Sunday, January 29, 2012
Michael Hatfield of Texas Tech has published to SSRN his study of the tax legal profession, in a historical context: "Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice." Its abstract:
Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice provides a timely historical review of legal ethics and federal taxes. Focusing on the first two decades of the modern income tax (1945-1965), the Article reviews the ethics literature of the tax bar, which was mostly written by very prominent tax lawyers (a founder of Paul, Weiss; partners at Sullivan & Cromwell, Willkie Farr, etc.), tax professors (including the dean at Harvard Law School), and government officials (including key advisors to FDR, JFK, and LBJ). This seemingly forgotten literature provides a remarkable contrast to today’s anti-tax climate, especially given that the highest marginal individual tax rate during 1945-1965 was 94%. The writers of this period emphasized the patriotic duty to support the federal government by paying taxes, describing taxes, for example, as the price to maintain capitalism (Merle Miller) and a “blessing” (Erwin Griswold). Several stressed the ethical duty of lawyers to improve their clients’ respect for the tax system (Norris Darrell, e.g.). “Ethics” for these writers was not an issue of the ABA canons but rather a more general, philosophical reflection. For example, in 1949, the tax committee of the ABA issued a report on the importance of natural law jurisprudence in tax. In 1952, the discussion at the Tax Law Review banquet (which was nominally dedicated to discussing “Ethical Problems of Tax Practitioners”) developed into a debate over whether or not Americans were more degenerate then than in the past (Edmond Cahn) or merely more self-conscious (Thomas Tarleau). But the ethics writers were also concerned with specific issues that endure to this day, such as when to disclose an arguable but uncertain tax position – some (Randolph Paul, e.g.) arguing almost any position the government was likely to question should be disclosed, others (Boris Bittker, e.g.) arguing against disclosure so long as the position was reasonable. There was wide disagreement as to whether or not tax lawyers owed a special duty to the system, but wide agreement that this theoretical debate was nearly moot given that conservative tax advice was usually not only the most ethical but the most practical. This pragmatic attitude – emphasizing that good tax practice, good tax ethics, and good tax advice tended to converge – reflected the “real world” orientation of these professionally accomplished writers, even though, by today’s standards, many of their statements seem idealistic. The salvaging of this forgotten literature is timely not only in its relevance to contemporary debates, but also its relevance to the increasing historical research of the income tax as its 100th anniversary approaches.
Wednesday, January 18, 2012
The Idaho Supreme Court has held that a legal malpractice claim (and a related breach of contract claim) dies with the client.
Justice Horton dissents on the contract claim:
The majority expresses its concern that "[a] holding to the contrary would create a per se breach of contract action in every legal malpractice action." I would first note that this is a gross overstatement. The position I espouse only applies in instances involving express contractual undertakings. In this case, no one forced [the attorney] to enter into a contract prescribing the manner in which he would represent the client. Had he not elected to identify the manner in which he would perform his services, his duty to his client would be imposed by law, this action would sound in tort, and I would be joining with the majority.
I, too, have a concern for the result of this appeal. There is a very real concern that the decision of this Court will reinforce the perception, shared by many in our society, that courts will go out of their way in order to protect members of the bar. My position, which I believe to be well-grounded in existing law, simply recognizes that lawyers do not hold a special place in society that insulates them from the type of liability that any other party to a contract would face.
The claim involved allegations that the attorney failed to properly advise the client (who had been rendered a quadriplegic in an accident) of the effect of a settlement and release. (Mike Frisch)
Tuesday, January 17, 2012
The New York Appellate Division for the First Judicial Department has reinstated a legal malpractice case that had been dismissed on statute of limitations grounds.
The pro se plaintiff had been represented in an arbitration claim. She filed her suit within the three-year limitation period but had trouble serving the law firm.
The court concluded:
Even if this case does not qualify for an extension under the "good cause" exception...we find that it qualifies under the "interest of justice" category. Under this prong of CPLR 306-b, the Court of Appeals has instructed that a court "may consider [plaintiff's] diligence, or lack thereof, along with any other relevant factor . . ., including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant."
Here, plaintiff's attempted March 2008 service, although ultimately deemed defective, was a diligent attempt by a pro se plaintiff to hire a process server to serve defendants at their law firm, within 120 days of the timely filing of a summons with notice. By the time the court ruled on the motions in the 2007 Action, the statute of limitations had expired, precluding the filing of a new action. In addition, defendants were aware of the 2007 Action and appeared to demand a complaint as early as April 2008 - they were not prejudiced by the service errors and were afforded full participation in discovery. Finally, construing the pleading in the light most favorable to plaintiff, as is required on consideration of a CPLR 3211 motion to dismiss, we find that it asserts actions and omissions by defendants that support viable claims for recovery. (citations omitted)
Friday, January 13, 2012
The Nebraska Supreme Court has held that a law firm is liable to a court reporting service for the payment of fees for services.
The litigation involved services provided in five cases in a total amount of a tad below $6,000. The law firm had contended that their clients were the proper defendants. The court held that the firm was liable but not the contracting attorney as an individual under the particular facts.
The law firm had invoked agency law in support of its position.
The court responded:
As a practical matter, in today's legal system, an attorney dealing with those who provide legal support services acts less as an agent who relies on the client for authority to manage the case, and more as a "general contractor," who is responsible for supervising the various aspects of litigation. In that context, it is appropriate that the attorney, with superior knowledge and familiarity with the case and client, should bear the burden of clarifying his or her intent regarding payment. It is, in fact, a relatively simple matter foe an attorney to disclaim liability with a clear statement to that effect. And an attorney's liability for (and payment of) expenses of litigation is consistent with our ethical rules.
Tuesday, December 6, 2011
The Legal Ethics Committee of the District of Columbia Bar has just issued an opinion on the circumstances under which a lawyer may accept a fee for referring a client to a non-lawyer entity:
A lawyer who refers a client to a non–lawyer service provider such as a financial services firm may accept compensation from the provider for the referral so long as the criteria of Rule 1.7(c) and, if applicable, Rules 1.8(a) and 5.7 are satisfied. Those criteria are exacting, however, and the arrangement may be beyond the lawyer’s malpractice coverage even if permitted by the Rules.
The opinion overrules in part an earlier opinion of the committee.
The arrangement must comply with rules governing conflicts of interest (Rule 1.7), business transactions with clients (rule 1.8) and responsibilities regarding law-related services (Rule 5.7).
Wednesday, November 16, 2011
The Indiana Court of Appeals has reversed a murder conviction and ordered the appointment of a special prosecutor where the prosecutor had entered into a (now cancelled) literary contract for a book about the case. The contract "created an irreversible, actual conflict of interest with [the prosecutor's] duty to the people of Indiana...the trial court erred when it denied [the defendant's] petition."
The defendant was facing a third trial and second retrial on charges that he had murdered his wife and two children. The first conviction was reversed due to prejudicial evidence concerning the defendant's extramarital affairs. After the second conviction, he filed an interlocutory appeal seeking a special prosecutor in light of the book deal.
The Floyd County Prosecutor prosecuted the defendant in the second trial. He was contacted by a literary agency "hours before the jury reached a verdict..." He inked the deal before sentencing. The defendant got life without parole.
The book deal progressed under the working title, "Sacred Trust: Deadly Betrayal." The prosecutor received an advance payment of $1,700. After the conviction was reversed by the Indiana Supreme Court, Penguin (the publisher) decided to delay any decision about moving forward with the book. Eventually, the deal fell through. The prosecutor returned the advance to Penguin.
The prosecutor refiled the murder charges. The defendant sought to remove him and have a special prosecutor appointed because of the book deal. At a hearing on the motion, Dean Emeritus Norman Lefstein at Indiana University School of Law testified that there was a conflict of interest. The trial court nonetheless denied the motion in light of the cancellation of the contract.
The court here found that the book deal was "a bell that cannot be unrung" that "permanently compromised [the prosecutor's] ability to advocate on behalf of the people of the state of Indiana in this trial."
Thanks to my favorite Hoosier attorney - Don Lundberg - for sending me the case.
Inspiration for the title to the post: Frank Sinatra. (Mike Frisch)
Thursday, October 13, 2011
A law firm that was scammed by a Hong Kong company that had e-mailed the firm purportedly to seek representation sued two banks when they lost nearly $200,000. The scam involved receipt of a $10,000 retainer and the remitting of $197,500 to the "client."
The law firm claims that a partner was told be a bank employee that an incoming check had "cleared." In reliance, he wired out $187,500. The incoming check was a counterfeit. By the time the bad check was discovered, the law firm had been fleeced.
The New York Court of Appeals (over a dissent) affirmed the entry of summary judgment to the banks. The dissent would allow a claim of negligent misrepresentation to proceed. The justice would find a triable issue in the "check cleared" assurance.
A cautionary tale here. (Mike Frisch)
Thursday, September 15, 2011
The New Hampshire Supreme Court has affirmed and reversed in part the dismissal of an action brought by the wife of a Manchester attorney against Nixon Peabody and an attorney there named Regina Rockefeller.
The Manchester attorney had handled an estate matter. The Nixon Peabody attorney accused him of misappropriation and threatened to report him to criminal and bar authorities if he did not repay the estate.
The wife claimed that these threats forced her to execute a reverse mortgage on her family home. The defendants reported him anyway. Suit was brought and the home was foreclosed.
The wife sued on a variety of claims stemming from her alleged resulting severe emotional and physical distress.
The court here found that the claim of fraudulent misrepresentation was sufficiently pled:
The writ alleges that in reliance upon the defendants’ promises not to report her husband’s misconduct, the plaintiff agreed to execute a reverse mortgage on, and release her homestead interest in, the family home in Manchester and the settlement agreement dated April 2, 2007. In her prayer for relief, the plaintiff states that her payments were made to the defendants involuntarily and as a result of fraud. We read the facts set forth in the writ as alleging that the defendants either intended or had reason to expect that the promises made to Attorney Tessier would be communicated to the plaintiff and would influence her decision to enter into the settlement agreement with Dr. Jakobiec. The trial court also erred in denying the plaintiff's motion to amend claims of breach of the duty of good faith and fair dealing. Because the court reversed the trial court's dismissal of some of the claims against the individual attorney, claims against the firm survive on the basis of respondeat superior. The failure to supervise claim against the firm was properly dismissed. The Manchester attorney consented to disbarment. (Mike Frisch)
The writ alleges that in reliance upon the defendants’ promises not to report her husband’s misconduct, the plaintiff agreed to execute a reverse mortgage on, and release her homestead interest in, the family home in Manchester and the settlement agreement dated April 2, 2007. In her prayer for relief, the plaintiff states that her payments were made to the defendants involuntarily and as a result of fraud. We read the facts set forth in the writ as alleging that the defendants either intended or had reason to expect that the promises made to Attorney Tessier would be communicated to the plaintiff and would influence her decision to enter into the settlement agreement with Dr. Jakobiec.
The trial court also erred in denying the plaintiff's motion to amend claims of breach of the duty of good faith and fair dealing.
Because the court reversed the trial court's dismissal of some of the claims against the individual attorney, claims against the firm survive on the basis of respondeat superior. The failure to supervise claim against the firm was properly dismissed.
The Manchester attorney consented to disbarment. (Mike Frisch)
Monday, July 18, 2011
The New Jersey Appellate Division has reversed in part the grant of summary judgment to a caterer defendant on the following allegations:
Plaintiffs, sixteen Hindu vegetarians, appeal from an order of summary judgment entered against them dismissing their action premised upon allegations of negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties arising when defendant Asha Enterprises, L.L.C. d/b/a Moghul Express & Catering Co. (Mogul Express), an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosa causing spiritual injuries resulting in damages. The court held that pre-discovery judgment could not be granted on the breach of express warranty claim. (Mike Frisch)
Plaintiffs, sixteen Hindu vegetarians, appeal from an order of summary judgment entered against them dismissing their action premised upon allegations of negligence, negligent infliction of emotional distress, consumer fraud, products liability, and breach of express and implied warranties arising when defendant Asha Enterprises, L.L.C. d/b/a Moghul Express & Catering Co. (Mogul Express), an Indian restaurant, filled their order for vegetarian samosas with meat-filled samosa causing spiritual injuries resulting in damages.
The court held that pre-discovery judgment could not be granted on the breach of express warranty claim. (Mike Frisch)
Friday, July 1, 2011
The Wyoming Supreme Court has held that an attorney's representation of a subdivision violated conflict-of-interest rules but that the issue had not been timely raised.
The person (defendant) who claimed the conflict had retained an attorney to assist in a dispute with the Solitude subdivision located in Teton County over the interpretation of a protective covenant. She later complained about the attorney's bill to the Bar.
When the subdivision brought a claim against defendant, it retained her former attorney's partner. The litigation involved the covenant's application to defendant's erected screens, brush, log piles and fencing.
The court here held that the matters involved the same protective covenants and were thus substantially-related matters. The partner should have been disqualified by operation of the imputed conflict rule.
The court did not approve of the behavior of the attorneys for either side:
This case is an example of how resolution of a simple dispute can become
unduly complicated, expensive and delayed by the attorneys’ conduct. The record
on appeal discloses endless and unseemly jousting between the attorneys about
virtually every aspect of the case. Discovery requests that should have been
responded to quickly were unnecessarily opposed by both sides for every little
reason imaginable. It took over two years to reach summary judgment, even
though there was no real dispute about the facts of the alleged covenant violations,
because of the constant bickering between the attorneys. We can only imagine the
frustration experienced by the district court, including the two different judges
who sat on this case.
The court remanded the case on the issue of attorney's fees, as the defendant should not have to pay the other side's fees for matters relating to the conflict issue. (Mike Frisch)
Tuesday, June 21, 2011
The Washington Court of Appeals has held that two attorneys had not agreed to resolve their disagreements through arbitration.
The two attorneys had both a personal and professional relationship in which one was an associate in the other's law firm. Both relationships ended and the former associate filed suit for both equitable distribution of property and on employment claims.
The court here agreed with the trial court that the two had not entered into an arbitration agreement. Rather, the parties had agreed only to non-binding arbitration in order to try to settle their dispute. "Non-binding" was given its ordinary meaning by the court in reaching its result. (Mike Frisch)
Wednesday, May 4, 2011
The New York Appellate Division for the Second Judicial Department held that a client may be responsible for paying a court reporter after the law firm that contracted for the services (Dreier LLP) declared bankruptcy.
The court sets out the issue:
On this appeal, we are asked to determine whether a court reporting agency may recover payment for services rendered directly from the client instead of being limited to pursuing the attorney who, as the client's agent, engaged the agency. For the reasons set forth below, we hold that although a court reporting agency may obtain payment for services rendered directly from the attorney who engaged it, a court reporting agency is not precluded from recovering those fees directly from the client.
Here, the plaintiff contended that it was not a party to the defendants' engagement letter with Dreier, LLP, and should not be bound thereby. The plaintiff maintained that the defendants are responsible for paying its fees related to services obtained by Dreier, LLP, on their behalf, inasmuch as General Business Law § 399-cc was never intended to allow a client, such as the defendants, to evade responsibility for paying the reporter and that the ultimate responsibility for the reporting fees lies with the client.
The defendants, in response, relied upon the Dreier, LLP, engagement letter and the payments they made thereunder. Thus, they contended that any payments owed to the plaintiff were or should have been paid from the monthly payments received by Dreier, LLP, from the defendants.
Given that the plaintiff sufficiently stated a cause of action to recover damages for breach of contract by alleging all of the essential elements; to wit, the existence of a contract, the plaintiff's performance pursuant to that contract, the defendants' breach of their obligations pursuant to the contract, and damages resulting from that breach (see JP Morgan Chase v J.H. Elec. of N.Y., Inc., 69 AD3d 802; Furia v Furia, 116 AD2d 694), and General Business Law § 399-cc does not prohibit the plaintiff from seeking its fee directly from the defendants as the clients, it was improper for the Supreme Court to have, in effect, granted that branch of the defendants' motion which was to dismiss the complaint...
Tuesday, March 29, 2011
The United States Court of Appeals for the Seventh Circuit affirmed the conclusion that an Indiana couple fraudulently understated their 2001 income. The court forewarns the reader of the opinion:
Appellants [husband and wife] (a married couple from Brownsburg, Indiana) ran into trouble with the Internal Revenue Service (IRS) in 2003, when a revenue agent began auditing their 2001 joint tax return. Through this audit, the agent discovered a web of corporate and partnership entities serving dubious purposes, undocumented financial transactions, and inconsistent reports regarding the [couple's] income. Incongruously, although [the husband] engineeered much of the financial and legal tangle that landed him and [his wife] in hot water with the IRS, [he] is a licensed Indiana attorney with a practice focused on business planning and tax matters. We outline the confusing maze of entities and financial dealings below, but be forewarned that much of it makes little business or legal sense as the [couple] fail to dispel the perception underlying the Tax Court's finding that the perplexing arrangements served as nothing but the after-the-fact attempts to avoid taxation on the substantial income [he] earned in 2001.
The court held that the Tax Court's reliance on a number of "badges of fraud" was not clearly erroneous. These factors included the couple's education and experience, the omission of over $2.5 million in income, the failure to maintain records, commingling business and personal assets, and the absence of a business purpose in moving funds around. (Mike Frisch)
Monday, March 28, 2011
The New York Appellate Division for the Second Judicial Department affirmed an order denying a defendant law firm's motion to dismiss claims of fraud and negligent hiring:
In May 2008, the plaintiff Robin Shimoff, through her attorney, tendered a check in the sum of $710,000 to the defendant Mario A. Tolisano, an employee of the defendant Law Office of Howard R. Birnbach (hereinafter the law office), to cover the purchase price of certain parcels of real property. In July 2008, Shimoff tendered to Tolisano the additional sum of $502,500 as a down payment for the purchase of certain other real property. Shimoff apparently borrowed the aforesaid funds from the plaintiff Jacob Selechnik. No closings of title occurred on either transaction, and the plaintiffs later learned, among other things, that Tolisano, whom they believed to be an attorney representing the seller of the properties, was not a licensed attorney. The plaintiffs commenced this action in November 2009, inter alia, to recover damages for fraud and negligent hiring and retention, and the law office moved to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). The Supreme Court denied the motion. We affirm.
The court concluded:
Here, while the complaint contains no allegations of any affirmative misrepresentations by the law office itself, a fraud cause of action was sufficiently stated by the allegations contained therein which give rise to permissible inferences that the law office had certain knowledge or information regarding Tolisano's employment with it and his activities thereunder that were not ascertainable by the plaintiffs.
The complaint alleges, inter alia, that Tolisano was employed by the law office, held himself out as an attorney with the law office, and distributed his business card to the plaintiffs, which, while not explicitly stating that he was an attorney, indicated that he was employed by the law office. Furthermore, the complaint alleges that at the time Tolisano made his representations to the plaintiffs, which induced them to turn over their money to him, the law office knew or should have known "that its attorney-employee-impersonator, cloaked with the apparent authority that comes from employment at the [law office], would offer false representations." These allegations were supplemented by the affidavit of the plaintiffs' real estate attorney, wherein he stated that when he met with Tolisano, Tolisano said he was a lawyer and gave him a business card "that made it appear as if [Tolisano] was a lawyer at the [law office]," and that during the pendency of the transactions, the plaintiffs' attorney sent a certified letter to Tolisano at the law office and made several telephone calls to the law office asking to speak with Tolisano and left messages, to which he received no reply.
Based on these allegations, the complaint adequately states causes of action to recover damages from the law office for the torts allegedly committed by Tolisano under the doctrine of respondeat superior and on the theory of negligent hiring and retention, which are not required to be pleaded with specificity.
Monday, March 14, 2011
A Starbucks and the owner of its premises won summary dismissal of a personal injury claim by an infant plaintiff whose injuries allegedly occurred in the following circumstances:
The infant plaintiff allegedly sustained injuries when a cup of hot tea spilled on him at premises leased by the defendant Starbucks Coffee Company (hereinafter Starbucks) from the owners, Allen Brafman and Edith Brafman (hereinafter together the Brafmans). Immediately prior to the accident, the infant plaintiff's nanny allegedly was wheeling him in a stroller up a ramp with her right hand, and balancing the cup of tea on a plate with her left hand. The plaintiffs commenced this action against Starbucks and the Brafmans, alleging that the accident was caused by a dangerous and defective condition on the premises. The Brafmans moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were out- of-possession landlords who owed no duty of care to the plaintiffs, and Starbucks cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Supreme Court denied the motion and the cross motion. We reverse.
Starbucks established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs were unable to identify a dangerous or defective condition actually causing the accident. In opposition, the plaintiffs failed to raise a triable issue of fact.
Since the affidavit of the plaintiff's nanny was insufficient to raise a triable issue of fact as to whether the ramp upon which the she allegedly wheeled the stroller was negligently designed, installed, or maintained, we need not address Starbucks' contention that the Supreme Court, in denying its cross motion for summary judgment, erred in considering that affidavit because the nanny's identity was not properly disclosed by the plaintiffs in their responses to the defendants' demands for disclosure or a preliminary conference order. However, the affidavit of the plaintiffs' expert, which the plaintiffs also submitted in opposition to the cross motion, should not have been considered by the Supreme Court, since that expert witness was not identified by the plaintiffs until after the note of issue and certificate of readiness were filed, attesting to the completion of discovery, and the plaintiffs offered no valid excuse for the delay. Accordingly, the Supreme Court should have granted Starbucks' cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. (citations omitted)
Wednesday, March 9, 2011
The Mississippi Court of Appeals has held that a covenant not to be compete was reasonable and enforceable, reversing the judgment of the lower court. The circumstances of the case are a bit unusual, if not unique.
The employee went to work with the company as a teenager with little prior work experience. She was a broker of meat and poultry products between buyers ans sellers throughout the nation. At the outset, she signed a covenant not to compete with the company if she departed.
She married the son of the owners of the business. He got sick and needed a kidney transplant. A close friend donated a kidney. The donor and the employee had an affair after the transplant operation. The husband learned of the affair. He took the news badly. They divorced with a degree of acrimony and she left her job with the business.
The litigation here involves her employment by a direct competitor. (Mike Frisch)
Tuesday, March 1, 2011
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio will accept public comment until March 29 on a new field of law area of specialization: insurance coverage law.
Gov. Bar R. XIV, Section 2(C)(1)(a) through (e) requires that the Commission on Certification of Attorneys as Specialists (CCAS) recommend to the Supreme Court the fields of law subject to specialization designation.
On June 25, 2010, the Commission proposed insurance coverage law as a specialty area in Ohio with the following definition: the area of law involving issues between insurers and policy holders concerning the rights and responsibilities that arise under insurance policies, including the duty of good faith.
The Supreme Court established the CCAS to identify specialty areas and to set minimum standards for certification as specialists. After a specialty area definition recommended by the CCAS has been approved by the Court, agencies that have programs of certification in the defined area apply to the CCAS for recognition that their program meets the minimum standards. By this process, the agency that applied is approved to certify Ohio attorneys as specialists in the field of law.
Access the text of the proposed area of specialization. Comments should be submitted in writing to:
Susan Christoff, Director, Attorney Services Division
Supreme Court of Ohio
65 S. Front St., Fifth Floor
Columbus, Ohio 43215
Thursday, February 17, 2011
The New York Court of Appeals has reversed the Appellate Division and granted a defendant law firm's motion to dismiss the complaint on the condition that the law firm waive any statute of limitations defense that might be available in Texas.
The law firm had moved (and lost) a forum non conveniens motion seeking that the matter be heard in Texas:
This case involves the alleged malpractice by Texas lawyers representing Alaskan clients, whose principal places of business are in Connecticut, in a transaction with Texas companies that involves land in Texas. Further, the documentary evidence is located in defendant's Texas office, as are most of the attorneys who allegedly committed the malpractice and most of the potential witnesses.
Monday, February 14, 2011
Posted by Jeff Lipshaw
For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN.
The gist of it is this: the dominant metaphor for contract in practice and the academy is "contract as model." One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact. Sometimes the metaphor is appropriate, and sometimes it is not. I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction . I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself. The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.
February 14, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Business, Law & Society, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)
Thursday, December 30, 2010
Posted by Jeff Lipshaw
The "Small Business" section of the New York Times has an article this morning about models small and entrepreneurial businesses are using to hire law firms, and strategies the firms are using to serve them. I'm not sure there's anything really new in here, but it does bring up a point that legal educators and young lawyers need to appreciate, particularly for those law grads who aren't headed to the traditional big law associate posting. Lawyers to small businesses are often the first and only outside adviser the firm has ever had. Listen to some of these snippets: "Make sure the attorneys understand your business - who your customers are, what your biggest areas of risk are, and so on." "One issue is a traditional distrust of lawyers shared by many entrepreneurs: 'They see the lawyer as saying no to daring business moves." "I needed access to a trusted source and only to pay for it when I use it, like weekends and so forth. I use my attorney also to brainstorm ideas."
This is consistent with my view that business lawyers (or at least effective or successful one) can't simply give clients the law and expect them to make the integrated business/legal decision. For more on this from a theoretical standpoint (with practical examples), see The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity, 46 Seton Hall L. Rev. 1 (2011).