Wednesday, September 8, 2010
The New York Appellate Division for the First Judicial Department reinstated a dismissed action brought by an employee who was represented in an immigration matter by an attorney retained by the employer. The court found that there were issues that could not be resolved on motion:
...even if it could be said that defendant, despite the lack of an expert, sustained his prima facie burden simply by pointing to plaintiff's failure to maintain a valid passport, plaintiff raised an issue of fact sufficient to defeat the motion. Plaintiff's expert opined in his affidavit that in his experience, the failure to maintain a valid passport has never resulted in a person's loss of legal immigration status. Defendant failed to rebut this. Therefore, a trial is necessary to determine whether plaintiff's actions excuse defendant from liability.
Not even defendant makes the argument, advanced by the dissent, that even assuming plaintiff was illegally benched and had a valid passport, it still would have been proper for defendant to petition for a renewal of the visa. In any event, the argument is meritless. First, the dissent places the burden on plaintiff to explain what he was doing during the 16 months he was not working for WFI [the employer] , when it was defendant's burden to negate the allegation in the complaint that plaintiff was illegally benched. The dissent fails to address the fact that defendant presented not one whit of admissible evidence that plaintiff voluntarily separated himself from WFI.
Furthermore, the dissent's view would permit an unlawful and vindictive act by an employer to work to the detriment of an innocent alien. We find it improbable that defendant would have lacked any ability to present these unique facts to immigration authorities and explain the extraordinary prejudice that would befall plaintiff were he forced to make a trip to a war-torn country to validate a renewed visa that could have simply been extended had his employer not acted in a manner contrary to law. Even if the regulations were so inflexible, as the dissent believes, it would have been necessary for defendant to support his position with expert testimony explaining why even under such extreme circumstances his hands were tied. Indeed, as discussed above, the immigration regulations at issue here, including the section requiring a valid passport at the time an application for extension is filed, are hardly self-explanatory, nor is it possible to conclude from their face that defendant had no chance of successfully securing an extension of plaintiff's visa. Accordingly, we reject the dissent's position that Supreme Court was "able to assess the adequacy of the legal services rendered, and require[d] no expert guidance."
The dissent notes that the employer had rehired the employee after the events that were the basis of the case:
The failure of proof on the dismissal motion lies not with defendant, but with plaintiff. Significantly, the reason for plaintiff's "separation" from his employment — whether benching, as plaintiff now maintains, or abandonment of his job, as WFI records indicate — presents a question of fact. Plaintiff has submitted no affidavit in opposition to the motion explaining why he left WFI or what he was doing during the ensuing 16 months; nothing in the record provides an explanation, including the Kuck affidavit, which — as the affidavit of an attorney unaccompanied by documentary evidence — is without probative value (Zuckerman v City of New York, 49 NY2d 557, 563 ). In the absence of a submission, in admissible form, attesting that plaintiff at all times met the conditions of his H1-B visa, the opposition fails to allege that but for defendant's malpractice, plaintiff could have received a visa extension (see Yong Wong Park v Wolff & Samson, P.C., 56 AD3d 351 , lv denied 12 NY3d 704 ). The expert's submission is thus procedurally deficient, warranting dismissal of the complaint on that basis alone (see Alvarez v Prospect Hosp., 68 NY2d 320, 327 ), since plaintiff has failed to provide a viable theory of malpractice by defendant supported by the requisite factual predicate.
Plaintiff's opposition evades discussion of the circumstances under which he left WFI and what he was doing during the 16 months before he was rehired, and fails to address such matters as whether he took alternative employment to support his family (a wife and a child born in February 1999) during this period. The opposition to the motion only suggests, by indirection, that there was some misconduct on the part of WFI in connection with plaintiff's separation from his employment with the company, but neglects to supply any information to support that intimation or to connect it to the conduct alleged to constitute malpractice. Finally, plaintiff coyly offers only the affidavit of his purported expert in immigration law, in lieu of a sound legal argument supporting his cause of action.
Thursday, August 26, 2010
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.
Opinion 2010-5 addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.
The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.
The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”
Several portions of two Ohio Rules of Professional Conduct were consulted in issuing this advisory opinion, including: Prof. Cond. Rules 1.10 and 1.7.
Friday, August 13, 2010
Posted by Jeff Lipshaw
Over the course of a career, I've mentored enough people to be proud when they achieve good things after we've parted company, but I haven't been teaching long enough to get a lot of that yet from my law students.
One of my students (and my research assistant) at Tulane in 2006-07, Matthew Kirkham, is an assistant DA in Orleans Parish (New Orleans), Louisiana. This story is about the successful prosecution of a guy who stole $500,000 by not providing contractor services to Katrina victims. As reported, "Assistant District Attorneys Alex Calenda and Matt Kirkham handled the case."
* Per Merriam-Webster, "Yiddish kveln to be delighted, from Middle High German quellen to well, gush, swell."
Thursday, July 22, 2010
Posted by Alan Childress
Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed
by the grounded theory study of their ideologies, training, backgrounds,
ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract:
This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters. The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies. It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups. It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.
I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.
Monday, July 12, 2010
Posted by Jeff Lipshaw
I drove up I-75 from the Detroit area to Charlevoix yesterday, and was listening to the baseball game somewhere near Flint (WTRX, 1330-AM, part of the Detroit Tigers Baseball Network*) and heard an ad that I have to admit caught my attention. I've debated whether I really wanted to give this lawyer the free advertising that this post would entail, but what the heck. I leave to Mike and Alan to tell me technically whether there's a professional responsibility issue here; I can't decide if the lawyer is doing a public service or not.
It was a pretty standard divorce lawyer's radio ad ("When Matrimony Turns to Acrimony"), but what caught my attention was that the URL for the website was "dumpmyspouse.com." It went by quickly, so at first I thought that was the URL for a law firm, and that seemed pretty squirrelly to me. Would you really be doing a service to your clients by sending out communications to the courts, lawyers, and the public with your e-mail as "email@example.com?" (I should add, by the way, that I looked at this particular lawyer's online resume, and he seems to be a fully qualified, upstanding guy.)
I was wrong, however, about the website. "Dump My Spouse" is not a law firm, or a law firm's URL. It is a private referral service, obviously originated by this particular Flint lawyer. It has a map of the state of Michigan with all 83 counties outlined, and you are supposed to click on a county to find a lawyer who is part of the "Dump My Spouse" referral network. You can register to be part of the network. I wasn't going to click through all 83 counties, but I clicked on a random sample and, as far as I can tell, this Flint lawyer is still the only member of the network, which may answer the question posed in the preceding paragraph.
De gustibus non est disputandum.
* When I'm in Michigan, I get to watch my beloved Tigers to my heart's content on Fox Sports Detroit, but this pleasure has been sullied somewhat by the fact that 1-800-CALLSAM, the quintessential wee hours cheap advertising personal injury law firm of my professional youth in the Detroit area, has obviously prospered to the point that it is now the major sponsor of the ballgames, including the CALLSAM Post-Game Report. I think it even has one of the advertising spots right behind home plate, so that you get to watch Justin Verlander aim his slider at the right side of the M in alternate innings. By the way, just to make it clear that I'm an equal opportunity curmudgeon on this issue, I would get almost as disgusted (note the Latin root by the way) when I'd be listening to "All Things Considered" on NPR, and find out that it was underwritten in part by Silk & Stocking, the biggest law firm in town, and one to whom I was sending thousands of dollars of our legal business, with some goony slogan like "It's an Uncertain World: Be Advised" or "We Know the Territory."
Thursday, July 8, 2010
The Legal Ethics Committee of the District of Columbia Bar has issued an opinion explaining the proper handling of flat fees. the opinion considers the impact of a recent opinion of the D.C. Court of Appeals on the subject. The summary:
In its decision in In re Mance, 980 A.2d 1196 (D.C. 2009), the District of Columbia Court of Appeals held that, absent informed consent from the client to a different arrangement, a lawyer must deposit a flat or fixed fee paid in advance of legal services in the lawyer’s trust account. Under Mance, such funds must remain in the lawyer’s trust account until earned unless the client gives informed consent to a different arrangement. This Opinion provides guidance for the Bar concerning these rulings.
The lawyer and client may agree on how and when the attorney is deemed to have earned some, or all, of the flat fee and thereby entitled to transfer trust funds into the lawyer’s operating account. Such an agreement must bear a reasonable relationship to the anticipated course of the representation and must avoid excessive “front–loading.” A written agreement or a writing evidencing the agreement is strongly recommended but not mandatory. In the absence of any agreement with the client regarding milestones by which the lawyer will have earned portions of the fixed fee, the lawyer will have the burden to establish that whatever funds that have been transferred to the lawyer’s operating account have been earned.
Alternatively, a lawyer may place unearned funds in an operating account provided that the lawyer obtains informed consent from the client as provided in Rule 1.15(e). In order to obtain such consent, the lawyer must explain to the client that the funds may also be placed and kept in a trust account until earned and that placement in an operating account does not affect a lawyer’s obligation to refund unearned funds if the client terminates the representation. The lawyer should also explain the additional protection offered by a trust account. For the lawyer’s and client’s protection, these disclosures should be in writing, but the Rules do not mandate a writing.
The Mance opinion is linked here. (Mike Frisch)
Saturday, June 19, 2010
Posted by Jeff Lipshaw
The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students. I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here. I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.
How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.
1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.
2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?
My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).
Wednesday, June 9, 2010
Posted by Alan Childress
From the Harvard Program for the Legal Professon, Nisha Agarwal and Jocelyn Simonson have published to SSRN their article, Thinking Like a Public Interest Lawyer: Theory, Practice and Pedagogy, which will also be in New York University Review of Law & Social Change, vol. 34, 2010. Here is the abstract:
In educating future public interest lawyers, law schools must cultivate in students the combination of intellectual, emotional, and normative thinking required for the complex world of practice. This article presents one such method for teaching critical public interest lawyering: the integration of social theory and public interest practice introduced by the Harvard Law School Summer Theory Institute. The theory-practice method of the Institute, in which law students engage with social theories while participating in full-time summer internships with public interest organizations, demonstrates the benefits of creating a space for students to draw connections between abstract conceptions of justice and on-the-ground efforts to lawyer for social change.
This article begins by using the theories of Pierre Bourdieu to explore a dichotomy between theory and practice in public interest law that can often inhibit efforts to pursue social justice lawyering. Then, drawing upon the discussions the Summer Theory Institute’s students had about three theorists – Michel Foucault, Friedrich Hayek, and David Couzens Hoy – this article demonstrates how theoretical reflection placed in the practice setting can cultivate in law students the kind of normative thinking necessary to make them inspired, self-reflective, and critically engaged public interest lawyers and agents of social change.
Monday, June 7, 2010
The Nevada Supreme Court reversed a conviction for second-degree murder and related offenses due to the State's failure to properly respond to an issue raised on behalf of the appellant:
In this appeal, we have the duty to publicly reiterate the importance of submitting attentive appellate briefs and the unfortunate obligation to address the unforgiving consequences resulting from a respondent’s failure to respond to relevant issues raised on appeal. In his opening brief, appellant...Polk argues that his constitutional right to confrontation under the Sixth Amendment of the United States Constitution and Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527 (2009), was violated when the findings of a gunshot residue analyst who did not testify at trial and was not subject to cross-examination were admitted. In its answering brief, the State failed to directly address the Crawford and Melendez-Diaz issue or argue, alternatively, that any potential constitutional violation was harmless error. Polk argues in his reply that because the State failed to respond to Polk’s alleged constitutional violation, it effectively confessed error under NRAP 31(d). We agree and reverse and remand for a new trial.
The State failed to respond to a critical issue:
We recognize that the State filed a lengthy answering brief addressing Polk’s other issues on appeal; however, the State failed to address Polk’s argument that his constitutional right to confrontation under Crawford and Melendez-Diaz was violated. This is a significant constitutional issue that compels a response. The issue was clearly raised in Polk’s opening brief and reply brief, the argument regarding it collectively consisting of approximately four pages. Melendez-Diaz was decided on June 25, 2009. The State filed its answering brief six weeks later, on September 10, 2009. In Polk’s reply brief, he explicitly referenced the State’s failure to directly address the constitutional issue. Even after being notified of its failure to respond to the Crawford and Melendez-Diaz issue, the State failed to supplement its response and elected to wait until oral argument to address the constitutional issue or harmless error. Such appellate practice causes prejudice to Polk’s ability to adequately prepare for or respond during oral argument.
Accordingly, we grant Polk’s oral motion to exclude the State’s oral argument on the Crawford and Melendez-Diaz issues and disregard the State’s argument. Because the constitutional right to confrontation under Crawford and Melendez-Diaz was repeatedly raised throughout the appeal, but the State failed to address or even assert that any potential violation was harmless error, we invoke our authority under NRAP 31(d) and consider the State’s silence to be a confession of error on this issue.
Thursday, May 27, 2010
An announcement from the web page of the District of Columbia Bar:
D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment on whether Rule 1.10 (imputed disqualification) of the D.C. Rules of Professional Conduct should be revised.
In February 2009, the ABA adopted amendments to Model Rule 1.10 to permit ethical screening with certain notifications and certifications—without client consent—of lateral lawyers who have moved between private organizations.
In light of the ABA’s action, the Rules Review Committee established a subcommittee to consider whether to recommend an expansion of lateral screening for the District of Columbia. The committee has not yet decided whether to make a recommendation on this subject to the Bar’s Board of Governors. To inform its consideration, the committee hereby requests comment from the Bar and public on the following issues:
- Should the District adopt the amended model rule approach and permit an individual lawyer moving between private sector jobs to be screened from matters in which the lawyer’s new law firm or other organization is adverse to his or her former client?
- If so, should the governing rule be:
- The ABA Model Rule formulation,
- The committee’s draft formulation (which contains several possible variants on post hoc reporting), or
- Another formulation, perhaps one that attempts to take into account the degree or significance of the individual lawyer’s involvement in the former matter?
This link will take you to the particulars. (Mike Frisch)
Friday, May 21, 2010
The Missouri Supreme Court discharged a finding of criminal contempt against an attorney for "strong words he used in petitioning the court of appeals for a writ to quash a subpoena issued for a grand jury..." The attorney accused the prosecuting attorney and judge overseeing the grand jury of a conspiracy to "threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so."
The attorney was found guilty of criminal contempt by a jury and was sentenced to 120 days in jail. The court here held that the essential elements of contempt initiated by a judge against an attorney include a false statement, made either knowing of the falsity or in reckless disregard of truth or falsity and an actual or imminent impediment or threat to the administration of justice. (Mike Frisch)
Sunday, May 2, 2010
Posted by Jeff Lipshaw
I don't ever do solicited product endorsements but my son-in-law Simon, IT guru and Mac aficionado, referred me some time ago to a writer's program called Scrivener, which I now use to organize notes and sources on my writing projects. Simon passed along this link that discusses how Scrivener might be helpful to lawyers.
Tuesday, April 20, 2010
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion about whether a lawyer’s notes must be turned over to a client when requested.
Opinion 2010-2 addresses the following question: “Are a lawyer’s notes of an interview with a current or former client considered client papers to which the current or former client is entitled upon request?”
The opinion finds that it depends upon whether “the notes are items reasonably necessary to the client’s representation” pursuant to Prof. Cond. Rule 1.16(d), which requires the lawyer to exercise his or her professional judgment.
For example, the opinion states that: “A lawyer’s notes to himself or herself regarding passing thoughts, ideas, impression, or questions will probably not be items reasonably necessary to a client’s representation. … But, a lawyer’s notes regarding facts about the case will most likely be an item reasonably necessary to a client’s representation.”
The opinion also states that a lawyer may ethically redact portions from the note not reasonably necessary or prepare a note for the client that contains only the necessary items needed for representation.
Wednesday, April 14, 2010
[posted by Bill Henderson]
Here is a link to a very interesting American Lawyer video interview of Seyfarth Shaw Managing Partner J. Stephen Poor on his firm's adoption of Six Sigma methodology, Many things in the interview are noteworthy:
- Seyfarth is making a significant long-term investment in time and money -- the subtext is that it is reducing short term profits. Most large law firms don't make such long-term investments in human capital and business processes. Moreover, the initiative is not new; it began five years ago.
- The eventual payoff is designed to be a second order effect of serving clients. As Stephen Poor notes, the Six Sigma approach benefits clients by making them more competitive. "And what is good for our clients is what is good for Seyfarth." Seyfarth claims that Six Sigma has enabled it to grow client relationships. Many of Seyfarth's competitors focus primarily on profits -- to keep partners from leaving -- rather than clients.
- This business process approach has the potential of institutionalizing clients because lateral partners cannot replicate Seyfarth's efficiencies at their next firm. Moreover, Six Sigma in law firms is probably scalable. So if its price/quality combination takes off, Seyfarth can take market share from competitors.
- As Poor notes, Six Sigma is not limited to certain practice areas -- it applies to certain portions of all practice areas. This observation suggests that Seyfarth has carefully examined its work flows in a way that enables the firm to speak to clients at a very sophisticated level. Most GCs these days are talking about disaggregation of their legal matters, which is the first step in optimizing (i.e., stretching) their legal budget.
- Seyfarth appears to be behaving like a business rather than a law firm. It has a long term market differentiation strategy that is not based on specializing in "high-end", "bet-the-company", "non-commodity" work. In other words, it is heading in the opposite direction of most Am Law 100 firms. If law firms could sell stock, I would be interested in taking a long position on Seyfarth.
One final note: much of the what Stephen Poor has to say is understated. Seyfarth Shaw's managing partner is branding his firm without bragging, which is a subtle but valuable skill.
Friday, April 2, 2010
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. 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: " 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.)
Thursday, February 11, 2010
Posted, written, directed, produced by, and starring, Jeff Lipshaw
I hope you have the point. I have decided that the article I've been working on (February is the hardest month, isn't it?) has, sometime in the last several days, passed not only the point of minimal coherence, but is indeed ready to leave the womb, sink or swim, fend for itself. I am hoping it takes care of me in my old age. Seriously, folks (ta ta boom), The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity is up on SSRN (in the spirit of "tomorrow's research today, not completely complete, but getting there, subject to post-production), now that I've decided what to leave on the cutting room floor. It is the basis of the last part of my book-to-be (in utero), Lawyering and the Mystery of Judgment.
If you get the idea that metaphors have something to do with the point, you win the kewpie doll. What I've tried to do is exploit what is my niche - bridging the real world and the academy - and it is recursive in exactly the way I tend to think of the world: how do we make judgments that bridge or fall between disciplines? Those are interdisciplinary judgments, but is there a skill that focuses on those kinds of judgments, meaning that we are dealing with an even higher order concept, namely metadisciplinarity? Which academic department grants a Ph.D. in that? (The fact that TypePad has just put a dotted red line under metadisciplinarity makes me hopeful I've coined a term!) What I have tried to do is spice the theory with many real world examples, admittedly anecdotal, but also, I think, typical. I will look forward to comments, because I have tried to be provocative, especially with regard to the pitfalls of "thinking like a lawyer", and the education that takes us there.
The abstract follows the fold.
February 11, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, General Counsel, Law & Business, Law & Society, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)
Monday, January 11, 2010
Friday, December 11, 2009
Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In
Posted by Jeff Lipshaw
Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence). Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.
I am prepared to expand the thesis. I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point: the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science. The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in." That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)
Let me bring this back to the practice of lawyering, rather than just the theory of law. We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.” I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills. But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering. Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense). As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in.
The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice. The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility: it is not an appeal to justice; it is an appeal to authority with the patina of justice. That’s what we teach first year lawyers: how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity: fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority). Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts). There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is.
Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm). That’s the quality that comes after first year doctrine, contract drafting, and deal skills. It means somehow teaching the inside-out rather than the outside-in. Now here’s the tough question: what are the academic and professional bona fides for teaching that advanced course?
December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (1) | TrackBack (0)
Tuesday, November 10, 2009
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today announced the adoption of amendments governing out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice). The amendments, which were adopted by a 6-1 vote by the Supreme Court, become effective Jan. 1, 2011.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
- Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
- Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not appeared more than three times in a calendar year in a pro hac vice capacity.
- Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
- Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp concurred in adopting the amendments. Justice Paul E. Pfeifer dissented.
Monday, August 24, 2009
Posted by Jeff Lipshaw
We don't endorse commercial products here (usually), and I'm sure I got this is a really a teaser so that the company, AbacusLaw, can sell law firm management software (they'd give the book away, I suspect, but one of the rules of marketing - ask our advanced legal studies people - is that if you give it away, people don't value it).
The book is called Dangerous Law Practice Myths, Lies, and Stupidity, and tells 35 little stories - with tltles like "The Two-Calendar Myth," "The Free Advice Myth" (again, no doubt why they are charging for the book), and "The Ivy-League Lawyer Myth" (I think Brown, Dartmouth, and Princeton need to take some umbrage here) - of what the authors contend are myths about law firm management. I leave it to you to decide if they are, but this isn't too bad, and certainly food for thought.