Thursday, March 4, 2010

Termination, Not Hints, Triggers Wrongful Discharge Claim

The District of Columbia Court of Appeals affirmed the dismissal of a former law firm associate's claim of failure to accommodate a disability on grounds that the claim was time-barred. However, the court reversed the dismissal of a related claim of wrongful discharge and remanded that claim for trial on the merits.

The associate was hired by the law firm in 2000. While attending a firm trial training program in April 2001, her dominant hand was burned. She suffered extreme pain and medical limits on her activities and took a month leave of absence for treatment. She requested a number of accommodations on her return and alleges that she was told by her supervisor "that if she was still injured, she was 'of no use to anyone.' " After a second leave of several months, she claimed that she was told not to seek substantive billable work until she could work without restrictions. There were further requests for accommodations and performance reviews. The associate attorney received notice of discharge from the firm in late October 2002.

The court here concludes that the statute of limitations for wrongful discharge began to run with the formal termination. Earlier threats or hints of poor performance do not trigger the statute. (Mike Frisch)

March 4, 2010 in Billable Hours, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Scrambled Eggs And Malpractice

The Maryland Court of Special Appeals recently held that a trial court order that denied a motion to quash a subpoena on grounds of attorney-client privilege was not subject to an immediate appeal. One law firm had represented a divorcing wife and had secured the divorce. One aspect of the divorce obligated the husband to continue to designate the ex-wife client as a beneficiary of an insurance policy. He did not. A second lawyer assumed responsibility for the insurance issue, which resulted in a settlement.

The first law firm sued the client for unpaid legal fees. The former client countersued for legal malpractice based on the contention that the first firm had failed to notify the insurer of the provision that obligated the ex-husband to continue her as the beneficiary. The first firm claimed that the loss was attributable to the improvident decision to settle by the client and the second attorney.

The law firm sought to depose the second lawyer. The motion to quash asserted attorney-client privilege. The trial court denied the motion to quash on grounds of waiver of the privilege.

The court here concluded that the trial court order could not be appealed at this juncture. The trial judge's ruling did not conclusively resolve any issue and can be reviewed if any appeal is taken. Further, the advice given to the client by the second attorney is central to the disputed issues in the litigation. As the court observes: "The eggs cannot be unscrambled." (Mike Frisch)

March 2, 2010 in Clients, Law Firms, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, February 22, 2010

Imputed Conflicts And Contract Attorneys

An ethics opinion issued this month by the Legal Ethics Committee of the District of Columbia Bar is summarized below:

The imputation of a temporary contract lawyer’s individual conflicts to a hiring firm under D.C. Rule 1.10 depends on the nature and extent of the lawyer’s relationship with the firm and the extent of the temporary lawyer’s access to the firm’s confidential client information. A temporary contract lawyer who works with the same firm sporadically on a few different projects, or on a single project for a longer period of time, would not be “associated with” the hiring firm if the firm does not have or otherwise create the impression that the temporary contract lawyer has a continuing relationship with the firm, and the firm institutes appropriate safeguards to ensure that the temporary contract lawyer does not have access to the firm’s confidential client information except for the specific matter or matters on which he is working.

In addition, the temporary contract lawyer and the hiring firm must protect the confidentiality of all client information, and the firm must take appropriate steps to avoid obtaining the confidences and secrets the temporary contract lawyer learned during his former employment.  

(Mike Frisch) 

February 22, 2010 in Law Firms, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 5, 2010

Conference Announcement on Law Firm Evolution; Timely WSJ Article Begging the Question: "Do Lawyers Evolve Sufficiently to Use the Technology Placed at Their Fingertips?"

Posted by Jeff Lipshaw

Carole Silver (Georgetown) passed along an announcement for  “Law Firm Evolution:  Brave New World or Business As Usual.”  The conference will take place at Georgetown Law Center in Washington, beginning with an evening reception on March 21st and running through lunch on March 23rd.  Speakers will include Richard Susskind (author of “The End of Lawyers?” and “The Future of Law”), but more importantly, friends like our own Bill Henderson, David McGowan, Michele Beardslee, co-author Larry Ribstein, and Paul Lippe of Legal OnRamp.  Other notables:  Jeff Lehman, former dean of the Michigan Law School, Cornell president, and current dean of the Peking University School of Transnational Law, David Wilkins, and Aric Press of the American Lawyer.

All of which segues nicely into an article entitled "Using Web Tools to Control Legal Bills; Big Law Firms Turn to Technology to Provide Clients With Real-Time Expenses, Automate Tasks" from the Wall Street Journal this morning which trumpets "new technology" about which I was harping during the law firm beauty contests our staff held for purposes of choosing "preferred providers" back at the beginning of this decade (which began on 1/1/2001 and doesn't end for another year).  Pardon my occasional slip into facetiousness, but what follows ain't a technology issue, except as it relates to the technology extant in the six inches between a lawyer's ears. 

Let me provide some background here.  In 1998, my old law firm, Dykema Gossett PLLC (now Dykema "A Firm Unlike Any Other") installed billing software that allowed any human being (I include lawyers) to open a program in the morning, keep it open, and, without resorting to paper time sheets, memory, Post-It notes, or scrawls on one's body (like that guy in Memento), to record one's billables in, as we have come to say, REAL TIME.  The upshot of this was the potential of fine grapes in/fine wine out:  somebody could actually tell a client in REAL TIME how much a matter was costing. 

Fast forward a couple years to about 2002.  I'm now the general counsel of a public company.  Put aside whether it's a good thing for society - public companies report their earnings every three months, and whether they give "guidance" or not, securities analysts make models in which they predict what those earnings will be.  On the inside, the company knows what those estimates are and, all other things being equal, tries not to rub too many analysts' noses in the dirt by surprising them on the downside.  In short, you can't rule out contingency and surprise, but the whole point of having information available to management about sales, costs, trends, weather, the macro-economy, etc. is to plan for it.

Continue reading

January 5, 2010 in Conferences & Symposia, Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Thursday, December 24, 2009

Remand In Litigation over Fees

The District of Columbia Court of Appeals has issued its decision in the litigation between Douglas Rosenthal and his former firm Sonnenschein Nath & Rosenthal. The case involves a dispute primarily over fees for representation against Libya arising out of the destruction of Pam Am 103 over Lockerbie. The trial court had awarded Rosenthal $3.7 million in compensatory damages. The firm won an award against Rosenthal and his new firm for tortious interference.

At issue were claims for compensatory damages for two periods of time. The court held that the jury was presented with sufficient evidence that the firm had been "unevenhanded and thus unreasonable" in setting compensation for the second period. Rosenthal's retirement did not preclude him from suing the firm. The evidence was insufficient to award punitive damages against the firm. 

The court remanded for a new trial on compensatory damages for the second time period. and reversed the award to the firm on the  tortious interference claim. Rosenthal was given the option of a new trial on compensatory damages or accepting an award as reduced by the court's opinion.

The decision can be accessed through the court's web page (Rosenthal v SNR) and was decided today. (Mike Frisch)

December 24, 2009 in Law & Business, Law Firms | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 22, 2009

No Fee For You

A recruitment firm sent an unsolicited resume of a lawyer who specialized in Korean practice to a New York law firm. The firm had no Korean practice in its New York office but later hired the applicant for its Washington office through a different recruiter. The first firm sued for a fee. The New York Appellate Division for the First Judicial Department affirmed the dismissal of the suit:

As it is undisputed both that the New York partner did not know that the candidate was being interviewed by the Washington office, and that the Washington office did not know prior to interviewing the candidate that his resume had been sent to the New York partner, the required assent necessary to establish an implied contract cannot be inferred. There was no "meeting of the minds" (I.G. Second Generation Partners, L.P. v Duane Reade, 17 AD3d 206, 208 [2005]) sufficient to establish an implied contract pursuant to which defendant agreed to pay plaintiff a fee even if there was no causal connection between plaintiff's submission of the candidate's resume and defendant's decision to interview and hire the candidate.

(Mike Frisch)

December 22, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 15, 2009

No Agreement To Arbitrate

An attorney was hired as "of counsel" of another attorney under a one-year employment contract on November 1, 2005. The contract authorized discharge for cause and had an arbitration clause. The employment relationship had "issues" but extended past the fixed term. Eventually, the employed lawyer was discharged with notice given in August 2007. The parties disagree as to the reasons. The employed lawyer sued the employing lawyer on claims that included wrongful discharge. The employing lawyer moved to dismiss, invoking the arbitration clause.

The Washington State Court of Appeals, Division I held that the there was no basis to conclude that the lawyers agreed to extend the arbitration provision beyond the fixed term:

Where a fixed-term employment contract expires and the employee continues to render the same services provided under the previous agreement, a court will presume that the employee is serving under a new, implied contract having the same terms and conditions as contained in the expired contract. However, where it is clear that the implied contract does not have the same terms and conditions as the earlier agreement, there is no basis
to presume that the contracting parties necessarily renewed any specific term of
the prior agreement. Because the evidence in the record and the pleadings
herein establish that Judith Lonnquist and Reba Weiss did not completely renew
the terms of Weiss's written, fixed-term employment contract after Lonnquist
terminated it, there is no basis to presume that the parties subsequently entered
into an implied agreement to arbitrate Weiss's employment-related claims as was provided for in the terminated contract. Inasmuch as a court cannot compel litigants to arbitrate claims unless they agreed to do so, the trial court correctly denied Lonnquist's motion to compel arbitration. Accordingly, we affirm.

(Mike Frisch)

December 15, 2009 in Associates, Billable Hours, Law Firms | Permalink | Comments (0) | TrackBack (0)

Friday, November 13, 2009

New Data on BigLaw Contraction: Patterns of Winners and Losers

[posted by Bill Henderson, cross-posted to ELS Blog]

A careful analysis of the recently released National Law Journal 250 reveals some surprising trends.  The NLJ reports that the nation's largest 250 firms (by lawyer headcount) shrank by 4%. Yet, when broken down by geography (see figure below, click on to enlarge), nearly half of the losses (2,096) were concentrated in the 45 firms headquarters in New York City.  And another 20% (883) fell on the 17 NLJ 250 firms headquartered in Chicago.NLJ250geography2009

To put those figures in perspective, for 2008 (the baseline year), NYC- and Chicago-based firms only accounted for  24.7% and 14.7% respectively of the NLJ 250 total lawyer headcount.  In contrast, DC-based firms accounted for 9.7% of the NLJ 250 universe in 2008 but only 3.8% (161) of the total contraction.  The disparate geographic impact suggests that the reductions-in-force are probably due disproportionately (or overwhelmingly) to the decline in the volume of corporate transactions and woes in the banking and insurance sectors.  Among major markets, San Francisco-based firms shrank the least, though this glass-half-full news is probably the result of the dissolutions of Thelen Reid and Heller Ehrman in late 2008, which were both headquartered in the Bay Area. 

On comparative basis, the middle-market firms appear to be thriving.  Collectively, there was a 0.6% increase in the number of lawyers in the 91 NLJ 250 firms based outside the Top 10 markets. In contrast, firms headquartered in Top 10 markets did uniformly worst.  Below is a ranking based on percentage contraction:
  1. New York City (45 firms)    -7.0%   
  2. Dallas (7 firms) -5.9%
  3. Houston (4 firms) -5.4% 
  4. Philadelphia (15 firms)                -5.4% 
  5. Atlanta (9 firms) -5.3% 
  6. Chicago (17 firms)                      -4.7% 
  7. Los Angeles (11 firms) -2.7% 
  8. Boston (10 firms) -2.1%
  9. Washington DC (18 firms)           -1.6%
  10. San Francisco (9 firms)               -0.1% 
Firm size appears to be a major explanatory variable, particularly for associates.  Here is the breakdown of changes in lawyer headcounts by size of firm:
NLJ250change2009 

So what is the bottomline analysis?  I think the slowdown in the economy has made the largest firms the most vulnerable to price pressure from large corporate clients.  The largest firms have the highest cost structure (rents and associate pay), and there is some doubt whether there is a corresponding value-add for their higher fees.  At the high end, the market is pretty crowded.  An international footprint is not necessarily a competitive advantage when 20+ of firms have the same high fixed costs and similar lawyer credentials.  Not surprisingly, a lot of desirable legal work that does not require a multi-office international platform is migrating to firms further down the AmLaw/NLJ 250 food chain.  (These observations, by the way, track Larry Ribstein's The Death of BigLaw analysis.)  Indeed, anecdotal evidence from my informal network suggests that boutiques are booming holding their own [NOTE: after the original post, three additional members of my informal network suggested that boutiques were not booming but, instead, hurt less badly].

Folks, we are in uncharted waters.  The structure of the corporate bar is changing rapidly.  The giants are vulnerable.

November 13, 2009 in Law Firms | Permalink | Comments (0)

Tuesday, November 10, 2009

Fee Dispute Appeal Oral Argument

The District of Columbia Court of Appeals will hear oral arguments this Friday (November 13th) in a case described in a June 2008 report reprinted below from Law.com:

In March, a D.C. Superior Court judge awarded Douglas Rosenthal, a former Sonnenschein Nath & Rosenthal antitrust partner, only part of the compensation he claimed was owed to him by the firm.  Now, nearly three months later, Judge Melvin Wright has whittled down that award from more than $3 million to $65,639.

Rosenthal (who is not related to the Rosenthal in the firm's name) sued his ex-employer for $8.5 million, claiming he had not been fairly compensated for representing the families of those killed in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. That contingency work generated nearly $17 million for Sonnenschein. Rosenthal also claimed he was owed origination credit for Sonnenschein's representation of Sun Microsystems against Microsoft Corp. That work produced $20 million in fees for the firm.

After a 2 1/2-week jury trial, Judge Wright entered judgment in favor of Rosenthal on March 28 to the tune of $3.73 million. However, Sonnenschein was also awarded $300,000 in its counterclaim against Rosenthal and his new firm, Constantine Cannon. Sonnenschein filed that claim because it said Rosenthal and Constantine had interfered with clients when Rosenthal left in 2005.

Sonnenschein filed a motion on April 10 arguing that Wright had not properly adjusted the jury's $3.73 million award. Sonnenschein said the court agreed that it would subtract the amounts that Rosenthal actually earned during the years in question from the amounts the jury determined he should have been compensated. According to Sonnenschein's motion, after that calculation, the damages award becomes $365,639. After also subtracting the $300,000 for Sonnenschein's counterclaim, judgment for Rosenthal is reduced to $65,639. Last Thursday, Wright granted the motion to decrease the damages award to that amount.

One of Rosenthal's lawyers, Constantine Cannon partner Gary Malone, says he believes the judge "erred" and plans to appeal the decision within the next month. Rosenthal is also represented by Constantine partner Robert Begleiter. Michele Roberts, a partner at Akin Gump Straus Hauer & Feld, and James Hamilton, a partner at Bingham McCutchen, represent Sonnenschein.


First reported in The BLT: The Blog of Legal Times

The oral argument may be heard in real time by access through following link. Click on the link highlighted in yellow to hear the agrument. (Mike Frisch)

November 10, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Saturday, November 7, 2009

A Fun Read

Jayanth Krishnan at Indiana (Bloomington) is expanding his ouevre of comparative legal profession studies with his latest on SSRN, The Joint Law Venture: A Pilot Study (here).  As with his other work, this one's an interesting (and, yes, fun) read.  Congrats, Jay!

(Posted by Nancy Rapoport)

November 7, 2009 in Comparative Professions, Current Affairs, Ethics, Law & Business, Law & Society, Law Firms, Professional Responsibility, Rapoport | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 13, 2009

Sentimental Journey

In an action brought by the personal representative (and later widow) of a deceased law partner, the South Carolina Supreme Court held that the claims relating to the continuing use of the attorney's name were properly dismissed. The court described the basis of the civil complaint:

Julian Gignilliat (Gignilliat) was a founding partner in 1968 of what became the GSB law firm.  The firm did not have a written partnership agreement.  Gignilliat was diagnosed with a serious illness in 2001.  Gignilliat died on June 22, 2002.  It is undisputed that Gignilliat, cognizant of his terminal illness, requested that GSB continue to use his name after his death and that GSB not be sued

The Personal Representative (PR) of the Estate of Julian Gignilliat filed an action against GSB and six partners in the firm at Mrs. Gignilliat’s request.  The PR alleged GSB continued to use and profit from the Gignilliat name without the consent of Gignilliat’s estate and without making compensation for its use. 

A Consent Order was filed wherein the PR of the estate assigned Mrs. Gignilliat the sole right to any of the estate’s claims arising out of the complaint.  Subsequently, Mrs. Gignilliat filed an amended complaint naming herself as the plaintiff in which she sought a declaratory judgment regarding the defendants’ right to continue using the Gignilliat name without consent, and she asserted claims for (1) infringement on the right of publicity, (2) conversion, (3) unjust enrichment, and (4) quantum meruit.  She sought damages and an injunction preventing further use of the Gignilliat name without compensation.

The court concluded that any sentimental value attached to the deceased attorney's name did not form a basis for quantum meruit recovery. (Mike Frisch)

October 13, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Thursday, September 10, 2009

One Claim Survives

The District of Columbia Court of Appeals affirmed "in large part" the grant of summary judgment against a former programmer/analyst for Covington & Burling who sued for failure to reasonably accommodate her medical condition, hostile work environment, and termination in alleged violation of the D.C. Human Rights Act. The court found the hostile work environment claims to be time-barred but concluded that the reasonable accommodation claim remained viable. The former employee suffered from Crohn's disease. (Mike Frisch)

September 10, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Monday, August 24, 2009

Ohio Outsourcing Opinion

From the web page of the Ohio Supreme Court:

Two recent advisory opinions from the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline offer guidance on outsourcing legal or support services and whether a newly appointed domestic relations magistrate can continue to serve as a city council member.

Opinion 2009-6 finds that the Ohio Rules of Professional Conduct do not prohibit an Ohio lawyer or law firm from outsourcing legal or support services domestically or abroad, either directly to lawyers or nonlawyers or indirectly through an independent service provider. The opinion cautions, however, that applicable rules do impose significant ethical requirements.

Some of those ethical requirements include the circumstances and rules that require disclosing, consulting with a client and obtaining informed consent before outsourcing. Other considerations include being responsible for another lawyer’s violation of professional obligations and making reasonable efforts to ensure a nonlawyer’s conduct is compatible with the professional obligations of the lawyer. “The extent of supervision for outsourced services is a matter of professional judgment for an Ohio lawyer, but requires due diligence as to the qualifications and reputation of those to whom services are outsourced.”

The opinion also discusses reasonable fees and expenses in these arrangements and leaves the decision as to whether to bill an outsourced client as part of the legal fee or an expense to the lawyer’s professional judgment.

Opinion 2009-7 finds that it is improper under the Ohio Code of Judicial Conduct for a newly appointed full-time or part-time domestic relations court magistrate to continue serving out a term as an elected member of city council.

The opinion references Rules 1.2, 1.3 and 4.5 as offering guidance in answering the question posed.

The opinion also notes that there may be statutory compatibility issues to consider, but those are beyond the scope of the opinion.

(Mike Frisch)

August 24, 2009 in Law Firms | Permalink | Comments (3) | TrackBack (0)

Saturday, August 22, 2009

More from Paul Lippe on the Future of Law Schools

Posted by Jeff Lipshaw

Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back.  Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:

* * *

Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.

The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.

That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.

Continue reading

August 22, 2009 in Comparative Professions, Law & Society, Law Firms, Teaching & Curriculum, The Practice | Permalink | Comments (4) | TrackBack (0)

Tuesday, August 4, 2009

Law Firm Letterhead Should Not Be Used For Debt Collection Letter

The U.S. Court of Appeals for the Fifth Circuit yesterday issued an opinion that should serve as a warning to lawyers involved in debt collection:  be careful what stationery you use.  Here is a nice summary (with permission) from the always-handy Fifth Circuit Civil News (its daily update by email), produced by Robert E. McKnight, Jr:

      Gonzalez v. Kay, No. 08-20544 (5th Cir. Aug. 3, 2009) (Jolly, Prado and Southwick): Gonzalez sued Kay's law firm and Kay for sending him a debt collection letter that, Gonzalez alleged, deceptively represented the law firm's handling of the debt as a legal matter, rather than simply as a collection matter, in violation of the Fair Debt Collection Practices Act. The FDCPA prohibits "a debt collector sending a collection letter that is seemingly from an attorney." The district court [S.D. Tex.] dismissed on the defendants' FRCP 12(b)(6) motion, concluding that the letter, though on law firm letterhead, sufficiently informed Gonzalez that none of the firm's attorneys had yet become involved in the matter and that the firm was simply acting as a debt collection agency. Holding: Reversed and remanded. "Because the 'least sophisticated consumer' reading this letter might be deceived into thinking that a lawyer was involved in the debt collection ["[a] letter from a lawyer implies that the lawyer has become involved in the debt collection process, and the fear of a lawsuit is likely to intimidate most consumers"], the district court prematurely dismissed Gonzalez's complaint." Judge Jolly dissented.

And Judge Prado wrote the majority opinion, reversing the dismissal.  [Alan Childress]

August 4, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Thursday, July 16, 2009

Referral Fee Not Unethical

An attorney who joined a law firm had an agreement that the firm would pay him additional compensation for fees generated on matters he referred to the firm. He thereafter referred a case to the firm. When he left the firm and returned to his former firm (Wilson Elser), he did not receive compensation for the referral. The matter had come from Wilson Elser and was referred due to an apparent conflict of interest. The departing attorney brought an action against the law firm and prevailed in arbitration. The law firm appealed the arbitration award.

The Connecticut Appellate Court affirmed the award. The court rejected the suggestion that payment to the referring attorney violated the Rules of Professional Conduct because of the conflict of interest of Wilson Elser:

There never was a finding that the plaintiff had ever represented the client in the [referred] matter for his new firm. Compensation was owed to the plaintiff on the basis of the plaintiff's referring the...matter to the defendant, not for representing the client.

The arbitrator had correctly concluded that the ethics rules do not prohibit payment under circumstances where the lawyer receiving the fee later rejoins the firm that sent the case along due to a conflict. (Mike Frisch)

July 16, 2009 in Law Firms | Permalink | Comments (1) | TrackBack (0)

Monday, July 6, 2009

Suing The Dead

An attempt to substitute a law firm for a deceased defendant was rejected by the New York Appellate Division for the First Judicial Department:

In December 2006, just before the statute of limitations expired (CPLR 214[5]), plaintiff commenced this action naming as sole defendant the driver of a car that had allegedly struck plaintiff's car, injuring plaintiff. However, that driver had died in December 2004. After trying to identify an administrator of the driver's estate and starting a second action against the driver's wife, on the mistaken belief that she was the administrator of his estate, plaintiff moved to substitute, as a party defendant, the law firm assigned to this matter by the deceased driver's liability insurer. That motion was granted on default and the court subsequently denied the law firm's motion to vacate the default and dismiss the complaint.

Since one cannot commence an action against a deceased person, this action was a nullity from its inception (see Marte v Graber, 58 AD3d 1, 2-3 [2008]). Consequently, the motion court lacked jurisdiction to hear and determine the initial action and erred in denying defendant's motion to dismiss.

(Mike Frisch)

July 6, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Monday, June 29, 2009

A Comment on Law School 4.0

Posted by Jeff Lipshaw

An op-ed by Paul Lippe (no relation) at the Am Law Daily on what law schools ought to do to cure THE PROBLEM has gotten a fair amount of buzz in the blogosphere, including from our own Bill Henderson

Here's my quick reaction:

1.  The descriptions of Phases I to III (reading law; Langellian case method; "law and ...") seem accurate to me.

2. This statement strikes me as a relatively fair generalization:

Even in 1981, when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (when I spoke to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision making and not at all about understanding clients.

This is particularly the case when discussing the politically-infused area of corporate governance. I still marvel at individuals in various institutions (academia, Congress, state governors, corporations) who have no compunction about calling the motives of other individuals in other institutions into question (i.e. conflicted, greedy, short-sighted, etc.) without stepping back and looking at their own.  For example, I'm still not convinced that faculty governance has any moral superiority over corporate governance, and clearly Governor Sanford's recent escapade tarnishes the purity of the bully political pulpit. I'm willing to accept a middle ground, which is that none of us embodies an Archimedean moral fulcrum.  Or to quote Robert Burns:  "O wad som' pow'r the giftie gie us, to see oursels as ithers see us."

3.  Mr. Lippe says:

-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?

This statement strikes me as not fully thought out, but certainly an area in which inquiring minds ought to be engaged (I try to be, as evidenced in this recent piece about legal "cures" to social problems).  First, I'm not sure we've fully probed the empirical foundations of statements of this sort enough to use them as the basis for advice. You have a rare form of cancer. Overall, the cure rate with the best treatment is 20%. We can at least make some fairly reliable predictions as a result of natural science, to get at real cause-and-effect. As a general matter, that's far more challenging when we draw social science conclusions.  Second, the analogy to medicine highlights the issue. Is the information a helpful piece of data in deciding whether to take the treatment?  My son, Matthew, starts med school in six weeks, with a beginning unit that touches on evidence-based medicine.  My guess is that data is helpful, but not ultimately dispositive, in making forward-looking judgments about care.

June 29, 2009 in Law Firms, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 16, 2009

Claims Dismissed

The New York Appellate Division for the First Judicial Department affirmed an order dismissing a number of claims against lawyers and a law firm:

Plaintiff alleges fraud and fraudulent inducement against all defendants, breach of contract against the Weksler brothers, and legal malpractice, tortious interference and negligent misrepresentation against the firm. Plaintiff was married to Jack Weksler from 2004 until his demise in 2007. She claimed it was the decedent's intention to provide for her by establishing an annuity whereby Joseph and Bruce, his sons from a previous marriage, would pay plaintiff $4,000 per month after his death as long as neither he nor plaintiff had commenced divorce proceedings against the other. The law firm, at the decedent's behest, prepared an agreement memorializing his wishes. Plaintiff and the decedent were allegedly happy with and relied on the agreement, which would guarantee her future financial security. The decedent became seriously ill in January 2007. Four months later, after his discharge from the hospital, he retained the law firm to commence a divorce proceeding. The complaint was filed in New Jersey Superior Court in June 2007, and he died the following month.

Plaintiff alleges that defendants made material misrepresentations upon which she relied, which reasonably led her to believe that the agreement would be binding and valid and pay her $4,000 per month after Jack's death. Accepting the facts alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference, she fails to allege sufficiently the elements of fraud and fraudulent inducement and plead with the necessary specificity the alleged misrepresentations made by defendants.

Furthermore, plaintiff fails to state a cause of action for breach of contract against the Weksler brothers. Even assuming the agreement was enforceable, it still memorialized the intent of the parties to extinguish any payment to plaintiff upon the filing of divorce papers.

As to the claim for legal malpractice, there was never an attorney-client relationship between plaintiff and the firm. Even assuming plaintiff had been the firm's client, she failed to show how such alleged malpractice caused her injury, as the agreement simply effectuated the intent of the parties, i.e., to provide plaintiff with an annuity during her lifetime subject to the stated terms and conditions.

Plaintiff's remaining causes of action against the firm, for negligent misrepresention and tortious interference, are dismissed as redundant of the legal malpractice claim. (citations omitted)

(Mike Frisch)

June 16, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2009

First Signs of a New Equilibrium in Entry-Level Salaries

[posted by Bill Henderson, crossposted to ELS Blog]

DrinkerAccording to today's Am Law Daily, Philadelphia-based Drinker Biddle announced that instead of deferring its 37 incoming associates for six months to a year, it is going to institute an intensive training programs run by its partners, professional development personnel, and various firm clients.  To pay for this program, it is going to cut entry level salaries to $105,000 (from $145,000 to $160,000 depending upon the market).  Thereafter, the salaries will go to the "prevailing rate" in the spring 2010. [Query: what will that rate be?  Even it is higher than $105K, maybe Drinker is better off getting associates who self-select into its more training-intensive model.]

FutureFirm Frankly, this is the first sign I have witnessed of a sensible medium term strategy by an Am Law 200 law firm.  Further, this approach is very close to the associate pay models hammered out by the four FutureFirm 1.0 teams.  Remarkably, all four teams (each with four partners, three in-house lawyers, and three associates/law students) traded away the $160K pay scale for a entry level job that guaranteed meaningful training, client contact, and other perks, such as greater job security (e.g., a 3-year contract at $80,000 per year) and loan payback programs.

There are several reasons why Drinker Biddle's move could set the stage for a new equilibrium:

  • Making "Better Lawyers Faster."  The real problem with the $160K pay structure is that associates become too expensive to train, at least on the client's dime.  $105,000 is more than the $60,000 to $75,000 one-year hiatus offered by several firms.  But think about it.  A firm can bill out the associates at rates below a paralegal and easily recoup the difference.   Further, the associates are learning the clients' businesses and observing partners and senior associates.  In the fall of 2010,  Drinker Biddle associates will be worth a lot more to clients than associates who took the year off.  This training is akin to the original Cravath system, which was designed to make "better lawyers faster."
  • Continued Soft Entry Level Market.   With zero voluntary attrition at most Am Law 200 firms and the go-go days of Silicon Valley (97-00) and Wall Street (04-07) gone for the foreseeable future, the entry level supply pipeline is going to back up into the 2010 and 2011.   Thus, there is a decent chance that Drinker Biddle will enjoy a few years of sensible $105,000 salary structure.  In a world where revenues are unlikely to climb anytime soon, reducing costs is the only viable road to profitability.   More significantly, the lower costs and better trained workforce could become a source of long-term competitive advantage.
  • Owning your Market Space.  Up until 2009, virtually every law firm in the Am Law 200 was a market follower.  Drinker Biddle lacks to the cachet to be market leader, even in Philadelphia ($605,000 in FY 2008 PPP, which is #92 in the Am Law 100).  Thus, why not be a first mover where many competitors are likely to be too snobbish and bull-headed to follow your lead?  Based on upon my observations from FutureFirm, and my discussions with Indiana 1Ls, I predict that $105K + training will be magnet for many law students.  Keep in mind, more elite firms cannot even offer a firm start date. 
  • Reality is Underrated.  To my mind, it is preferable to be a so-called "middle-market" firm with a sensible cost-structure and a contented client base than an so-called top-market firm with a bloated cost-structure and clients who don't want your junior associates to work on their matters.  Am Law 200 firms can and do sometimes implode, especially when the partnership goes into denial.  Drinker Biddle, to it credit, appears to have a plan.
  • $105,000 and the Six-Figure Barrier.   It is unclear to me whether $105,000 is the optimal entry level salary for a lawyer who wants the very best training opportunities to launch one's career.  I suspect the optimal figure may be lower (e.g., $80,000 per year moving up to $120,000 to $200,000 within three years).  But I do think that dropping under the $100,000 barrier may have created perceptions problems for Drinker Biddle that may outweigh any short-term financial gains--e.g., Philly rivals mimicking Drinker's strategy, but coming in above the psychologically powerful six-figure barrier.  Yet, now, if some firms dicker around at $115,000, Drinker can move to that number next year with zero lost in market credibility, said figure being the so-called "prevailing rate."

Arguably, Drinker Biddle is the first Am Law 200 firm to not "waste a crisis."  It will be interesting to see how other firms respond.

May 11, 2009 in Law Firms | Permalink | Comments (0) | TrackBack (0)