Legal Profession Blog

"DumpMySpouse.com"

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 "joe@dumpmyspouse.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."

Flat Fees In D.C.

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)

My "Dean Speech" on the Future of the Legal Academy

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).

Agarwal & Simonson on Public Interest Lawyering and Instruction

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.

Silence Confesses Error

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.

(Mike Frisch)

D.C. To Consider Screening Proposals

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:
  1. The ABA Model Rule formulation,
  2. The committee’s draft formulation (which contains several possible variants on post hoc reporting), or
  3. 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)

Strong Words

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)

Scrivener for Lawyers

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.

Take Note

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.

(Mike Frisch)

Six Sigma at Seyfarth Shaw

[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. 

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.)

Lipshaw on Judgment (and Metaphor)

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.

Here's the abstract:

The relationship of pure and mixed business and legal judgment can be modeled in a Venn diagram. The question is who is capable of making judgments in the overlap. Businesspeople are not competent to assess the legal implications, and not inclined merely to trust the decision to lawyers. Lawyers, on the other hand, are usually successors to a particular method of organizing the world, and members of a closed discipline. By nature of the very concept of a judgment, it must occur privately in a single conscious mind, no matter how the judgment is ultimately communicated, shared, or adopted by others. The implication for lawyering and legal education is that some of the old canards about leaving business judgment to the business people must fall away.

There are three sub-themes. First, there is no "collective judgment." Practical judgment does not occur in some communitarian ether, but in a mind. The closest we have come to a science of judgment is the exploration of consciousness and cognition, both of which remain tough nuts. There is still no scientific explanation of consciousness; it is subject to what Thomas Nagel referred to as the "explanatory gap." It is fair to say that if there is anything to the idea that consciousness is irreducible, judgment is next in line. Could we pour all the relevant facts and authorities into a legal computer, and have it provide us with advice such that we could not determine, in a blind test, that it came from a computer and not a human being? Indeed, an inquiry into prospective judgment overlaps traditional questions whether anything actually constrains a judge's decision. It seems intuitively correct when we take the issue of judgment out of adjudication and consider it prospectively that our judgments are neither pre-ordained by some kind of formula nor wholly random. We need to assess rule following in the non-adjudication context, and for that I turn to work in cognitive science and the law.

Second, the judgment in the overlap is interdisciplinary. Business judgment depends far more on the argument from merit, versus legal judgment, which depends far more on the argument from authority, and a particular kind of authority at that. What, then, does it means to be an expert in the overlap of the diagram? We need to define a new professional discipline: the field of metadisciplinarity. Being a metadisciplinarian takes one to a higher order skill than mere interdisciplinarity: it means being an expert in the making of interdisciplinary judgments, which in turn invokes the role of metaphor and analogy in our cognitive abilities.

Metadisciplinarity recruits such basic cognitive abilities that the task of learning it is never going to be easy. It requires that its practitioners understand that human beings are "meaning-making machines," employing what the cognitive scientists call "cognitive integration" or "blending" (of which metaphor is a prime component). Metadisciplinary lawyers will not merely understand the fact of cognitive blending, but also approach it empathetically.

New Montana Rules Proposed

The Montana Supreme Court has issued an order setting a 90-day period for comments on a petition filed by the State Bar Board of Trustees and the Ethics Committee to revise and amend three rules that deal with attorney advertising and solicitation. The proposed amendments would, according to the petition, clarify disciplinary jurisdiction over attorney advertising, specifically identify types of misleading communications and recognize that the state has no procedure to "qualify" a lawyer referral service. (Mike Frisch)

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?

Ohio Changes Pro Hac Rules

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.

View the new amendments.

(Mike Frisch)

Law Practice Technology

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.

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.

In fairness to Ray Campbell, my original version of this post did not treat fairly his original and thoughtful comment on Paul Lippe's column over at Legal OnRamp.   Here it is in full:

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Let me weigh in as someone who has been a big law partner, a start up company CEO, and now a law professor.

First, let me question your central assumption. Is being a lawyer just about serving paying clients? Not to diminish the importance of providing awesome service to clients, but I think a lawyer's duties are a bit more nuanced than that. You can be a great, client oriented lawyer and keep an eye on the bigger game, but you diminish the profession and short sell what law schools need to do if you take too narrow a view of a lawyer's role in society. I was privileged to work with some great lawyers, but a complete lawyer is going to bring to the game some of what Jerrold Solovy does - not just great client service, but a sense of what the law means in society.

I also think you might be surprised if you spent more time really looking at what law schools are like now. I know I was. Law schools are way better now than they were back when I was in law school. The scholarship is more interesting. (Really, it is. The various "Law and" movements have brought some fundamental insights, and add a lot more than novel length doctrinal treatments.) There are more opportunities for practical and clinical learning. Many law schools are looking hard at how they can best participate in the overall society, and have spawned institutes and centers that play vital roles.

In other words, some pretty smart people at law schools are already trying to address some of the issues you have identified, and have made real progress even if they haven't cracked the code entirely. The faculty I know are extremely concerned that students graduate well prepared to practice, even recognizing that their training will continue long after they graduate.

That's not to say law schools can't improve. Any institution has room for improvement, and that's especially true for institutions where a big chunk of the productive staff need respond only to their own views of what they should be doing. But, if we are going to talk about how to improve them, it would really help to start with an accurate assessment of both what law schools do today and what kind of lawyers they need to be creating.

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Is There a Doctor In The House?

An interesting case from Montana involved a medical malpractice action brought by a widow on behalf of her late husband's estate against a doctor and a clinic. The plaintiff's attorney delivered the closing argument as a first-person narrative that the lawyer described on appeal as "[c]hanneling...as though he was the decedent."

When he started to describe what it felt like being autopsied, "[t]his got to be more than some could bear." A juror thought she would pass out and was attended to by the defendant, plaintiff's co-counsel (who is also a physician) and three other jurors who also were nurses. Plaintiff then sought a mistrial, which was denied. An alternate juror was seated and a defense verdict was returned.

The Montana Supreme Court reversed. The jury here saw the defendant "reacting to a real-life situation and apparently successfully delivering life-saving care. The effect on the jury is immeasurable, whether or not the individual jurors admit it or even consciously know it." The court made it clear that "no fault is assigned to any of those who responded to the ill juror in the courtroom."

How many of us can say that we were able to get a new trial because our closing argument made a juror violently ill? (Mike Frisch)

Attorney's Liens For Patent Prosecution Work

The Massachusetts Supreme Judicial Court decided the following two questions in the affirmative:

We consider in the present case, as a matter of first impression, the scope of the Massachusetts attorney's lien statute (lien statute), G.L. c. 221, § 50, vis-à-vis patent prosecution work. The United States Court of Appeals for the First Circuit has certified the following questions to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981) [FN2]:

"1. Does [G.L. c. 221, § 50,] grant a lien on patents and patent applications to a Massachusetts attorney for patent prosecution work performed on behalf of a client?

"2. If [G.L. c. 221, § 50,] does grant a lien and the issued patents or patent applications are sold, does the attorney's lien attach to the proceeds of the sale?"

The court concluded:

By its substantial amendment of the lien statute in 1945, the Legislature significantly expanded an attorney's right to recover legal fees for services rendered to a client in a variety of proceedings. The language of G.L. c. 221, § 50, states that an attorney shall have a lien for reasonable fees and expenses not only from the "authorized commencement of an action, counterclaim or other proceeding in any court," but also from the "appearance in any proceeding before any state or federal department, board or commission." When an attorney files a patent application for a client with the USPTO, that action constitutes appearing in a proceeding before a Federal department. [FN6] See 35 U.S.C. § 1 (2006) (USPTO was established as agency of United States, within Department of Commerce); 37 C.F.R. § 10.1 (2008) ("proceeding" before USPTO includes application for patent). Moreover, the broadening of the statute suggests a recognition by the Legislature that attorneys are entitled to be compensated for the work they perform that falls outside the purview of traditional litigation "in any court."

In assessing the scope of an attorney's lien for reasonable fees and expenses, the language of G.L. c. 221, § 50, provides that the attorney shall have a lien "upon his client's cause of action, counterclaim or claim, upon the judgment, decree or other order in his client's favor entered or made in such proceeding, and upon the proceeds derived therefrom." In the context of patent prosecution work, the patent application is the client's "claim." It is a request for recognition of a property right whereby an inventor can exclude all others from making, using, or selling a patented invention for a designated period of time. Therefore, in accordance with the first phrase of the "upon" clause, when rendering legal services to a client to secure a patent, an attorney can assert a lien on the patent application when it is filed with the USPTO, and the lien necessarily remains attached to the subsequently issued patent, protecting the attorney's right to compensation.

Contrary to the argument of the liquidating supervisor, the language of G.L. c. 221, § 50, does not require a "judgment" in order for an attorney's lien to attach. The repetition of the word "upon" in the statute describes three separate and independent bases for the assertion of an attorney's lien, namely (1) "upon [the] client's cause of action, counterclaim or claim," (2) "upon the judgment, decree or other order in [the] client's favor entered or made in such proceeding," and (3) "upon the proceeds derived therefrom." Interpreting the statute as requiring a "judgment" before a lien can attach, would render superfluous the words in the first "upon" clause. As we have already stated, every word of a statute must be given effect. See Bankers Life & Cas. Co. v. Commissioner of Ins., supra. Had the Legislature intended to limit the parameters of the lien statute to only those instances when an attorney has obtained a judgment, then the Legislature simply would have said that the attorney shall have a lien for his reasonable fees and expenses "upon the judgment, decree or other order in his client's favor," and nothing more.

The case is Ropes & Gray LLP v. Jalbert, decided July 28, 2009.  (Mike Frisch)

Third Party Liability

The Wisconsin Supreme Court has held that a lawyer who had drafted a series of wills for his client that contravened a judgment in a prior divorce case may be liable to third party beneficiaries who did not benefit from the will to the extent ordered in the divorce case. The court rejected claims asserted by the lawyer of good faith and qualified immunity. The court affirmed the dismissal of related claims that were predicated on a theory of negligence. The key facts:

 Robert Tensfeldt and his first wife, Ruth, had three children——Christine, Robert William, and John. When Robert and Ruth divorced in 1974, they entered into an agreement stipulating to various terms of the divorce.  The divorce court determined that the stipulation was "fair and reasonable" and incorporated the stipulation into the divorce judgment.

One of the terms of the stipulation provides that Robert would make and maintain a will leaving two-thirds of his net estate to the children:

Will in Favor of Children: Simultaneously with the execution of this Stipulation, [Robert] shall execute and shall hereafter keep in effect, a Will leaving not less than two-thirds (2/3) of his net estate outright to the three adult children of the parties, or to their heirs by right of representation.  Except as herein provided, [Robert] shall have the right to make such disposition of his estate as he may desire, except as limited herein, and further, except as limited by the requirements set forth in [the provision dealing with unpaid alimony.]  As used herein, the term "net estate" shall mean [Robert's] gross estate passing under his Will (or otherwise, upon the occasion of his death), less funeral and burial expenses, administration fees and expenses, debts and claims against the estate, and Federal and State taxes.

Robert married his second wife, Constance, in 1975.  They remained married until Robert's death in 2000.  Robert and Constance had no children together, although Constance had three children from a previous marriage.  In 1978, Robert executed a will that was compliant with the stipulation and order——one-third of the net estate went to Constance, and two-thirds of the net estate went to his children or their issue. 

In 1980, Robert retained Attorney...to provide estate planning services.  It is undisputed that Robert made [the attorney] aware of his obligation to his children from the outset.  When Robert initially met with [him], he gave the attorney a copy of the divorce judgment and stipulation.  [The attorney] told Robert that he had three choices: comply with the stipulation; negotiate with the children to alter his obligation; or ignore the stipulation, knowing that the children might contest Robert's will upon his death.  Robert chose the third option, and in 1981, [the attorney] drafted an estate plan that did not leave two-thirds of the net estate outright to the Tensfeldt children.

After Robert executed the non-compliant estate plan, [the attorney] received a letter from Robert's divorce attorney, J.M. Slechta.  Attorney Slechta wrote:

Since you have drafted a will for Mr. Robert Tensfeldt of Oconomowoc, I recalled that in his divorce in 1974 in which proceedings I represented him, it was agreed in the Stipulation made part of the judgment, some restrictions on the disposition of his estate . . . .  Realizing this might have some effect upon the disposition which you have proposed I am enclosing a copy of such stipulation for your examination.  There does not seem to be any sanction against disposition of assets during his lifetime. 

[The attorney] wrote back:

Your letter . . . asks whether Mr. Tensfeldt's most recent Will . . . violates his obligations under that decree . . . .

In my opinion, Mr. Tensfeldt's present Will needs some revision in light of the obligations under the divorce decree, of which I was unaware until receipt of your letter.  On the other hand, the so-called "Economic Recovery Tax Act of 1981" does, as you know, offer significant new estate and gift tax advantages which may be available to Mr. Tensfeldt to some extent despite the decree.

Robert and [the attorney] never changed the estate plan to bring it into compliance with the divorce stipulation and judgment.  Even though Robert and Constance moved to Florida in 1985, they continued to retain the attorneys at [the attorney's firm] the planning.  Over the course of 12 years, [the attorney] drafted and executed a series of revisions to the plan for Robert, including  92 plan that was in effect when Robert died.  None of the revised plans left at least two-thirds of his net estate outright to the three adult children of his first marriage.

A concurring/dissenting opinion would hold:

I write separately for three reasons:  (1) I conclude that the plaintiffs' claim against [the attorney], based on aiding and abetting Robert in allegedly violating a provision of a 1974 divorce judgment that required him to will two-thirds of his net estate to his three adult children, fails to state a claim on which relief can be granted because the estate planning provision of the divorce judgment exceeded the circuit court's subject matter jurisdiction; (2) I conclude that [the attorney] was immune from liability in drafting Robert's 1992 will because [the attorney] proceeded in a good faith belief that the provision in the 1974 divorce judgment that required estate planning in favor of the adult children was void from its inception, as a judgment; and (3) I conclude that even if I were to assume, arguendo, that the directive to make a will in the 1974 divorce judgment were enforceable when made, Wis. Stat. § 893.40, a 20-year statute of repose, precluded actions on the divorce judgment after December 5, 1994.  Therefore, the divorce judgment had no effect, as a judgment, in 1999 when Robert reaffirmed the will that he made in 1992, and it had no effect at his death in 2000.  As a result, the aiding and abetting claim against [the attorney] must be dismissed.  Because the majority opinion concludes otherwise, I respectfully dissent from that portion of the majority opinion that addresses the aiding and abetting claim.

(Mike Frisch)