Saturday, November 22, 2008
Posted by Alan Childress
...And if you are, is it anything to brag about? Yahoo!News reports that elected officials taking a civics exam averaged less than half right, a score five points lower than the performance of the average citizen. How do you rate? Here is the test, which scores automatically for you and easy to take online. I got a 32 of 33. But be sure (as I did) to take the exam before you read the !News story because it discusses some of the answers politicians and citizens tend to miss. The exam is sponsored by the National Civic Literacy Board at ISI, the Intercollegiate Studies Institute. Have fun.
If you need any other boost to your civic ego, or to recover from the quiz, look at some of the challenged ballots in the U.S. Senate race recount going on right now in Minnesota. The one shown at above right may make you feel better about yourself, but what about the one at left? Sometimes it looks like the voter is on a particularly debilitating brand of crystal meth: the election is so close that it may come down to whether we'll count that voter who marked Al Franken but also wrote in a reference to Lizard People. And wrote that in for all the other offices, along with a clear mark for a named candidate.
The Massachusetts Supreme Judicial Court has granted permission to a graduate of an online law school, waiving the requirement of graduation from an ABA accredited school. The applicant's qualifications:
In July of 2002, Mitchell received his undergraduate degree, a bachelor of science in law, from Concord, and in July, 2004, he received his juris doctor degree from the same institution. In connection with the law degree, Mitchell graduated with "highest honors," and was the class valedictorian. Following his graduation, he sat for and passed the California bar examination, and was admitted to the bar of California in November, 2004. He was admitted to practice before the United States Court of Appeals for the First Circuit in December, 2004, and before the United States District Court for the Central District of California in March, 2005.
The court concluded:
The record contains quite specific information about the required and elective courses that Mitchell took as a law student at Concord--the course subjects, an overview of topics covered, and the legal texts and authors that were used--as well as a description of the extensive online research resources that were available to him. Our review of these materials indicates that Mitchell's core course of study, and legal research resources, were substantively very similar to the core content offered by ABA-approved law schools. See Osakwe, 448 Mass. at 92-93. Moreover, and of great importance, the record reveals that Mitchell achieved an exemplary degree of success as a law student. Thus, he won "outstanding achievement" awards in three of his first year courses, an award for best oral advocate and best brief in his moot court exercise in the third year, and over-all academic honors in all four of his law school years, graduating with highest honors and as valedictorian of his class in July of 2004. [FN10] Finally, we find the following factors significant: (1) the State of California, through its bureau for private postsecondary and vocational education, had specifically approved Mitchell's law school, Concord, to grant a juris doctor degree at the time Mitchell was a student; (2) Mitchell has taken and passed the California general bar examination and did so the first time he took it; (3) Mitchell has taken and passed the multistate professional responsibility examination with a scaled score well above that required by the board (see note 3, supra ); (4) he has been admitted to practice both in California and before the United States Court of Appeals for the First Circuit; and (5) Mitchell, who has represented himself throughout this case, filed briefs and gave an oral argument in this court that were of commendable quality, providing us with a concrete and positive illustration of his skills in legal analysis, legal writing, and advocacy. In sum, we are persuaded that in Mitchell's case, the underlying level of purpose of our ABA approval requirement--to insure an appropriate level of legal education--has been met.
There was a dissenting opinion:
Here, because of present ABA standards, there is no imminent ABA approval. Ante at,. Indeed the court states that the ABA process of reviewing its current standards has just begun. Ante at. In addition, the plaintiff here does not state that he was somehow unaware of the hardships he could face when he chose to enroll in an unaccredited law school. See Matter of Tocci, supra at 545, 547 (denying waiver to sit for bar examination even though fact that applicant had to attend different law school from accredited one he enrolled in was not his fault; applicant made informed decision to attend unaccredited law school and recognized difficulty he would face).
The plaintiff points out, among other things, that his career made it more convenient to attend law school online and that his law school was significantly less expensive than traditional law schools. These considerations are hardly extraordinary. Many people give up careers, or attend law school while working full-time, all the while incurring great costs to themselves, financially and otherwise. Presumably part of the calculation of those who choose to incur those costs is that, to do otherwise, would be to incur a risk they would rather not take.
Finally, I conclude that the court's claim that it can limit its holding to the circumstances in this case is illusory. We do not know when the ABA will complete its review or, more importantly, what the result will be. The review for the current 2006 ABA standards began in 2003. As noted, the new ABA review has just begun. In the interim, I am concerned with the potential for having to assess large numbers of graduates from other online law schools.
The case is Mitchell v. Board of Bar Examiners, decided November 20, 2008. (Mike Frisch)
Friday, November 21, 2008
Posted by Alan Childress
According to an algorithm used by the site GenderAnalyzer, this blog is likely written by a man or men, to the level of 83% certainty. I plugged in our URL and that is what they say. We are 83% manly. That's not so shocking, though as always we welcome the guest comments and posts of women -- and proudly feature the occasional post by contributing editor Nancy Rapoport of UNLV. But lest you think that Nancy's contributions cut 17% from our total masculinity, please note that her solo blog rates her in a way that'd threaten Mike, Jeff, Bill, and myself if we were not so damn secure; as to Nancy's blog, the analyzer says: "We think http://nancyrapoport.blogspot.com/ is written by a man (86%)."
That makes Nancy 3% manlier than us. Worse: if you consider that her manliness contributed to our overall score of 83%, that might mean that our actual masculinity, controlling for the variable
"Nancy," is closer to 79%. OK, we are a little threatened now. Plus Nancy may not be entirely pleased to know that [robots think that] she writes like a stereotypical male. I just wish she knew how to express her emotions more openly. Oh well, maybe she should buy some Chantix.
For your information, the WonL blog by a former GW student and now-DC-lawyer (a woman), gets this assessment: "We guess http://wonl.blogspot.com/ is written by a woman (54%), however it's quite gender neutral." And Legal Ethics Forum gets a manscore of 81%; I am guessing that Andy Perlman's posts drag the score way down.
Carolyn Elefant's fine solo blog MyShingle rates a score of 88% man. This despite the fact that her second most recent post is about Laura Ingalls Wilder's Little House On The_Prairie. Makes me wonder about the science behind this trusty analyzer. If she commented on The Terminator movies or Bad Boys 2 would she have scored a "99.9% guy"? Only allusions to The English Patient and The Notebook could dip her below 75%?
Fearless Leader Paul Caron at TaxProf is plenty male: 92%! Michael Froomkin at Discourse.net is exactly as male as us, 83%; and he has a seriously interesting post on a teen's webcam suicide event in Florida. Web-watchers egged the teen on, till he died. Peer pressure is awful, I think worse than when we were kids.
There is also an analyzer of personality type, at this other Swedish scientific site, using Myers-Briggs. Our blog rates us as The Thinker type, "especialy attuned to difficult creative and intellectual challenges and always look for something more complex to dig into." (Who sculpted The Balding Thinker? That would be ... Rogain.) Paul Caron is "the duty fulfiller" type. A tax prof as a "responsible and hardworking type...especially attuned to the details of life"??? Hmm, shocking.
Stanford Announces Fellowship In Professional Responsibility and the Legal Profession (Deadline 12/1/08)
Posted by Alan Childress
Prof. G. Randall Lee at Widener, on behalf of the AALS Section on Professional Responsibility, forwarded to members this interesting announcement, and has said we could reprint it here at LPB:
Stanford Law School’s Center on the Legal Profession invites Fellowship applications for the forthcoming academic year (2009-2010).
The Center on the Legal Profession, directed by Professor Deborah L. Rhode, supports research, teaching, programs, and public policy initiatives on crucial issues facing the bar. The Center focuses on issues of professional responsibility and the structure of legal practice. Central concerns include how to enhance access to justice, sustain ethical values, improve bar regulatory structures, and effectively respond to the changing dynamics of legal workplaces. Upcoming Center events include The Roadmap to Justice Project, a national effort to draw leaders in the field to develop an agenda for expanding access to legal services for low- and middle-income individuals, and the International Legal Ethics Conference in 2010.
The Center on the Legal
Profession Fellowship is a full-time, one-year residential fellowship
beginning in June 2009. It is designed to offer scholars interested in topics of
professional responsibility and the structure of legal practice an opportunity to
conduct research and participate in law school events. Fellows will be provided
with office space, a stipend of $50,000, and a generous benefits package.
All inquires about the program and applications should be submitted by December 1, 2008 to:
Amanda Packel, Associate Director, Center on the Legal Profession
Stanford Law School 559 Nathan Abbott Way Stanford, California 94305-8610
email@example.com -- Tel (650)
736-9770 Fax (650)
An attorney-shareholder in a law firm organized as a corporation was discharged after acknowledging that he had altered time records in connection with the representation of a firm client. He sued and summary judgment was granted to the defendant-law firm. The Kansas Court of Appeals upheld the dismissal:
This lawsuit pitted attorney Daniel K. Diederich, plaintiff, against the stockholders in his former law firm, Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina. The stockholders are Defendants George W. Yarnevich, Larry G. Michel, Tom A. Williamson, and James R. Angell. Using several theories – breach of contract, breach of fiduciary duty, tortious interference with a contract, and civil conspiracy – Diederich sued the stockholders after he was fired. The district court granted summary judgment to the Defendants while denying Diederich's motion for partial summary judgment. Diederich appeals, contending error in all the court's rulings. A corporation acts through the work of its officers, directors, and employees. Because the Defendants are stockholders and directors of the corporation and they were acting within the scope of their duties when they dismissed Diederich for cause, we hold Diederich's claims do not survive summary judgment. We affirm.
The work at issue involved an estate client:
Diederich admitted that he did not do the work for the entries he changed. He admitted he made the changes intentionally so he could get credit for the time. The changes would have allowed Diederich to bill for 37.5 hours instead of the 16.2 that he recorded for the client. Though the altered entries were for work done in 2001, the bonus program in effect in 2004 stated that for fixing bonus compensation, they would credit an associate for revenues collected in a given year for work billed in that year. Diederich admitted that making the changes to the ledger would have affected the attorneys' collections for the year.
Posted by Jeff Lipshaw
The next panel is on Lawyer Qualification and Professional Responsibility in the Global Setting.
U.S. District Judge Richard Stearns (D. Mass.) is speaking, and talking about the fact that he carries a diplomatic passport. Russia had a pre-Revolution jury system based on the English system, abolished by Lenin in 1917, and reconstituted in the 1991 constitution. He was involved in helping the Russian Federation with that effort.
He's also been involved with the international regimes for border security and WMD, using traditional judicial institutions. Everything changed with 9/11. Impulses to reject any international regime, spurred on recent economic problems - rise of nationalism and protectionism.
What does this have to do with lawyer regulation? The question is whether the international legal regime will survive at all.
[UPDATE: All Jeff's posts on live-blogged sessions are collected and linked at a final post. This later-session post continues after the jump.]
Posted by Jeff Lipshaw
We're back and in the second panel on the regulatory framework in which the globalized legal profession operates. We are getting background on the WTO and GATS from Todd Nissen, who is the Director, Services Trade Negotiations, Office of the US Trade Representative.
Bottom line: there isn't much progress in developing "open markets" in legal services (from a regulatory standpoint). Nor has there been much progress on cross-border transparency of domestic regulation of legal services.
- Services more complicated than goods.
- Goods can all jump together; services want "proper sequencing."
- Limited leverage over the markets.
- Wide range of legal traditions
- Territorially defined regulation
- Independence of the judiciary
- Classification issues
The Nebraska Supreme Court issued an opinion today granting a bar applicant permission to sit for the bar examination. The applicant had previously been denied this opportunity in light of issues relating to his mental health and inappropriate behavior:
There was also a lack of evidence of rehabilitation in the record at the time. We cited the fact that Hartmann was still undergoing treatment and stated that the record did “not afford a sufficient basis for predicting when, if, or how” resolution of his psychological condition would occur.
Our previous opinion suggested that Hartmann would be eligible to sit for the bar examination if he could sufficiently demonstrate that he had resolved his psychological condition. Although the Commission has good reason to be reluctant to grant Hartmann’s application, the record before us indicates that Hartmann complied with the conditions set forth in our prior opinion. As noted, we denied Hartmann’s application for admission to the bar based on his history of alcohol abuse and inappropriate conduct with underage girls, including his niece.
The record shows that since our denial of Hartmann’s previous application, he completed counseling and is taking antidepressant medication. Testimony from Dr. Larson indicated that Hartmann was unlikely to repeat his inappropriate behavior. Hartmann has expressed remorse for the behavior that ledto the criminal charges, although he also expressed resentment against his niece and her immediate family for what he insists are false allegations of other conduct which have never resulted in criminal prosecution. Hartmann presented a substantial number of letters in support of his application from those who know him through his employment in the military, in his construction job, and through his volunteer work.
An attorney who was convicted of possession of cocaine was suspended for nine months by the Nebraska Supreme Court. The attorney had recently seperated from his wife of 35 years and had been introduced to cocaine by a woman whom he had met through an escort service. He had used cocaine with the young woman on a number of occasions.
The court found that the conduct violated ethics rules:
While [the attorney]did not procure cocaine for the escort, he gave her money and paid for her car insurance, cellular telephone, and clothes during the time she was seeing him and providing him with illegal drugs. It can reasonably be inferred that the money given by [him] to the escort contributed to their illegal use of cocaine. We have considered the referee’s report and recommendation, the findings of which have been established by clear and convincing evidence, and the applicable law and disciplinary rules. Upon due consideration of the record, the court finds that [his]’s conduct adversely reflects on his fitness to practice law and is subject to sanctions under the Rules.
The attorney had voluntarily sought treatment for cocaine addiction prior to his arrest but had thereafter relapsed. He must petition for reinstatement. (Mike Frisch)
An attorney who had engaged in serious misconduct was indefinitely suspended without possibility of reinstatement for two years by order of the Iowa Supreme Court. The attorney has a longstanding problems with alcohol and depression, and had a record of prior misconduct. The misconduct found here:
We find [the attorney] violated the Code of Professional Responsibility as found by the Commission. In particular, she altered a will, forged the names of clients and executors to documents, falsely declared documents and signatures to be authentic, received attorney fees in an estate proceeding without a court order, failed to deposit unearned fees into her trust account, neglected client matters, and failed to seek the lawful objectives of a client.
The attorney had been placed on disability inactive status in 2007. in some jurisdiction (such as D.C.), charges of misconduct are held in abeyance while an attorney is on disability status. (Mike Frisch)
Posted by Jeff Lipshaw
Peter Kalis, of K&L Gates. Interesting. Very similar to my own beginnings. Kirkpatrick & Lockhart was a 80 person firm in Pittsburgh; my firm Dykema was a 100 person firm in Detroit in the late 1970s. K&L Gates is now 1,700 lawyers in 28 countries.
He's talking about how odd law firm management and leadership is. Leaders of the firm kind of accede to their positions. Mature profession/industry; "elevator assets;" the differentiators are people, brand, technology, and management. Scale and scope matter.
In financial performance among big law firms, bigger is better. If you want to run with the big dog, you have to be in London, Paris, Brussels, Hong Kong. Top 50 firms have more offices there than in Los Angeles.
The mother ship and satellite model is changing. US firms really have a three continent strategy; not clear that the UK firms do (with their limited number of US outposts). The percentage of work originated in one office and performed in another is increasing and that's what drives innovation.
A high school junior who was convicted of a criminal offense arising out of his agreement to act as a lookout for other students who were stealing a mathematics examination appealed his conviction to the New Hampshire Supreme Court. The court affirmed the conviction, holding that the defendant had not demonstrated that he had withdrawn from the criminal enterprize.
...to extricate himself from accomplice liability, the defendant needed to make an affirmative act, such as communicating his withdrawal to the principals. Here, the defendant made no such act. The defendant testified that he and his companions simply left the scene. He did not communicate his withdrawal, discourage the principals from acting, inform the custodians, or do any other thing which would deprive his complicity of effectiveness. In fact, the principals remained unaware of his exit. Thus, the defendant did not do that which was necessary to undo his complicity.
Posted by Jeff Lipshaw
Trevor Faure now speaking; he's the European GC for Tyco. He's a British barrister but not wearing his wig and gown.
Like most in-house lawyers in my experience, me included, he's taking a business approach that may or may not resonate with the audience here: law is a commodity that is bought and sold around the world all in the pursuit of return on invested capital that may come from anywhere in the world. Ivy covered walls, whether in the Inns of Court or the HLS (actually there's no ivy here), are NOT the driver of globalized big law.
He's showing an organizational chart that puts law as one small part of operating a business. Yup. He's also showing a three-legged stool as it were of legal coverage versus how much it costs to have it netted against how much it costs not to have it. Consistent with my own experience: e.g. if it is a contract for less than $X, and it is terminable in less than a year, YOYO (you're on your own).
Really good model of the problem of balancing (or optimizing) coverage versus head count versus consequence. He's using a lot of business management tools, polarity matrices, Six Sigma gap analysis, things about which our young lawyers, not to mention many long time big law partners, have no clue.
A petition for reinstatement filed by an attorney who had been suspended for 18 months for serious ethics violations (not described in the order) was denied by the Georgia Supreme Court. The attorney had been found to suffer from significant mental health problems. The court found that the failure to continue a treatment regimen with a board certified psychiatrist and the unwillingness of the attorney to execute a waiver providing access to treatment records militated against the restoration of the law license. These conditions for reinstatement had been set forth in the court's earlier order. (Mike Frisch)
Posted by Jeff Lipshaw
The first panel is an overview of law firm globalization with James Jones of Hildebrandt, Trevor Faure, the European GC for Tyco International, and Peter Kalis, the managing partner of K&L Gates.
Jones starts with an overview of globalization generally, and making the point that it impacts all law firms of any size, even though the program is on large firms that have themselves globalized.
The trend started with outpost "ex-pat" offices in Europe, mainly Brussels, but today US and other firms have become truly global, with the primary form being national offices staffed by nationals, not US ex-pats doing US law.
Pretty stable number of US firms with international offices over the last ten years, but huge increase in the numbers of offices per firm and the number of lawyers.
[UPDATE: All Jeff's posts on live-blogged sessions are collected and linked at a final post. This first-session post continues after the jump.]
Posted by Jeff Lipshaw
I am sitting in the Ropes & Gray Room in Pound Hall at Harvard Law School, next to Bill Henderson, attending a day-long program on the globalization of the legal profession. Right now, Dr. David Nersessian, the executive director of the Harvard Law School Program on the Legal Profession is giving an overview of the day, which will include a keynote address from Ben Heineman, the former GC of GE, and talks by David Wilkins, Elena Kagan, and other luminaries. Bill just said, hey, why don't you live blog? And that's what I'm going to.
Posted by Jeff Lipshaw
We received an e-mail this morning about a new blog, On Being a Black Lawyer, edited by Yolanda Young (right). Here's what it had to say:
You might remember [Young] as the former Covington & Burling staff attorney who chronicled her experience as a minority attorney there in The Huffington Post piece, “Law Firm Segregation Reminiscent of Jim Crow.”
Young recalls, “I was surprised and disheartened by the intensely negative comments that followed on blogs like Above The Law. Even after Covington issued a statement that was basically conciliatory and in no way a denial of my accusations, those commenting refused to focus on some of the easily verifiable facts in the piece. They chose instead to make personal attacks on me and reduce the discussion to one that centered on anti-Affirmative Action rhetoric.”
There was, however, a silver lining. Young discovered a large number of attorneys who were sympathetic to her position but didn’t want to post their comments on websites that were generally hostile to minorities. This group instead sent Young personal emails.
Says Young, “I realized there was a real need for a place where African American attorneys and law students could gather to network, disseminate information and poke fun.
I watched Ms. Young's You Tube commentary on Michael Vick. It's definitely worth a look.
Thursday, November 20, 2008
Another entry in our continuing debate concerning the disciplinary consequences (or absence of consequences) of criminal conduct arising from an automobile accident comes from a hearing officer in Arizona, who has recommended dismissal of bar charges against an attorney who drove after consuming alcohol and prescription drugs. He began to feel ill, hit a wall and got a flat tire. He continued on and struck a motorcyclist. He continued driving and "was not consciously aware" of the injury accident. He was later arrested and pled no contest to endangerment, extreme DUI and leaving the scene of an injury accident.
The hearing officer concluded that the evidence failed to establish that the attorney "possessed a conscious awareness that he posed a danger to others or that he had been in an injury causing accident...The civil and criminal systems are adequate to address [his] conduct and the evidence here does not implicate [his] duties as a lawyer or fitness to practice law."
As we have seen, other bars would reach a very different result. It will be interesting to see if the bar appeals this proposed dismissal. (Mike Frisch)
A majority of the Washington State Supreme Court declined to reverse a criminal conviction for prosecutorial misconduct in closing argument, notwithstanding its conclusion that the prosecutor had repeatedly misstated the burden of proof. The court quotes the closing at length:
Ms. Snow [prosecutor]: We also are not clear about the
size of the defendant's penis. We have no idea. And for them
to ask you to infer everything to the benefit of the defendant is not reasonable.
MR. CARNEY [defense counsel]: Objection, your
Honor. Misstates the burden of proof and presumption of
THE COURT: Counsel, the objection is overruled. Do
you want to talk about it? Come here.
(At this time an off-the-record discussion was held.)
THE COURT: Let's move on, Counsel.
MS. SNOW: Reasonable doubt does not mean give the
defendant the benefit of the doubt, and that is clear when you
read the definition.
Defense counsel calls [S.S.]'s description of what
happened a rambling eight-year-old's description. And the
bottom line for you is, it has been uncontroverted.
RP (Feb. 20, 2003) at 98-99. The prosecutor continued with an appropriate
argument that the jury should not confuse a child's memory with credibility
and discussed child testimony concerning penis pumps, pornographic video
covers, bathing, and sexual touching. Then the following transpired:
Ms. Snow: Finally, in this case I want to point out that
this entire trial has been a search for the truth. And it is not a
search for doubt. I talked to you about the fact that you must
find the defendant guilty beyond a reasonable doubt. That is the
standard to be applied in the defendant's case, the same as any
other case. But reasonable doubt does not mean beyond all
doubt and it doesn't mean, as the defense wants you to believe,
that you give the defendant the benefit of the doubt.
MR. CARNEY: Again, your Honor --
At that juncture, the trial court gave a curative instruction and the argument proceeded without further improper references to the burden of proof. The majority found that prejudice had not been established under the circumstances.
An attorney and former prosecutor was disbarred by the New York Appellate Division for the Second Judicial Department as a result of a conviction for rape in the third degree. The case had received a significant amount of publicity, as reflected in the linked Wikipedia entry. The press and blogs had referred to the defendant as a "hockey mom" (erroneously, according to Wikipedia) before that phrase had entered the political scene. (Mike Frisch)