The development of large-firm pro bono programs over the
past fifteen years has reflected the dual imperatives of public service and
professional interests. As pro bono has become institutionalized, an increasing
number of firms have demonstrated their commitment to the public interest by
hiring pro bono counsel to coordinate the delivery of unpaid assistance to
underrepresented constituencies. This trend has also been shaped by bottom-line
considerations, including the desire to score well in external ranking schemes
and to provide training for associates. This article provides the first
systematic look at the professionalization of pro bono programs in large firms
and the challenges they face in the current economic climate. It draws upon a
survey of large-firm pro bono counsel conducted in the summer of 2009,
supplemented by data from The American Lawyer and National Association of Law
Placement Employer Directory. The study finds that pro bono programs in
practice are profoundly shaped by the interests of law firm lawyers, evident in
the emphasis placed on the satisfaction of lawyers rather than clients, and the
focus on quantity over quality or social impact. In addition, the study finds
that pro bono participation is increasingly adapted to the economic needs of
the firms through efforts to enhance training, reduce costs, and promote
fee-generating work. In response to these findings, the article concludes with
preliminary recommendations on how firms might enhance the quality of pro bono
work – how they might do well by doing better.
Judges (allegedly) in debt to bookies are in hot water ethically. . . . . . Law schools continue to discuss curricular reform. . . . . . Here's an article with some demographics for the gender and racial make-up of the Canadian legal profession. . . . . . David Boies says that to make justice more accessible, we need to reduce the cost of trials. Agreed. (Maybe it's a pipe dream, but if we had a lot of one-week trials and two-week trials, more people could sit on more juries and we'd all be better citizens. Imagine how much better a voter you'd be if you had served as a juror on two criminal trials and two civil trials.) . . . . . Legal Profession Blog reports on a report on improved CLE and lawyer education. (My two cents: too many state bars view CLE as a means for employing staff and making their own money off of CLE. California's approach is market-oriented and works well.) I will finish with a quote from a law review article that's discussed over at the Greg Jones Blog. The passage was written by Patrick Schiltz, then a professor and now a judge, and it captures an Aristotelian approach to legal ethics:
He [mentor James Fitzmaurice] taught me by being a decent
man who practiced law every day in a decent manner . . . . Moral formation “rests on small
matters, not great ones,” and what I recall most about Fitzmaurice are “the
I recall how Fitzmaurice would take strident letters or
briefs that I had drafted and tone them down. I recall how Fitzmaurice would
run into an attorney who had treated him shabbily and greet the attorney
warmly. I recall how Fitzmaurice would time and again refer clients and files
to young lawyers in our firm who were having trouble attracting business. I
recall how Fitzmaurice never blamed others for his mistakes, but often gave
others credit for his accomplishments. I recall how often Fitzmaurice took the
blame for mistakes that I and other young attorneys made. I recall how
Fitzmaurice, at the conclusion of a trial or hearing, would walk over to the
client of his adversary and say, “I just want you to know that your attorney
did a terrific job for you.” In short, what I best recall about Fitzmaurice
were not occasions of great moral heroism, but his “quiet, everyday exhibitions
of virtues.” It was through such exhibitions that he helped shape my character
and instill in me the habit of acting ethically.
(Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law
Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82
MINN. L. REV. 705, 738 (1998))
The NYT has an editorial on the Charles Hood case. Would Texas really execute a defendant when the judge and prosecutor had an undisclosed romantic relationship? The penalty phase will be retried (but not because of the egregious conflict of interest). . . . . . Legal Transformation Blog reports on the University of Maryland conference on how the profession is changing. . . . . . IntLawGrrls notes the anniversary of the right of women in Quebec to practice law -- about 60 years ago. . . . . . Lawyers are being CEO's in increasing numbers. . . . . . Eric Holder had praise for the Street Law program, now forty years old. I did the Street Law clinic when I attended Georgetown and taught at Anacostia High. In our mock trial we competed against the performing arts high school -- and scored a big upset. Our star trial lawyer was James McPherson. I asked him for his "theory of the cross," and he said "give the witness the blues." . . . . . In Ireland, "Distrust of the legal profession rose from 18 per cent in
2001 to 31 per cent in 2004 and stood at 29 per cent this year." Hey, only 29 percent distrust them? Not too shabby. . . . . . Lawyers are getting involved in the "who really wrote Shakespeare's plays?" debate. . . . . . Video interview with the head of Eversheds, on the changing relationship between law firms and clients.
I write about lawyers' obligation of fidelity to law, by which I mean the law as it ought reasonably to be interpreted. This is meant to exclude the exploitation of loopholes from ethical lawyering. Of course, I am always having to articulate criteria for what constitutes a loophole, as opposed to a reasonable interpretation of the law. I'm curious, does anyone think the following is NOT a loophole:
Recent federal legislation prohibits the use of the word "census" on a mailing that is actually a soliciation for funds. Specifically, here is section (b) of H.R. 4621, the Prevent Deceptive Census Look Alike Mailings Act:
Matter Soliciting Information or Contribution of Funds-- Section 3001(i) of title 39, United States Code, is amended--
(1) by inserting, in the matter preceding paragraph (1), `; or which bears the term `census' on the envelope or outside cover or wrapper' after `such matter by the Federal Government'
After this legislation took effect, the Republian National Committee sent out another wave of fundraising mailings labeled "census document." The rationale? The word "census" is not on the envelope or outside cover -- rather, it is visible in a clear glassine window through the envelope (h/t TPM).
One assumes a lawyer was asked whether this mailing complies with the law. Would it be ethical to advise the client, the RNC, that the mailing did not violate the new legislation? (I'm writing a paper about good faith legal advising, so I ask this question entirely seriously.)
[Edited to add response to comments.] John's comment is very helpful in clarifying what I take to be the standard lawyer's response to this sort of problem. I don't mean that pejoratively, by the way, only that it represents the way lawyers tend to think about these issues. What it shows is the way legal realism is deeply rooted in the way we think about legal ethics. This isn't an original point with me -- David Wilkins and David Luban have both made it powerfully -- but it still goes relatively unappreciated. What I mean is this. John's move is to deny that the law really bans the mailings with the clear windows, and to fall back on (1) prudential considerations -- the Postal Service is going to be pretty annoyed, and (2) the likelihood of sanctions being low. The implication being that the client can then conduct a cost-benefit analysis, determine whether the payoff from the mailer is worth attracting the ire of the Postal Service, and from there decide how to proceed.
For legal realists, that's all that "compliance with law" means. But does the law really permit the mailers with clear windows? Is Andy right that there's sufficient uncertainty in the law that there's a good faith argument available that the mailings are permissible? I don't think so. True, the plain language of the statute says "outside" the envelope, but can there be any doubt that the statute was intended to prevent any visible representation that the mailing contains official census documents? You can be a textualist and reach this conclusion, because words have to be read in context, and the context includes the title of the bill, the "Prevent Deceptive Census Look Alike Mailings Act." (I'm surprised no one figured out how to make a title that turns into an acronym, like CAN-SPAM or USA-PATRIOT.) All sophisticated modern textualists -- John Manning, et al. -- acknowledge that you don't just read off the meaning of words mechanically, but you have to interpret the text of statutes in light of syntax, structure, and overall coherence. Add to that the obvious intent of the legislation and it seems patently frivolous to argue that the RNC's mailings comply with the law.
I agree with Alice that the jurisprudential questions should drive the ethical analysis. There's no good faith argument that the mailings are permissible. The best a lawyer can come up with is the argument that the mailings don't violate the "literal terms" of the statute. But no sensible judge -- even a textualist like Justice Scalia -- would take such a narrow, literalist approach to interpreting the language of a statute. Thus, why in the world are lawyers permitted to advise clients on the basis of an interpretive methodology that would not be respected by judges, who after all are the authoritative interpreters of the law?
Quote here -- "Long, thoughtful pauses followed by rambling non-responsive answers can easily devour half of a member’s allotted questioning time" -- from Above the Law. I wrote a paper on witness preparation, with specific examples, and had a section on game playing.
McDermott vindicated; appellate court reversed the $4 million sanctions against the firm for its advocacy in a trial for Medtronic. . . . . . Bloggers aren't journalists, at least not in New Jersey? We're seeing a similar issue play out in California, over a product review of a prototype iPhone that was left behind in a bar. . . . . . Mainstream media are catching up to the story covered at the Conglomerate, as to whether there is a law school bubble and, if so, what should be done. . . . . . "How will lawyers use the iPad?" . . . . . This paralegal blog references the new Scottish plan to formally register paralegals. Last time I looked at the issue in the US, the states had a lot of variation on whether paralegals are formally regulated in statutory law. . . . . . Interesting case at Legal Profession Blog, where an attorney did an independent investigation of a workplace complaint and then the lawyer's firm took an adversary role in the matter. The trial court and the appellate dissent found some duty running to the complaining employee, but the majority of the appellate court found no such duty and held that disqualification was inappropriate. Sounds right to me. . . . . . Proposed new regulation of the Australian legal profession is forwarded up the regulatory chain.