a theoretically coherent model. I think it does. Occasionally an accurate historical account is going to be the most flattering.
In a future post, I will discuss how the logic of the Cravath system mirrors the findings of the famous Bell Labs study, which documented that organizational productivity was a function of teachable work strategies rather than the credentials or innate abilities of individual engineers. Further, under the Bell Labs system, women and minority engineers tended to post the largest gains--a finding that should give the legal profession pause. See Results or Résumés.
On August 1, the new rules for disciplinary enforcement will go into effect in the District of Columbia. One of the new provisions will largely (and mercifully) take the Board on Professional Responsibility out of the reciprocal discipline business. Identical discipline will be imposed promptly if neither the disciplined attorney or Bar Counsel seeks different discipline in response to the court's show cause order. One hopes that this rule change will be the death knoll of ill-considered and indefensible decisions like one issued last week.
The case involved neglect of an asylum matter. The attorney had mishandled the case, moved for reconsideration and advised the client of the missteps. Massachusetts investigated the case fully, resulting in a reprimand that was reported to D.C., where the attorney was admitted but on inactive status since 1999 (read: has absolutely no practice in D.C.).
Now, in order for the board to recommend substantially different discipline, it must determine that reprimand is outside the range of sanctions for "comparable misconduct." Here, the board purports to look only at cases involving neglect of immigration matters, which is error. Comparable cases are those that involve neglect findings, and is not limited to evaluation of cases in the same practice area. The board here ignores a wealth of cases involving neglect that imposed sanctions as light as an informal admonition and recommends a 30 day suspension. The board notes that the neglect was "not pervasive and did not evidence abandonment" and thus, in its view, was not a particularly aggravated form of neglect. The suggestion that neglect of a single matter on the part of an attorney who fully cooperates with the disciplinary process would inevitably draw a suspension in an original D.C. matter is nothing short of ludicrous. This recommendation is both legally indefensible and pointless as the lawyer has no D.C. practice.
When I was at Bar Counsel, I spent a lot of time fighting board reports that proposed such mischief (often reducing serious suspensions imposed elsewhere). The most distressing aspect of this case is that Bar Counsel asked for it--indeed, they sought a 60-day suspension. I only hope that the rule change puts a stop to this form of second-guessing of jurisdictions that actually conduct the disciplinary proceeding at issue and have primary responsibility for the regulation of a particular lawyer's practice. (Mike Frisch)
July 28, 2008
Grose on Incorporating the Client's Story Into Contextualized Ethics Analysis
Posted by Alan Childress
Carolyn Grose (William Mitchell) has posted to SSRN's journal on Law & Soc'y: The Legal Prof'n her new article, 'Once Upon a Time, in a Land Far, Far Away': Lawyers and Clients Telling Stories About Ethics (and Everything Else). Here is her abstract:
Framed by an analysis of two particular ethical rules and their application to specific situations, this piece uses the metaphor of storytelling to explore the lawyer's role as an effective and ethical client representative. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation (as one component of the lawyer-client relationship) that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any particular case; and work with his client to determine how to resolve those conflicts.
The first part of the article introduces the stories of these clients as the lawyers came to know them and as the ethical dilemmas unfolded. This section sets the stage for further analysis both of the Rules of Professional Conduct and of the process lawyers undertake to understand and apply those rules. The second part of the paper shifts the focus to the Model Rules of Professional Conduct themselves and tells the stories again, this time in the context of those rules. This second telling reveals that the rules that make up the system of ethical regulation are interpreted to apply to generic, abstract clients in generic, abstract situations.
Drawing on critical lawyering and narrative theory, the third part of the paper proposes an alternative approach to interpreting and resolving ethical conflicts. The article suggests that the system of regulation should be interpreted to allow room for the attorney to consider and incorporate the client's narrative context. Such an approach places the client in the center of the inquiry and requires the lawyer and client to engage actively in dialogue and problem-solving. It allows the lawyer and client together to arrive at solutions that both respond to the particular client's needs, and attend to the moral and ethical concerns the lawyer and society might have. By using a critically reflective, intentional process of inquiry around ethical (and other) concerns, the lawyer must focus on this particular client in the context of his life and his legal/non-legal needs in this particular situation. Such an inquiry results in a widening of the frame of the client's case such that what appear to be intractable and prominent ethical (and other) issues at the outset actually fade into the background as the lawyer and client together either resolve or preempt them completely.
July 28, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
New Search Engine "Cuil" Promises Lots More Pages and Logic Than Google, But Fails My Tests
Posted by Alan Childress (if he really exists)
Rather than rely on superficial popularity metrics, Cuil searches for and ranks pages based on their content and relevance. When we find a page with your keywords, we stay on that page and analyze the rest of its content, its concepts, their inter-relationships and the page’s coherency.
Then we offer you helpful choices and suggestions until you find the page you want and that you know is out there. We believe that analyzing the Web rather than our users is a more useful approach, so we don’t collect data about you and your habits, lest we are tempted to peek. With Cuil, your search history is always private.
Cuil is an old Irish word for knowledge. For knowledge, ask Cuil.
It does sound cool, and better -- except. Except that my first-day tests fail the only feature I care about: the personal ego search. Its logic does not recognize that I exist at all on the internet (oh please let my creditors use only this tool...). Ever. On any of its 122 billion pages. We didn’t find any results for “alan childress”... Possible explanation? too many search terms. Please try fewer terms. Less than two?!
It did recognize "legal profession blog" -- despite my using three search terms. But it then showed a picture of some shirtless little blonde boy posing (voguing) next to a blurb on our site. (I swear I was nowhere near Oakland at the time.) I worry that one of the ex-google engineers is R. Kelly. Then there is a blurb about Jeff Lipshaw at bottom right of this page but the picture next to it is some guy with a mustache, not Jeff. Maybe that guy is the dad of the little shirtless boy, or he's the Dateline producer who will meet you if you try to email the boy.
It found Legal Ethics Forum (see, I did not just search me), but its first reference to it was not to the site itself but an ABA blurb about the site. So I ran Andrew Perlman and he did not exist either. Even if you put quotes around him. I eventually found that "Alan Childress" does exist with quotes but Steven Childress, my legal name, sometimes does not, either with or without quotes. "Andy Perlman" does exist, with quotes, but the first page shows far more references to him from this blog than it does from Legal Ethics Forum, his blog. My brother Mark, author of like seven novels published by real publishers and also a movie I have seen, at first did not exist, unless you frame him in quotes. Then I re-ran some of these searches and they seem to get some results, but odd ones at times. Andy started to appear alive but it does not seem to be the one who blogs daily on LEF.
For a search engine, I demand more than anything a consistent set of rules, and predictable results. If I have to use quote marks, then tell me and make that the [lousy] working rule. Or if I have to use a nickname and not a legal name--well, that is an odd logic but one pleasing to Gordon Sumner I am sure, though he also comes up as Sting. (The first reference to Gordon is a story mainly about bipolar disorder!--maybe Gordon should strive to do something notable with his life that would interest surfers.) At least make that usage consistent! So far, at least, it is not. I cannot figure out how to call up relevant material on this. And a search that is run one minute gets a very different set a few minutes later. That makes it hard to go back to a search result that sparked an interest but the offered link was not immediately accessed.
Not cuil to me, yet.
Idaho Bar Using Musical Parodies and a Humorist to Teach Legal Ethics CLE in Sun Valley October 9
Posted by Alan Childress
Using the "Ethics Rock!" program developed by Jack Marshall and his ProEthics seminars, the Idaho bar offers two ethics credits as part of its larger conference in Sun Valley October 8-10, 2008. The conference's program brochure is here. Another ethics/professionalism credit is earned watching “Sue Onto Others As You Would Have Them Sue Onto You,” featuring lawyer-humorist and 1992 Harvard Law graduate Sean Carter, who says: “Under Rule 8.4, it is professional misconduct to commit a criminal act that reflects adversely on your honest, trustworthiness or fitness to practice law. Needless to say, stabbing opposing counsel in the parking lot creates such an adverse reflection.”
Carter, shown right, also offers to state bars and law firms other humorous programs that seriously deal with ethics, advertising and marketing, substance abuse, writing and presentation, and diversity awareness including elimination of bias. And Marshall has two new musical programs, on more rock and also the blues.