August 16, 2008
No Expert Testimony Needed To Establish Fiduciary Breach
The Mississippi Supreme Court affirmed a jury verdict in a case brought against an attorney by a former client. The lawyer had been retained by a husband and wife to prosecute a medical malpractice claim on behalf of them and their minor child. The husband left Mississippi to pursue a Hollywood film career; the wife and family stayed behind. The wife and the attorney then commenced an affair, while he continued to represent them. The husband discovered the affair, discharged the attorney and obtained a divorce on grounds of "uncondoned adultery." He then filed suit in the present case, claiming breach of contract, alienation of affection and intentional infliction of emotional distress.
The court held that these claims were properly submitted to the jury even without expert testimony. The contention that the breach of contract claim was really a legal malpractice claim (and thus required expert testimony) was rejected. Even if a malpractice case, a lay jury could evaluate whether the lawyer had breached his fiduciary obligations to the plaintiff by engaging in an adulterous affair without the need of expert help. The court also discussed the impact of the professional conduct rules in civil litigation.
The damage award was for $1.5 million. The lawyer and the wife married and have a child. (Mike Frisch)
August 15, 2008
Playbook for Institution Building
[posted by Bill Henderson]
With all the discussion we have been having on institution building (Henderson, Lipshaw I, Chen, Madison, Caron, Smith, Lipshaw II, and Ribstein), it should not go unnoticed that one of the truly great deans of our generation, Richard Matasar (New York Law School), has posted his entire playbook on SSRN, entitled "Defining our Responsibilities: Becoming Academic Fiduciaries."
Two of Rick's most recent accomplishments are selling his school's "air rights" in the Tribeca neighborhood of Manhattan, which financed a new building and created a large NYLS endowment, and implementation of a data-driven curriculum over the last five years that resulted in a 2007 NY first-time bar passage rate of 90.2%, which is 1 point below Cornell and 1 point above Fordham. See this NYLJ story.
Incidentally, Rick's article is in the same volume of Law & Contemporary Issues as Clayton Gillette's "Law School Faculty as Free Agents" essay.
Soccer League Treasurer Sanctioned
I came across an October 2004 order of revocation upon consent in Virginia that may be of some interest. The revocation is based on an averment that the attorney had passed the bar in 1982 but never practiced law. The attorney further avers that she "[had] been active in the soccer community as a volunteer, not as an attorney; that I served in no capacity as an attorney in my soccer activities; that as of the middle of July, I resigned my positions in the soccer community; that I have made arrangements with the [soccer league] for 'restitution of financial obligations in question'; and that I gave [the league] a note...establishing the financial obligation and already have substantially begun the process of restitution." As league treasurer, the attorney had embezzled at least $85,000.
Here is a clear example of conduct unrelated to the practice of law that nonetheless demonstrates unfitness to practice. I will avoid the temptation to make an unfunny pun on the name of the sanctioned lawyer: Linda Wiser Sadler. (Mike Frisch)
A non-attorney town justice has resigned effective today and agreed to the public disclosure of pending charges, according to a press release from the New York State Commission on Judicial Conduct. The justice also agreed not to seek judicial ofice in the future. The justice's letter of resignation is frank acknowledgment of error, noting that he has asked peole who appear before him to accept responsibility for their actions and should demand no less of himself. (Mike Frisch)
"Go To Hell" Goes To Remand
The District of Columbia Court of Appeals remanded a 'hybrid" bar discipline case that arose out of the denial of admission in Montana and a subsequent five-year suspension imposed in Virginia. The Board on Professional Responsibility had recommended that the court impose an additional requirement that the attorney demonstrate fitness prior to reinstatement. Virginia had ordered certain conditions for reinstatement that apparently did not include such a requirement.
The board likely was influenced by submissions made by the attorney after discipline was imposed in Virginia. He wrote the bar counsel that "I refuse to participate or cooperate [in] any way in your criminal and cowardly Fascist racketeering conspiracy, otherwise known as the murder [me] legally game. Go to Hell." In another letter to a circuit court judge who had sat on the discipline case, he characterized the Virginia sanction as "a Hitlerite decision...a Fascist decision...You leave me only my absolute moral superiority that I invoke against you and your co-conspirators...Go to Hell."
The board report gives further insight into the attorney's behavior. His submission in the D.C. matter was an "impassioned response, which includes quotations running the literary-cinematic gamut from Lewis Carroll's Alice's Adventures in Wonderland to Stanley Kramer's Judgment at Nuremberg." His actions were a result of a "fanatical belief that he is the victim of a far-reaching conspiracy" to destroy him pursued for 13 years by his former law firm. He filed pleadings stating that the District of Columbia Bar Counsel were "little puppets of the Nazi criminal organization known as 'The Firm' " and had engaged in "Hitlerite and Stalinist" reasoning.
Does anyone really think that a remand is necessary to require a fitness showing here? Not many disciplinary regimes would be indulgent of being told where to go in this manner. While I agree with the court that reciprocal discipline may not be imposed based on the denial of bar admission in Montana, I do not see the point of a remand.
The Virginia order is linked here. (Mike Frisch)
Joy, Inspiration, Leadership, and Free Agency
Posted by Jeff Lipshaw
Gordon Smith has jumped into the fray Bill Henderson created with his deft analysis of the "faculty free agency" issue, since added to by Jim Chen, Mike Madison and Paul Caron. Gordon's focus was on the need to create a sense of of intrinsic value or joy within an institution. (Aside: my own joy right now has a lot to do with the fact that Bill Henderson is a co-editor of this blog!) That was a conclusion I reached, perhaps not as articulately, in a response to Bill's comment on my deconstruction of incentives a couple days ago. But it is buried in the comments, so with the magic of technology and a bit of editing I'm going to repeat it here.
I love Bill's aspiration to create a mission beyond self-interest within a faculty. The wonderful thing about his is this: "an initiative that will add value for students and the institution--e.g., creating skills, building relationship, solving real world problems, etc." So the question is how translate great faculty accomplishments (like the one Bill describes Andy Morriss undertook in Cleveland). The task is to have those accomplishments be seen as capital, and then to do what we can to make them school-specific.
So the way to create school-specific capital is to have evaluators (students, alumni, other faculty) value it as such, and to keep people around long enough to get the programs institutionalized. My point is not to throw cold water on the aspiration, but to suggest: (a) doing that is really aspirational (read: difficult but not impossible); (b) the task is difficult (but not impossible) even where, unlike in law schools, there is a unifying metric (that's the only reason for distinguishing a complex business), and (c) in my experience, contracts are not motivators, they merely legalize a more, how shall we say, emotional commitment.
I truly believe that what inspires people to great performance is a sense of mission, purpose, creation, posterity, whatever, and contracts or other legal or rule-based commitments are the tail of that dog. Cool. Do five year contracts or commitments. But do it within an institution marked by inspired and inspiring leadership.
August 14, 2008
Intemperate Remarks Charges Filed
The Illinois ARDC has filed charges alleging misconduct in a custody battle, and an administrative proceeding. The mother in the custody case had won custody and thereafter remarried. The father retained the accused attorney to initiate proceedings based on the allegations of improper conduct by the new husband to his now 14 year old daughter. When a hearing was rescheduled, the attorney did not appear but was contacted and put on the speaker phone. The following is alleged:
The Court then conducted a hearing in chambers, with Schaps [the client] present in person and Respondent appearing by speakerphone.
During the hearing on February 8, 2008, Respondent stated to Judge Murphy "You are a narcissistic, maniacal, mental case. You should not be on the bench. I am not appearing before you."
Judge Murphy then stated he was probably going to transfer the case to LaSalle County, but that he wished the attorneys to appear before him regarding the affidavit described in Paragraph 15, above.
Respondent then stated again, in a louder voice, "You are narcissistic, maniacal, mental case and should not be on the bench."
When Judge Murphy continued to explain his ruling, Respondent stated "I refuse to appear in your courtroom. This case is pending in LaSalle County. You have no jurisdiction." Respondent then hung up the phone.
Stronger words to follow as this missive was mailed to the judge:
If that is correct, and no Motions are pending in Cook County, it is extremely difficult to comprehend any justification or motivation whatsoever for requiring the appearance of counsel other than the interjection of your personal vendetta in an attempt to rationalize your own mistake in summarily placing a 14 year old child with a drug and alcohol addict.
As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain that this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interest of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error? "
A hearing in a different matter before an administrative law judge culminated with this remark:
This is a joke. It is. I mean I’ll say that on the record on that tape. This is no fair hearing, which is the language that the Department puts on the letter that went out to my client. This is no more a fair hearing than they had in Russia when they were operating under the Soviet system. This is a kangaroo court by definition. It is a court where the Department hires the hearing officer, who’s supposedly independent but relies for her paycheck upon the same entity, where evidence is admitted that is hearsay and in some cases double hearsay, and when then the hearing officer pretends she can rule on that basis.
I – I don’t pretend that this can be a fair hearing. I don’t pretend that a fair decision can be made based upon the statements that have been made by this hearing officer. So I’m wasting my breath. I mean this – this had been a situation where from the first objection I have made, which in my opinion have been very proper and substantive objections, I’ve been treated with nothing but contempt and smirks.
Charges in a third matter involve allegations of misconduct toward opposing counsel. (Mike Frisch)
Clearly Excessive Fee Leads To Suspension
In a 5-2 decision, the Ohio Supreme Court suspended an attorney for one year with six months stayed on probation in a case where the attorney had consulted with two business partners for two hours and thereafter pressed for payment of a $5,000 fee. The attorney filed a lawsuit seeking that amount that settled for $300. He also was found to have attempted to bully and intimidate the bar prosecutor. The court concluded that the lawyer had charged a clearly excessive fee, noting that his hourly rate was $150. The lawyer's conduct involved a profane call to one of the partners. However, both the majority and dissent agree that there was insufficient evidence of mental health issues to warrant consideration. One practice note: lawyer does not need to collect the fee in order to violate the rule.
The dissent concludes that the matter involved a miscommunication regarding fees and would stay the suspension in its entirety. The attorney had no prior brushes with the disciplinary system in 28 years of practice. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department imposed a five-year suspension of an attorney, rejecting a referee's conclusion that he had acted with subjective good faith and should not be disciplined in the following actions:
On May 20, 2002, the respondent visited the psychiatric unit of Columbia Presbyterian Hospital where his cousin, Rubin J., was a patient. The respondent knew of Rubin's recent history of psychiatric hospitalizations. Reynaldo Hylton, a notary, accompanied the respondent. The respondent also brought a deed and other legal documents that he had prepared. The respondent had Rubin execute the deed, conveying Rubin's house in Brooklyn to the respondent and his wife, without any consideration. Rubin continued to be liable as a mortgagor in connection with a mortgage loan that financed his purchase of the house.
The respondent recorded the deed the next day and ignored immediate requests by Rubin and his attorneys to reconvey the property on the ground that the conveyance was a nullity by virtue of his hospitalization.
The court noted that the conveyance had been set aside in litigation and concluded:
The respondent's defense is based on his own nonexpert diagnosis, and that of his hand-picked notary, that Rubin was of sound mind and was competent to cede ownership of his property without consideration and without the advice of an independent attorney. The respondent's counsel posits a subjective standard, based on what was purportedly in the respondent's mind at the time he had Jordan execute the deed, notwithstanding the objective facts. That standard was adopted by the Special Referee, and factored prominently in his assessment of the witnesses' credibility.
The findings of the Special Referee, however, are contradicted by some of the respondent's own witnesses, and find no support in the hospital records. Significantly, the respondent's misconduct was not limited to his actions of May 20, 2002. Despite numerous opportunities to return the deed, the respondent's actions in moving into the residence, collecting rents from tenants while Rubin continued to repay the mortgage loan, and refusing to vacate the premises until a City marshal's intervention was sought, demonstrate an ongoing intent to deprive Rubin of his property.
The respondent's position disregards the protection afforded by the New York State Department of Mental Hygiene, the advice of family members, the rules of professional conduct, and rulings by both the Supreme Court and the Appellate Division. Under the circumstances, we find that the Special Referee erred in failing to sustain the charge.
The attorney had been charged with a single count of violating the prohibition against conduct involving dishonesty, fraud, deceit or misrepresentation. The present New York version of the rule, New York DR 1-102(a)(4), contains the language "which adversely reflects on fitness as a lawyer." Model Rule 8.4(c) does not have that qualification, although no sane bar counsel prosecutes such a charge if the dishonest conduct does not raise such a question. (Mike Frisch)
In an opinion filed on August 11, the Massachusetts Supreme Judicial Court dismissed as moot a challenge to the issuance of a grand jury subpoena to defense counsel's investigator in a criminal investigation:
The petitioner was charged in the District Court with various felonies. In connection with a subsequent grand jury investigation, the prosecutor sought approval from a judge in the Superior Court to subpoena an investigator hired by the petitioner's counsel. See Mass. R. Prof. C. 3.8(f), 426 Mass. 1397 (1998). The prosecutor sought to question the investigator about an allegation that he had instructed a witness not to talk to the police. The petitioner's counsel objected to the issuance of the subpoena, claiming that subpoenaing the investigator would violate attorney-client and work-product privileges and impair the petitioner's relationship with his defense team. The judge approved the request, concluding that the reason for the subpoena was a legitimate law enforcement purpose, and that the limited scope of the prosecutor's proposed inquiry would not implicate those privileges.
The judge stayed her order to allow the petitioner to pursue the matter through a petition in the county court. In his petition, the petitioner pressed the same claims that he had raised in the Superior Court, and added that the prosecutor and the judge had failed to comply with the requirements of rule 3.8(f). The single justice denied the petition. While recognizing that, "[a]t first blush," the case "appear[ed]" to raise important issues concerning privileges applicable to a defense attorney's investigation and what standards a judge should apply when approving a summons pursuant to rule 3.8(f)(2), the single justice concluded that "the precisely limited scope of the questioning permitted by the judge, and the purpose of that questioning" identified by the prosecutor, "obviate[d]" those concerns: "the Commonwealth does not seek to uncover privileged information or to benefit from the fruits of the defense investigation."
Thereafter, the investigator appeared before the grand jury but did not testify because he validly invoked his privilege against self-incrimination pursuant to the Fifth Amendment to the United States Constitution. The grand jury indicted the petitioner even without the investigator's testimony. Thereafter, the petitioner was tried and convicted of all but one charge.
The Commonwealth contends that because the grand jury proceedings have long since ended, the petitioner's claims have become moot. The petitioner counters that we should address the appeal anyway because of the importance of the issues raised regarding the requirements of rule 3.8(f), where a prosecutor seeks to subpoena a member of the defense team. While we may in our discretion address moot issues, we decline to do so here. Questions regarding the requirements of rule 3.8(f), while capable of repetition, will not necessarily evade review. Although the issues have been briefed, the parties no longer have a personal stake in the outcome. Moreover, the purpose for which the prosecutor sought to subpoena the investigator was particularly circumscribed, and so the case does not present issues of recurring importance to the administration of justice for which uncertainty and confusion exist. (citations omitted)
The case is In the Matter of A Grand Jury Investigation. (Mike Frisch)
August 13, 2008
Free Agency, Faculties, Law Firms, and Businesses: A Comment for Bill Henderson
Posted by Jeff Lipshaw
Bill Henderson cross-posted his usual massively insightful and deftly written analysis on "faculty free agency" over at ELS, and I posted an equally long comment over there. I repeat here some thoughts on the problem and the solutions (slightly edited).
1. I'm not sure that law firms are going to give us a better model for structuring faculty incentives for the following reasons. The real question is whether the institution created by the people involved in the institution is greater than the sum of the parts. The underlying assumption in Bill's analysis is that cooperation and coordination indeed do create value that none of the individuals alone can create. What we have is something of a Prisoner's Dilemma game: individual incentives suggest that law professors AND law partners maximize for themselves, but institutions (and perhaps the professors or partners themselves) would be better off if they cooperated. As we know, one way out of the Prisoner's Dilemma is repeat play until the participants learn to trust each other NOT to maximize individually.
2. For precisely the reasons Bill cites (the incommensurability of teaching and service), it is very difficult to demonstrate a payoff to professors that warrants cooperation even after repeat plays of the game. Law firms are a little better, but my intuition, based on long experience, is that the payoffs of cooperation are almost as difficult to perceive for the partners. My theory is that it's because, indeed, it really is very hard to build any such value. The brand "Skadden" or "Weil Gotshal" is so hard to build, and once built, so independent of the contribution of any single partner (collective action problem at work?), that it just doesn't take us anywhere.
3. In my experience (and intuition), complex business models will actually take us farther in terms of the analysis of the ideal cooperation. I don't want to confuse this analytically with the corporate model of organization, as my co-author Larry Ribstein would insist (see Ribstein & Lipshaw, Unincorporated Business Associations, 4th ed., coming to a bookstore near you in 2009), but let's use the model for ease of explanation. There's no doubt in the corporation, we are building a value proposition greater than the sum of the inputs, physical and human capital together, that expresses itself in a measurable output that integrates ALL of the inputs (contra law school for the reasons you point out). That is, the market value of the enterprise not only exists but is measured every day in terms of a share price (and if the corporation is public, you can actually see it change minute by minute!). Whether or not the systems actually work (I don't want to argue the CEO compensation issue here), the goal is to align the interests of the individuals in the organization with that unified measurement of value, and usually by tying compensation to increases in that value.
4. Compensation within a multi-divisional public company is an iterative process of balancing individual initiative with cooperative goals. It's really tough to get right. I don't think you do it by long-term contracts (there's an involuntary servitude aspect to this I'd want to think through). Compensation is the carrot; I think your idea of a contract is the stick. You can encourage cooperation by incentives - tying compensation to sticking around, for example, by vesting it over a period of time - but you still have the problem of the individual versus the collective. If you tie the compensation entirely to the group output, you run the risk of having your stars leave if they are performing but the rest of the company sucks. If you tie it to individual performance, and not the collective output, you get precisely the cooperation issue we are discussing.
My reaction generally was that, even in the corporation, algorithmic solutions did not work. You needed a spirit of cooperation that preceded the compensation, or individuals would nevertheless figure out a way of skewing things to favor their own interests over the collective. Despite all the best HR theory, we still had to deal with the "wooden nickel" problem by means of leadership, not analysis. What do I mean? Take corporate overhead allocations. Business unit leaders hated them because they were a cost to the business they could not control, and cost them money in terms of their own compensation. My position (as GC and hence one of those cost centers) was that focusing on reducing the cost was adding value, but that merely arguing the allocation was not. That is to say, trading costs between units in terms of allocation was merely trading wooden nickels.
To conclude, I have some skepticism over the possibility of a rule-based solution to the problem - rule based in the sense of writing a contract to deal with it or rule based in the sense of developing compensation algorithms. To continue on a theme that I hope is apparent in my writing, the solutions here have to do with something like leadership, and that has a way of not being reducible to rule-following.
Law Professor Free Agency and "School-Specific" Capital
[posted by Bill Henderson, cross-posted to ELS Blog]
[Update: Paul Caron (Cincinnati), Michael Madison (Pittsburgh Law), Jeff Lipshaw (Suffolk), Jim Chen (Louisville) have picked up on the analysis in the below post. There seems to be some misunderstanding on my point of "long-term contracts." In retrospect, I should have said "long-term commitments" (i.e., extra-legal and perhaps not committed to writing) to avoid what I think is an unproductive analysis of run-of-the-mill employment and commercial contracts.
I am talking about this: Academic X says, "I will stay here X number of years and ignore outside offers if you provide me with the resources to execute the following institutional plan [e.g., labor-intensive but high-yield teaching, public service, useful scholarship that will be noticed and solve a real world problem, etc.]." Law School Y says, "I love this idea. If you are right, it will grow our institution. Because you have committed to building it here, School Y will fund it." Because both Academic X and Law School Y have aligned personal and institutional agendas, their cooperation and commitment grows the institutional pie; both are made better off. Moreover, it becomes magnetic for other scholars and funders who share the substantive vision.
So we are talking about communitarian norms here. This type of approach is easy in small groups, which is what law faculty are. Firm-specific capital in law firms is harder to grow/maintain because (a) they have gotten larger, (b) covenants not to compete are prohibited, and (c) there are liquidity constraints imposed by the ban on non-lawyer ownership. On the other hand, law firms work harder at it because they increasingly operate in a competitive national marketplace--firm-specific capital can be huge competitive advantage. Law schools, in contrast, are not subject to the same market pressures--the most elite have huge endowments and donors who want to give more to be associated with the elite brands. Thus, in the legal academy, the free agent ethos is damn near ubiquitous.
No need to be abstract about all this. I lay out a highly plausible counteractive approach in this comment.]
Several bloggers have noted Clayton Gillette's recent article, Law School Faculty as Free Agents, 17 J. Contemp. Leg. Issues 213 (2008). See, e.g., Paul Caron, Larry Ribstein, Al Brophy, and Paul Secunda. Gillette's essay provides the type of straight thinking needed to move the Moneyball-Moneylaw debate into a mode of institutional analysis that can produce actual results. I will briefly lay out Gillette's analysis and then extend it to a concept I call "school-specific" capital--an analog to firm-specific capital.
Law Professor Free Agency
In a nutshell, here is Gillette's argument. The lateral market for law professors is primarily based upon scholarship, which is an observable, coveted good. Teaching and service, to be sure, are relevant goods, but they are hard to measure. Further, faculty make hiring decisions; when they land a high profile scholar, they share equally in the school's reputational gain (albeit these gains are largely limited to opinions of other professors). Yet, if new colleagues shirk committee work or are disengaged and uninspiring teachers, the costs borne by individual faculty members are negligible or non-existent. Hence scholarship becomes the focus of lateral hiring. Clayton observes,
In 30 years of teaching, service as vice dean, and membership on appointments committees, I don’t believe I have ever heard a discussion of a candidate’s qualifications that included serious consideration of institutional service, except insofar as it related to scholarship. ...
[H]iring schools tend to invest little in discovering teaching quality. The hiring decision is typically made after one or two faculty members at the hiring school attend one or two of the visitor’s classes, and that is done through a process (e.g., informing the visitor when faculty members will attend, and allowing the visitor to choose that time) that diminishes the likelihood that those classes will be representative. ... The result is that, as opposed to the meticulous, highly tailored criticism to which a candidate’s scholarship will be subjected, a candidate’s teaching will be evaluated largely to determine whether it is “good enough.” (pp. 228-29)
Gillette's key insight is that the lateral market in legal academia, unlike baseball (a crucial point), does not force the decision-makers [faculty] to internalize the benefits and costs of free agent activity: Some costs potentially get externalized onto the students, alumni and law school administrators. When scholarship opens so many doors, Gillette suggests, it is easy to see how a more robust lateral market can skew institutional incentives and detract from overall educational quality.
To my mind, Gillette sets forth a very coherent and plausible analysis. [I suspect a lot of people will quibble with it, however, believing that their own lateral experience (or aspiration) reflects a more optimal outcome at the institutional level. Listeners interested in the merits of this debate should weigh the critic's potential bias.] It is an open question whether lateral mobility is really on the rise. At Indiana Law, we are building a law faculty universe database that covers 80 years of AALS schools. See "Is Lateral Movement on the Rise? A Precise Answer is on the Way," ELS Blog (Dec. 21, 2006). We see a lot of lateral movement in the 30s, 40s, 50s, 60s, and 70s. Eventually we will answer to the nagging empirical question of whether lateral movement is truly on the rise.
But one thing I can say with confidence--information published on the Internet (Leiter Faculty News and Concurring Opinions) has increased the perception of heightened movement. And perception is all that is necessary to change behavior and institutional norms--possibly in the wrong direction.
Gillette actually understates his argument. Specifically, the proliferation of a free agency ethos not only undercut educational quality, it inhibits the cooperative, highly committed, selfless environments need to create truly exceptional institutions. One of the major implications of more professor mobility is the diminution of "school-specific" capital--i.e., desirable law school attributes, such as innovative curriculum, public service reputation, alumni good will, that remains largely intact when a professor leaves. So more free agency suggests fewer law schools that transform good human capital into great human capital. On this score, the "best" law schools can, in fact, be pretty mediocre. (I believe there is a way out of this box, which I will address below.)
More after the jump. ...
Law schools with high levels of school-specific capital can be wonderful places to work. Conversely, schools that have squandered their school-specific capital in the single-minded pursuit of scholarship can be spiritually depleting. This was the experience of Julius Getman (Texas Law). In this book, In the Company of Scholars (1992), Getman reflects upon his annual ritual in the 1960s of attending the AALS annual meeting in the hopes of generating a lateral offer. Eventually he moved from Indiana to Stanford to Yale, with visits at Cornell and Chicago along the way. But in the end, he was largely disillusioned with the professional satisfactions of being at the top of the hierarchy. Academics at elite institutions were often insecure, elitist, focused on personal agendas, and uninterested in solving real world problems. (This may be true at all institutions, suggests Getman, but only more so at the very top of the food chain.)
Drawing upon his experience, Getman observes:
People who become professors are rarely indifferent to the title and status that comes with the role. It would be difficult to overstate the role of hierarchy in academic life. Its power is manifest at every point, its impact felt on every issue. ...
The desire for status--a higher place in the academic hierarchy--shapes both personal and institutional goals and decisions. It can have a positive impact in fueling effort, but it can be destructive, as well, interfering with effective teaching and scholarship [here Getman refers to grand theorizing rather than a study of reality] and leading institutions and professors away from useful or enjoyable endeavors toward those thought to be more prestigious. (pp. 252-53)
I suspect a lot of law professors aspire to
work at institutions that are committed to being "effective", "useful"
and "enjoyable" from the perspective of all stakeholders--that is
school-specific capital. But most of our discourse does not reflect a
understanding of how such institutions are created. Most of us want to
believe the most prestigious schools are such places; that way we don't
have to do much original thinking.
As Gillette's analysis suggests, building and/or maintaining an effective, useful, and enjoyable institution requires a critical mass of scholars who are willing behave in ways that may undercut their currency in the lateral market--e.g., creating a new law school program, teaching a labor-intensive skills-based course, and attending alumni and student mixers rather than writing another law review article. When colleagues leave for "better" schools, momentum toward firm-specific capital is undermined. I know a few schools take pride in their "feeder" status; yet, I have gradually concluded that this line of thinking as an unproductive rationalization. When the faculty is churning too much, there is no continuity or buy-on for time horizons that are needed for truly ambitious institution building. Success is equated with exit.
My analysis of school-specific capital is influenced by my study of
law firms. One of the key features of a law firm with firm-specific
capital is that it eventually creates a bigger pie, creating financial
and/or psychic benefits that makes virtually all partners better off.
Law firms with the right structural incentives foster a culture of
teamwork and cooperation that achieves better and more cost-effective
results for clients, thus binding clients to the firms. As law firms
become larger, it becomes harder (but not impossible) to build and
maintain firm-specific capital. Two significant hindrances to
firm-specific capital are (a) the unenforceability of lawyer
non-compete contracts, and (b) the ban on non-lawyer investment, which
means that expensive long-term investments in human and physical
capital have to be paid for either through debt or retained (and
taxable!) earnings. Thus, long-term planning in firms can--and I
would argue, often does--unravel when impatient partners lateral to
Law schools, fortunately, do not suffer from either constraint. Thus, one way to deal with the corrosive influence of the free agent ethos is the use of long-term contracts. Specifically, individual faculty members (or groups of faculty members) agree to forgo any lateral offer in exchange for the time and resources to build programs and curriculum that produce large institutional payoffs. Ideally, these will be ventures in which scholarship, teaching, and service become coextensive. The larger the success, the more magnetic the culture, the more devoted the faculty, students, and alumni. In turn, the money flows back into the institution because donors realize that something truly substantive is going on. Then even more ambitious school-specific capital can be built.
In contrast, law schools with hallowed reputations can raise money because donors like to be associated with prestigious institutions. But that is not a viable model that most schools can follow. Moreover, it does not provide a useful market test that funnels money into initiatives that produce long term value. Most tier 1 law schools tout that they have become "better" when they hire highly prolific lateral scholars--but in reality, these are multi-million commitments that guarantee little more than course coverage and the accolades of professors. There is also very little empirical evidence that such a strategy can produce a meaningful reputation change that redounds to students and alumni.
To my mind, this common pattern reflects very shallow analysis. What is the plan for school-specific capital?
If Joe Camel Worked Selling Cigs to Kids, Then Canadian Club on Facebook Is Awesome!
Posted by Alan Childress
My teen has Facebook. Your teen has Facebook. Adults can get it too (even lawyers), but I bet the main demographic actually using it is age 15-25. The only adults I know who got it were talked into it by a youth (not their own, of course) and realized it is a perfect monitoring grotto. This is a decidedly youth-oriented forum.
Whatever, the content of the top "news feed" -- the very first entry before true friends' updates -- I saw today has to be targeted at youth (by generational references to their dads) and cannot be forgiven by the usual statement that this is just brand separation, not recruitment, because amount of alcohol is controlled by law and so one brand cannot make you crazier. (The content is so youth-targeting even if the ad is filtered to go to those who happen to declare themselves 18+.) Parents, do you know that CC is recruiting your kid on the internet? I hope a Canadian Club exec winds up on To Catch A Predator on ABC. The ad (which does not appear to be an ad and is just a regular news feed quote) says, and is bolded this way:
Your Dad Was Crazy
He did things people talked about. Now it's your turn.
Become a Canadian Club(R) Whiskey Fan.
Beautiful picture of the drink with ice in a glass next to it. Links to their own Facebook Page, which shows no executive's face nor a book, but does have 1002 "fans," and that means two were added while I was typing this. All the cool kids hang out here. Oh, now 1004 of them. It's working!
I would go write something nasty on the wall about them stalking my kid. But I know better than to create an anti-oldfart backlash among readers, and prove their generational divide point, adding to the kick of the drink. I will simply talk to my kid about how the internet is a fertile place for recruitment and predators of all kinds. And I will never buy Canadian Club. So I guess it is brand-separating after all.
Please let your own kid know that even more stuff online cannot be trusted, and it is not the prototypical cyberbully or predator that is using technology inappropriately. And please do not buy Canadian Club Whiskey, whatever your political view of boycotts.
Update: Edited to remove references to and pics of actual "fans," in response to a good suggestion to me (and I want to make clear that I chose pics of people who listed grad dates indicating they were older than my point, but still I agree it's right to remove...). I also fixed the link to Andy's post on boycotts. As indicated, I did talk about this with my son who got my point but also pointed out that my boycott is lazy because I rarely drink and never had any Canadian Club. He is right but I am glad we had the talk.
The web page of the Ohio Supreme Court has a summary of a decision issued today:
The law license of Lancaster attorney Lawrence M. Maley has been suspended for 18 months, with the final six months stayed on conditions, for failing to properly supervise the activities of his secretary, who without his knowledge accepted retainer fees from clients and independently prepared and/or filed legal documents in at least 39 bankruptcy cases over a period of more than a year. The suspension was also based on Maley’s failure to maintain a dedicated client trust account, resulting in the improper commingling of fee advances and other moneys he held in trust for his clients with his own personal and business funds.
The Supreme Court adopted findings by the Board of Commissioners on Grievances & Discipline that Maley’s lax oversight of his employee and failure to maintain proper client accounts enabled the secretary to use his credit card and the court’s online filing software to independently prepare and file bankruptcy petitions bearing Maley’s electronic signature, and to perform other unlicensed legal work for dozens of clients who thought they were obtaining Maley’s professional services. Maley subsequently notified police that the secretary had pocketed client fees totaling more than $25,000 and had used his credit card to make an additional $8,300 in unauthorized purchases or payment for her own benefit.
The Court found that Maley’s acts and omissions violated multiple state attorney discipline rules including those that prohibit conduct prejudicial to the administration of justice, conduct adversely reflecting on an attorney’s fitness to practice, aiding a non-lawyer in the unauthorized practice of law, neglect of entrusted client legal matters and prejudicing or damaging a client in the course of a professional relationship.
The lawyer had given the secretary broad authority to run his practice with little, if any, supervision. After he discovered that she was untrustworthy, he terminated her. She continued to undertake bankruptcy matters by gaining entry into his office after business hours. The lawyer had not changed the locks, did not get the secretary's keys back and had not canceled his credit cards, which facilitated additional misconduct. (Mike Frisch)
The New Jersey Appellate Division today affirmed the conviction of a volunteer firefighter for calling in false alarms. The court concluded that the offense involved "official misconduct" and that the defendant received a "benefit" from the gratification of responding to the alarms. The calls were made to a phone line that bypassed police and was known only to insiders. Some calls were recorded and the defendant was identified as the caller. (Mike Frisch)
The Buck Passes Here
The Washington Post, in its coverage of Attorney General Mukasey's speech to the American Bar Association, reports that:
...an official in the Justice Department Office of Professional Responsibility said the unit has notified bar associations of its findings against five lawyers singled out in reports thus far. The bar groups could initiate their own disciplinary proceedings against the lawyers, who include former Justice Department White House liaison Monica M. Goodling; former attorney general chief of staff D. Kyle Sampson; and former deputy attorney general chief of staff Michael D. Elston. Two lower-ranking officials, Esther Slater McDonald and John Nowacki, also were cited in the previous reports and their bar associations were notified, the official said.
As I have previously mentioned, I am not the least bit optimistic that the state bars can or will do anything, particularly in the face of the AG's statement that the conduct at issue was not criminal in nature. The task of a bar prosecutor will be made difficult by the fact that any charges will have to be proven without the benefit of applying collateral estoppel effect to the findings of the Inspector General and the OPR. The buck has thus been passed to agencies that have limited resources and the ability only to consider violation of rules of legal ethics. Because bar proceedings are generally treated as confidential unless and until formal charges are filed, the public will likely never know the disposition of these referrals or the reasoning behind the determinations. (Mike Frisch)
Bias On The Bench
A juvenile court judge in Tennessee was censured for his treatment of litigants who were "illegal aliens, children of illegal aliens, or perceived by [the judge] as being illegal aliens." Among the actions taken were declaring children as abused and neglected in cases where no such claim had been made. When advised that such determinations were improper, the judge declared that juveniles he suspected were in such status were "unruly" and jailed them. He also made comments comments that suggested that he predetermined cases and told attorneys to pursue appeals if they wished to challenge his rulings. (Mike Frisch)
August 12, 2008
Judicial Misconduct Charges In Tennessee
Tennessee Disciplinary Counsel has filed misconduct charges against a general sessions court judge. The charges allege that the judge had referred litigants to a private probation service pursuant to a Supreme Court rule that forbids referrals based on nepotism and favoritism. The person who had incorporated the private probation service was married to the judge's spouse's sister. The charges contend that the judge created an "artificial barrier for his continued utilization [of the probation service] as the exclusive probation provider for [his court]" by vesting authority for selecting the service to the county mayor. The judge's relative receives compensation, sits next to the judge during court sessions and is "known by the general public [to have] a familial relationship to [the judge]." The judge also is alleged to have (1) threatened contempt to a defendant who repeated remarks that his "[p]robation was crooked [and the judge] was crooked" and (2) accepted but did not disclose a $100 payment for speaking at a church.
The judge's answer to the charges is linked here. The answer contends that the judge and the probation services provider are "not related" as they have only non-blood ties through two separate marriages.
Ohio Mentor Program
The Ohio Supreme Court has announced a new mentoring program that will match experienced lawyers with newly-admitted members of the Ohio Bar:
The Lawyer to Lawyer Mentoring Program is a one-year voluntary program for new lawyers designed to help ease the transition from law school to law practice through an ongoing relationship with an experienced attorney. The program was initiated by Chief Justice Thomas J. Moyer and Justice Terrence O'Donnell and developed by the Supreme Court Commission on Professionalism, with input from law schools, bar associations and law firms throughout Ohio. The pilot project began in July 2006.
In a rule change announced on July 28, the Court charged the commission with administering an annual permanent program effective Nov. 1 and evaluating and analyzing the program every three years. The first class enrolled in the permanent program will be those attorneys who passed the July bar exam and are admitted to the bar in November.
It would be a nice touch to have an annual meeting of participants in Mentor, Ohio. (Mike Frisch)
Mandatory Malpractice Proposal For Virginia Lawyers
The web page of the Virginia State Bar has a post from the past chair of the committee that has studied and proposed mandatory malpractice insurance for bar members. The proposed rule is set forth and summarized as follows:
The proposed rule is not complicated.
Currently, all active members of the bar engaged in the private practice of law representing clients drawn from the general public must disclose each year on the member’s annual bar registration whether they are covered under a professional liability insurance policy. 20 This information is then made available to the public.
The proposed rule also would apply to all active members regularly engaged in the private practice of law representing clients drawn from the general public. It and would require them to be covered under a malpractice policy obtained in the open market. The minimum acceptable policy would provide either $100,000 worth of claims indemnity coverage and an additional $50,000 worth of claims expense coverage, or $200,000 worth of claims indemnity coverage with no additional claims expense coverage. The active member shall then certify on the member’s annual VSB registration that he or she has the required insurance and shall provide the name of the insurance company and the policy number. An extended reporting endorsement, or “tail coverage,” would not satisfy this requirement. Should a member’s insurance policy lapse, be no longer in effect, or terminate for any reason, and not be replaced within thirty days thereby avoiding a lapse in coverage, the member must report such event to the bar. Failure to comply with the proposed rule would subject the member to an administrative suspension from the practice of law. No exceptions are provided. The proposed rule would become effective July 1 in the year following approval by the Supreme Court of Virginia.
The post concludes:
If you support the concept of protecting the public by requiring all lawyers who regularly represent clients drawn from the public to have malpractice insurance, the proposed rule accomplishes this goal as simply and inexpensively as possible. As proposed, it does have the potential of depriving some lawyers of their ability to engage in the private practice of law representing clients drawn from the general public. Those lawyers would be forced to change their type of practice. There are valid arguments on both sides of this issue. After three years of discussion, it’s time to call the question.