Wednesday, February 27, 2008
Posted by Jeff Lipshaw
The WSJ Law Blog has a story up on the remarkable decision by Judge Richard Matsch (previously best known for his no-nonsense - cf. Judge Ito - conduct of the Timothy McVeigh trial) to overturn a $51 million IP verdict in favor of Medtronic with an attendant award of attorneys' fees to other side, upheld on appeal by the 10th Circuit, as a result of "overzealous" conduct by Medtronic's lawyers, McDermott, Will & Emery.
A faculty colleague who I respect and admire immensely asked me several weeks ago if, in my long practice experience, there were really were serious cases that companies pursued for reasons that did not involve the merits of the lawsuit itself. After chuckling for a minute, I said "absolutely, and the best example is patent litigation." It's because the fact of the litigation casts a cloud on the allegedly infringing product. And while the IP lawyers tell me that it is abuse of patent to let the sales people tell customers that the other product infringes, (a) you can't monitor that in any effective way, (b) the pleading have a qualified privilege, and (c) the fact of the litigation and the possibility of an injunction is often enough to sway a customer away from the alleged infringer.
Indeed, dollar for dollar, it may be one of those instances in which legal fees really do bring some bang for the buck in terms of the top line.
So it's nice to see that a well-respected judge has used the only effective tool there is to regulate this - a finding under Rule 11.
I'd also agree with a number of the comments to the WSJ Law Blog that patent litigation seems to be particularly fraught with over-the-top zealousness. I used to swear that in some of our patent cases the lawyers for both sides had a "nasty discovery dispute letter" quota that they had to fill by way of useless but colorful letters sent by e-mail, overnight courier, and regular mail accusing the other side, variously, of document withholding, destruction, delay, sodomy, bad breath, and unsightly wax build-up.
Monday, February 25, 2008
Posted by Jeff Lipshaw
Over at Legal Ethics Forum, David Hricik has a link to an update on one of the great social issue legal proceedings of our time, right up there with Arlen Specter's investigation into taping of pro football practices: the New Jersey proceeding on whether advertising that you are a "Super Lawyer" is a deceptive and misleading practice.
I admit I'm biased, because for a short time in my life, I was voted by my peers, whoever the hell they were, as one of Indiana's Super Lawyers, and I have the certificate to prove it (see left). It didn't do me a whole lot of good, because I was the general counsel of a company, and wasn't looking for clients. In fact, the other way around. I think I got nominated because lawyers around Indianapolis were looking for business. Now there's a question worth investigating. Is it a violation of the ethical strictures to solicit business from a company by nominating its general counsel as a Super Lawyer? Does it make a difference if you don't really believe the general counsel is a Super Lawyer?
Here are some other more troubling questions. For some reason, I stopped being a Super Lawyer after 2004. This may have something to do with the fact that I didn't have any business to award after 2004. If I were to advertise myself as a Super Lawyer, would I have to say that I used to be a Super Lawyer, but I'm not one anymore? Or would that be self-evident from the fact that I'm now a law professor? The article to which Professor Hricik links says: "The Federal Trade Commission weighed in last year with an amicus brief saying the ads weren't deceptive and that the prohibition restricts the flow of information to consumers. The FTC said the court could solve the problem simply by requiring disclaimers." I assume, in my case, the maxim "those who can, do; those who can't, teach" would obviate even the need for a disclaimer.
Tuesday, February 19, 2008
Well, At Least the Clinton Camp Didn't Call Obama a "Shameless Extrovert" and an "Acknowledged Thespian"
Posted by Jeff Lipshaw
Reading the accounts this weekend of the Clinton camp's allegations that Obama is a "plagiarist" called to mind some of the nastier accusations (whether real or hoaxed) in past political campaigns. I learned this morning that George Smathers in fact did not accuse Claude Pepper of being a "shameless extrovert," a "thespian" and a lifelong celibate to backwoods Floridians in that infamous Democratic senatorial primary (it was a hoax made up by a reporter). But there's little question Richard Nixon smeared Helen Gahagan Douglas (left, as a star in 1920's Hollywood) as a Communist "fellow traveler" in his first run for Congress in 1948.
I won't get into legalisms whether two friends, sharing a common speech writer, using the same relatively innocuous speech lines about "words" can be accused of "plagiarism," which at its core is the false claim or implication of original authorship. Joe Biden had a real plagiarism issue in his past, which surfaced in connection with his lifting speech lines from Neil Kinnock, but recall that Michael Dukakis ended up firing campaign staff over their involvement in the "leak."
No, the question to Senator Clinton is "why?" Here's a theory. In Law as Rationalization, 37 U. Tol. L. Rev. 959, 969 (2006), I argued that it does not take much self-deception about one's ends to move from ethical debate to legal argument to rationalization, and cited the Bernard Nussbaum's advice to the Office of the First Lady as a prime example. If one's end is winning, it doesn't take much rationalization to get to a decision that one's campaign is in enough trouble to resort to "Pink Lady" arguments.
I think Hillary Clinton is eminently qualified to be the next President. This stuff starts from the top, and it's what bothers me about her.
Saturday, February 2, 2008
Posted by Jeff Lipshaw
The rage now in ethics, if you judge by the number of times it has shown up in the popular press, is experimental philosophy, and particularly what is rapidly coming to be known as "trolleyology." The basic hypothetical tests the limits of utilitarian thinking by positing, on one hand, the circumstance where you save five people, but allow one to be killed, by throwing the switch to redirect the runaway trolley, and on the other, where you are able to throw one very fat person in front of the trolley in order to save five. The experiments seem to show that people would sacrifice the one person to save five in the first case, but not in the second, there seemingly being something morally different (and less benign) about the action taken in the second.
First, I want to give credit where credit is due. Even though Marc Hauser published a book on the subject called Moral Minds, and even though the New York Times ran a Sunday magazine article a couple weeks ago by Stephen Pinker on "The Moral Instinct," the person in legal academia who was out ahead of the curve on this issue is John Mikhail at Georgetown. But when you pick up your New York Times Book Review section sometime between now and tomorrow morning, you'll see a favorable review of another treatment on the same issue by the well-known philosopher Kwame Anthony Appiah, Experiments in Ethics. I haven't read the book yet - only the review - but my intuition accords with what appears to be Professor Appiah's take on all the experimental work: the experiments are ultimately going to fail to capture the complexity of moral decision-making in our lives.
Second, in my usual unambitious way, I have fixated recently on the concept of justice, at least in the mundane kinds of non-life-and-liberty-threatening contexts I've spent most of my professional life dealing with. There's a line from the book review that appeals to me. Appiah says, "In life, the challenge is not so much to figure out how best to play the game; the challenge is to figure out what game you're playing." The reviewer, Paul Bloom, a Yale psychology professor, says in response, "This is bad news for those who hope for a simple and elegant account of moral life, which includes many of us engaged in experimental philosophy." I continue to be intrigued by the way moral philosophy spins endlessly around unresolvable paradox, full account of which takes us either to a priori truths that precede experience (and hence testable scientific theory), or scientific conclusions about instinct that themselves seem so close to the a priori that the conclusions are barely testable. (My friend, Frank Pasquale, has dipped into this from time to time as well!)
Where does this all take us? I wish I knew. Notwithstanding the efforts of Plato, Aristotle, Hume, Rawls, Del Vecchio, and a host of others, all of whom are stacked up on my desk right now, nobody (not surprisingly) has nailed the issue. My own inclination, apparently like Appiah, is that there is something permanently unresolvable and non-algorithmic about any judgment, much less moral judgment, and the correct answer to the theorists seeking either a non-testable truth or a reductivist solution goes like this: "deal with it!" And, much to my great pleasure, on the subject of "deal with it," my very occasional but very important (whether she knows about it or not) intellectual mentor, Susan Neiman (pictured above), has a new book coming out in May, a follow-up to Evil in Modern Thought, entitled Moral Clarity: A Guide for Grownup Idealists. Here's a taste from the preface:
Looking back at traditional uses of moral concepts is not a search for foundations. I believe most of the interesting things philosophy can say about that search were already said by Immanuel Kant, who argued that the validity of our concepts cannot possibly be proved from outside experience, since they shape the possibility of experience itself. Not even this much can be said of moral concepts, since Kant held they were not about truth at all: truth tells us how the world is; morality tells us how it ought to be. Those who were dissatisfied with his answer spawned a small but tenacious industry devoted to proving our concepts are legitimate, the dominant business of twentieth-century philosophy. It may be possible to continue examining the problems with foundationalism or the nature of relativism forever. But for anyone more likely to be moved by Dylan than Descartes, the hour is getting late.
In short, as to the concurrent unprovability yet apparent decidability of moral issues, "deal with it."
UPDATE: Susan Neiman also has an op-ed in today's Sunday NYT on the nature of the Holocaust memorials in Germany.
Thursday, December 27, 2007
Here is a link to a useful ABA Journal story (they are reprising at year end) that's rounding up the top ten traps that practitioners can fall into, in terms of legal ethics. Its story also provides a link to a downloadable CLE program on the topic. [Alan Childress]
Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)
I neglected to mention, in my original commentary on the Cerberus opinion over at Concurring Opinions, that I am indebted to Frank Pasquale (the real one!) for directing me to Paradoxes and Inconsistencies in the Law, edited by Oren Perez and Gunther Teubner. I'm now doubly indebted to Frank because he pointed out another blog post that makes for an interesting counterpoint about practical reason - how we decide (particularly as lawyers) what to do.
In his introductory essay to Paradoxes, Oren Perez (Bar-Ilan) makes a point about rational calculation, in the context of the Learned Hand formula for negligence, that had never occurred to me, and which seems to make sense. (I invite anyone to explain why it is wrong!) This has broad application because it gets at the heart of the core relationship between the ex post outcome of cases (like Cerberus' "lessons" on eliminating ambiguities in drafting) and the ex ante calculation in respect of that outcome that lawyers (those most rational of actors) are supposed to make.
Perez's argument goes like this. The potential tortfeasor, informed by the case holdings, knows that she will be liable for the injury she causes if the cost of precaution is less than the probability of an accident times the magnitude of the accident. For the model to work, it has to assume that potential tortfeasors and judges are perfect welfare maximizers with perfect information. But information and deliberation are not costless. So maximizing actors need to make a decision about whether to invest costs in obtaining the necessary information and spending the time deliberating about the choice. That decision is itself not costless; one needs to gather information about whether gathering information and deliberating is a fruitful way to spend one's maximizing time. And so on to the infinite regress. This appeals to my intuition in the same way as, and seems to be related to, at least analogically, the idea that rules cannot determine their own correct application. (If there were a rule for the application of a rule, then what would the rule be for the application of the rule for the application of a rule, and so on to the infinite regress.)
Perez's conclusion is that this is why we have rules of thumb for deciding what to do - they sit somewhere between unsatisfying calculation and pure intuition.
But wait. Maybe we don't calculate or intuit. Maybe we just frame, conform, and comply. That's a thesis proposed by Sung Hui Kim (Southwestern) over at The Situationist, a law and psychology blog affiliated with the Project on Law and Mind Sciences at Harvard Law School. In Part II of a series speculating on why lawyers acquiesce in the frauds of their clients, Professor Kim says:
Inside counsel, as employees of the firm, are inclined to take orders and accept the “definition of the situation” (a phrase coined by Milgram) from their superiors. These superiors happen to be a cohort of non-lawyer senior managers vested with the authority to speak on behalf of the organization and entrusted to give direction to inside counsel. They create the reality for inside counsel: they define objectives, identify specific responsibilities for inside lawyers and, ultimately, determine whether an inside lawyer’s performance is acceptable. And accepting management’s “definition of the situation” means accepting management’s framing of the inside lawyer’s role and responsibilities.
This framing provides that compliance responsibilities be segmented. Although inside counsel’s duties include a prominent role in corporate compliance, it is business management that jealously guards the right to decide whether to comply with the law, which is seen as the ultimate risk management decision. For inside counsel to challenge management’s decisions or management’s authority to make decisions would then amount to clear insubordination. Obedience in the corporate context will be substantial, so we should not be surprised by the banal tendency to listen to superiors.
Full disclosure. I spent eleven years of my career as an in-house lawyer, so it's entirely possible that I resemble that remark. (Professor Kim can also call on real-world experience as outside and inside lawyer, and in fairness, her very thoughtful and interesting Fordham Law Review article on the subject, which I recommend heartily, is more nuanced than the blog post.) But I'd be a lot more comfortable accepting this sweeping conclusion were it made on broad empirical evidence of actual in-house lawyer conduct rather than on what appears to be a combination of inference from the Milgram conformity lab tests and well-known examples of lawyers behaving badly. I knew a lot of in-house lawyers, and while I can't say how they would have performed in the electric shock tests, and can't deny the impact of framing on decision-making, I sure saw a lot of thoughtful and courageous pushback to management on lots of legal and moral issues. Indeed, my casual observations were that individual moral choice and leadership in context, while certainly more elusive in its measurement, showed up more than just from time to time. I can't determine whether that was the exception or the rule. Indeed, I applaud the coda to Professor Kim's bio: "I tell my students that there are two questions that every lawyer should ask when counseling a client about a proposed course of action. The first is: 'Is it legal?' The second is: 'Is it right?'" But how do you make that call?
I struggle with the line between psychological "truths" and moral free agency. I am willing to accept the conclusion that we are hardwired to seek and justify physical and material well-being, and hence, a natural inclination for people, not just lawyers, is to comply and avoid conflict. I don't like, however, blanket statements about in-house lawyers doing this and that, and having this and that tendency. If I may engage in another exercise of shameless self-promotion, the point of my piece, Law as Rationalization: Getting Beyond Reason to Business Ethics, was to explore the difference between lawyers using reason to justify a desired material world outcome, and lawyers using reason as autonomous moral agents trying to discern ethical obligation.
The implication is that I don't think you can change things by incentives (more cheese for the rats). My answer is there has to be personal engagement in a continuing struggle to ask questions with the hope of getting answers along the way. To borrow from Robert Louis Stephenson, sometimes it is better to travel hopefully than to arrive.
Friday, November 9, 2007
From the ABA Journal online is this story of a civil rights attorney in Virginia charged with the very old (Magna Carta era) crime of "embracery." She is alleged to have tampered with grand jurors. My punny title above is an homage to the titular style of Mike, who obviously has done the heavy lifting on this blog since summer. Thanks, Mike.
Here is the original story from dailyprogress.com. [Alan Childress]
Wednesday, October 3, 2007
Howard Bashman's How Appealing blog has a link to an article that reports on an interesting appellate argument in a California case where the plaintiff's attorney received the notes of a defense lawyer (exactly how is in dispute but the trial court found no misconduct) and used the notes at trial without providing advance notice to the defense. Each side relies on prior California cases in support of its position. The ethics question is whether the duty to advocate on behalf of a client is either trumped or modified by a duty of fair dealing with opposing counsel. The decision in the case will likely provide a teaching tool for ethics professors. (Mike Frisch)
Saturday, September 8, 2007
The D. C. Bar's ethics committee has issued an opinion on mining metadata from documents provided by an opposing party. It is improper to mine only when the attorney has actual knowledge that so doing will reveal confidential or protected information. Where uncertain, counsel should check with the provider of the document before subjecting the document to mining.
Note that D.C.'s version of Rule 4.4 varies from the ABA Model Rule, which impacts significantly on the analysis of this issue. (Mike Frisch)
Friday, August 31, 2007
A student at the University of Nebraska College of Law was dismissed after an honors committee determined that he had engaged in four instances of plagiarism. The papers at issue contained virtually no original work of the student and the committee found ample evidence that the student should have known that the papers were plagiarized.
The student filed suit under the Nebraska Administrative Procedure Act alleging discriminatory treatment. The Nebraska Supreme Court affirmed the dismissal of the suit, concluding that neither the honors committee or the law school dean was an agency, which is a necessary predicate to a suit under the APA.
Sunday, August 19, 2007
Posted by Alan Childress
Lots of law blogs have bemoaned billable hours and the ethical implications of this payment system. On our blog, and her own, Nancy Rapoport has nicely raised such issues for a while now. Jeff and Mike have chimed in from time to time. Now David Giacalone at his f/k/a blog here is asking to move the debate beyond billables and into the ethics and practicalities of the alternatives. And he has a good round-up of and links to various blogs currently replying to Scott Turow's recent polemic on the subject in August's ABA Journal.
Wednesday, August 8, 2007
Posted by Jeff Lipshaw
On the other hand, there is a positive connotation to the same word, and it is fundamental to a practicing lawyer's stock in trade - the ability to read people and make judgments about whom to trust. Confidence is crucial to any skill that requires the crossing of a judgmental inflection point. To make a physical analogy, when you ski, you traverse the hill by crossing the fall line, the line by which a ball would roll down the hill. For a moment as you make the turn, you are potentially in free fall, and the way you succeed to have the confidence to make the turn, cross the fall line, and have the security of a traversed position. To ski very well, you are so confident that you cross the fall line dozens of times in a very short of time and distance. It seems to me anybody who vests trust in another person crosses an equivalent "fall line."
What happens to your self-confidence in the second text when you discover you have been taken - big time - in the first context? I'm contemplating that about myself right now, and some background and thoughts are below the fold.
Friday, June 29, 2007
I found this item blogged by Frisch below pretty interesting - its a DC Bar opinion describing when attorneys who represent clients before an agency can talk to agency personnel without going through the agency's GC. It is a contracts-type issue, and I wonder how well it translates into other contexts.
Is it an opinion we should only read as applied to government contractor disputes? I'm not sure it is written that way.
One issue that comes to my mind is what, exactly, an attorney must disclose when that attorney represents several discrete clients in similar matters. That situation might be precluded by conflicts restrictions with representatives of contractors, but in other situations it seems to me the situation would be common. Expecially when matters are in their infancy, the fact of retention and representation can be pretty sensitive. I would assume that counsel doesn't need to disclose representation of other discrete client matters, but is that clear from the opinion?
(Posted by Allison Hayward)
Wednesday, June 27, 2007
By Allison Hayward
Greetings, readers of the Legal Professions Blog! I want to throw out an issue of special relevance to me today. As some of you may know, the Supreme Court released a significant campaign finance decision, and as I happen to be familiar with that area, I've been approached about my opinion. As it happens, I did not work (formally or informally) on the case.
But suppose I did? How much involvement in one of these big controversial decisions is sufficient before a pundit should disclose his or her ties? I've been friends with Jim Bopp (counsel for the winning side) for at least 10 years. That's clearly not enough - a disclosure of that would sound almost silly. If he paid me to consult on the case, then I think as obviously I should tell people that - I'm part of the team and so people considering my views on the case should be able to take that into account. There's a range of situations in between where it is hard to say whether disclosure is important, harmless, or invasive. (For example, having attended a meeting about the case with potential amici.)
I'd like to know what people think - not so much how the rules work, but where the line should be.
Wednesday, June 6, 2007
Posted by Alan Childress
The Massachusetts bar has issued a new advisory opinion on the ethical implications (and duties to potential "clients") of having a website that links to an email address. The story here from Goodwin Procter's Doug Cornelius, a real estate attorney in Boston, from his KM Space Blog. Email sent via the firm's website creates duties of confidentiality different from purely-unsolicited emails, and may even disqualify the firm under conflict of interest rules. Doug recommends a disclaimer.
Monday, June 4, 2007
Posted by Jeff Lipshaw
David McGowan has a post over at Legal Ethics Forum commenting on Russell Pearce's article, highlighted here by Alan a couple days ago, about the rise of "value-less" (or what Professor Pearce calls "Blue State") lawyering. As I understand it, Professor Pearce's is a call for lawyers to shed the image of pure hired gun, and to take the lead in civil discourse about hotly debated issues. David, in his usual straight-from-the-shoulder, unambiguous way, is skeptical whether lawyers as accommodationists versus lawyers as zealous advocates (I prefer that to hired guns) will be oil on troubled political waters.
As I skimmed Professor Pearce's article and David's response, the issues struck me the same way Ronald Dworkin's casting of the issues about law and morality always strike me. We find discussions of normative truths (particularly, in Dworkin's case, the claim that normative claims can be objectively true or false) in the most contentious issues facing us - abortion, genocide, capital punishment. I think David is arguing that we are better off with the model of as lawyer as advocate in the marketplace of conflicting ideas. I'm not sure I understand the either-or approach - perhaps accommodation is good when people begin to believe that the purity of their ideals justifies all means, including radical incivility. I don't think Atticus Finch accommodated or compromised one bit. But that wasn't the point I really wanted to make.
I've spent my career in far more quotidian circumstances, so I can't speak to being a lawyer in the face of the great issues. I think lawyer as moral voice in the boardroom or at the negotiating table, or counseling a parent on how she will fashion her bequests in a will, or representing one spouse in a divorce is something to be valued, albeit, as David notes, with full disclosure that what is being offered is not legal advice, and that ultimately the client will decide the course of action.
Saturday, June 2, 2007
The Rhode Island Supreme Court affirmed a criminal conviction in a case where the defense attorney identified himself as a potential witness during pretrial discovery. The lawyer proferred that he had had a telephone discussion with the victim, who made statements helpful to the defense. The lawyer offered to have other counsel examine him when he testified. The trial court held (erroneously) that an insufficient foundation had been laid for the lawyer's testimony. The court affirmed on other grounds, holding that Rule 3.7 precluded the lawyer from serving as both counsel and witness. The issue had surfaced in advance of trial and the lawyer chose to remain as counsel in the case. (Mike Frisch)
Wednesday, May 30, 2007
Posted by Alan Childress
Russell G. Pearce (Fordham) has posted to SSRN his controversial article, "The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudence, and Legal Ethics." It is also in 75 Fordham Law Review 1339 (2006). Here is the abstract:
What do lawyers and Blue State voters have in common? They subscribe to the view that values do not belong in public discourse and that, as Ronald Dworkin put it, “no person or group has the right deliberately to impose personal ethical values on anyone else.” This view animates both the legal profession's prevailing “hired gun” perspective and the principal political approach of voters who supported the Democratic presidential candidate in the 2000 and 2004 elections. This Essay suggests that this confluence is no accident, for both are grounded in the same public philosophy.
The Essay traces the history of how dominant public philosophies have shaped both jurisprudence and legal ethics. Prior to the Civil War, the republican combination of natural law and empiricism prescribed a distrust of majority rule. Within this framework, a governing class of virtuous lawyers devoted to the public good would protect rule of law and individual rights. Following the Civil War, elite public philosophy began a shift that enthroned empiricism and discarded natural law. From this period through the 1960s, commentators progressively narrowed conceptions of both the capability of lawyers and their governing class role. Eventually, the lawyer's role diminished to that of an “amoral technician."
In spite of this historical trend, lawyers continue to serve as a de facto governing class both through their disproportionate role in formal governance and their day-to-day work as intermediaries between the law and the people. The Essay concludes with a call for lawyers to “revive their capacity as a political leadership class,” even in a public sphere “inevitably full of value conflict and debate.” This would require lawyers both to accept responsibility for their own values and to “develop the ability to promote dialogue among and between people of different values.”
Tuesday, May 22, 2007
Posted by Jeff Lipshaw
Steven Davidoff at our sister blog M&A Prof Blog has a post on the Blackstone Group IPO, which includes a disclosure in the S-1 that Simpson, Thatcher partners will buying up units that account for less than 1% of the offering. Simpson, Thatcher is counsel to the company; Skadden is representing the underwriters.
I'm not sure this bothers me particularly. Underwriters' counsel will be looking out for disclosure issues as well, and the question will be whether Simpson's judgment in advising Blackstone would be affected by some of the lawyers having a stake in the offering going forward. Certainly there would be few clients more sophisticated than Blackstone, and hence capable of a knowing consent to Simpson's continued representation of the company even in the face of a potential conflict. Moreover, I don't see that Simpson is taking the units in lieu of fee compensation; simply some of the lawyers are buying in.
Far more problematic, I think, is the question whether lawyers take stock in start-up companies in exchange for fees. We spent a day on that question in the venture capital seminar I taught at IU-Indianapolis. On one hand, entrepreneurs are unlikely to have the cash to pay standard fees and the arrangement facilitates getting a better grade of lawyer; on the other, there's a far greater self-interest issue. (HT to Peter Henning.)