Tuesday, December 18, 2012
The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.
The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.
She then sued AO, arguing that the geographic limitation was unconstitutional.
The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.
The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)
Wednesday, July 27, 2011
At the Quid Pro project, we republished Jerry Carlin's classic sociological/ethics study of solo practitioners, Lawyers on Their Own. Through extensive interviews and empirics, he exposed what then was a hidden, and somewhat desperate, reality--and influenced this kind of research in the profession and its subgroups. Dr. Carlin, who became a full-time artist after serving as director of a legal aid association in SF, contributed the amazing cover art. And Bill Gallager, a law prof and ethics teacher at Golden Gate, wrote a new Introduction on the book's lessons and scholarly impact. I thought this would be of interest to blog readers. The book is a new paperback at Amazon, and also in ebook: Kindle, B&N Nook, Smashwords, and Apple iBooks formats.
Not on topic, but just fyi, Stanford Law Review and QP released to Kindle, Nook, and Apple formats the SLR's latest issue, which is a symposium on patent law and its future after Bilski v. Kappos. Subjects include business methods and biotech IP, and the writers are such internationally known IP scholars as John Duffy and Mark Lemley. ...Also at Kindle, Nook, SW and Apple (and Aug 25 in print) is Michael Meltsner's account of how his team at the NAACP Inc. Fund took on the death penalty in a 9-year campaign, and won (for a while, at least). It's his book Cruel and Unusual, first published by Random House; it became our 50th book published since April 2010.
As to Mike's post on paying bar dues from the trust account, I recall that Nancy Rapoport once called such a move the bar equivalent of a kick-me sign.
Sunday, February 20, 2011
What information concerning legal experience may a law graduate provide to a prospective employer without running afoul of confidentiality obligations? The North Carolina Bar has a January 21, 2010 formal opinion:
Providing Conflicts Information to Hiring Law Firm
Opinion rules that a hiring law firm may ask an incoming law school graduate to provide sufficient information as to his prior legal experience so that the hiring law firm can identify potential conflicts of interest.
After his second year of law school, a law student worked as a summer clerk for Law Firm A in Raleigh. One of the many projects Law Firm A assigned to the law student was legal research that was part of Law Firm A’s preparation of Lawsuit X.
After the law student graduated from law school, Law Firm B hired the now law graduate as an associate in its Chicago office. After the law graduate left Law Firm A, but before he joined Law Firm B, Law Firm A filed Lawsuit X. After Lawsuit X was filed, lawyers in the Charlotte office of Law Firm B were retained to defend the case.
The law graduate was unaware that Lawsuit X had been filed, or that Law Firm B had been retained to defend it. Before the law graduate joined Law Firm B, the firm asked him to provide information about the identity of the client matters he worked on at Law Firm A so that potential conflicts could be addressed. The law graduate contacted Law Firm A, which directed him not to disclose any information about matters he had worked on or clients for whom he had worked.
Law Firm A learned that law graduate was associated with Law Firm B in Chicago and moved to disqualify Law Firm B from Lawsuit X. Law Firm B established a screen immediately upon learning that law graduate had worked on Lawsuit X.
Does law graduate have a conflict of interest that is imputed to the other lawyers in Law Firm B, disqualifying those lawyers from the representation of the defendant in Lawsuit X?
No. A law firm may hire a law graduate although the law firm is representing a client in a matter on which the law graduate previously worked for the opposing party while clerking at another law firm. Conflicts of interest created by work performed as a law clerk are not imputed to other members of a law firm under Rule 1.10. See Rule 1.10, cmt. . Nevertheless, the law graduate should be screened from any participation in the matter. Id. (Note that Rule 1.10(c) allows a law firm to hire a lawyer who previously worked for the opposing party while employed at another law firm so long as the lawyer is timely screened from any participation in the matter and written notice is given to any affected former client.)
Will a Rule 1.0(1) screen of the law graduate from Lawsuit X implemented when Law Firm B learned of law graduate’s involvement in Lawsuit X be deemed “timely” and protect the lawyers of Law Firm B from disqualification?
In order to be effective, screening measures must be implemented as soon as practical after a law firm knows or reasonably should know that there is a need for screening. Rule 1.0, cmt. . The purpose of screening is to assure the affected parties that confidential information known by the disqualified individual remains protected. Rule 1.0, cmt. . If the screen is implemented prior to any participation by the law graduate in the matter and prior to the communication of any confidential information, the purpose for the screening procedure will have been effectuated.
Is it improper for a law firm to ask law graduates or graduates not yet admitted to the practice of law, who have worked as law clerks, to identify client matters on which they worked as law clerks so that the hiring law firm can identify potential conflicts of interest?
No. When a new law school graduate, or any new lawyer, joins a firm, the hiring firm has an obligation to protect their clients against harm from conflicts of interest. See Rule 1.7. Comment  to Rule 1.7 provides that, to determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures to determine in both litigation and non-litigation matters the persons and issues involved. However, the identity of the persons and issues involved in a matter are protected client information under Rule 1.6(a).
Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. One of the exceptions set out in Rule 1.6(b) provides that a lawyer may reveal confidential information to comply with the Rules of Professional Conduct. Rule 1.6(b)(1).
The ABA Standing Committee on Ethics and Professional Responsibility recently opined that lawyers moving between firms should be permitted to disclose the persons and issues involved in a matter because the prohibition of such disclosure would preclude lawyers from conforming with the conflicts rules. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 09-455 (2009). Similarly, it is appropriate for a law firm to ask an incoming law school graduate to provide sufficient information so that the hiring law firm can identify potential conflicts of interest.
However, as noted in the ABA opinion, “any disclosure of conflict information should be no greater than reasonably necessary to accomplish the purpose of detecting and resolving conflicts and must not compromise the attorney-client privilege or otherwise prejudice a client or former client.” Id. In addition, a lawyer or law firm receiving conflict information may not reveal such information or use it for purposes other than detecting and resolving conflicts of interest.
Is a law firm that a law graduate worked for permitted to disclose to a different law firm the identity of clients and matters that the law graduate worked on at the law firm so that the hiring firm can identify potential conflicts of interest?
Yes. See Opinion #3.
Monday, April 26, 2010
The Maine Supreme Court vacated a judgment disqualifying a Washington, D.C. law firm in a matter in which an employee claimed a hostile and discriminatory work environment while employed at the Maine Education Association.
The Association hired the law firm to conduct an investigation of the employee's allegations. The employee was interviewed by a firm attorney with her own counsel present. The attorney advised the employee that he did not represent the Association but was conducting an independent investigation. The employee claimed, but the interviewing attorney denied, that she was assured of confidentiality. The attorney later substantiated the employee's allegations of discrimination.
When the employee filed a complaint against the Association, two other law firm attorneys entered an appearance as pro hac vice counsel. The attorney who had interviewed the employee had departed. The trial court granted the employee's motion to disqualify the law firm in the litigation.
Here, the court concluded that the moving party has the burden of establishing an affirmative ethical rule violation that would result in actual prejudice. General allegations will not suffice. The trial court must make express findings in that regard. The moving party had "failed to point to any particular prejudice she has suffered or will suffer and...the [trial] court made no such finding of actual prejudice."
A concurring justice would find the question closer than the majority and views it as "better practice not to have the same firm perform a discrimination investigation and represent the employer in any resulting litigation."
A dissenting justice would affirm the disqualification order, concluding that the interviewing attorney had misled the employee into believing he was an independent investigator and had disclosed information to the employer in violation of his commitment to her. The dissent also concluded that the attorney-investigator may be a necessary trial witness. (Mike Frisch)
Monday, March 8, 2010
The always-informative web page of the North Dakota Supreme Court has a link to an article in last Friday's TwinCities.com Pioneer Press about unhappiness in the state public defender's office over the selection of a new appellate chief. The report:
The state's new chief appellate public defender has never filed a legal appeal in Minnesota.
The appointment of attorney David Merchant has raised eyebrows and, in some cases, hackles of attorneys who represent Minnesota's poorest defendants in sensitive and high-profile cases.
Among the complaints is that Merchant has made clear to them that, unlike his predecessors, he will not be handling cases himself. They say this will leave the office, already overwhelmed with appeals, further short-staffed.
Four attorneys from the state public defender's office have sent letters to the Board of Public Defense that appointed Merchant questioning why, at a time of budget cuts, a current employee of the office wasn't elevated to the top appeals spot, eliminating the need to budget for a new hire.
The controversy began Feb. 11 when four attorneys interviewed for the top appellate spot in the public defender's office, a position that oversees the 28 lawyers who argue most of the legal appeals for criminal defendants in the state.
Cathy Middlebrook, a managing supervisor in the office and the sole female applicant, had specialized in handling appeals for 23 years. Another candidate, Ben Butler, had just won a case before the U.S. Supreme Court. A third candidate, Paul Maravigli, came from the Hennepin County public defender's office and had once specialized in appeals.
After four hours of interviews, the Board of Public Defense announced its decision. Merchant takes over the position March 15.
"Shocking," "insulting" and "demoralizing" are just some of the words public defenders and criminal defense attorneys have used to describe the hiring of their new boss, who declined to be quoted for this article.
Interim Chief Appellate Public Defender Marie Wolf resigned from the position the day after Merchant was hired.
In a letter to the Board of Public Defense and the governor's office, Assistant State Public Defender G. Tony Atwal said his colleagues within the appellate office were "demoralized and devastated" by the decision to hire a top supervisor new to criminal defense work in Minnesota.
Atwal, an adjunct professor of appellate law at William Mitchell College of Law, called the meeting "an example of how fundamentally flawed the leadership at the board and within the public defender system is and how disconnected it is with the needs of the system."
"The citizens of Minnesota deserve better from its public agencies," he wrote. "... In my view, the leadership at the board and within the public defender system is broken."
Another attorney wrote in a letter that one board member preferred Middlebrook because she had spent nine years as a supervising manager in the office. The others overruled that board member after only brief discussion, with one board member mentioning having a "gut feeling" that Merchant was the better candidate.
"I sat in disbelief over what had transpired before my eyes. I felt ill," wrote Ngoc Nguyen, an assistant state public defender, in a letter to the board dated Feb. 19. "The board's inability to articulate why Mr. Merchant was more qualified was insulting and demoralizing."
Another lawyer, Bridget Sabo, wrote: "He has no criminal law experience in Minnesota. ... Mr. Merchant seems to lack almost all of the qualifications set forth in the job description for our Chief. ... To hear ... that he will not be able to offer us case support in any meaningful way and has never managed a group of attorneys before is, frankly, nothing short of shocking."
Thursday, December 11, 2008
The WSJ life-and-style section today, in an article on facial hair, quotes our occasional guest-poster Kelly Lynn Anders of Washburn Law School on the subject of beards and professional appearance. She is against. Presumably those in the article that are for, mean men. At any rate, Kelly invites your replies and criticism of her view. I agree with her, fwiw. Do you? I wore one for 15 years to "look older" and hide the second chin, until I did not need to take extraordinary steps to look older and the jowls prevention project became a losing battle anyway.
Kelly's book The Organized Lawyer is now out.
Tuesday, August 19, 2008
The New Mexico Supreme Court removed a magistrate judge from his judicial office, rejecting the suggestion that the matter should have been considered by a special master rather than the Judicial Standards Commission. The judge was found to have engaged in an ex parte conversation with the complaining witness in a domestic violence case, promised a couple that he would help them with a landlord-tenant case and advised them on how to excuse another magistrate judge and (as the Commission found) "abused his power and improperly involved himself" in a DWI case where he knew the defendant's son. Removal from office was appropriate because:
...we agree with the Commission that the evidence demonstrates that Judge Rodella’s testimony lacked credibility. This lack of credibility and an apparent unwillingness to admit mistakes, combined with sufficient evidence of willful misconduct, lead us to conclude that Judge Rodella cannot serve as a judge. We therefore adopt the Commission’s recommendation that Judge Rodella be permanently removed from office.
Tuesday, July 22, 2008
Posted by Alan Childress
Enter the blogger named Hiring Partner. The semi-mysterious guy (or is he a guy? -- actually seems like a composite, to me, of a hiring partner and the firm's recruitment coordinator, but I don't mind) started to blog Friday, at Hiring Partner's Office, and it is already interesting. He sits at the other side of the summer associates' (and later 2L interviewees') worldview. "I am the hiring partner at an office of an AM LAW 200 law firm. I oversee on campus recruiting at targeted law schools for our office and local candidates for other firm offices. I also manage our summer associate program." He is the decider.
Why blog? Mainly it's "the millenials (sp?). I keep hearing it is a generational thing. I thought it would be useful to have a blog where law students and others can learn about things that -- despite their great grades and stellar pedigrees -- can nevertheless disrupt your getting an offer at the firm of your choice. You would be amazed at some of the things that have been occurring."
On the 'amazed' front, consider his top ten things that annoy your hiring partner, compiled after a poll of hiring partner friends. (I had no idea they formed a clique.) For example, advice at a social function held at some partner's house:
Be charming and pleasant. Be respectful. DO NOT take off your flip flops (btw, don't wear flip flops!) and put your bare feet on the partner's couch/chair, etc -- YES, I saw this one happen myself. YOU ARE NOT AT HOME.
And a later post asks summer associates to assess where they are, substantively, not just socially. Finish strong.
Tuesday, May 27, 2008
Posted by Alan Childress
It is standard advice in legal writing and advocacy to avoid wishy-washies like "I think" or "I believe." * That's also good advice when prepping one's speaking skills to be used in the job search and interview process (a related point was recently made by Susan Gainen of U. Minnesota, here, in tip #5). And it's an even more crucial tip in some professional contexts.
Sometimes to avoid conviction, one must assert matters with conviction. I was reminded of the above advice when reading a headline/blurb on the website of Maine's state bar:
AUGUSTA—Vassalboro man sentenced to 15 years in prison for attempted murder and burning down his sister’s home, says ‘I feel that I'm not guilty.’
I appreciate his honesty, if it was merely a sense he had. I saw this while lurking on Mainebar.org trying to find a job listing for interested readers: the NOBC site says that "Maine Seeks Assistant Bar Counsel," but I could not access the NOBC link without registering, and I could not find a job listing on the Maine bar website. I also could not find one at the Maine bar overseers site. Anyway, there may be a job in Augusta for someone interested in enforcing legal ethics.
Finally, the overseer site announces, "The Maine Task Force on Ethics 2000 has completed its Report and Recommendations on revisions to Maine Rules of Professional Conduct," and has this link to the proposals with comparisons to the existing rules.
* Advice so basic I could not find it while perusing the last 20 posts at Ray Ward's the (new) legal writer. But I did find the world's hardest vocabulary test and Ray's throw-down challenge to his writing readers to take a shot. I give Jeff Lipshaw five minutes before he tries it. Ray also reminds us, in this recent post, that "invective is rarely persuasive" in legal practice -- much like the point on civility and 'truth' that Jeff raised yesterday about academic discourse.
Monday, October 29, 2007
At ELS blog here, IU's Bill Henderson has an excellent post (and great exchanges with thoughtful commenters, many of whom are past transfer students), on the increased rate of admitting transfer students (to game USN&WR rankings) and the effect on job interviews and employment of the new crop. Well worth a look. Also raised is something Jeff has talked about before: "brand dilution." [Alan Childress]
Saturday, October 6, 2007
One theme that emerged in the symposium that I blogged about earlier today was the crucial importance of an attorney clearly identifying her client when conducting investigative interviews on behalf of institutional clients. We rarely see bar discipline cases that impose discipline for failure to do so, but here's a summary of such a case taken from the web page of the North Carolina Bar:
"Raleigh lawyer Richard Schwartz was reprimanded by the Grievance Committee. Schwartz was retained by a local school board to investigate alleged assaultive conduct by high school students. Schwartz conducted interviews of several alleged victims. Rather than make it clear to the interviewees and their parents that he had a preexisting attorney-client relationship with the school board and was giving advice to the school board about the matter being investigated, he created the impression that he was conducting an independent investigation. Schwartz also lead the district attorney to believe there was no evidence that a felony occurred when in fact there was evidence, which Schwartz deemed incredible, that, if true, would constitute felony sexual offense. Schwartz' misconduct was mitigated by his lack of prior discipline and apparent lack of dishonest motive."
Monday, July 23, 2007
A recent ethics opinion from Wisconsin addresses the recurring issue under Rule 4.2 of contacting employees of an organization without permission of the organization's counsel. The opinion concludes that such contacts are allowed with respect to current employees except those that "direct, supervise or regularly consult with the organization's lawyer concerning the matter, or whose act or omission in connection with the matter may be imputed to the prganization for purposes of civil or criminal liability." Former employees are fair game. In any contact, the lawyer must advise of her role in the matter and avoid discussion of privileged matters.
The question that occurs to me is this: how does a lawyer know who in an entity "directs, supervises or regularly consults" with counsel? The lawyer can ask but the employee may not be fully capable of responded on the fine legal points. The comments to the ABA Model Rules suggest, in uncertain circumstances, the advisability of seeking a court order. That does not help in a pre-litigation context. The Model Rule comment 8 provides that actual knowledge that the witness is represented is required to prove an ethics violation, but states that a lawyer cannot evade knowledge by "closing eyes to the obvious."(Mike Frisch)
Tuesday, July 17, 2007
A discount brokerage firm entered into an agreement with a manufacturer of financial software to create and operate an Internet brokerage service. The deal went south and litigation ensued. A senior officer of the brokerage firm who was a major player in the events at issue then took a leave of absence from the firm "to negotiate the terms of his impending seperation and eventual termination."
After the senior officer was terminated, the attorneys for the software manufacturer interviewed him without the knowledge of opposing counsel. The employee was cautioned not to disclose privileged or confidential information. The interview focused on the facts of the case.
When opposing counsel learned of the interview, a motion to disqualify was filed and granted by the New York Supreme Court. The Appellate Division reversed. The Court of Appeals affirmed. The court's opinion in the Niesig case "makes it clear that ex parte interviews of an adversary's former employee are neither unethical or legally prohibited." Here, the admonition to avoid disclosure of protected information, which the former officer stated he understood, made disqualification unwarranted. (Mike Frisch)
Friday, September 29, 2006
Posted by Jeff Lipshaw.
We kick off Straddling the Fence with some thoughts on careers.
I had lunch with one of the student groups here at Tulane a couple weeks ago (One of the very nice restaurants in the French Quarter, Bacco, features 10 cent martinis with a lunch order - 30 martini limit per person - but since I have never had the fabled three-martini lunch, much less a single martini lunch, I went with mango flavored iced tea. I am not a teetotaler by any means, just a very cheap drunk.)
The question came up about career choices, opportunities, and training. My bona fides in this area include the fact that I've been law firm associate, law firm partner, law firm of counsel, divisional general counsel, and general counsel of a public company. I've done litigation and corporate. I've been interviewer and interviewee. I have been hirer and firer. So the thoughts may not be right or helpful, but they do spring from a well-developed (if twisted) point of view.
Here are thoughts in no particular order:
1. "You Don't Know What You Don't Know, But It's Your Basic Skills and Attributes That Matter"
There are entering law students who know precisely why they are here, and what they want to do with their lives. If you are one of them, skip to the next paragraph. My brother-in-law wanted to be a sports agent representing skiers. But he never really wanted to practice law. He went to law school at Denver University, got his degree, and then knocked on doors until somebody hired him. The one that opened happened to be International Management Group, one of the largest agency and promotion firms in the world, and his career was off and running.
Most of us don't have that focus that early. For many of us, it's a default path where merely being bright and analytical provides some likelihood of a decent living and professional status. Don't worry if you don't know precisely what you want to do, because you don't know what you don't know, and it is going to take a while for you to find out. I was a history major, and tired of being poor, so I went to law school instead of graduate school in history. I had no business experience or acumen whatsoever. Tax, corporations, securities regulation, the UCC, even first year contracts, were all foreign to me. I gravitated to the natural writing, speaking, arguing kinds of courses - civ pro, evidence, federal courts - and assumed I was meant to be a litigator. It took ten years in practice, including having made partner as a litigator, to realize that I HATED being a litigator. I didn't know what the business lawyers did, and couldn't even begin to make a sensible decision as long as I didn't know.
Jeff Kindler, the recently appointed CEO of Pfizer, Inc., one of the largest companies in the world, started his career as a litigator at Williams & Connolly. He moved in-house at GE as senior counsel for litigation, and then got recruited to McDonald's, where he was first the general counsel, and then the president of the division that ran Boston Market and Chipotle. He then became the general counsel for Pfizer, and most recently its CEO. The point is that I suspect it's highly unlikely that Jeff knew when he started law school that he had the business acumen to run a huge company.
When I was hiring lawyers for in-house positions, I looked for "the best available athlete." Business people tended to believe that the critical thing was knowledge of their business area. My position was that a great lawyer could learn the business, but as the coach said in Chariots of Fire, I couldn't put in what nature left out. An example: I was hiring for the general counsel position of a billion dollar business. The best young lawyer I knew was an associate in a local law firm - and he had a number of very attractive qualifications: Harvard grad, African-American, great writer, smart as a whip, but he was a pure litigator with almost no business experience. To me, the basic skills and the diversity impact (we needed it badly) trumped the holes in the resume on business experience.
More below the fold.