It's a strong line-up. I'm quite optimistic about the quality of the work product. I'd still like us to adopt a soup-to-nuts set of rules like the ABA has, rather than a minimal set of disciplinary rules. Stay tuned ....
Although I and many other people don't agree with Israel's actions on the West Bank, this effort to single out a US ally for hostile and discriminatory treatment is very misguided. I assume that university faculty and students administering federal or state government funds are not participating in this or any other similar boycott.
At a January 2015 annual winter donor retreat near Palm Springs California, the billionaire brothers Charles G. and David H. Koch unveiled plans to spend and raise from approximately 300 coordinating donors close to $900 million for the 2016 campaign, which will probably be more than the amount spent by either the Republican Party or the Democratic Party A lot of this money will be raised before the primaries even begin, very likely giving the Kochs and their coordinated group of donors a lot of influence over who the Republican nominee will be. According to the New York Times, at least five potential presidential candidates were invited to the Koch event this year, “and four attended, including Gov. Scott Walker of Wisconsin. On Sunday evening, three of them — Senators Marco Rubio of Florida, Rand Paul of Kentucky and Ted Cruz of Texas — took part in a candidate forum on economic issues.”
For Republican voters who were not invited to attend this gathering, the question is whether a “Koch Caucus” such as this one will effectively replace traditional caucuses and primaries in the states. By the time candidate selection is formally made, will the outcome be a done deal. And how credible will the winner of the Koch Caucus be as a candidate with voters in a general election?
Those of us who would like to see a Republican in the White House can only hope that the Soros Caucus or the Steyer Caucus will organize a similar event for the Democrats who will choose a nominee even more out of touch with the concerns of ordinary voters.
On January 8, 2015, the Washington State Supreme Court adopted special rules of professional conduct to govern limited license legal technicians (LLLTs). The LLLT rules are closely analogous to the rules that govern lawyers, so there is nothing terribly new here substantively. But the very existence of professional conduct rules for a new class of legal professionals nicely illustrates why our traditional focus on the "law governing lawyers" has become too narrow. Our field might be more accurately described now as the "law of legal services."
Authority to decide whether a medical student deserves a degree usually rests with the student’s school. In this unusual case, that did not happen. A federal district court found that Amir Al-Dabagh had proven himself worthy of a diploma and ordered Case Western Reserve University School of Medicine to give him one—disregarding the university’s determination that he lacked the professionalism required to discharge his duties responsibly. Because that lack-of-professionalism finding amounts to an academic judgment to which courts owe considerable deference, we must reverse.
We've already noted the 2nd circuit's decision this month finding that termination of the UCC-1 filing in connection with the $1.5 billion GM loan was enforceable and that therefore the property securing the loan was no longer secure.
The opinion did not name the lawyers at either firm who failed to catch the error.
But the circuit's earlier opinion in the case -- referenced in the later one -- does name the partners at the two firms who did not recognize the error. It does not name the Mayer Brown associate.
Why name the partners? This is NOT a situation where a lawyer has violated some duty to the tribunal and is called out on it, with the sanction being his name in the opinion. That happens and can be appropriate.
But why name the lawyers here? It's an awesome power with real world consequences to the lawyers. Perhaps there was a good reason to do so, but I'm unable to think of one.
Our own Stephen Gillers offers thoughts, including discussion of legal ethics issues, at The Nation. Excerpt:
An obscure legal ethics rule will have a leading role in Silver’s trial. The rule allows one lawyer to share a fee with another lawyer even if the first lawyer does no work. The rule requires written disclosures to the client, and it requires that the first lawyer accept responsibility for the other lawyer’s work in writing. Silver’s likely defense—already signaled—will be that it is both legal and ethical for a lawyer who does no work to share fees. Or if he violated the ethics rule by failing to do the required paperwork, he should be professionally disciplined, not federally prosecuted.
The thirty-five-page criminal complaint has the government’s response. It alleges that Silver used the ethics rule as a ruse to launder payments that were, in truth, in exchange for political favors, not client referrals. The complaint’s five counts charge that Silver did political favors to two real estate developers and a doctor, that in exchange for the favors the developers hired one law firm and the doctor steered patients to another law firm and that Silver got a cut of the fees that each firm earned from these clients. Of course, political favors are not crimes. They are what politicians do. But if they do them in exchange for money, it’s theft of the honest services they owe constituents and extortion, which are the crimes, along with conspiracy, leveled against Silver.
Clegard LLC v. LG Chem. Ltd., Federal Circuit, 12-10-14
Jones Day represented the plaintiff in a matter where success would be economically harmful to non-client Apple, which was a customer of defendant. Apple was a Jones Day client on unrelated matters. It intervened to disqualify Jones Day on the ground that the representation was directly adverse to Apple because success against defendant would cause Apple to lose defendant as its lithium battery supplier.
The court disqualified. Jones Day argued that it would not be possible for a law firm to anticipate the economic consequences to a non-party client who happened to be in an opponent's supply chain. But the court held that here the retainer agreement with plaintiff expressly said that the firm would not be adverse to Apple, so Jones Day did in fact recognize Apple's interest.
So the firm's effort to carve out adversity to Apple was used as a basis to find a conflict by showing awareness of Apple's adverse interest. But whether there was a conflict or not in the work the Jones Day did agree to do was in fact the question, independent of the carve out. The carve out should not have been used to find a conflict simply because it recognized Apple's interest.
This is a somewhat surprising case. Perhaps it is right on the facts. It is per curiam and non-precedential. However, the implications can be disturbing if read even a bit broadly. Many litigations can have economic consequences for a non-party client, even foreseeable ones and here Apple was a client on unrelated matters. The case holds that as a client even on unrelated matters Apple had a right not to see Jones Day appear for another client in a matter in which Apple was not a party because of foreseeable economic harm to Apple. The court cites its own 2006 precedent which I have not yet read.
The moral imperative and relevance of the Law of Armed Conflict ("LOAC") is more apparent today than before September 11, 2001. Law distinguishes democratic societies from the terrorists who attack them; nowhere is this more apparent than in the methods and means of warfare. Indeed, part of our revulsion and contempt for terrorism lies in the terrorists' indiscriminate, disproportionate, and unnecessary violence against civilians. In contrast, the enduring strength of the LOAC is its reliance on the principles of proportionality, necessity, and discrimination, which protect civilians and minimize combatant suffering. For these reasons, we should not begrudge the LOAC's limitations but continue to find the best contextual process for its meaningful application. In war, and no more so than in a war against terrorism where the terrorists' choice of weapons and targets may be unlimited, this means a process that is both militarily effective and legally sound. This article is about the role of the President, and the President's legal counsel, in US targeting decisions and in applying the LOAC.
According to the story posted below (from ALM), the NY law firm that Sheldon Silver worked for never expected Silver to do any work. He would add prestige to the firm, would refer cases to it, and would be compensated for those services. Is that a viable work-around for the referral rules? That is, assume that a state doesn't permit bare referral fees and so a firm takes on lawyer not to do any work -- but rather only to bring the firm cases. Problem solved? Or too clever by half?
Prawfsblawg carries a post about who signs the federal government's SCOTUS briefs, which agencies have authority to sign their own briefs regardless of what the Solicitor General wants, and what signals might be sent when agencies do or do not co-sign briefs in cases where the SG can file the sole brief for the government. The post illustrates the complexities that can quickly arise when we ask "who is the client?" in the government setting.
The New York Supreme Court (New York County) denied a DQ motion filed after a joint defense representation fell apart. The joint rep letter was well written and contained lots of warnings and a good explanation of the consequences of a falling out. The court realized that granting the motion would effectively prevent clients from safely entering into joint defense agreements even when it helped the clients. All in all, a job well done by the trial court. Bonus: the New York court cited California's Zador v. Kwan. (h/t: Law Firm Risk Management Blog)
Story at JD Journal. More at Overlawyered and the NYT. The sealed complaint is here. Posting here for ten years has left me largely immune from being surprised when I read of bad behavior by lawyers, but I have to say that the details of this story are depressing. [edited since posting] NYT excerpt:
For years, Mr. Silver has earned a lucrative income outside government, asserting that he was a simple personal injury lawyer who represented ordinary people. But federal prosecutors said his purported law practice was a fiction, one he created to mask about $4 million in payoffs that he carefully and stealthily engineered for over a decade.
Mr. Silver, a Democrat from the Lower East Side of Manhattan, was accused of steering real estate developers to a law firm that paid him kickbacks. He was also accused of funneling state grants to a doctor who referred asbestos claims to a second law firm that employed Mr. Silver and paid him fees for referring clients.
At Conglomerate, Josephine Sandler Nelson takes a critical look at modern applications of the "agents can't conspire with the principal" principle. As our readers know, that rule protect lawyers against claims that they conspired with clients (subject to certain exceptions). Excerpt:
What is the practical effect of this doctrine? The intracorporate conspiracy doctrine has distorted agency law and inappropriately handicaps the ability of tort and criminal law to regulate the behavior of organizations and their agents. Obedience to a principal (up to a point) should be rewarded in agency law. But the law should not immunize an agent who acts in the best interest of her employer to commit wrongdoing. Not only does the intracorporate conspiracy doctrine immunize such wrongdoing, but the more closely that an employer orders and supervises the employee’s illegal acts, the more the employer is protected from prosecution as well.
Very interesting article at The Marshall Project about PowerPoint slides used by prosecutors. The Washington State high court reversed a conviction on the basis of ppt slides. The slides are in the opinion and you gotta check them out. Great for PR courses, too. (Warning: the n-word is dropped.) (h/t: How Appealing)
Go ahead, guess to yourself. Matt Leichter has the stats at Law School Tuition Bubble. (His answer: thirty eight percent.) In what other markets do you see stats like that? In what other markets do you see the seller have such power to attempt first degree price discrimination?
I determine that [Attorney] has blatantly violated his duty of loyalty to Debtor, and that he should be denied all fees as a result of his misconduct.
At the outset, it is important to note that [Attorney’s] breach of loyalty is not in his attempt to collect fees from Debtor. An attorney must always be free to pursue his client for fees if he or she does so properly. [Attorney’s] breach of duty arises from the fact that he is taking a position adverse to his former client on an issue on which he previously represented the client and that is separate from the fees he is seeking to collect. With respect to that separate issue, it does not matter whether the court has decided the issue, or whether the position [Attorney] is currently taking is legally correct. An attorney who advocates a position on behalf of a client cannot switch sides simply because the issue has not yet been decided and/or he now believes the position he previously asserted on behalf of the client is wrong.
Ooops. A $1.5 billion error? In Motors Liquidation Co., a 2nd circuit opinion issued 1/21, should be read to be believed. Essentially - and the opinion should be read for full context -- because a UCC termination statement was filed when it should not have been filed, JPMorgan (and possibly other banks in the lending syndicate) lost a security interest in property. The error was noticed when GM declared bankruptcy. The "winners" are the unsecured GM creditors.
The tale begins with a paralegal's UCC search. His work is then given to an associate, then to partners at the debtor's firm (Mayer Brown) and at the creditor's (JPMorgan's) firm (Simpson). Partners were asked to approve the forms for filing. One who did made the quote in the title above. No one noticed that the filing would include an unintended termination statement.
Creditor JPMorgan did not intend to lose the security interest. Intent didn't matter, said the Circuit reversing the bankruptcy judge, based on a certified question to the Delaware Supreme Court. They knew what they approved for filing.
It is not clear from the opinion that the damage is as large as $1.5 billion. The opinion deals with the filing in Delaware only, but there were filings in other states, too. However, the property secured in Delaware was "by far the most important of the financing statements."
In addition to the supportive comments on this and other blogs, I have received quite a few private emails since writing about ME/CFS, especially after my post was picked up by the ABA Journal. I heard from two academics who are not “out,” and who asked me to keep their illnesses confidential. I received an email from a lawyer for whom “the isolation and dealing with something people diminish and don't understand have been almost as bad as the symptoms at times.”
Most affecting was a series of emails from a law student who described in detail the ordeal of attending school while coping with ME/CFS. In addition to problems of concentration and stamina – especially at exam time – the student has to cope with a social situation in which s/he does not feel free to confide in others the nature of his/her difficulties. [I am using the awkward split pronouns because the student quite reasonably requested absolute anonymity.] In addition to apprehension about the reaction among peers, the student expressed concern that the bar examiners would interpret ME/CFS as a psychiatric problem, which might then delay admission to practice. Consequently, the student has told no one about ME/CFS, including the Disability Office, for fear that accommodations would lead to gossip, and then to broader disclosure, and then to stigma.
My experience has been the opposite. Disclosure of ME/CFS has brought me nothing but thoughtful support. But I am tenured and well-established (although, of course, I have no idea about the reaction of people who have not contacted me). Nonetheless, I think that a student’s anxiety about going public with ME/CFS is entirely rational, even if the worst of his/her fears would never come about.
So, to law professors reading this blog: Please be alert to jokes or casual remarks – among faculty or students – about ME/CFS. The disease is invisible, and I guarantee you that a student with ME/CFS would be profoundly discouraged to hear the illness dismissed or minimized by a professor or classmate.
Finally, I think it is necessary to say something about productivity and expectations. A number of commenters, here and on other blogs, have commended me for being able to keep up my publishing and teaching during my illness. Well yes, I have done that, and it has been a daily struggle. But it is important not to over-emphasize success or “triumph” stories, which can sometimes be taken to suggest that others simply haven’t tried hard enough. As I trust Faculty Lounge readers will understand, it takes much more than an iron will and settled determination to overcome the challenges of ME/CFS and similar conditions. If other people have had less success, it is only because they have not had my privilege and advantages (not to mention my uniquely flexible job).
[Note: I have omitted or changed identifying characteristics for the people whom I have described in this post; they are not associated with Northwestern.]
In addition to Steve's post, Tigran Eldred posted at Continuing Duty, here's the Yale clinic's amicus brief, and here's the former state and federal judges' amicus brief. Fwiw, the opinion cites the Restatement, which certainly burnishes the street cred of that set of rules. Here's the opinion, which can be downloaded below. [edited since posting]
Yesterday's SCOTUS decision in Christeson v. Roper won't get a lot of attention except from us. Per curiam and without oral argument it reverses an 8th circuit refusal to allow substitution of counsel for a Missouri capital defendant on his federal collateral attack. Larry Fox and the Yale Clinic filed an amicus and an expert report (can you do both?). The report is quoted without attribution. (They're so stingy with credit up there.)
This case is like Holland and Maples. The capital defense lawyers let the time for filing a federal habeas run. New lawyers then sought to take the case away from them (pro bono) but the original lawyers resisted. The lower courts denied substitution. SCOTUS said this was error. The original lawyers, who had missed the deadline for a federal challenge, had a confict that prevented them from seeing equitable estoppel based on their own failure. With new lawyers, Christeson can allege equitable estoppel. Whether he succeeds or not is left to the lower courts. Alito and Thomas would have set the case for oral argument.
Story at ABA Journal. Motion here, asserting that the defense never had a real defense and has refused to settle at every opportunity.
For LGL purposes, assuming that the Beastie Boys motion is factually accurate, what does the LGL suggest that the opposing lawyers should have done? It's the client's decision to settle or go all the way, as long as the defense is non-frivolous.
Mary Jo White, the head of the Securities and Exchange Commission (SEC), was granted a waiver last year allowing her to vote on agency issues affecting a major corporate law firm that was also a former client of hers.
White was permitted to handle SEC business affecting Simpson Thacher & Bartlett LLP, a firm that has represented some of the biggest names on Wall Street. The waiver was issued in February 2014 but remained undisclosed while various matters involving Simpson Thacher played out before the Commission. The Project On Government Oversight found the waiver posted online last week by the Office of Government Ethics (OGE).
The client at first told the lawyer that a particular electronic storage device didn't exist and the lawyer made that representation. The client switched stories on that and the lawyer, after speaking to ethics counsel, withdrew from the matter without revealing the existence of the device or correcting the record. [New counsel switfly made the disclosures, within a week.] The trial court found contempt as to the withdrawn attorney, but the appellate court reversed. Worth reading. [The material in brackets was added after initial posting, to help clarify the narrative.]
DQed.com is a new conflicts website that came to my attention via Bill Freivogel's post yesterday on his own fantastic, indispensable, [add your own additional superlatives here] website, which combines the up-to-date features of a newspaper with the depth of a treatise on conflicts (and various other ethics subjects). Bill graciously introduces DQed as follows:
New Blog on Disqualification (posted January 14, 2015) Keith Swisher, Associate Professor of Law at Arizona Summit Law School has launched a blog entitled “DQed.” (Go to dqed.com.) It is all about ways lawyers (and others) can be disqualified in litigation. Because conflicts of interest are the most frequent causes of disqualification, the blog will overlap somewhat with this site. One particularly neat feature of the blog is that you may, on the main page, sign up to receive email versions of each article as it is created. We have done so and have, so far, received articles on disqualification of arbitrators and on the relevance of firm size in disqualifications. They are concise and a delight to read. The main page at dqed.com contains clickable thumbnails of all such articles, which Professor Swisher began sending late in 2014. Anyone who finds Freivogel on Conflicts useful must become familiar with Professor Swisher’s blog and Web site, sign up for the emails, and practice navigating the site.
I took Bill’s advice and read a number of entries in the DQed blog, and I signed up for the email alert. The items are succinct, lucid, and worth reading. Some of the items on the blog are taken from the author’s 2014 article on disqualification in the Georgetown Journal of Legal Ethics. Congratulations to Keith on getting a useful new blog up and running, and of course h/t to Bill Freivogel, whose "What's New" feature has been a part of my daily reading for more than a decade.
The New York Times, the Harvard Law School Forum on Corporate Governance and other media outlets are reporting on an increasingly heated debate over whether corporate boards of directors should all stand for election at the same time (a “declassified” board that could be analogized to the method for electing the U.S. House or Representatives) or serve staggered terms, usually with one-third of the directors standing for election each year (a “classified” board that could be analogized to the method for electing one-third of the U.S Senate every two years). Many articles and other publications address this topic, often with lots of data to support a particular position, and some academics are also soliciting shareholders with proposals based upon their research.
One question that has not been central to this debate is whether corporate law compliance is helped or harmed by having a classified or declassified board. The answer to that question is not clear, but it is important. The impact of corporate governance norms on law compliance is particularly important to lawyers who practice securities and corporate law and seek to help clients obey the law.
Declassified boards make companies more vulnerable to take over attempts as well proxy fights to replace directors and senior management. This could be a good thing if ethically minded bidders or activist shareholders were to identify ethically challenged directors and managers and then take advantage of the declassified board structure to vote them out of office. I am skeptical, but this scenario will be more believable if activist shareholders start talking more about corporate law compliance and ethics rather than being single mindedly focused on stock price.
The more intuitively likely scenario is that directors and officers in a company with a declassified board and a lackluster stock price will fear takeover attempts and proxy battles, and will do everything possible to quickly get their stock price up. When directors can all be replaced in one shareholder vote, they don’t have much time. There are legitimate ways of improving stock price (run a good business) as well as illegitimate ways (cook the books, ignore safety defects in products, make profits by violating laws, take unreasonable financial risks to increase earnings, etc.). We hope corporate officers and directors choose the legitimate ways rather than the illegitimate.
I have written and spoken (at the ABA Professional Responsibility conference among other venues) on how cognitive psychology suggests that decision makers who face two bad alternatives, a so called “loss frame”, are prone to risk taking – financial risk taking, legal risk taking and ethical risk taking – if the risk taking offers them some hope of avoiding a bad outcome. In the corporate governance context a lackluster stock price and a declassified board poses just such a “loss frame” to corporate officers and directors. The unanswered question (cognitive psychology studies don’t always predict what people actually do) is how directors and officers actually respond. Do they find good ways to increase stock price and save their jobs or do they look to the riskier and less savory alternatives?
What this debate needs is detailed empirical research on whether board classification or declassification makes any difference for law compliance. Measuring compliance is difficult but rough estimates could be made based on SEC complaints, securities fraud suits, product liability suits, attorney general investigations, and/or regulatory investigations and settlements. With respect to some or all of these rough measures of law compliance, does board classification make a difference? We should do what we can to find out.
It's difficult to draw firm conclusions when we read of federal prosecutors who are effectively immunized from allegations of wrong-doing. Main Justice (which I find to be pro-DOJ biased) links to this story about the victory for the prosecutors of the severly botched case against Senator Stevens (R-AL). Perhaps those particualr prosecutors were being scapegoated for the wrongful conduct of DOJ as a whole. But where is the accountabillity for that prosecution?)
Coverage from the ABA Journal. Interestingly, the Hearing Board seemed to be moved by the lawyer's explanation that he was "excessively devoted to work." The punishment strikes me as rather light given the severity of the offense although there were obviously mitigating factors.
For those of us who are teaching professional responsibility this semester, the case may serve as a useful reminder that failing to live a balanced life can lead an attorney towards ethical misconduct. This is a central point of a wonderful article by Patrick Schiltz that I previously touched on here. I no longer teach the Schiltz article, but I do recommend it (with some caveats) to students who are contemplating BigLaw.
[Disclosure: I do not know the attorney in question although I practiced in a satellite office of his former firm].
Update: A comment below correctly notes that the sanction is a mere recommendation. I will post an update if the recommendation is not followed.
The draft opinion is here. (Comments may be sent to the State Bar.) Excerpt:
Under what circumstances is “blogging” by an attorney subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising?
1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.
3. A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website.
In the clips below, Laura Hillenbrand (author of Unbroken and Seabiscuit) explains some of the extraordinary difficulties of living with Myalgic Encelphalomyelitis /Chronic Fatigue Syndrome (ME/CFS). She is often unable to stand or even sit up, and she once went for two years without leaving her house – not to mention experiencing constant problems with cognition, concentration, and balance.
I am posting this because I have been coping with ME/CFS since late 2006. Although my situation is not quite as severe as Hillenbrand’s, I am often essentially immobile, with other debilitating symptoms as well. On days when no one sees or hears from me, it is most likely because I am housebound or bedbound. Sometimes it is impossible to manage the keyboard.
I have not spoken much about ME/CFS, even to close friends, because it has been very hard to bring myself just to say the word “fatigue,” which is a trivializing and demeaning description of the illness. People with ME/CFS are not tired or worn out in any ordinary sense; rather we are neurologically disabled. But as Hillenbrand has explained, ME/CFS patients are frequently challenged as malingerers, and treated with disbelief and disdain by their families and physicians. Here is how Hillenbrand described it:
“When almost everyone in your world is looking down on you and condemning you for bad behavior, it’s very hard not to let that point of view envelop you, until you start to feel terrible about yourself. I just began to feel such deep shame, because I was the target of so much contempt.”
I have not had that misfortune – perhaps because I was stricken later in life, after I had established myself professionally – but the stigma is real, and for many it is the very worst aspect of the illness. Almost every other ME/CFS sufferer has at one time or another been referred to a psychiatrist, after being told dismissively that “there is nothing physically wrong with you.”
Only in the last few years has the medical establishment changed its response for the better, although there is still disgracefully little research funding for a disease that affects over one million Americans.
While my own experience has been far better than the norm – thanks to my excellent medical providers at Northwestern’s Feinberg School of Medicine – I have decided that I need to “out” myself as an ME/CFS patient. Too many employers, insurance carriers, schools, and physicians have failed to recognize the crippling nature of this disease – because “everyone gets fatigued” – and that is not going to change unless we are willing to acknowledge and discuss it openly. But going public isn’t easy.
Sometimes, sick people need respect more than anything else. While that has not been a problem for me, the profound misunderstanding of ME/CFS has added unnecessary suffering to the lives of far too many people. If anything, I have been relatively lucky. I cannot travel, exercise, attend evening events, walk more than a hundred yards, or concentrate for long periods of time – but I have otherwise been able to lead a productive and relatively normal, if limited, life. ME/CFS sufferers with less support and fewer resources have found themselves unemployed, impoverished, and abandoned.
My only purpose in writing is to broaden public understanding of ME/CFS, so no need to get in touch with me (but please feel free to ask any questions). If you are interested, you can read about the CDC’s frustrating history of ME/CFS research neglect here; the latest research initiatives at Stanford and Columbia are here and here, respectively; and you can read more about Hillenbrand’s ordeal here, here or here.
News here. Report here and below. (h/t: Leiter) The report, which mostly looks at the 200 biggest firms, looks like it was principally done by Jim Jones, Mitt Regan, and Jennifer Roberts. [Edited since first posting, to reflect the report's focus on larger firms.] Excerpt from the release:
The Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Peer Monitor today issued their "2015 Report on the State of the Legal Market." Among the findings: by most indicators, law firm financial performance was modestly better in 2014 than in 2013, and revenue growth across the market was stronger than in the previous year. At the same time, the report found that challenges remain and that productivity growth in particular continues to be a serious issue, as does the ongoing decline of law firm realization rates.
According to the report, the financial performance of law firms over the past year reflects several fundamental changes in market dynamics that have become increasingly evident since 2008. These changes include a shift in the buying habits of business clients, a persistent softness in the market for litigation services, the increasing presence of new non-traditional competitors in the legal services sector and a growing market segmentation that is rapidly separating high performing firms from the majority.
The authors found that these shifting market dynamics underscore the critical importance of law firms taking a strategic and long-range view of how their clients, practices, markets and competitors are changing, and then adjusting their own strategies to address the new market realities. The report notes, however, that most firms seem to lack any sense of urgency in addressing these changes.
After reviewing some of the factors that may contribute to the evident resistance in many firms to embrace the changes that the market demands, the report suggests the possibility that such resistance may be at least partially attributable to the way law firm performance is currently measured. "The traditional way of measuring law firm performance has been to focus on 'inputs' – tracking metrics like numbers of billable hours, fee growth, or utilization – and assuming that those reflect the value of the services that a firm provides,” said James W. Jones, a senior fellow at the Center for the Study of the Legal Profession and one of the report's authors. “But the assumption that value equals the sum of all of our inputs is, on any rational basis, absurd. Surely, value from the client point of view involves many factors beyond the amount of time that a firm's lawyers invest in a matter."
The Legal Ethics of Identity: Blurring the line between Personal and Professional
Is it realistic to expect lawyers and judges to erect a wall between their personal experiences and their professional roles? How do personal experiences and beliefs shape the professional identity of lawyers and judges, and how does this affect happiness, job satisfaction, and ethical behavior?
Lawyers are not supposed to make personal value judgments about the morality of their clients’ goals, and judges are encouraged to disregard their personal experiences when they are deciding cases to prevent bias. Six renowned attorneys and judges will reflect on how their personal stories have shaped them professionally, and about when the personal and professional spheres should overlap or stay separate. We will also ask legal scholars to reflect on these issues and on the personal stories told over the course of the symposium.
9 a.m. Registration and Continental Breakfast
9:50 a.m. Welcome and Introductions
John Trasviña, Dean, USF School of Law
Bill Ong Hing, Professor, USF School of Law
10 a.m. The Ethics of Personal and Professional Identity in Legal Practice
Talk: Barbara Allen Babcock, Professor, Stanford Law School
Talk: Dale Minami, Partner, Minami Tamaki LLP
Interview: Hon. Thelton Henderson, Federal Judge, Northern District of California, interviewed by Julie Nice, Professor, USF School of Law
11 a.m. Break
11:15 a.m. The Ethics of Personal and Professional Identity in Legal Practice continued
Talk: Hon. Cruz Reynoso, former California Supreme Court Justice, professor, UC Davis School of Law
Talk: James Brosnahan, Senior Trial Counsel, Morrison Foerster
Interview: Hon. Marilyn Hall Patel, former Federal Judge, Northern District of California, interviewed by Susan Freiwald, Professor, USF School of Law
12:30 p.m. The Ethics of Mindfulness and Career Satisfaction in Legal Practice
Talk: Steven Harper, Adjunct Professor, Northwestern School of Law
Talk: Rhonda Magee, Professor, USF School of Law
1 p.m. Lunch
2:00 p.m. Panel Discussion: Responses to Symposium Talks and Interviews
Panelist: Steven Harper, Professor, Northwestern School of Law
Panelist: Rhonda Magee, Professor, USF School of Law
Panelist: Angela Harris, Professor, UC Davis School of Law
Moderator: Joshua P. Davis, Associate Dean, USF School of Law, Director, USF Center for Law and Ethics
Whether to adopt a variation to Model Rule 1.6(b) that would allow for the disclosure of confidential information to prevent substantial harm to any significant interests (not just financial interests) of a third party
Whether to adopt Model Rule 1.10 on screening
Whether to adopt Model Rule 3.5(c) on post-trial communications with jurors
Whether to adopt variations to Model Rules 5.1 and 5.3 that would allow for the imposition of law firm discipline (New York and New Jersey have similar provisions)
The Committee was divided on Model Rules 1.6 and 1.10, so Committee members served as the advocates on these issues. The Committee was unanimous in recommending Model Rule 3.5(c) and law firm discipline, so the Court appointed lawyers to oppose the Committee’s positions. The chief of the criminal appeals division of the Massachusetts AG’s office spoke against the adoption of Model Rule 3.5(c) and in favor of retaining the more restrictive Massachusetts rule. I am a member of the Committee and had the privilege of arguing in favor of Model Rule 3.5(c). A representative of the Massachusetts Bar Association opposed the proposal on law firm discipline.
The arguments were notable for at least two reasons. First, I suspect it is relatively rare for a state supreme court to hear oral arguments on the public policy merits of changing rules of professional conduct. The Massachusetts SJC has done so at least once before, but it was some time ago. (Members of the Committee still talk about Monroe Freedman’s excellent advocacy the last time it happened; I’m told that Monroe spoke against the adoption of various exceptions to the duty of confidentiality.) Another notable feature of the oral arguments is that the justices did not wear their usual judicial attire (i.e., robes), because of the administrative rather than judicial nature of the proceeding. In any event, the arguments offered an unusual opportunity to debate the merits of rule changes with state supreme court justices without the messy factual details that are often embedded in a justiciable case.
For legal ethics wonks, the proceedings might be worth a look. They are available online here.
Professor Monroe Freedman and Abbe Smith’s book, How Can You Defend Those People, garnered another glowing review. As noted in the review, the book is "masterfully compiled and edited." Those of you who are members of the National Association of Defense Lawyers, can read the entire review by going to the following link: https://www.nacdl.org/Champion.aspx?id=35510 The review explains why the book is a “must read” for all criminal defense lawyers, ethics professors, and others who share concerns related to our system of justice. Amy L. Austin , a criminal defense lawyer, concludes the review as follows: “These essays and many others in How Can You Represent Those People? will stay with readers for quite some time. The concept for the book may have had its origins with a certain question asked (repeatedly) by laypersons, but the passionate answers and inspirational stories contained within somehow seem more, in the end, for us.” Check it out!
The bar’s character and fitness inquiry seeks to protect the public. As part of this inquiry, bar applicants are required to produce detailed information about their past histories. The rationale for this inquiry is that this information can be used to identify who will subsequently become a problematic lawyer. Bar applicants bear the burden of providing their “good” character even though there is little evidence that past conduct predicts who will become a problematic lawyer. This article looks at psychological and other research that attempt to identify factors that might predict future misconduct in the work place. It also reports on a study of Connecticut lawyers which was designed to determine whether information obtained during the bar admissions process predicts future discipline. The data reveal that while some bar application information is predictive of future misconduct, the effect sizes are extremely low. It is highly unlikely that anyone would be denied admission to the bar based on the slight increase in risk these applicants present. The article considers the implications of certain findings and suggests areas that merit further research. It also suggests some alternatives to the current character and fitness inquiry.
White Collar Crime Prof Blog looks at how the issue will be addressed in 2015. (Just curious: for those of you who teach PR, how do you learn about ethics in legal fields that are not in your sweet spot? I ask because learning about ethics in criminal law practice is hard for me. White Collar Crime Prof Blog is one of the ways I try to learn about what's current in that field.)
Since the first commentaries about the range and depth of the National Security Agency’s (NSA) metadata-gathering from telephone calls, emails, and other uses of the Internet in 2013, less has been written about important collateral consequences of the NSA’s work. This article looks at two of these consequences -- threats posed to confidential and privileged information that communications between lawyers and clients often contain that is overheard by NSA and its cadre of contractors such as Edward Snowden and may be shared with U.S. government agencies for purposes many would not have connected to national security or counter-terrorism/counter-intelligence, and NSA’s deployment of “back-door” tools to de-encrypt encrypted data. The article also looks at challenges to confidentiality and privilege stemming from the storage of clients’ data in hosted clouds, building upon an article that Professor Hughes wrote with Roland L. Trope, entitled Red Skies in the Morning -- Professional Ethics at the Dawn of Cloud Computing, 38 WM. MITCHELL L. REV. 111 (2011). It also looks to the August 2012 amendment to American Bar Association’s Model Rules of Professional Conduct, with particular attention to Rules 1.1, 1.4, 1.6, and 1.15. The conclusion advocates a mix of cyber-smart steps as well as old-fashioned, non-cyber methods to reduce the risks that clients’ confidential and privileged information is properly protected by lawyers.