Legal Profession Blog

Should a lawyer withdraw at the first sign that a client is lying?

I muse about the issue over at my blog (here). 

(Posted by Nancy Rapoport.)

Stupid lawyer tricks, part n

From the Attorney e-Newsletter of the Supreme Court of Pennsylvania's Disciplinary Board's March 2010 issue:

Also, 12 attorneys paid their annual fees with checks marked as drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel.[2] Eighty-seven paid with checks drawn on insufficient funds; four of which were still outstanding at press time. Not smart.

And footnote 2 itself is classic:  "[2] The ethical equivalent of a 'Please kick me' sign."

Couldn't make this stuff up if we tried.  Hat tip to my buddy Scott Unger for this one.

(Posted by Nancy Rapoport.)

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)

One bankruptcy judge's fight against incompetent lawyers

You've got to love a judge who puts his expectations in clear, declarative sentences, and you can almost hear his teeth gritting as he writes this letter, which is now an official notice to lawyers practicing in his court  (here).  Methinks he's had enough.

(Posted by Nancy Rapoport)

Is managing for USNWR rankings like "earnings management"?

Over on my own blog, I've commented on the yearly trend towards taking action to improve schools' USNWR rankings (see here).  Other blogs are also noticing some schools' moves.  TaxProf Blog noticed that some Texas schools are dropping the size of their classes, even in a time when budgets are an issue (see here).  And Brian Leiter has called "shenanigans" on some schools dropping their PT programs, now that PT programs are counted in the rankings (see here). 

If schools are changing their programs for good reasons--e.g., on the theory that smaller class sizes provide better learning experiences for students--I have absolutely no beef with those decisions.  But if schools are changing their programs to improve their rankings, and for no other reason, how different is "rankings management" from "earnings management," where businesses hide flaws in order to make themselves look "stronger" than they are?

(Posted by Nancy Rapoport)

New Enron Corporate Fiasco Reader Available

Posted by Jeff Lipshaw

The Foundation Press compilation, Enron and Other Corporate Fiascos:  The Corporate Scandal Reader, 2d Edition , edited by Nancy Rapoport (UNLV), Jeffrey Van Niel, and Bala Dharan (Rice) is now in print.  I'm pleased to say that Suffolk is well represented: Andy Perlman (of Legal Ethics Forum fame) and I both have pieces in it.  Andy's contribution is his Hofstra Law Review article, Unethical Obedience by Subordinate Attorneys:  Lessons from Social Psychology.  The editors were kind enough, or confused enough, to include two of my articles, the U. Toledo Law Review piece, Law as Rationalization:  Getting Beyond Reason to Business Ethics, and the Wayne Law Review piece, Sarbanes-Oxley, Jurisprudence, Game Theory, Insurance and Kant:  Toward a Moral Theory of Good Governance.  Brad Wendel (Cornell) also of LEF fame contributed Professionalism as Interpretation, originally in the Northwestern University Law Review.

Other contributors are John Coffee (Columbia), Cynthia Cooper (Cooper Consulting), Lynne Dallas (San Diego), Jose Gabilondo (Florida International), Malcolm Gladwell, Kent Greenfield (BC), Kristen Hays (Houston Chronicle), Katherine Kruse (UNLV), George Kuney (Tennessee), Donald Langevoort (Georgetown), David Luban (Georgetown), Jonathan Macey (Yale), Peter Margulies (Roger Williams), Colin Marks (St. Mary's), Geraldine Szott Moohr (Houston), Marleen O'Connor (Stetson), Frank Partnoy (San Diego), Robert Prentice (Texas), Robert Romano (Yale), Mark Sargent (Villanova), Steven Schwarcz (Duke), David Arthur Skeel (Penn), Christopher Whelan (Oxford, Visiting, Washington & Lee), Duane Windsor (Rice), and Randall Wray (UMKC).

Association of Media & Entertainment Counsel (AMEC) Honors Law Professor

And the only law professor to be so honored is . . . our colleague Nancy Rapoport.  (She of UNLV law school, Enron movie IMDB, and competitive ballroom dancing infamy.)  The Association of Media and Entertainment Counsel, which recognizes the achievements of in-house legal counsel in the entertainment industry, has nominated its 2008 Counsel of the Year awards.  Full list of nominees here.  You have to like that one of the categories is Dealmaker of the Year.  (Last year's winner was not the man who put together all the financing and talent pawns to resurrect Knight Rider, TV's only show this year where the pilot already jumped the shark.)  In the category of Public Service, the nominees are Nancy and Prof. David Sherwyn of Cornell's Hospitality School.  Congratulations to both, and let's hope that this category is not one of the awards they give off-camera at some half-filled hotel ballroom a week before they dole out the jazzy awards and inappropriate political speeches.  Though if so, she's one of the few who could use the ballroom for its intended purpose.  [Alan Childress]

A new low in the collegiality wars

A friend of mine from Houston forwarded me this letter (here), which has to be a new low in collegiality. [Nancy Rapoport]

Rankings, Accounting, and Gaming

Posted by Jeff Lipshaw

Fresh off the front page Wall Street Journal article this morning, friends Larry Ribstein and Nancy Rapoport nail the analogy between law deans gaming the USNWR rankings and accountants massaging the numbers to meet the quarterly estimates, so permit me a moment of "I told you so" when I see this quote:

As for the charge of “gaming” the system, Phillip Closius, former Toledo dean, who successfully used the part-time strategy to improve the school’s ranking, says:

U.S. News is not a moral code, it's a set of seriously flawed rules of a magazine, and I follow the rules...without hiding anything.

My discussion of the resemblance between models like USNWR rankings, and games like football or chess is posted on SSRN and will be coming out in this volume of the Cleveland State Law Review.  The piece is Models and Games:  The Difference Between Explanation and Understanding for Lawyers and Ethicists.  Here is the abstract.  Enjoy.

There is value for lawyers in thinking about constructs of rules as games, on one hand, or models, on the other. Games are real in a way models are not. Games have thingness - an independent reality - and they can be played. Models have aboutness - they map onto something else that is real for the sake of simplification and explanation. But models and games are not as dichotomous as the preceding claim makes them out to be. Sometimes models look just like games, and sometimes games can serve as models. Because models look like games, we may come to believe they are real - that the models have thingness rather than aboutness. People are prone to think some of the models they deal in all the time are real, like games, and perhaps even more real than the reality the models are supposed to represent. When that happens unreflectively in business, ethical and legal problems can ensue.

There is also a relationship between games and models as a way of thinking, and the position of the thinker as modeler, game creator, or game player. To engage in any of those acts is to use the legally trained mind to make sense of what is going on, and to act on it. But there are different ways of making sense, either by explaining or understanding, and it is not common in legal education to undertake the exercise of thinking about thinking, or theorizing about theory. I explore the consequence of confusing games and models in two contexts, financial accounting and contract interpretation, and consider the possibility of co-optation from models into games and vice versa. I conclude that practicing lawyers (or law professors) need to think about thinking itself or face the possibility of being misled by precisely the same context facing their clients. In short, lawyers need to be pragmatic ontologists.

Halverson re-election riddle

In Nevada, we're watching the judicial discipline hearing of Judge Elizabeth Halverson, who's been accused of, inter alia, making her bailiff give her foot rubs, falling asleep on the bench, eating with jurors during a criminal trial, and putting her husband under oath to find out if he cleaned the house. See here. My question is: assuming she gets thrown off the bench for her current term, what happens if voters re-elect her for a new term, given the power of incumbent name recognition? (posted by Nancy Rapoport)

Notes from Michigan

Posted by Jeff Lipshaw

Some random observations this morning from up here in God's country. . . . (well, if David Broder could do it from Beaver Island thirty miles northwest in the middle of the lake, why can't I?)

• The front page of the Detroit Free Press has a story on the latest gaffe in the mayoral debacle, this time, the decision by Gov. Jennifer Granholm (D-Harvard Law School) apparently to try to broker a deal with the federal prosecutors to resolve the mayor's difficulties at the same time she may be called upon to remove him from office.  Quoted in the article on the legal ethics angle is none other than our own Nancy Rapoport.

• They have begun to tear down vacant Tiger Stadium.  See the New York Times.

• Reading the list of Starbucks closings to which Alan linked felt a little like going down a list of disaster victims.  I knew the ones at 38th and Meridian and in The Precedent in Indianapolis.  I used to stop at the first one on my way down to teach my entrepreneurship and the law seminar at IU-Indy, and the second one was the stop between the gym and my office at Great Lakes.  Interesting that not a single store in Boston or Cambridge was closed.  Here's a theory.  Because of the significant competition in Boston from Dunkin' Donuts (I still don't get Dunkin' Donuts, particularly the abomination of having the servers put the cream in your coffee before they pour it, but Boston runs on Dunkin'), Starbucks never overbuilt.

• For those of you just dying to know the fate of yesterday's cherries, first they are pitted and sugared (see above left), and then they are consigned to a cherry crisp (right).  We who merely climb the ladder to pick the cherries defer this latter highly technical activity to the experts.

• Humean dogs.  My two dogs, Max and Annie, are constrained by an Invisible Fence.  When somebody comes by walking a dog on the street in front of us, they run up and down barking furiously until the passersby are a couple feet beyond the lot line, and then they immediately stop.  I have concluded they believe they are causing the passersby to go away.

Real life imitates episode of Shark (well, sort of)

According to today's New York Times (here), one of Morgenthau's prosecutors says that he intentionally threw a case because he was convinced that the defendant wasn't guilty. In the recently canceled CBS series Shark, James Woods's character Sebastian Stark throws a case because he's convinced that his client IS guilty (see here). Guess what, folks? Throwing a case is unethical, even if you're convinced it's the morally correct thing to do. (Nancy Rapoport)

Tx Ct Crim App denies appeal of death row inmate who alleges that judge & prosecutor slept together during case

OK, here's a first for me.  Charles Hood is set to be executed tonight because the Texas Court of Criminal Appeals has denied his appeal, which alleged that the judge and prosecutor on his case were sleeping together at the time that he was being tried.  The appeal was denied on procedural grounds.  More...

According to an email that I received, Hood's allegations were bolstered by an affidavit by

a former assistant district attorney in the Collin County District Attorney's Office . . . testifying that "[i]t was common knowledge" that Judge Holland and District Attorney O'Connell "had a romantic relationship" for several years, including at the time of Mr. Hood's trial and death sentence.

Isn't this type of situation a clear ground for recusal at trial? I'm stunned.  If you want to read my take on this, go here (the post includes a phone number for calling the person inTexas Gov. Perry's staff in charge of the Hood case).  [Nancy Rapoport]

Local lawyer in Vegas does the right thing

There's a lovely article in the local Las Vegas paper about a lawyer who, after discovering that his boss had stolen $200K from her client trust accounts, repaid each and every client for the theft. (See here.) For my take on it, see here. (Nancy Rapoport)

What do needles and vials in Vegas have in common with Jeff Skilling's appeal?

(Posted by Nancy Rapoport) There's a local scandal a'brewin' in Las Vegas, where several medical centers stand accused of having reused needles and single-use vials in an effort to cut costs--see, e.g., here. Unfortunately, the reuse of needles and vials carries with it the risk of such diseases as hepatitis C and HIV. Here in Las Vegas, several of us have been asking ourselves how health professionals could possibly have gone along with orders to reuse needles and vials, knowing the potential health risks involved. Now Jeff Skilling's lawyers are alleging that the Enron prosecutors deliberately withheld potentially exculpatory evidence during his trial (see, e.g., here, here, here, and here). If these allegations are true, why would the prosecutors do something so obviously dumb and ultimately counterproductive? Personally, I think it's because our parents were right: we tend to play follow-the-leader, especially when we're under pressure. Group norms are a lot more powerful than we tend to pretend that they are, and rules (ethics rules, caselaw, even the fear of sanctions) are not as powerful as deterrents as peer pressure is as a motivator for action. Peer pressure acts in the now, and deterrents are for a later time and place. If the suppression of exculpatory evidence was on as large a scale as Skilling's brief contends, then it wasn't a one-shot action by a rogue prosecutor; instead, it was a team effort to cheat the justice system. As long as we're talking about group behavior, let's throw a little cognitive dissonance into the mix as well: perhaps the prosecutors, having worked so hard on these prosecutions, really wanted to ensure the win, so they talked themselves into withholding exculpatory evidence "for the greater good" of getting a conviction. All of this is conjecture on my part. We don't know enough yet to know what really happened, although things look pretty bad for the prosecutors. My point is that people are good at fooling themselves into doing things that they know are wrong, and groups of people are very good at egging each other on to turn these individual bad decisions into new, and very bad, group norms. From those incrementally bad decisions, we get convictions that may get overturned and people walking into health care facilities hoping to get screened for illnesses and walking out with serious and incurable diseases. All for what? For the sake of saving short-term costs without thinking of the larger, long-term ones. Hey, wait: wasn't that the problem with Enron in the first place?

UNLV, Boyd School of Law is hiring!

Posted by Nancy Rapoport. 

I've blogged, on my own site, about the Boyd School of Law (see here for my latest post about Boyd).  Well, I'm on the faculty appointments committee this year, and Jeff very kindly said that I'm allowed to post our ad.  Please see below for our ad, and please consider applying.

UNIVERSITY OF NEVADA, LAS VEGAS—WILLIAM S. BOYD SCHOOL OF LAW invites applications for at least one tenure-track Associate Professor or tenured Full Professor of Law position, with appointment to begin with the 2008-2009 academic year. We have substantial flexibility in subject matter interests, with special interest in clinical teaching. We seek candidates with excellent academic records and experience and who have a strong commitment to scholarship and teaching. Candidates must have earned a JD from an ABA-accredited law school or an equivalent degree. Applicants for Full Professor must have records of substantial accomplishment and qualifications sufficient to be awarded tenure. Salary will be commensurate with the labor market. This position, like all faculty positions, is contingent on funding. Application review will begin immediately. The Boyd School of Law is a fully-accredited public law school in state-of-the-art facilities at the center of the UNLV campus. We have a diverse faculty of new and experienced legal educators drawn from top institutions. The Boyd School of Law has 473 students enrolled (346 full-time, 127 part-time) and 41 full-time faculty. For more information on the Boyd School of Law, see our website at http://www.law.unlv.edu/. UNLV is a premier metropolitan research university located in the nation’s fastest growing city. It is the state’s largest comprehensive doctoral degree granting institution, with 27,000 students and more than 850 full-time faculty. UNLV provides traditional and professional academic programs for a diverse student body and encourages innovative and interdisciplinary approaches to teaching, learning, and scholarship. For more information on the University, see the UNLV website at http://www.unlv.edu. Applicants should submit a letter of interest, along with a detailed resume, three professional references, and off-prints of your published works. Contact: Professor Christopher L. Blakesley, Chair, Appointments Committee, UNLV—Boyd School of Law, 4505 Maryland Parkway – Box 451003, Las Vegas, NV 89154-1003. UNLV is an Affirmative Action/Equal Opportunity educator and employer committed to excellence through diversity.

$1,000/hour? Nero has become managing partner and is fiddling away....

Posted by Nancy Rapoport

Jeff's post on this latest rate increase points out that some lawyers are worth $1,000/hour or more, but the group of lawyers that can justify that rate is a much smaller pool than the group of lawyers charging (or about to charge) that rate.  And that high rate is efficient only if the lawyer charging it is doing those tasks that use his or her specialized expertise.  The problem, of course, is that the rate doesn't distinguish between "review file" and "develop brand-new legal theory that saves the day."  And then there's the copycat issue, where lawyers who think that they're worth $1,000/hour want to increase their rates just to stay in the game.

I found Steve Susman's comment about his hourly rate most interesting: 

Plaintiffs['] trial lawyers often bill on a contingency-fee basis, earning a share of a settlement or verdict -- an amount that can dwarf top rates. "It represents an opportunity cost when I am working by the hour," says Mr. Susman, who last year raised his hourly fee to $1,100. He did it in part, he says, "to discourage anyone hiring me on that basis."

That reason I can understand, and I set my own consulting rate very high (but not $1,000/hour high!) for the same reason.  How many of the law firms increasing their rates to the new four-digit high spend much time calculating their "value added" part of the equation?  I'll bet that, instead, they're just trying to make ends meet, given the still-increasing overhead caused by high associate salaries, and of course there's always the ego problem (he charges $X, therefore I will, too).  Other folks (including here, here, and here) have been noticing the increasing disconnect between fees and value.  Something's going to give, and soon--and Nero's new rates are speeding it along.

The latest on Elizabeth Edwards and Ann Coulter

Posted by Nancy Rapoport.

I've done a post on my blog regarding what I think that professors can learn from Elizabeth Edwards's confrontation of Ann Coulter on Hardball (see my post here), and it strikes me that today's WSJ law blog about Coulter raises an interesting question about her behavior as a (non-practicing) lawyer.  Hmmm.

For those who enjoy Schadenfreude...

Posted by Nancy Rapoport.

If you're a fan of Schadenfreude, you might enjoy following my diary of my bar-study experiences, at Nancy Rapoport's Blogspot.  The first installment is here. 

David Luban's Commentary on the Comey-Gonzales-Ashcroft Debacle

Posted by Jeff Lipshaw

I have decided to go public with the fact that we have been trying to entice the esteemed David Luban (Georgetown, left), a friend, colleague, and neighbor of Mike Frisch, to do the occasional guest-blogging stint over here at LPB.  There is, of course, far more in it for us than for David, as he brings more credibility and readership to us than we would bring to him.  I'm not quite sure where we stand in this intense negotiation (we offered to let him go home when he wasn't blogging, a la Roger Clemens), but David has significant commitments, including his contributions to Balkinization, and we are happy to take whatever we can get.

This morning, David suggested we cross-post his Balkinization comments on speculation whether then Counsel to the President Gonzales violated Texas ethics rules by his involvement in the attempt to get then AG Ashcroft to sign off on the illegal wiretaps.  (I should note they include a quote from our own Nancy Rapoport which includes the "would my mom be proud?" corollary to the "front page" test discussed below.)  David's comment are typically subtle:  the issue is not whether there was obstruction of justice (there probably wasn't) but whether the whole thing involved a plan to deceive not Ashcroft but others:

According to Comey, Ashcroft rose up off his pillow to remind Gonzales and Andrew Card that Comey, not Ashcroft, was the acting attorney general. They knew that, of course. Their aim was apparently to get Ashcroft’s legally-meaningless signature – meaningless, because at that time he was not exercising the powers of the attorney general – so they would have a document that made it wrongly seem that the attorney general had signed off on the program. If Marty's speculation is right, the AG’s signature was important to reassure telecom companies cooperating with the program that doing so was on the right side of the law.

But suppose that wasn’t Gonzales's and Card's reason for seeking Ashcroft’s signature. The fact remains that any use of the signature would have been, quite simply, fraudulent - at least, if it falsely suggested that Ashcroft's legal authority as AG attached to what he was signing . The Texas rules forbid lawyers from engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation. Steve Gillers focuses on their attempt to deceive Ashcroft. But the more significant violation lies in trying to get Ashcroft’s signature for purposes of deceiving others. Deceiving others with a fraudulent document would amount to a mammoth political hoax; deceiving the ailing Ashcroft would have been "only" a small bit of foulness.

And as long as you are over there, check out the links to You Tube on this subject in the Marty Lederman post just below.   And remember: leave the gun; take the cannoli.