Legal Profession Blog

Tulane Law School needs fall-semester visitor in Professional Responsibility and Criminal Law

My school Tulane, per our Vice Dean Onnig Dombalagian, has asked me to post this regarding the fall of 2017:

Tulane Law School invites applications for a one-semester visiting position in the Fall of 2017. Our specific needs for the Fall 2017 semester include basic income tax and corporate tax, criminal law, and professional responsibility. Applicants must possess a J.D. from an ABA-accredited law school, strong academic credentials, and at least three years of relevant law-related experience; prior teaching experience is strongly preferred. Applicants should submit a letter of interest, CV, and the names and contact information of three references through Interfolio at https://apply.interfolio.com/40060. For additional information, please contact Onnig Dombalagian at [email protected]. Tulane University is an equal employment opportunity/affirmative action employer committed to excellence through diversity. All eligible candidates are invited to apply.

[Alan Childress]

New D.C. Opinion On Law Firm Departure Penalties

A recent opinion from the District of Columbia Bar Legal Ethics Committee.

Headnote summary of Opinion No. 368:

A law firm may not provide for or impose liquidated damages on a lawyer who, after departure, competes with the firm. A firm and a departing lawyer may have liability to one another, though, for work done before the lawyer's departure. Also, a firm may not restrict a departed lawyer's subsequent professional association or affiliation with partners or employees of the firm, except insofar as such activity is subject to legal limitations outside the Rules of Professional Conduct. Whether a choice of law provision in a partnership or employment agreement can avoid application of the D.C. Rule governing lawyer departures usually will depend on the location where the departing lawyer principally practiced.

The opinion also deals with choice of law issues. (Mike Frisch)

To Live And Work In D.C.

The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.

The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.

She then sued AO, arguing that the geographic limitation was unconstitutional.

The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.

The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)

Kazakhstan Law School Seeks Dean

Posted by Jeff Lipshaw

The School of Law of the Kazakhstan Institute of Management, Economics, and Strategic Research in Almaty, the major commercial center of Kazakhstan, is looking for a dean.  Here's the job description (from AcademicKeys.com):

The Kazakhstan Institute of Management, Economics and Strategic Research (KIMEP) is a rapidly growing, dynamic higher education institution, offering American style, credit-based programs in business administration, social sciences and international law. KIMEP is located in Almaty, an attractive and cosmopolitan city, with 1.2 million residents, located in the foothills of the Tian Shan mountain range. The Institute currently enrolls about 4,300 students in degree programs. All degree programs are taught in English.

KIMEP is accepting applications for the position of Dean of the School of Law (SL).

Currently, the Law Program is housed in the Bang College of Business, offering an LLM, a minor in Law and undergraduate courses. The creation of an independent Law School is being planned, with both undergraduate and expanded graduate programs.

The Dean of SL is the School's administrative and academic head. Reporting to the Vice-President of Academic Affairs (VPAA), the Dean will exercise vision, ethical leadership and advocacy in curriculum matters of the School, placing emphasis on quality assurance and continuing development of the finest educational program possible. As key responsibilities and duties, the Dean of SL shall:

•Manage fiscal and personnel resources of the School and recruitment, evaluation and retention of well qualified faculty and staff;

•Curriculum planning and development;

•Promotion, publicity and student recruitment;

•Manage the School’s faculty, including hiring, promotion, arrangement of leaves, salary determination, assignment of academic and administrative duties and resolution of grievances and disciplinary problems;

•Prepare and submit the School's annual budget and other relevant reports;

•Serve as Chair of the School Academic Committee and facilitate the work of other School committees; •Serve as a member of the Deans’ Committee and KIMEP Executive Committee;

•Represent the School in KIMEP-wide events and to external constituencies;

•Teach one course (3 credits) in each of the Fall and Spring semesters; and,

•Other duties, as assigned by VPAA.

Qualifications: Doctoral degree in Jurisprudence/Law; a clear educational vision for an effective, rigorous, comprehensive Law program, following American models; administrative experience, preferably at Chair or Dean level, at an institution of higher education; experience in curriculum development and review; excellent negotiation, communication, organization and leadership skills; and, fluency in English.

Applications will be accepted until the position is filled. Salary is negotiable.

To apply, please send, via e-mail, a letter of interest, curriculum vitae and contact information, including e-mail addresses of three references, to: [email protected]

We like to be a full service blog, so if you are interested, here's a link to the Cores real estate agency in Almaty, if you might be looking to rent.  If you'd be looking to buy, we suggest Almaty Real Estate.  And here's Air Astana, the national airline of Kazakhstan.

Gut Feeling

The always-informative web page of the North Dakota Supreme Court has a link to an article in last Friday's TwinCities.com Pioneer Press about unhappiness in the state public defender's office over the selection of a new appellate chief. The report:

The state's new chief appellate public defender has never filed a legal appeal in Minnesota.

The appointment of attorney David Merchant has raised eyebrows and, in some cases, hackles of attorneys who represent Minnesota's poorest defendants in sensitive and high-profile cases.

Among the complaints is that Merchant has made clear to them that, unlike his predecessors, he will not be handling cases himself. They say this will leave the office, already overwhelmed with appeals, further short-staffed.

Four attorneys from the state public defender's office have sent letters to the Board of Public Defense that appointed Merchant questioning why, at a time of budget cuts, a current employee of the office wasn't elevated to the top appeals spot, eliminating the need to budget for a new hire.

The controversy began Feb. 11 when four attorneys interviewed for the top appellate spot in the public defender's office, a position that oversees the 28 lawyers who argue most of the legal appeals for criminal defendants in the state.

Cathy Middlebrook, a managing supervisor in the office and the sole female applicant, had specialized in handling appeals for 23 years. Another candidate, Ben Butler, had just won a case before the U.S. Supreme Court. A third candidate, Paul Maravigli, came from the Hennepin County public defender's office and had once specialized in appeals.

Further:

After four hours of interviews, the Board of Public Defense announced its decision. Merchant takes over the position March 15.

"Shocking," "insulting" and "demoralizing" are just some of the words public defenders and criminal defense attorneys have used to describe the hiring of their new boss, who declined to be quoted for this article.

Interim Chief Appellate Public Defender Marie Wolf resigned from the position the day after Merchant was hired.

In a letter to the Board of Public Defense and the governor's office, Assistant State Public Defender G. Tony Atwal said his colleagues within the appellate office were "demoralized and devastated" by the decision to hire a top supervisor new to criminal defense work in Minnesota.

Atwal, an adjunct professor of appellate law at William Mitchell College of Law, called the meeting "an example of how fundamentally flawed the leadership at the board and within the public defender system is and how disconnected it is with the needs of the system."

"The citizens of Minnesota deserve better from its public agencies," he wrote. "... In my view, the leadership at the board and within the public defender system is broken."

Another attorney wrote in a letter that one board member preferred Middlebrook because she had spent nine years as a supervising manager in the office. The others overruled that board member after only brief discussion, with one board member mentioning having a "gut feeling" that Merchant was the better candidate.

"I sat in disbelief over what had transpired before my eyes. I felt ill," wrote Ngoc Nguyen, an assistant state public defender, in a letter to the board dated Feb. 19. "The board's inability to articulate why Mr. Merchant was more qualified was insulting and demoralizing."

Another lawyer, Bridget Sabo, wrote: "He has no criminal law experience in Minnesota. ... Mr. Merchant seems to lack almost all of the qualifications set forth in the job description for our Chief. ... To hear ... that he will not be able to offer us case support in any meaningful way and has never managed a group of attorneys before is, frankly, nothing short of shocking."

(Mike Frisch)

Would-Be Iowa Law Prof Litigant Responds

Posted by Jeff Lipshaw

Back in August, the ABA Journal ran a story on a Michigan lawyer and academic aspirant, Donald Dobkin, who was suing the University of Iowa Law School on an age discrimination theory.  Usha Rodrigues commented over at The Conglomerate, and I opined as well, generating some debate about whether he had alleged the basis of a good claim.  Mr. Dobkin has responded in a comment to the August post, and I thought it deserved not being buried back in the comments.

First, some context.  As I read the reports, this is an age discrimination claim.  Here were some of my comments back then:

Much as I think it's questionable policy, it doesn't take much to overcome the initial prima facie burden in an age case. You show you are over forty, you applied for the job, you were qualified, you were denied, and somebody under 40 got the job. But to eliminate the prima facie inference, all Iowa would have to do is satisfy a burden of production (not the burden of proof) to articulate a legitimate, non-discriminatory reason for the decision. At that point the claimant continues only by showing (through his or her burden of proof) that the stated reason(s) was a pretext (or cover up) for discrimination. The claimant has to prove two things: that the respondent’s proffered reason is false AND that the real reason for the respondent’s challenged action was discrimination or conduct otherwise prohibited by the ADEA. According to one of the news releases I saw, the complaint is based on his response to the posting in the AALS Placement Bulletin. I don't know which one, but it happens that the AALS posts a sample placement bulletin on its website, this from 2006, and it happens that Iowa had an ad in that issue that is very typical of these kinds of ads: "Consideration of any applicant for a faculty position may depend upon the current curricular needs of the College. Although considerable flexibility exists with respect to courses and other assignments, we are particularly interested in hiring people with interest or expertise in administrative law, business law, constitutional law, criminal law, disability/health law, immigration, intellectual property, law and economics, property, regulated industries, and taxation." Apropos of my comment about naivete, that's the classic laundry list, probably reflecting a myriad of conflicting views within the faculty about the school's top hiring priorities. As applicants and faculty members know, that's often not sorted out until the last debate among the whole faculty, and is one of the reasons I suggest in the "Retire and Teach" article that you not assume anything until you actually have a call from the dean extending you an offer.

Here's Mr. Dobkin's comment, posted this morning (the text, as well as the metadata on the post, satisfy me that it really is Mr. Dobkin!):

Now having read all of the posts from this blog as well as many others it is readily apparent how one sided the comments are from members of the academy and just how insular the entire community appears. The posts reflect several errors which I shall note as follows. First, I can assure all that I am not naive. I spent 5 years at this academic endeavor since retiring from active practice. I published 5 law review articles in less than four years. I am halfway through a significant book on the US immigration mess. I presented papers several times at scholarly meetings. I spent a year at Johns Hopkins in the graduate program in PoliSci only to be told that it was a waste of time since nobody would hire a 60 year old. I am a graduate of a mega-elite law school, Northwestern, in case no one has noticed. I am a member of the Martindale Bar Register of Preeminent Attorneys (which I assume counts for nothing with all of you). I registered 4 years in a row with the FAR and never got an interview. I applied for visiting professorships and was rejected. My conclusion after going through all of the above is that unless one meets the academy's gold standard profile, as I call it, i.e. Harvard, Yale, Stanford J.D., Sp. Ct. clerkship and 1-3 years with the Justice Dept. your chances of becoming a law professor counts are slim. Long experience and knowledge as an accomplished professional counts for nothing in the hiring process. Quite amazing given the fact that law professors are given the awesome responsibility of preparing law students to become future lawyers. Accordingly, I concluded that I could not get a fair shot at landing a position under the paradigm currently utilized by the academy and that I needed to shift the playing field to one where I would have a chance, i.e the courtroom.

Assuming we can get to a jury, Iowa has a problem, because at the end of the day we will turn the trial into a question of who is more competent to teach immigration and administrative law. Is it the two younglings who had no practice experience in the field, had no or few publications in either field or myself--a candidate with 7000 cases under his belt, a graduate degree in law from an elite school, and more publications in the field than both candidates combined? Can you imagine a prospective juror, let's say a plumber from Iowa working 6 days a week to put his son through law school listening to all of this. Who do you think he is going to favor to teach his son to become a future lawyer--someone with mega practice experience and the scholarly credentials to boot--or the two neophytes who were offered the position?

Some comments below the break.

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Job Opening: ABA Legal Reform Specialist (Kosovo)

Posted by Jeff Lipshaw

From Annie Lively at the ABA, we have this posting of a job for the adventurous and idealistic:

American Bar Association, Rule of Law Initiative-Kosovo, Legal Education Reform Specialist (6-12 months, Fall 2009) (Pristina/Mitrovica, Kosovo)

The Legal Education Reform Specialist will be responsible for implementation of legal education reform activities with the University of Pristina – in both Pristina and Mitrovica. Pending the outcome of final discussions with funding agencies on areas of work, the Legal Education Specialist in cooperation with the resident staff, will assist with: the development of the Legal Methodology course, a one semester mandatory credited course; the development and piloting of a new course in Ethics and Professional Responsibility; and the development of a potential Research and Writing course. The Legal Education Specialist will also support the expansion of an on-going simulation legal clinic, as well as a currently piloted Trial Advocacy course and live-client clinic. Additionally, the Specialist will assist in the expansion of a “street law” style program called, TeenLaw. Course development and teaching, and clinical legal education teaching experience is a must. Experience teaching Ethics and writing courses is also preferred. The incumbent should also possess excellent staff management skills. Other requirements include five years relevant work experience, prior experience in formal university legal instruction and/or administration and prior experience in clinical settings (teaching practical skills). Prior knowledge of the legal system and legal education system in Kosovo is preferred. The Legal Specialist will be required to travel within the country and conduct work with two universities. All volunteer participants serving over 90 days receive a generous support package that covers travel, housing, general living, and business expenses. In-country foreign language training and medical evacuation are also included.

Application: To apply for the International Pro Bono Legal Specialist Program, please visit http://www.abanet.org/rol/opportunities/applywithus.shtml to fill out the Online Participant Registration Form. Please also be prepared to upload your resume. Only short-listed candidates will be contacted. For more information, visit http://www.abanet.org/rol.

Additional information is available at the ABA Rule of Law Initiative website.

Law Student Career Options Program

From the web page of the District of Columbia Bar:

On June 25 the program “Law Students, Know Thy Career Options!” will return to help aspiring attorneys determine their career paths.

The program is jointly sponsored by the Asian Pacific American Bar Association of the Greater Washington, D.C. Area (APABA-DC), the APABA Educational Fund (AEF), and the South Asian Bar Association of Washington, D.C., and will be hosted by Jones Day.

Panelists will explain the hiring process, work environment, and the strengths and merits of four career directions law graduates take after the bar exam: private practice, government, public defender’s office, and legislature. Breakout sessions will provide participants the opportunity to talk directly to the panelists and other attorneys about life after law school.

Speakers include Kris Dighe, assistant chief of the environmental crimes section at the U.S. Department of Justice; Janelle Hu of the U.S. House of Representatives Committee on House Administration; Emily Mao, a partner at Alston & Bird LLP; and Maribeth Raffinan, supervising attorney in the trial division of the Public Defender Service for the District of Columbia.

This free program takes place from 5:45 to 8 p.m. at Jones Day, 51 Louisiana Avenue NW. For more information, contact APABA-DC President-Elect Tacie Yoon at
[email protected], or visit www.apaba-dc.org.

(Mike Frisch)

AALS Agonistes

Posted by Jeff Lipshaw (not Bill Henderson, but my name sits right below his on the left)

Brian Leiter has provided a link to his post from a year ago about when candidates should expect to hear from schools with whom they interviewed this past weekend in Washington.  I looked at the post and realized that I had commented twice, and they were worthy of being brought into the full light of bloggicity.

First, I speculated that callbacks were a front-end loaded curve.  Brian's observation that you COULD get a call late is accurate, but the likelihood is low. Here's a guess on call distribution: 20% before the weekend is over; 70% by the end of the first week after the conference; 90% in two weeks.

Second, here is my "Person/Unperson" theory having never sat on an Appointments Committee, but having done interviews and hiring in other contexts for over 25 years.   From the standpoint of the Appointments Committee, there is likely the A team, the B team, and the C team. The A team hears within two weeks about in the time sequence described above. The C team ought to get a brief "it was nice but no thanks" within a couple days, and more often than not it doesn't. The B team gets radio silence because it is the B team, which means it isn't the C team, and apparently somebody thinks it has a chance of moving up to the A team.

From the candidate's standpoint, the rationalization/self-deception progression goes as follows: (1) "I'm still on somebody's A team, but their committee is not going to do call backs until January;" (2) "I am still on somebody's B team," (3) "I am lower than dirt, and please call me in April when I have uncurled from the fetal position."

The A team fantasy will disappear on its own sometime between the conclusion of the Rose Bowl and the kickoff of the BCS Championship Game. The real issue is the "still on the B team fantasy." I'd bet dimes to dollars that if we looked at it in the macro, there actually is no pure B team person. Rather there are "Persons" and "Unpersons." (I can't remember: do I give credit to George Orwell for that?) That is to say, a real B teamer would be on SOMEBODY'S A team, and hence a Person. If you are on everybody's B team (and hence without callbacks), you are really an Unperson. I believe that was my experience in 2005.

Law Professor Free Agency and "School-Specific" Capital

[posted by Bill Henderson, cross-posted to ELS Blog]

[Update: Paul Caron (Cincinnati), Michael Madison (Pittsburgh Law), Jeff Lipshaw (Suffolk), Jim Chen (Louisville) have picked up on the analysis in the below post.  There seems to be some misunderstanding on my point of "long-term contracts."  In retrospect, I should have said "long-term commitments" (i.e., extra-legal and perhaps not committed to writing) to avoid what I think is an unproductive analysis of run-of-the-mill employment and commercial contracts. 

I am talking about this:  Academic X says, "I will stay here X number of years and ignore outside offers if you provide me with the resources to execute the following institutional plan [e.g., labor-intensive but high-yield teaching, public service, useful scholarship that will be noticed and solve a real world problem, etc.]."  Law School Y says, "I love this idea.  If you are right, it will grow our institution.  Because you have committed to building it here, School Y will fund it."  Because both Academic X and Law School Y have aligned personal and institutional agendas, their cooperation and commitment grows the institutional pie; both are made better off. Moreover, it becomes magnetic for other scholars and funders who share the substantive vision. 

So we are talking about communitarian norms here.  This type of approach is easy in small groups, which is what law faculty are.  Firm-specific capital in law firms is harder to grow/maintain because (a) they have gotten larger, (b) covenants not to compete are prohibited, and (c) there are liquidity constraints imposed by the ban on non-lawyer ownership.  On the other hand, law firms work harder at it because they increasingly operate in a competitive national marketplace--firm-specific capital can be huge competitive advantage. Law schools, in contrast, are not subject to the same market pressures--the most elite have huge endowments and donors who want to give more to be associated with the elite brands.  Thus, in the legal academy, the free agent ethos is damn near ubiquitous.

No need to be abstract about all this.  I lay out a highly plausible counteractive approach in this comment.]

Several bloggers have noted Clayton Gillette's recent article, Law School Faculty as Free Agents, 17 J. Contemp. Leg. Issues 213 (2008).  See, e.g., Paul Caron, Larry Ribstein, Al Brophy, and Paul Secunda.  Gillette's essay provides the type of straight thinking needed to move the Moneyball-Moneylaw debate into a mode of institutional analysis that can produce actual results.   I will briefly lay out Gillette's analysis and then extend it to a concept I call "school-specific" capital--an analog to firm-specific capital.

Law Professor Free Agency

In a nutshell, here is Gillette's argument.  The lateral market for law professors is primarily based upon scholarship, which is an observable, coveted good.  Teaching and service, to be sure, are relevant goods, but they are hard to measure.   Further, faculty make hiring decisions; when they land a high profile scholar, they share equally in the school's reputational gain (albeit these gains are largely limited to opinions of other professors).  Yet, if new colleagues shirk committee work or are disengaged and uninspiring teachers, the costs borne by individual faculty members are negligible or non-existent. Hence scholarship becomes the focus of lateral hiring.  Clayton observes,

In 30 years of teaching, service as vice dean, and membership on appointments committees, I don’t believe I have ever heard a discussion of a candidate’s qualifications that included serious consideration of institutional service, except insofar as it related to scholarship. ... 

[H]iring schools tend to invest little in discovering teaching quality. The hiring decision is typically made after one or two faculty members at the hiring school attend one or two of the visitor’s classes, and that is done through a process (e.g., informing the visitor when faculty members will attend, and allowing the visitor to choose that time) that diminishes the likelihood that those classes will be representative. ... The result is that, as opposed to the meticulous, highly tailored criticism to which a candidate’s scholarship will be subjected, a candidate’s teaching will be evaluated largely to determine whether it is “good enough.” (pp. 228-29)

Gillette's key insight is that the lateral market in legal academia, unlike baseball (a crucial point), does not force the decision-makers [faculty] to internalize the benefits and costs of free agent activity:  Some costs potentially get externalized onto the students, alumni and law school administrators.   When  scholarship opens so many doors, Gillette suggests, it is easy to see how a more robust lateral market can skew institutional incentives and detract from overall educational quality.

To my mind, Gillette sets forth a very coherent and plausible analysis. [I suspect a lot of people will quibble with it, however, believing that their own lateral experience (or aspiration) reflects a more optimal outcome at the institutional level.  Listeners interested in the merits of this debate should weigh the critic's potential bias.]   It is an open question whether lateral mobility is really on the rise. At Indiana Law, we are building a law faculty universe database that covers 80 years of AALS schools.  See "Is Lateral Movement on the Rise? A Precise Answer is on the Way," ELS Blog (Dec. 21, 2006).  We see a lot of lateral movement in the 30s, 40s, 50s, 60s, and 70s. Eventually we will answer to the nagging empirical question of whether lateral movement is truly on the rise.

But one thing I can say with confidence--information published on the Internet (Leiter Faculty News and Concurring Opinions) has increased the perception of heightened movement.  And perception is all that is necessary to change behavior and institutional norms--possibly in the wrong direction.

"School-Specific" Capital

Gillette actually understates his argument.  Specifically, the proliferation of a free agency ethos not only undercut educational quality, it inhibits the cooperative, highly committed, selfless environments need to create truly exceptional institutions.   One of the major implications of more professor mobility is the diminution of "school-specific" capital--i.e., desirable law school attributes, such as innovative curriculum, public service reputation, alumni good will, that remains largely intact when a professor leaves.   So more free agency suggests fewer law schools that transform good human capital into great human capital.  On this score, the "best" law schools can, in fact, be pretty mediocre.   (I believe there is a way out of this box, which I will address below.)

More after the jump. ...

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Model Law Firm Rejection Letter, and a Classic Practical Joke

Posted by Alan Childress

Beyond our previous posts here and here on [true] rejection letters from law firms, consider this model response letter published in '05 by Harvard Law Record:

Dear  Ms./Mr. My Firm is Too Good For You:

Thank you very much for your recent letter explaining that, despite the fact I am a wonderful person and will likely win the Nobel Prize for Law someday, you were not able to offer me a callback interview and/or a position as a Summer Associate. I regret to inform you that I am unable to accept your refusal to offer me a position as a Summer Associate/callback interview.

This year I have received an unusually large number of rejection letters, making it impossible for me to accept them all. Despite your outstanding experience in rejecting applicants, your refusal does not meet my needs at this time.

Therefore, I shall initiate employment with your firm in May of 2006.  Best of luck in rejecting future candidates.

Sincerely,

Harvard Law Student

Students at other schools have posted their favorite rejection letters they actually received for law jobs.  See Barely Legal's here, a commenter elsewhere here, and a whole site devoted to this topic at rejectionletters[dot]net.  One firm "won" a contest for its letter, here.  A mass email rejection of all named candidates (duly listed in the TO: field) is the subject of an Above The Law post last August.  >>> After the jump, read about a nice practical joke at UNC involving rejection letters.

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Some Thoughts on the Bi-Modal Distribution from a Former Partner and Retainer of Partners

Posted by Jeff Lipshaw

Coming up for air after working on some other stuff, I finally had a chance to digest Bill Henderson's post on bi-modal distribution of starting associate pay.  I have some visceral reactions to the data, as well as some "the sky is not falling" thoughts about how things will play out.  This is all casual empiricism and seat of the pants theorizing, so take it for what it's worth.

1.  Bill's post doesn't talk much about industry consolidation, but there's no doubt that has substantially impacted the law business since I started at a big Detroit firm in 1979.  At that time, there was a big premium to working in a New York law firm - as I recall, as much as $10,000 a year.  This will sound quaint and somehow Great Depression-ish, but my offer letter in the fall of 1978 from Dykema promised a starting salary of $22,000, and I am pretty sure an offer from Cravath at the time would have been in the low $30,000s.  The gold standard of pay at the time was not as a lawyer, but as a consultant at The Bain Company, which was mainly a place for the JD-MBAs.  (I remember this because the starting pay was $44,000, exactly double my offer, but the word was you worked three times as hard.)  What Detroit (Dykema), Milwaukee (Foley & Lardner), Pittsburgh (Reed Smith), St. Louis (Bryan Cave), as exemplars, offered, even then, was a trade-off of life style for dollars:  billable hour goals in the 1700-1900 range, versus 2200-2800, lower cost of living, accessible suburbs, greater assurance of partnership (ratios then were 1:1 in the smaller cities, with the 4:1 or 5:1 leverage even then in New York.)

What seems clear to me is that the midwestern model indeed did not work, and the continued admission of partners created what one of my late partners used to rail about at partner admission meetings:  the creation of negative leverage by admitting so many people as equity partners.  The solution was growth, but organic growth opportunities are cyclical with the business cycles, and consolidation growth is the alternative.  And that's what we've seen.  DLA Piper may be the best example, as a decent firm out of Baltimore turned itself into a global powerhouse over the course of a few years (my late friend Jeff Liss being a major player in that strategy).  Dykema just swallowed up a medium-sized firm in Chicago.

My theory is there's less to distinguish the Am Law 200 now, and hence, less to distinguish in terms of non-monetary compensation, hence the trend to bi-modal distribution.

2.  I want to suggest the banking consolidation model as a prediction of the way the law industry will go.  Banks, like law firms, are natural consolidators.  It's largely a service business, the services are fairly homogeneous, and consolidation offers huge cost synergy opportunities.  But what happened with all the banks turning into Citis or Chases or Keys or National Citys is that market opportunities sprang up for local service oriented banks.  The "private bank" phenomenon is a response to that.  I used to listen to radio ads for a locally-owned bank in the Detroit area, Franklin Bank, that made this the focal point of its value proposition.  (I'm hearing something similar this summer here in northern Michigan from local pharmacies, particularly those that do compounding, as a reaction to the CVS-Walgreen's-Rite Aid-Walmart consolidation.)

As smart and ambitious lawyers get tired of the bureaucracy of the mega-firms (and more importantly, like David Boies, having fruitful and remunerative new business killed by a conflict!), my prediction is we will see a cycle of boutique firms that return to something like the market distinction of the late 1970s.  I can reveal here a not-very-hidden secret:  GCs of big companies know that much of what they purchase in legal services is fungible, and they can get quality work in Albuquerque or Nashville or Birmingham, Alabama or Jackson, Mississippi.

My faith in the corrective power of markets is not quite as ardent as my friend and about-to-be co-author Larry Ribstein (Ribstein & Lipshaw, Unincorporated Business Associations, 4th ed., to be available for the 2009-10 school year, get it while it's hot!), but I think that's where we are going (see Larry's observations on this business acting more like other capitalist businesses).  Like Larry, however, it's the debt that bothers me, and I second his historical observations on that score.

New Blog From a Hiring Partner Offers Great Tips From the Inside

Posted by Alan Childress

Enter the blogger named Hiring Partner.  The semi-mysterious guy (or is he a guy? -- actually seems like a composite, to me, of a hiring partner and the firm's recruitment coordinator, but I don't mind) started to blog Friday, at Hiring Partner's Office, and it is already interesting.  He sits at the other side of the summer associates' (and later 2L interviewees') worldview.  "I am the hiring partner at an office of an AM LAW 200 law firm.  I oversee on campus recruiting at targeted law schools for our office and local candidates for other firm offices.  I also manage our summer associate program."  He is the decider.

Why blog?  Mainly it's "the millenials (sp?). I keep hearing it is a generational thing.  I thought it would be useful to have a blog where law students and others can learn about things that -- despite their great grades and stellar pedigrees -- can nevertheless disrupt your getting an offer at the firm of your choice. You would be amazed at some of the things that have been occurring." 

On the 'amazed' front, consider his top ten things that annoy your hiring partner, compiled after a poll of hiring partner friends.  (I had no idea they formed a clique.)   For example, advice at a social function held at some partner's house:

Be charming and pleasant.  Be respectful.  DO NOT take off your flip flops (btw, don't wear flip flops!) and put your bare feet on the partner's couch/chair, etc -- YES, I saw this one happen myself.  YOU ARE NOT AT HOME.

And a later post asks summer associates to assess where they are, substantively, not just socially.  Finish strong.

What Do Law Firms Want?

Posted by Jeff Lipshaw

There's some commentary on Northwestern's new two-year program from Brian Leiter here, Bill Henderson here, and some skepticism from Brian Leiter about Bill's view.  If I may put it in a nutshell, the Leiter argument says Northwestern can't really claim to compete with the mega-elites like Chicago simply by running a gimmicked-up, business school-like program that focuses on anything other churning out the smartest of the smart.  This was part of the response to Bill:

One thing that Professor Henderson's Panglossian assessment loses sight of is that the law is an intellectual profession, in which certain kinds of high-order analytical and argumentative skills go a long, long way. This is why, for example, really successful litigation partners at top firms tend to be quite smart; some may also be good at "teamwork," and various B-School gimmickry, etc., but plenty aren't. But they can think, and argue, and analyze, and write, which is, I would have thought, what good law schools teach to and model for their students.

The crux of the argument is that "think, argue, analyze, and write" ("TAAW") skills are both necessary and sufficient for a successful lawyer at an elite firm, to the exclusion of other social skills. There's some seat of the pants empiricism going on here about what (a) leading or elite law firms are; (b) what leading or elite firms do; (c) what it means to be successful and with what kind of attributes; and (d) whether firms actually look to granular distinctions between schools like Chicago and Northwestern, or Harvard and BU, or other examples of "mega-elite" versus "super-elite" versus "elite" in deciding about the individuals they will hire. I don't know that my anecdotes can beat up your anecdotes, but I've been a big firm litigation partner, a big firm corporate partner, a general counsel who hires big firms, and a law professor. Let me suggest some parts of the quoted passage that are problematic.

(a) Even at the mega-firms, there are very few lawyers whose practice is so restricted as to do nothing but things requiring ONLY TAAW skills. I suppose if one's practice involved no more than briefing and arguing appellate cases with no need for assistance other than a few brilliant but browbeat-able associates (and possibly no need for clients), we could argue TAAW skills indeed are both necessary and sufficient. (I won't bother with the argument that TAAW is not necessary - even at the elite schools, students in the bottom quartile are looked upon with some suspicion, both for intellectual and other somewhat Darwinian reasons, so I'm assuming every lawyer hired by an NLJ 250 firm has TAAW skills.)  Most big firms have an appellate litigation group, but it would be relatively small.  Suffice it to say that elite firm appellate litigation groups are not, by a long shot, going to soak up a full year's worth of graduates from the top 20 US News law schools.

(b) Litigation practice at an elite firm by and large requires TAAW skills as a necessary condition, but it is rarely sufficient. Even elite firm lawyers make arguments to judges (trial and appellate) who (horrors!) graduated from 3d and 4th tier schools. An ability to come down to a less lofty level is not only an intellectual skill, but a social skill. It means you actually care about being understood by somebody else, and have the social sense to perceive that fiddling with your Phi Beta Kappa key (literally and figuratively) in front of the judge who worked her way at night through Urban Center Law School is not the best way to go. (I'd even be careful with that stereotype.  One of the smartest people - in terms of pure analytical horsepower - I've ever met is my former partner and now United States District Judge (E.D. Mich.) Nancy G. Edmunds, who became a lawyer as a second career, and was the editor-in-chief of the Wayne Law Review back in 1977 or so.)

(c) Trial lawyers (and elite firms do trial work) make arguments to lay people. Jury research (as well as lore) suggests that juries react emotionally as much or more than intellectually.

(d) Not all practice, and not even all litigation practice, is intellectual and argumentative. 90% of all the cases litigated by big firms settle. Settlement is NOT a matter of arguing and writing, and while it involves analysis and thinking, it is of a different kind - more on the scale of emotional quotient than IQ. TAAW skills here are again necessary but not sufficient.

(e) I have hired dozens of high-powered lawyers. Their TAAW skills were my instruments. I liked hiring smart lawyers and, for me, TAAW skills, or at least everything but the "argumentative," were necessary conditions.  (Indeed, I confess that I had a reputation in the practice as something of an elite school elitist). But nothing drives a general counsel crazier than her own counsel who can't seem to stop using his TAAW skills to make his own client's life miserable, like not acceding to the business needs of the client when it impacts upon the purity of the legal argument being made by the TAAW-driven lawyer. I could recount dozens of instances where lawyers' intellect (and particularly seeing a non-TAAW situation as one calling for TAAW skills) got in the way of good results. Not to mention lawyers who thought their TAAW skills were so non-fungible as to be able to ignore our instructions on getting bills in on time, or failing to accommodate our public company accounting rules in doing fee forecasts, and being prompt with their responses to auditors' inquiries.

(f) There's some discussion someplace in the comments about hiring Sitzfleisch, which I interpret to mean warm bodies.  That is an interesting comment because, in the context of the present discussion, it had to do with elite firms hiring not-so-smart people to do routine work.  Ironically, in my day in a non-New York big law firm, it was the really smart but socially challenged nerd who was the Sitzfleisch!  You'd put him (usually him) back somewhere in the library, have him churn out great memos and briefs, but never, under any condition, let him interact with a client.

(g) Not even those of us with an elitist bent would hire individual lawyers on a rankings algorithm. Schools perform a rough filtering function, and that's about it. I can't even imagine a hiring committee saying something like "well, they are exactly equal but Mary went to Chicago and Joe went to Northwestern, so let's hire Mary." I'm going to suggest for the vast bulk of NLJ 250 hiring, the top twenty schools or so in US News are completely fungible, and barring some cataclysmic change, will always be. (Even the US News "lawyer/judge" assessments are of programs, not students, and those assessments, I suspect, are as influenced by the prior US News ranking as the peer assessments.) Moreover, digging deep into the US News 3d and 4th tier, firms, and even elite ones, regularly take students from those programs. I'm happy to say that my best securities law students from Suffolk are going to Ropes & Gray, Wilmer Hale, and Goodwin Procter.

The only causal connection I can see in the argument is that if somehow there's a cataclysmic change in the peer assessments of schools like Northwestern that makes a quantum change in the coordination aspect of US News and the like, entering students might think twice. Or firms might cut back on the schools they visit for purposes of hiring. (By the way, my recollection is that Georgetown leads the pack nationwide in terms of law firms who interview on campus.) But my guess is that these are all at best attenuated causal chains.  Here, as elsewhere (as all seem to agree), the life of the law is not logic but experience.

New Blog on Career Development In Law Features Bar Exam Tips + Ideas For Summer Job Prep

Posted by Alan Childress

The one-month anniversary has arrived for the LPB blog devoted to hiring and law jobs:  the Career & Professional Development Blog. Its main editors are CDO professionals Susan Gainen at Minnesota and Mina Jones Jefferson at Cincinnati, aided by a wealth of contributing editors from schools all over, including my colleague at Tulane, Carlos Davila-Caballero.  The anniversary present for a month is a copy of that colorful parachute book, which should come out in a pop-up version.

Recent essential posts at C&PD Blog include 12 very good (and not necessarily obvious) tips for taking bar exams, such as rent a nearby hotel room, don't fret but don't discuss, and don't get banned (true!) for a ringing cellphone.  The most non-obvious one, buried in #12, is to Drink Wine.  Other useful posts:

(1) eight things one can do over the summer to prep for job hunts [including creating that 'elevator speech' of which Jeff wrote here, plus 'scrubbing' one's e-persona and odd vocabulary like right now],

(2) six myths of job hunting, and

(3) functional and aggressive ideas for using email to network.

Don't be literal.  The speech should be about you, not the elevator.  (Unless you're President of the Harvard Law Review, in which case BigLaw partner will enthusiastically follow your cue about the fascinating subject of elevators ... or "lifts" as they call them in other common law countries, ha ha ha.)

Say It With Conviction, Plus Ethics Updates From Maine

Posted by Alan Childress

It is standard advice in legal writing and advocacy to avoid wishy-washies like "I think" or "I believe." *  That's also good advice when prepping one's speaking skills to be used in the job search and interview process (a related point was recently made by Susan Gainen of U. Minnesota, here, in tip #5).  And it's an even more crucial tip in some professional contexts.

Sometimes to avoid conviction, one must assert matters with conviction.  I was reminded of the above advice when reading a headline/blurb on the website of Maine's state bar: 

AUGUSTA—Vassalboro man sentenced to 15 years in prison for attempted murder and burning down his sister’s home, says ‘I feel that I'm not guilty.’ 

I appreciate his honesty, if it was merely a sense he had.  I saw this while lurking on Mainebar.org trying to find a job listing for interested readers: the NOBC site says that "Maine Seeks Assistant Bar Counsel," but I could not access the NOBC link without registering, and I could not find a job listing on the Maine bar website. I also could not find one at the Maine bar overseers site.  Anyway, there may be a job in Augusta for someone interested in enforcing legal ethics.

Finally, the overseer site announces, "The Maine Task Force on Ethics 2000 has completed its Report and Recommendations on revisions to Maine Rules of Professional Conduct," and has this link to the proposals with comparisons to the existing rules.

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* Advice so basic I could not find it while perusing the last 20 posts at Ray Ward's the (new) legal writer.  But I did find the world's hardest vocabulary test and Ray's throw-down challenge to his writing readers to take a shot.  I give Jeff Lipshaw five minutes before he tries it.  Ray also reminds us, in this recent post, that "invective is rarely persuasive" in legal practice -- much like the point on civility and 'truth' that Jeff raised yesterday about academic discourse.

Can Law Study in China Help a U.S. or Other Foreign Lawyer Get a Job in China or Practice There?

That is the question Donald Clarke (GW Law) of Chinese Law Prof Blog has asked various sources.  He has compiled the answers and considerations in a new PDF document he links and introduces in this post.  LL.M. programs and other law study (usually in English) open to U.S. lawyers and others are considered.  [Alan Childress]

Macey-Dare on Restricted Entry To the English Bar (Part of the Legal Profession) by Vocational Training Requirements

Posted by Alan Childress

Rupert Macey-Dare (Oxford [St. Cross College] and the director of Oxford Informatica) has posted to SSRN his article, "'Practicing Certificate Risks' in the Market for Advocacy," as part of the series on developments at the English Bar, and its relationship with the Solicitors' profession. This paper concerns lower entry rates for Barristers (the Bar) in England and Wales.  I posted on an earlier paper from his series in this LPB post last June.  The abstract to the new paper is:

This paper considers two types of practicing certificate risk, relevant to the Bar of England and Wales, plus related sections of the Neuberger Report 2007.

The first of these risks could be called New barrister practicing certificate risk. This is the risk for a qualified applicant of never gaining the Bar practicing certificate because of restricted supply of preliminary approved pupillages. The paper argues, contrary to the Neuberger Report, that perception of this risk is much more likely to deter potential applicants from minority groups from ever training for the Bar, than any outdated perceptions of stuffiness or snobbery. The Neuberger Report acknowledges that this risk has recently risen to around 75%. Its recommended remedy is to reduce annual BVC graduate production and bring it into line with current annual approved pupillage availability. Acknowledging that a direct numerical cap on BVC numbers could infringe competition law, the Neuberger Report recommends the introduction of a raft of academic improvement measures designed to achieve this reduction in numbers by other indirect means.

The second of these risks could be called Solicitor-transfer practicing certificate risk. This is the risk to established Barristers of BVC graduates excluded from the Bar by unavailability of pupillage, subsequently transferring over to gain their practicing certificates as Solicitors, with special training and interest in advocacy. Given the relative sizes of the two professions and ratio of annual BVC graduate production to annual approved pupillages, this process could quickly lead, if left unchecked, both to a large increase in the overall number of advocates licensed to practice and to a larger number of advocates in the Solicitors than Barristers profession. The risk therefore to the Bar is that it could lose its traditional position as quasi-monopoly supplier of advocacy services in England and Wales, together with any associated monopoly profits. N.B there is no direct discussion of Solicitor-transfer practicing certificate risk in the Neuberger Report. Nevertheless, the BVC graduate reduction measures recommended by the Report are certainly consistent with addressing this risk as well.

Sovereign Immunity Defeats Suit

An Assistant Attorney General in Utah suffered from post-traumatic stress disorder in the wake of the unexpected death of her daughter-in-law during childbirth. She claimed that the AG's office "actively discouraged her from coming back to work by placing numerous impediments in the way of her return" after a leave of absence. She  sued under the Family Medical Leave Act.

The Utah Supreme Court affirmed the decision of the district court to dismiss. The U.S. Supreme Court has held that the family-care provisions of the act "were intended to protect women from gender-based discrimination in the workplace" but did not resolve whether self-care (at issue here) was abrogated by sovereign immunity. The court held that post-traumatic stress is gender neutral and that the state is thus immune from suit. (Mike Frisch)

Candor In Employment Process

An attorney who had failed to disclose that a prior employment was in her spouse's law office when applying for a position with a federal agency was suspended for 90 days by the Maryland Court of Appeals. The spouse provided a glowing reference and a competing employment offer. As a result, the attorney received a job offer at a higher starting salary than would have otherwise been given. The attorney did disclose the relationship on other documents "completed for purposes unrelated to [the attorney's] actual hire..."

When the non-disclosure was discovered, the agency did not take disciplinary action, but referred the matter for a bar investigation. However, the lawyer is no longer employed at the agency. The court held that "deceit can be based not only on overt misrepresentation but on concealment of material facts." The "concealment...impeded the ability of the [agency] to question and evaluate the bona fides of what was proferred as a competing offer." (Mike Frisch)