Wednesday, February 28, 2007

Berenson on Sullivan's Book on Civic Participation and Professionalism, Applied To Lawyers

Posted by Alan Childress

Steven Berenson (Thomas Jefferson), left, has posted to SSRN's Law & Soc'y: The Legal Prof. his review essay, "Institutional Professionalism for Lawyers: Realizing the Virtues of Civic Professionalism." It is also in 109 West Virginia Law Review  67 (2006), and reviews Work and 117bios1photo_2 Integrity: The Crisis and Promise of Professionalism in America (2004).  Here is the abstract:

     In Work and Integrity: The Crisis and Promise of Professionalism in America, author William M. Sullivan laments the continuing decline in civic participation on the part of both American professionals and the public at large that has resulted from the combined forces of technological change, globalization, and rampant materialism. Sullivan contends that professionals can point the way toward a renewed era of civic engagement by embracing a vision of professionalism that places a0787974587 commitment to civic participation at its core. Though Sullivan's focus is on the professions generally, rather than the legal profession in particular, lawyers and legal academics have much to gain from considering Sullivan's views in conjunction with their work. The following review essay represents an initial effort to compare Sullivan's views with existing scholarship regarding the appropriate professional roles and responsibilities of lawyers.

February 28, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Conley on Racial Equity in Private Firms

Posted by Jeff Lipshaw

One of the wonderfully rewarding aspects about jumping into academia after so long in the practice is to realize that part of the job description of professional teacher is (or should be) to be a professional learner.  (That we are professional learners even in business was part of my management philosophy, so perhaps that says something, but I don't know quite what.)

That's an introduction to my recommendation of a tremendously interesting article, methodologically J_conley_2 and substantively, by John Conley (North Carolina, left), who I featured in a post yesterday.  The article is "Tales of Diversity:  What Lawyers Say About Racial Equity in Private Firms," 31 Law & Social Inquiry 831 (2006).  Professor Conley is an anthropologist and law professor, so the first part of the paper is an explanation of the scholarly discipline of ethnographic narrative - what you can learn and just how much you can generalize from what people say about their culture - in this case, lawyers about their jobs and their firms.  The second part is a report on what lawyers in different kinds of firms actually say about racial diversity.  The abstract follows below the fold, but as Larry Solum would say: download it while it's hot!

Continue reading

February 28, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Associates, Law & Society, Law Firms, Partners, Straddling the Fence | Permalink | Comments (0) | TrackBack (0)

Women Attorneys Arguing or Appearing Before the U.S. Supreme Court

Sara Benesh (Wisc.-Milw., Poly Sci.) over at Empirical Legal Studies blog posts on the topic here and657696_supreme_court_1_1 links a new empirical study of their impact and success rates.  The study was done by John Szmer, (UNC-Charlotte), Tammy Sarver (Benedictine), and Erin Kaheny (Wisc.-Milw.).  The ELS post's comments are interesting, too, as ELS readers suggest better multivariate controls for the type of client or causes that women may be representing. [Alan Childress]

February 28, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

No Self-Help Defense

The Michigan Attorney Discipline Board ordered a 180 day suspension of a lawyer who mishandled a client's retainer check. The attorney had cashed the check rather than escrow it. The hearing panel found that he had earned the fee prior to cashing the check, thus defeating charges of 678948_writing_check misappropriation from the client. However, the retainer was firm property and the failure to properly escrow the check in the firm's account violated the attorney's duty to the firm under the "third persons" language of Rule 1.15. The sanction was deemed appropriate even though the firm owed the attorney substantially more than the check amount because of a written agreement that the amounts due to the attorney were payable at the firm's discretion. (Mike Frisch)

February 28, 2007 in Bar Discipline & Process, Law Firms | Permalink | Comments (0) | TrackBack (0)

LPB Surprisingly Not "A-List"!

ClistMore tech news:  According to this site's methodology, using Technorati links over 6 months, LPB doesn't [yet] rate the A-List status of Paris Hilton and, previously, TaxProf Blog.  We do have 'medium-authority status,' however.  Sort of like Middle Earth.  Or 89 octane.  And Jeff's recent book review was pronounced simply "Beautiful" by David McGowan at LegalEthicsForum.  [Alan Childress]

February 28, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)

Kohm on Judge Judy vs. People's Court and Their Different Models of Justice

Posted by Alan Childress

The recent effect or mirroring of pop culture and Judge Judy within the legal profession has been a recurring theme of LPB.  It was initially raised by Nancy Rapoport in her previous scholarship (e.g., on lawyer images in popular culture causing effects on lawyering) and continued by her on this blog, and then picked up by me with a post or two on the behavior of judges who seem to be emulating Scales_of_justice_2 Judge Judy.

There is actually more scholarship related to the specific subject of Judge Judy:  Steven Kohm (Univ. of Winnipeg--Criminal Justice) has published in the Law & Society Review an essay on her show and also People's Court, and their competing visions of law and justice.  It is called "The People's Law versus Judge Judy Justice: Two Models of Law in American Reality-Based Courtroom TV," and was published in 40 Law & Soc. Rev. 693–728 (2006).  It is not downloadable gratis, as far as I know, but can be ordered here.  Unfortunately [my Cover_1characterization], as he demonstrates, Judge Judy "wins."  Here is Kohm's abstract:

This essay examines the popular American daytime courtroom programs Judge Judy and People's Court and comparatively analyzes two distinct models of law and justice developed in these shows. Using the techniques of qualitative media analysis, I argue that Judge Judy represents a shift in the way popular culture imagines the role of law in the lives of ordinary people. This shift accords with neoliberal notions of governance and individual self-responsibility for protection against risk. Conversely, People's Court represents an older, liberal-legal model of law that emphasizes individual rights, public participation in the court process, and due process. By demonstrating the supersession of Judge Judy justice over that of People's Court, I argue that this shift in the way law is imagined in American popular culture signals wider shifts in American and indeed 693712_television_1 international attitudes toward the law in our everyday lives.

A few years before, Kohm had written his doctoral dissertation on TV judges after studying 200 hours' worth.  (Ouch.  Sort of like the Michael Caine-Gene Hackman thesis in the movie PCU.)    The dissertation is available as a PDF file from this link (though the file is so big it froze my tiny laptop--man I hate PDF--so better luck to you).  It is cleverly called "I'm Not A Judge But I Play One on TV:  American Reality-Based Courtroom Television."  Its 2004 abstract and alternative download info are linked here.

February 28, 2007 in Highlights from bepress and Law & Society Review, Law & Society, Lawyers & Popular Culture | Permalink | Comments (0) | TrackBack (0)

Follow Up

Closer inspection of the Review Department report that was posted yesterday reveals a couple of points of interest.  The California Bar "waited nearly five years to file disciplinary charges" despite the fact that the underlying contempt order identified all information necessary to prosecute the case. The delay was treated as a mitigating factor and suggests that the California Bar may have473159_golden_gate_bridge_2 fallen back into its old bad habits of delay. if so, that merits closer scrutiny. The accused attorney's attempt to blame the judge and suggestion that the indigents she had abandoned were not her clients were treated as aggravating factors.

Reminder: if possible, do not represent yourself in a bar discipline case: "At oral argument, [the attorney] presented a tangled web of excuses and sought to shift responsibility... for the procedural gridlock that was occasioned by her actions." (Mike Frisch)

February 28, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tech Services!

FSpamirst, a whine.  Is it just me or has spamming increased significantly over the last few months?  Despite filters and blockers up the gazoot, I'm getting flooded (and, no, Alan, I don't frequent those sites).

Second, here is a service to professors and practitioners alike.  Starting several weeks ago, my computer starting popping up the following message "Generic Win32 Host Services has encountered an error and shut down."  What I noticed was thereafter I could not sync my cell phone/PDA off Windows Mobile. I don't know if the two were related or not.  But I stumbling onto a Microsoft support page with a fix for the error message this morning, and I offer it to all LPB readers if they have encountered the same issue.*  [UPDATE just a hour later:  I got the same error message again - so much for the patch.]

[Jeff Lipshaw]

* Legal Profession Blog and Law Professor Blogs Network hereby disclaim all responsibility for anybody else's use of the Microsoft support page, and all express and implied warranties INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE are hereby disclaimed.  UCC 2-316(2).  In fact, you use it as is and with all faults, and we hope that this is language which in common understanding calls your attention to the exclusion of warranties and makes plain that there is no warranty.  UCC 2-316(3)(a).  If you are a professor (and hence the only kind of person who would know there is actually an amended Article 2 out there), we also take no responsibility for the quality of the goods.   Okay, now I feel a lot better. And click on the picture for a treat.

February 28, 2007 in Blogging | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 27, 2007

The Ethics of the Blogging and Public Comments of Prosecutors

Interesting story Sunday in the San Francisco Chronicle about a Kern County DA who started a blog and responded to a Bakersfield newspaper's criticisms about his office and some of its cases.  The 410779_66811632_3 story reports that other prosecutors and city attorneys in California have started blogs and replied to public criticisms.  The story is "Blogging Prosecutors Raise Some Eyebrows," and includes criticism of the practice from an ethics columnist for the California Bar Journal.  [HT: It was linked by Howard Bashman in How Appealing.] 

In any event, to the extent such blogs inevitably meander into comment on cases, the writers should learn from the ethical hot water that N.C.'s Mike Nifong created for himself with his public pronouncements on the Duke case.  [Alan Childress]

February 27, 2007 in Blogging, Ethics | Permalink | Comments (0) | TrackBack (0)

Nolan-Haley on Humanizing Law Practice--and Finding Peace--By Learning From St. Teresa

Posted by Alan Childress

Jacqueline Nolan-Haley (Fordham) has posted to SSRN her article "Finding Interior Peace in the Ordinary Practice of Law: A Teresian Approach to Contemplation." The abstract is:Jnolanhaley

This article focuses on some of St. Teresa of Avila's writings, as part of a symposium series that examines how the lives of extraordinary Catholics can inform the practice of law. Against the background of Rambo litigation hoopla and the excesses of adversarial justice, scholars in the Catholic legal community such as Maryann Glendon and John Noonan have written powerfully about the need to humanize the practice of law and demonstrate greater civility in lawyering. Professional reform projects have developed at a rapid pace and we have witnessed the growth of new directions in lawyering, all aimed ultimately at helping lawyers find an interior peace that will have positive spill-over effects in their professional lives. Some of the more prominent correctives include humanistic movements such as holistic lawyering comprehensive law, therapeutic jurisprudence, preventive law, restorative justice, collaborative lawyering, transformative and narrative mediation, and mindfulness meditation.

Given the multiple legal reform projects currently underway, one might reasonably ask--why focus on a reformer of religious congregations? What could a 16th century Castilian Catholic female mystic possibly add to this reform regime? In this article I suggest that Teresa's writings on self-knowledge and humility offer a rich reservoir 153747_33229363 from the Catholic mystical and meditative tradition that have to potential to provide a deeper, fuller and more grounded foundation for transformation than the generic spirituality offered by current efforts to resolve the legal profession's vocational crisis.

February 27, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Screed or Scholarship?

Posted by Jeff Lipshaw

Several weeks ago, I posted some thoughts (not positive!) about The Destruction of Young Lawyers, by Douglas Litowitz, which had gotten some play on the blogs of several well-regarded professors, including Legal Ethics Forum, Leiter's Law School Reports and Balkinization.  I have since written, and now posted on SSRN, a more fulsome review of the book, summarized by this abstract:

This is a review of The Destruction of Young Lawyers: Beyond One L by Douglas Litowitz (Akron: University of Akron Press, 2006).

While the book may be a credible (if tiresome) account of Mr. Litowitz's own unhappiness as a law student and large firm new associate, and evidence of the fact there are unhappy lawyers in the world, it overpromotes itself on two counts. Although it is written by a law professor and published by a university press, and makes broadZaringd_1 and universal claims about evils in the legal profession, it is largely a slapdash pastiche of hyperbole and anecdote. Nor is it a balanced view of the profession. Rather, it is one man's attempt to transpose his own journey through hopelessness and despair into a universal truth under the patina of scholarship.

Wihender_1       What you cannot tell from the abstract is that the review juxtaposes good work by Bill Henderson (Indiana-Bloomington, left) and DavidJ_conley_1 Zaring (Washington & Lee, above right), as well as an interesting piece by John Conley (North Carolina, below right) to which they cite briefly: "How Bad Is It Out There?: Teaching and Learning about the State of the Legal Profession in North Carolina," 82 N.C. L. Rev. 1943 (2004).

My piece will appear in Hart Publishing's Legal Ethics, of which Brad Wendel (Cornell) is the book review editor.

UPDATE:  One of the book's themes is how the unholy cabal of elite law schools and big law firms force law students to keep taking those $160,000 starting salaries to pay off the six-figure student debt.  Somebody forgot to tell NYU.  Today from Peter Lattman at the Wall Street Journal's Law Blog is a summary of Crain's New York's "The  Business of  Law  Report" which includes:

A Q&A with Joshua Perry, a recent NYU Law grad who took a job as a public defender in New Orleans. When asked about his law-school debt, he explained that at $40,000 per year there’s no way to repay a six-figure debt bill, but NYU has a generous loan repayment program. As long as Perry stays in the public interest for five years, he says that NYU picks up his loan debt and making his payments as long as his salary stays below a certain cap.

February 27, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Billable Hours, Law & Business, Law & Society, Law Firms, Lawyers & Popular Culture, Lipshaw, Partners, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)

Marguiles on the Duty of Confidentiality to Child Clients

Posted by Alan Childress

Peter Margulies (Roger Williams Univ.--Law [right]) has posted to SSRN an article, "Lawyering for Children: Confidentiality Meets Context."  It's forthcoming in St. John's Law Review.  His abstract:

Margulies_pThe lawyer's role in representing children has inspired discussion and debate for over a quarter of a century. The scope of the lawyer's duty of confidentiality to a child client is a crucial component of that debate. Advocates of a “best interests” approach generally favor either a relaxed duty of confidentiality or recognition of the lawyer's ability to advocate for a position against the child client's wishes. Champions of a zealous lawyering conception favor a more stringent duty of confidentiality. Each camp must also grapple with ethical rules that permit a lawyer to act to protect the interests of a client of questionable capacity. This article argues that lawyers for children should consider the local competencies of all of the players in the child welfare system, including courts, child welfare agencies, and lawyers themselves. Based on this assessment, lawyers should 72815_74878285 apply pragmatic criteria for disclosure, centering on the likelihood and gravity of future harm, the child's understanding of the consequences of the decision, and the availability of alternatives.

February 27, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession, Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Failure To Appear

The Review Department of the California State Bar Court has recommended a three year suspension, with execution stayed, but with three years probation that includes an actual suspension of 18 months (this is how the order reads) where "during a one-month period, an attorney lost her ethical footing."348295_mr__invisible_at_the_beach_1 The attorney's specialty was juvenile dependency proceedings.  After the juvenile court presiding judge decided to reorganize the appointment process, the attorney was the losing bidder on a contract to take all such cases. She then submitted to the juvenile court a document styled "In re: All My Cases" in order to "effectuate her resignation" from 319 pending cases. Although the document was returned, she stopped appearing in her cases, which resulted in some indigent clients appearing without counsel. This led to a contempt proceeding and the bar action. (Mike Frisch)

February 27, 2007 in Bar Discipline & Process, Clients | Permalink | Comments (0) | TrackBack (0)

ABA Ethics Opinion On Communicating With Inside Counsel to a Represented Corporation (It's OK), + More on Restrictive Covenants in Retirement Pacts

Posted by Alan Childress

This morning's ABA email newsletter YourABA, amid a flurry of articles [here in PDF] about the ABA's mid-year meeting in Miami, also links to summaries of two recent Ethics Opinions it has issued.  [The PDF above also includes this Eye on Ethics section.]  One opinion deals with the Model Rule 4.2 dilemma of prohibited communications with the opposing client where the lawyer wishes to communicate with in-house counsel to a corporation or organization that is otherwise represented by outside counsel.  The opinion, with related cautions about care in communicating with the client in this position and honoring a request not to communicate that way, finds that the contact is permissible.  It reasons that the policies of protecting clients from pressure and harmful admissions do not apply to the in-house counsel in that situation.  The formal opinion is linked here.

The other opinion deals with restrictive covenants in lawyer retirement agreements, related to a topic [when New Jersey ruled on a similar matter of non-competes] on which Jeff previously posted and analyzed here.  It appears that the ABA position is more generally approving of such agreements than had been New Jersey [see previous story on Jersey here], at least in the context of in-house counsel working for a competitor after leaving the company.  On a quick reading this 678901_contract_2 morning, I'd say that the ABA opinion solves some of the "puzzlement" that Jeff expressed with the New Jersey ruling -- and shows a more realistic place for lawyers in the grand scheme of things as subject to employment contracts to some extent as real people are.  But there are obvious differences between the ABA focus on retirement agreements and qualifications that the retirement be real, as opposed to non-competes where the in-house lawyer contemplates further employment after leaving the company.

February 27, 2007 in Clients, Ethics, General Counsel, In-House | Permalink | Comments (0) | TrackBack (0)

Monday, February 26, 2007

Gerry Spence's Trial Record

Midpicgerry On the way to looking something up, I passed through Gerry Spence's web site.  The site says this:  "He has never lost a criminal case. He has not lost a civil case since 1969. He has had more multi-million dollar verdicts without an intervening loss than any lawyer in America."  I take the factual claims at face value and do not dispute them.  But what does it mean?  When I was in litigation practice, the claim that you never lost a trial might actually mean you were settling too many cases too cheaply; that is, you were only trying the lay-down hands.

Or is it an aspect of the coordination function for great cases that I mentioned regarding David Berger?

Or is he just that good?

I can't tell.  I do think he's entertaining as hell, and charming as anything.  I was sitting in the back of the courtroom in the U.S. District Court in Cheyenne, Wyoming in 1986, and he came in, sat down across the center aisle from me, and when he caught me in the act of staring at him, gave me a big wink and a smile.

[Jeff Lipshaw]

February 26, 2007 in Lawyers & Popular Culture | Permalink | Comments (1) | TrackBack (0)

Kentucky Supreme Court Dismisses a Count of Consensual Discipline

Ben Cowgill at has this post on the Kentucky Supreme Court's rejection of a count of impermissible advertising where the attorney had negotiated with the disciplinary counsel and agreed to public reprimand as sanction.  The court looked behind the consent and found that the letter633265_plain_envelope in question was not advertising that violated the bar's ad regulations (it needed no bar screening) and thus it sua sponte rejected the consented-to discipline for that count.  Ben writes:  "The ruling is significant because it is further evidence that the 'new' Supreme Court of Kentucky is examining disciplinary prosecutions closely, even when it receives a case on an unopposed motion for 'consensual discipline.' "  [Alan Childress]

February 26, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Better Late Than Never

The February 21 issue of the Lawyers Manual on Professional Conduct reports a recent disbarment ordered by the Delaware Supreme Court where the client had waited over 20 years to complain that she had been sexually assaulted by her attorney, who was representing her in a drunk driving case. The former client came forward after press reports of the attorney's suspension for similar misconduct. The court rejected the attorney's defense of laches in the bar proceeding. He had claimed he did not recall the client and had replaced the chair in which the conduct had allegedly occurred. (Mike Frisch)

February 26, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Get It In Writing!

The United States Court of Appeals for the District of Columbia Circuit overturned a trial court determination that a junior lawyer was entitled to 1/3 of a more senior lawyer's contingency fee that would have paid her more than $1.3 million from claims against Iran that were collected from frozen Iranian assets. The junior lawyer had worked for the senior lawyer for about five years without a written compensation agreement but had received a 1/3 share of fees in nine earlier cases. The court concluded that the conversations between the two lawyers did not create an enforceable oral contract. (Mike Frisch)

February 26, 2007 in Associates | Permalink | Comments (0) | TrackBack (0)

Early Retirement

A lawyer who moved to Florida but had never become a member of the Florida Bar was disbarred by the New York First Judicial Department. He had undertaken a case (retained over the phone and without a written fee agreement) that resulted in a settlement payment. He cashed the proceeds but did not pay the client's share. Florida brought a proceeding that resulted in an agreement to desist from Florida practice and an order to pay the client. When the payment was not forthcoming, the client complained to New York authorities. The First Department rejected the argument that disbarment was unduly harsh for a single misappropriation. (Mike Frisch)

February 26, 2007 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Veasey and Freund in Business Lawyer

I'm not sure if it's the mail system or what, but I just received the November 2006 edition (Volume Veasey62, Number 1) of The Business Lawyer.  The issue leads off with two very interesting pieces.  The first is an essay by co-authored by Norman Veasey (left ), the former chief justice of the Delaware Supreme Court, and now a partner at Weil, Gotshal & Manges, and a Weil associate, Christine Di Guglielmo, entitled "The Tensions, Stresses, and Professional Responsibilities of the Lawyer for the Corporation."

The second is by James C. Freund (right), entitled "Calling All Deal Lawyers - Try Your Hand at Resolving Disputes."  I've met Jim Freund - he's now retired from Skadden, Arps: both in person andFreund in writing he is one of the most engaging and charismatic people you would ever want to meet.  His "Anatomy of a Merger" may be the best practical "how-to" book on being a lawyer I have ever read.

[Jeff Lipshaw]

February 26, 2007 in Law & Business | Permalink | Comments (0) | TrackBack (0)