Legal Profession Blog

Conference on Lawyer Marketing Through Online Social Networks

Posted by Jeff Lipshaw

Suffolk University Law School is hosting a program entitled Avoiding the Ethical Minefield of Online Social Networking and Marketing:  Do You Know Who Your Friends Are? on Thursday, March 11, 2010 from 4:00 - 6:30 p.m. at 120 Tremont Street in the heart of downtown Boston.  Featured speakers include Legal Ethics Forum luminaries, colleague Andrew Perlman (Suffolk) and John Steele (Visiting, Indiana - Bloomington) and James Sokolove of the ubiquitous television commercials advertising for mesothelioma (a particular kind of asbestos-related cancer) plaintiffs.  Also a chance to pick a couple of those hard-to-come-by "ethics hours" for CLE.

Flanders on the Need for Ethics Instruction in Law School

Posted by Jeff Lipshaw

My co-author (of the soon-to-be published ABA book, Becoming a Law Professor, with Brannon Denning), Marcia McCormick, passed along this link to a column in National Jurist by her St. Louis U. colleague Chad Flanders (right).  I'm sympathetic to the position that much of law school (as well as legal scholarship) hits the low-hanging and not very interesting fruit on these issues - that many of the ethical issues facing lawyers go beyond the Model Rules (which are almost all directed essentially to litigation in any event), and often involve choices made in good faith by ethically-inclined people among several less-than-perfect alternatives.

Emory Transactional Skills Conference - Reminder Notice!

Emory University School of Law’s Center for Transactional Law and Practice is delighted to announce its second biennial conference on the teaching of transactional law and skills, Transactional Education:  What’s Next?  The conference will be held at Emory Law on Friday, June 4 and Saturday, June 5, 2010.

CALL FOR PROPOSALS

We are accepting proposals immediately, but in no event later than 5:00 p.m., February 1, 2010. We welcome proposals on any subject of interest to current or potential teachers of transactional law and skills.  Details follow the fold.

PROPOSAL SUBMISSIONS

To submit a proposal, please click here.  Once again, the deadline is 5:00 p.m., February 1, 2010.
Emory is delighted to once again host this Conference, and we look forward to seeing you in Atlanta June 4th and June 5th.

Cordially,

The Steering Committee

Tina L. Stark, Chair, Emory University School of Law
Danny Bogart, Chapman University School of Law
Deborah Burand, University of Michigan Law School
Joan MacLeod Heminway, The University of Tennessee College of Law
Jeffrey Lipshaw, Suffolk University Law School
Jane Scott, St. John’s University School of Law

Continue reading

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

Posted by Jeff Lipshaw

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

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

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

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

Continue reading

Conference on Transactional Education - Emory Law School, June 4-5, 2010

Posted by Jeff Lipshaw

Emory University School of Law’s Center for Transactional Law and Practice is delighted to announce its second biennial conference on the teaching of transactional law and skills, Transactional Education:  What’s Next?  The conference will be held at Emory Law on Friday, June 4, and Saturday, June 5, 2010.

We are accepting proposals immediately, but in no event later than 5:00 p.m., February 1, 2010. We welcome proposals on any subject of interest to current or potential teachers of transactional law and skills.

To find out more information about the conference or how to submit a proposal, visit the conference website.

The Steering Committee

     Tina L. Stark, Chair, Emory University School of Law

     Danny Bogart, Chapman University School of Law

     Deborah Burand, University of Michigan Law School

     Joan MacLeod Heminway, The University of Tennessee College of Law

     Jeffrey Lipshaw, Suffolk University Law School

     Jane Scott, St. John's University School of Law

Everything You Wanted To Know About Bar Admission But Were Afraid To Ask

I moderated a one-hour discussion about the bar admission process on November 11 at Georgetown Law. The one-hour session addressed character and fitness issues and strategies for passing the bar exam. Four recent graduates discuss their experiences and provide insights that may be of interest to law students who are interested in the admissions process.

The video of the session is linked here. Thanks to the panelists Kevin Scott, Ron Cluett, Maeve McKean (all Georgetown grads) and Adrienne Biddings (University of Florida College of Law and currently a fellow in Georgetown's Institute for Public Representation) for their valuable participation in this discussion. (Mike Frisch)

New Ethics Journal Release

The Georgetown Journal of Legal Ethics latest volume (Fall 2009) has just hit the streets. The title of the volume is Symposium: Empirical Research on the Legal Profession: Insights From Theory and Practice. Included is an article co-authored by our own Bill Henderson. We will provide the link as soon as it is on line.

The symposium was held at Georgetown Law in March 2009. Kudos to the authors and student editors for this notable contribution to our understanding of current trends affecting the legal profession. (Mike Frisch)

Call for Papers: Northwestern U Holding Conference on Law of the Entrepreneur June 2010

                                            CALL FOR PAPERS

SEARLE CENTER - THIRD ANNUAL RESEARCH SYMPOSIUM ON THE ECONOMICS AND LAW OF THE ENTREPRENEUR

Northwestern School of Law    --    Thursday, June 17th, 2010 Friday, June 18th, 2010

The Searle Center on Law, Regulation, and Economic Growth is issuing a call for original research papers to be presented at the Third Annual Research Symposium on The Economics and Law of the Entrepreneur at Northwestern University School of Law. The Symposium will run from approximately 12:00 P.M. on Thursday, June 17th, 2010 to 3:00 PM on Friday, June 18th, 2010. The goal of this Research Symposium is to provide a forum where economists and legal scholars can gather together with Northwestern's own distinguished faculty to present and discuss high quality research relevant to the economics and law of the entrepreneur.

Papers for the conference should be submitted to the following email address: [email protected] .   Potential attendees should indicate their interest in receiving an invitation at: [email protected] .  Authors will receive an honorarium of $1,200 per paper to cover reasonable transportation expenses. Government employees and non-US residents may be reimbursed for travel expenses up to the honorarium amount. Authors are expected to attend and participate in the full duration of the symposium. If more than one author attends the symposium, the honorarium or travel reimbursement will be divided equally between the attending authors. The Searle Center will make hotel reservations and pay for rooms for authors and discussants for the night of Thursday, June 17th.

[Alan Childress]

New Institute on Law in Latin America and Related Civil Jurisdictions to Hold Conference in Madrid Nov. 11

Posted by Alan Childress

A prof of the law school of Monterrey Tech, Carlos Gabuardi (who is also a Tulane law grad with a PhD from us in comparative law), shown below with a hopefully wise Latina Justice, passes along this announcement of a relatively new Center and its second program to be held Nov. 11, 2009, in Spain.  Congrats, Carlos, and much success as the Director.  Here is an intro.

The Center for Legal Innovation, Development and Research for Latin America has been established thanks to the generous support of the Instituto Tecnológico y de Estudios Superiores de Monterrey (Monterrey Tech), through the Cátedra Eduardo A. Elizondo, and  the Spanish law firm Garrigues to the purpose of having a forum for discussing those issues that may have legal relevance for the Latin American region.

There are three concrete and interrelated actions, which are being implemented to this purpose:

     1.    Selecting 100 legal minds of the utmost prestige throughout Ibero-America, Haiti and Quebec (the Group of the 100).  This group of jurists shall be the heart of the Center for Legal Innovation, Development and Research for Latin America.

     2.    Establishing a web-based forum based upon an Internet portal with State of the Art technology for the permanent discussion of the initiatives generated within the forum by the Group of the 100.

     3.    Having an annual meeting of the Group of the 100 of the Garrigues – Monterrey Tech Center for Innovation, Development and Research for Latin America.

Further info on the Center is linked here in a Word document:  Download CENTER - 2009 doc.  And on attending the program in Madrid, just ask Carlos.  Contact info for Carlos Gabuardi is at this link, and his bio is here.

Call For Papers: Law & Society Ass'n in Chicago May 27-30, 2010

Posted by Alan Childress

Here is the Law & Society Association's announcement (and a link to conference info here):

Call for Participation --  Due Date: December 8, 2009

The 2010 Annual Meeting of Law and Society Association Thursday, May 27 through Sunday, May 30, at the Renaissance Chicago Hotel.

Theme:  AFTER CRITIQUE:  What is Left of the Law and Society Paradigm?

Born out of disillusionment with the failures of liberal legalism to deliver social justice or equality, law and society scholarship at the time aimed to expose those failures and challenge liberal legalism’s legitimating premises. Twenty years after the founding of LSA, during the decade of the 1980s, the critical impulse of law and society scholarship was itself put under the microscope by some who turned critique inward, calling out law and society scholars for embracing empty empiricism or for their complicity with legal and political elites. In this period, meta-debates raged over theoretical, methodological, and political questions.

More recently events in the academy and the world seem to have squelched our appetite for critique either of the legal order itself or of the premises and purposes of our own scholarship. In an era when the rule of law has come under sustained attack, can we go beyond celebrating it and allying ourselves with its projects? At a time when there are no dominant theoretical or methodological perspectives in the academy, should we turn away from epistemological questions and just get on with our work?

The theme of the 2010 LSA Meeting–After Critique–invites us to consider the law and society enterprise today and to think about its future direction. We want to reflect on the various ways that law and society scholarship has been and should be engaged with the threat of terrorism and governmental responses to it, national and global attacks on the rule of law, questions of sovereignty and sovereign prerogative, the contemporary situation of identity politics, and the collapse of the global economy and the crisis of neo-liberalism.

This year there is a new option:  the Work in Progress Paper.  For info on this and any other question, contact Judy Rose.

Call for Papers: Golden Gate & SALT Teaching Conference on Vulnerable Populations and Interdisciplinary Law Teaching

The conference is March 2010 in San Francisco, but the call for papers has an approaching deadline.  Here is the conference announcement.  [--Alan Childress]

Golden Gate University School of Law and the Society of American Law Teachers—SALT—are presenting a two-day teaching conference in San Francisco on March 19/20, 2010.   This event will bring together new data and theories from the social sciences, communications and media, and legal education about our most vulnerable populations for use in law teaching across the curriculum.  The conference will explore questions such as: how can law teachers integrate economic issues precipitated by class, race, and gender into a broad range of courses, including, for example, first-year Contracts or Professional Responsibility, Health or Environmental Law, Clinics and Externships? What types of nontraditional classes would most effectively focus student interest on the economic needs of vulnerable populations?  How do law schools initiate and encourage collaborative alliances to broaden discussions and promote positive change? The conference will consider these issues from the perspectives of interdisciplinary academics, practitioners, and activists.

Persons interested in participating as speakers and/or in publishing a piece in a forthcoming academic press publication should submit an abstract of their proposed presentation or article to Professor Michele Benedetto Neitz, by October 16, 2009.  Abstracts should be no longer than three pages.  Presenters will be selected on or before December 15, 2009.  Materials for distribution at the conference must be submitted by March 1, 2010, and will be available to conference participants and posted on the SALT website.  Scholars and practitioners from all disciplines are welcome to contribute.  Limited funds for travel expenses may be available to presenters.

Univ. of Akron Hosts Symposium on Legal Ethics Oct. 8-9, 2009

Posted by Alan Childress

The Conference themes are “Lawyers Beyond Borders” and “Practicing Law in the Electronic Age.” The keynote speaker is Steve Gillers of NYU.  University of Akron School of Law's Miller-Becker Institute for Professional Responsibility [with co-sponsorship from the ABA Center for Professional Responsibility] is putting it on, and has a website here. Other speakers are below the fold (including our friends Andy Perlman, Laurel Terry, and John Dzienkowski).  The announcement says:

This Symposium examines important developments and questions concerning multijurisdictional practice, both on a domestic and international basis.  It also considers the role of technology in the practice of law, the regulation of lawyers and the increasing globalization of the profession (cross-border practice).

Continue reading

Extra! Extra!

The latest edition of the Georgetown Journal of Legal Ethics (Vol. XXII, No.3 Summer 2009) just hit the streets. The Current Developments 2009-2009 student notes cover a wide array of emerging ethics issues such as risks of online peer advice, implications of online disciplinary records, proposals for regulating legal hotlines, a discussion of nonconsensual screens, making sense of inadvertant disclosure and many other valuable and interesting topics.

The articles may be found at the following link.

 Disclosure: I am biased as I serve as journal co-faculty advisor with Professor Mitt Regan. (Mike Frisch)

Call for Papers for Jan. 2010 AALS Conference

Call for Papers [to select a speaker] for the

Program of the Section of Professional Responsibility at the

2010 AALS Annual Meeting

New Orleans, Friday, Jan. 8, 2010, 10:30-12:15

TOPIC: The 2008 FATF Lawyer Guidance

 

Submission Deadline: September 1, 2009: Length: 3-5 Pages

 

            The AALS Section of Professional Responsibility is issuing a call for papers to select one speaker to participate in its 2010 AALS Annual Meeting program.  This program will be held in New Orleans on Friday, Jan. 8, 2010, from 10:30-12:15pm.  The paper should address the program topic, which is “The Transformative Effect of International Initiatives on Lawyer Practice and Regulation: A Case Study Focusing on the FATF & its 2008 Lawyer Guidance.”  (The theme for the annual meeting is “transformative law.”)

           

            Even if you have never heard of the FATF or its October 2008 Lawyer Guidance, please don’t rule yourself out of this call for papers - you are in good company!   One reason why we selected this topic for the Annual Meeting program is our belief that few legal ethics scholars (or other scholars) are aware of the FATF’s legal profession gatekeeper initiatives, even though they have the potential to implicate the lawyer-client relationship in significant practice areas and are likely to change, in some significant ways, the manner in which these U.S. lawyers practice.  See Risk-Based Approach Guidance for Legal Professionals (Oct. 23, 2008)[FATF 2008 Lawyer Guidance], http://www.fatf-gafi.org/dataoecd/5/58/41584211.pdf; Kevin L. Shepherd, Guardians at the Gate:  The Gatekeeper Initiative and the Risk Based Approach for Transactional Lawyers, 43 Real Property, Trust and Estate Law Journal 607 (2009).

            

[Some of the other speakers, including GW's Tom Morgan and fellow blogger Ellen Podgor, are noted below. -- Alan Childress]

Continue reading

14th Annual LatCrit Conference is in D.C. Oct. 1-4, 2009, With SALT's Junior Faculty Program

American University's law school is hosting this year's conference for LatCrit XIV and the LatCrit/SALT New Faculty Development Workshop; the schedule and preliminary program is here.  The conference takes place in D.C. and Bethesda, Maryland.  Registration and cheap hotel info is here. Subject: The conference theme for LatCrit XIV is "Outsiders Inside: Critical Outside Theory and Praxis in the Policymaking of the New American Regime."  Early bird registration before Labor Day is especially affordable. Note, too, the program for development of new and junior faculty, cosponsored by SALT and the University of Denver, including an eye-opening mock “Job Talk” for law teaching aspirants.

[Alan Childress]

Indiana Law Launches Center On Global Legal Profession

Our own Bill Henderson is making news:

Indiana University Maurer School of Law Dean Lauren Robel has announced the launch of the school's new Center on the Global Legal Profession. Based at IU Bloomington, the center will focus on the unprecedented challenges lawyers are facing around the world and develop research and training materials to assist current and future attorneys in their understanding of international legal systems.

The center is directed by Professor William Henderson, who will work closely with fellow law professors Jayanth Krishnan and Ken Dau-Schmidt, and Ethan Michelson, an IU sociologist and the first social scientist to conduct rigorous empirical research on the Chinese legal profession.

Its launch was announced Saturday in New Delhi, India, where a conference on how globalization is affecting the practice of law and legal education was co-sponsored by the IU Maurer School of Law and the Jindal Global Law School.

The full announcement is linked here. (Mike Frisch)

Workshop on Teaching Legal Ethics: Save The Date Nov. 6-8, 2009

Posted by Alan Childress

Thanks to Clark Cunningham, professor in legal ethics at Georgia State University, we pass along the announcement below on a Fall 09 workshop in Georgia of interest to our readers.  Note that the workshop is open not just to law profs but also to practitioners with an interest in ethics training.  Also the link to the National Institute for Teaching Ethics & Professionalism (NIFTEP) is here.

The conference info is: 

The Fall 2009 workshop of the National Institute for Teaching Ethics and Professionalism (NIFTEP) will take place on Friday, November 6 - Sunday, November 8 at the Red Top Mountain Lodge, located 40 miles northwest of Atlanta.

NIFTEP was founded in 2005 as a consortium of five nationally-recognized university centers on ethics and professionalism. It conducts national workshops that bring together leading academics and practitioners involved in promoting the teaching of ethics and professionalism. Attendance at these highly participatory events is limited to invited speakers and to those selected to be NIFTEP Fellows. Fellowships are typically granted either to full-time law professors who teach legal ethics or to practitioners actively involved in ethics CLE education and professionalism programs.  However, any person committed to promoting ethics and professionalism may apply.  Fellows are reimbursed for their travel expenses and there is no charge for the workshop.

Fellowship applications are not yet available, but will open on the NIFTEP website beginning August 17, 2009: http://law.gsu.edu/ccunningham/Professionalism/NIFTEP/ [or Google NIFTEP].  We expect to begin reviewing applications on September 11, 2009, and to make selection decisions by September 25.  (Prior NIFTEP Fellows are welcome to apply for this workshop.) 

Though the Fall 2009 workshop program has not yet been finalized, previous workshop programs are available on the NIFTEP website. 

If you wish to receive an email reminder when the application is available, please contact NIFTEP Deputy Director Charlotte Alexander at [email protected], put "NIFTEP MAILING LIST" in the subject line, and include your contact information in the body of the email message.

A Conference Sponsored by the

Center for the Study of the Legal Profession

Georgetown University Law Center

 

March 22-23, 2010

 

Law firms have been affected to an unprecedented degree by the current economic downturn.  Many have made deep cuts in lawyers and staff.  Others have reduced salaries and hours, rescinded outstanding offers of employment, frozen hiring, delayed start dates for incoming lawyers, and even paid graduates to forgo the positions they earlier were offered.  Many have lost clients as entire sectors of the economy have disappeared or have been radically  realigned.  Practices that historically served as countercyclical buffers, such as litigation and bankruptcy, often have not been sufficiently robust to balance the loss of other work in the current downturn.

Challenges for law firms also come directly from clients, many of whom operate on a global scale.  Corporate counsel enjoy increasing influence in relationships with outside lawyers and law firms.  They pressure firms to reduce fees and make them more predictable, and to share with clients a greater amount of the risk in engagements. They also have asserted more control over which law firm lawyers do  their work.  In addition, some clients are drastically reducing the number of firms in their provider networks, which may generate new forms of relationships between clients and law firms that blur the boundary between them.

Are the dramatic steps that firms have taken temporary adjustments to market conditions, which will have limited long-term effect after economic recovery?  Or do they reflect fundamental changes in the business model of law firms that are likely to transform the market for legal services?  Is an economic recovery likely to reestablish the law firm hierarchy and competitive conditions that existed before the downturn?   Or will it usher in a novel landscape with new winners and losers and different stresses and opportunities? 

We are soliciting papers from scholars that address the myriad issues raised by these questions from a variety of disciplinary perspectives. Among many others, these issues may include:

How has  the structure of competition in the law firm services market been evolving?  Do changes in the market suggest that  firms will fare differently in the market depending on their size, organizational structure, the type of clients they serve, or the kinds of work they do?   How will the transformation of investment banking clients affect law firms?   

What skills are  necessary to succeed in law practice, have these changed as a result of the downturn and restructuring of law firms (if any), and how can legal professionals acquire them?  Working in a large law firm has often been an entrée to other positions, whether in boutique firms, in corporate legal departments, or in firms with alternative business models.  Will this role of Big Law continue, or are there likely to be new arrangements for training and development that impart these skills?  If firms increasingly rely on contract lawyers to operate more  efficiently,  how will these lawyers gain the skills necessary to advance and remain flexible in charting their careers?

 Are firms adopting different strategies for global practice?  Has the global market for legal services changed as a result of the economic downturn and response of clients and law firms? What formal and informal regulatory systems are likely to evolve in response to these developments?  Is there an increased need for a global regulatory approach?  Will differences in national responses to the economic crisis in general, and financial market instability in particular, influence the path of law firm evolution in the global economy? Is a set of skills distinctive to global law practice likely to emerge? 

 Is increasing client insistence on cost-efficiency leading to new models of service delivery?  If so, how will these models affect firms’ risk profiles, the ways in which work is organized, career paths available to lawyers, compensation, opportunities for advancement within firms, and lawyers’ understanding of their professional obligations?

Do lawyers still need connections to large law firms in order to engage in high-end work?  Will law firms be able to induce commitment and sustain coherent organizational cultures under emerging market conditions?  What forms of management, leadership, and guidance will be necessary in order to do so?

  If clients are likely to require  firms to collaborate with each other  in providing services, what impact might this have on  the law firm market? Will law firms create collaborative and/or ownership networks and relationships (akin to corporate parent-subsidiary or joint venture relationships) to help manage relationships with clients and lawyers.  

Is the way that firms finance their operations  changing as a result of the credit crisis?

Will new financial performance metrics emerge that supersede profits per partner, and will other standards arise that take account of non-financial considerations?

Have the challenges facing law firms during the credit crisis eliminated the concern for work-life balance?  For diversity initiatives? What are the implications of law firm evolution for legal education?

What lessons might law firms draw from the experiences of other professional service firms?

We welcome papers that address the above issues or submissions on other topics that are relevant to these themes.

Submission of Abstracts

Please send an abstract of approximately 1000 words to Carole Silver, at [email protected] by Septmber 15^th, 2009.

Additional Information

The conference will take place on March 22^nd & 23^rd, 2010, at the Georgetown University Law Center in Washington, D.C.  We anticipate that the formal program will begin the morning of March 22^nd and run through early afternoon on the 23^rd.  

Carole Silver, Mitt Regan & Jeff Bauman

Center for the Study of the Legal Profession

Georgetown University Law Center

No Right To Rummage

The New Jersey Appellate Court has issued a decision concerning an employee's rights with respect to emails sent to her attorney on a computer provided by the employer:

...we address whether workplace regulations converted an employee's emails with her attorney-- sent through the employee's personal, password-protected, web based email account, but via her employer's computer--into the employer's property. Finding that the policies undergirding the attorney-client privilege substantially outweigh the employer's interest....we reject the employer's claimed right to rummage through and retain the employee's emails to her attorney.

The employee had been the employer's executive director of nursing and had filed claims of discrimination against her former employer. Counsel for the employer was able to obtain the emails by extracting and creating a forensic image of the computer hard drive. The emails were discovered while reviewing the employee's Internet browsing history. Counsel then used some of the emails in its papers and fought disclosure of the material to plaintiff.

The court discusses the ethical obligations imposed by DR 4.4(b), which obligates counsel to cease reading known privileged documents, notify and return the documents to the adverse attorney. Rather, here:

[the law firm] appointed itself the sole judge of the issue and made use of attorney-client emails without giving plaintiff an opportunity to advocate a contrary position.

The court remanded the matter for a determination whether the employer's attorneys should be disqualified as a result of reviewing the emails and directed the employer to provide all recovered emails to the employee. There is also an extended discussion of the impact of company computer policies on the issues presented.  (Mike Frisch)

Thinking About the Financial Crisis - It's Scary When We Don't Know What We Don't Know

Posted by Jeff Lipshaw

At the end of April, I attended a fascinating day-long symposium organized by fellow blogger Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, on issues of complexity arising in the current financial crisis. One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything?  My analogy was this:  if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe?  I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys?  And even if there is, do we want to prescribe it?  Maybe we like the booms enough to bear the busts!  There's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?

Anyway, when I get to thinking, I usually get to writing (particularly when ensconsed in our Michigan house). This seemed like grist for the mill on one piece of a longer work on the difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty.  The result is The Epistemology of the Financial Crisis:  Complexity, Causation, Law, and Judgment, which I've just posted on SSRN.  (I apologize for the use of the word "epistemology" but I like it.)  Here is the abstract:

The focus on complexity as a problem of the financial meltdown of 2008-09 suggests that crisis is in part epistemological: we now know enough about financial and economic systems to be threatened by their complexity, but not enough to relieve our fears and anxieties about them. What marks the current crisis is anxiety that the financial world has evolved to the point that there are hidden structures, like concentrated "too big to fail" institutions and mechanisms, or like credit default swaps, that have widespread and adverse downsides. I propose an analogy between medicine and law in the sense of "regulatory technology." If bubbles are the disease, then the analogy is to bipolar syndrome - exuberance, or even a little hypomania is okay on the upswing, but true mania is bad, as is the resulting swing to depression. Good regulation, then, would be something like lithium, which keeps us on an even keel. The question is really whether we understand the forces well enough to regulate them. Regulation is a function of prediction; prediction is a function of observed regularity; observed regularities invoke the problem of causation; causation raises the issue whether the process being analyzed is reducible. Complexity in itself relative; what seemed inordinately complex to ordinary people, much less deep thinkers, in 1787 or 1887 might not seem at all complex to us now. What we are dealing with instead is a crisis of confidence in those who purport to be experts in what we cannot fathom merely through common sense. The conundrum, of course, is that if it takes an expert to see the problem caused by complexity, how are we, possessing merely common sense, supposed to do anything but rely on their judgment? The epistemological crisis arises from our own judgments to rely on, believe in, trust, or have faith in, that judgment.