Story at ABA Journal, following up on an article at CNN. There have to be several reasons, but I suspect that the huge one is the sheer emphasis on total hours, discussed in a recent post about the new article by Joan C. Williams, "Why Men Work So Many Hours."
The Sixth Circuit's ruling in the fraud case by graduates of Cooley Law is here. The appellate court affirms the trial court's dismissal of the claims. As former plaintiffs-side tort business tort lawyer, I am disappointed in the result. The majority of these suits have been rejected; iirc, a couple in California and one in New Jersey survived challenges at the pleading stage. You can read the new decision yourself but it was particularly disappointing to read the passage where the court ruled that Cooley made objectively false statements that it was unreasonable for Cooley applicants to rely upon. To be fair, there is more merit to the decision than my headline might suggest. Read the whole thing. (h/t to Alison Frankel at Reuters) Key excerpts:
The plaintiffs, twelve graduates of the Thomas M. Cooley Law
School, sued their alma mater in district court, alleging that the school
disseminated false employment statistics which misled them into deciding to attend
Cooley. The graduates relied on these statistics as assurances that they would obtain
full-time attorney jobs after graduating. But the statistics portrayed their
post-graduation employment prospects as far more sanguine than they turned out
to be. After graduation, the Cooley graduates did not secure the kind of
employment the statistics advertised—or in some cases any employment at all.
They claimed that, had they known their true—dismal—employment prospects, they
would not have attended Cooley—or would have paid less tuition. Because their Cooley
degrees turned out not to be worth what Cooley advertised them to be, they have
sought, among other relief, partial reimbursement of tuition, which they have
estimated for the class would be $300,000,000. But because the Michigan Consumer
Protection Act does not apply to this case’s facts, because the graduates’ complaint
shows that one of the statistics on which they relied was objectively true, and
because their reliance on the statistics was unreasonable, we AFFIRM the
district court’s judgment dismissing their complaint for failure to state any
claim upon which it could grant relief .
The graduates claimed that, to a
reasonable consumer, this statistic meant that the jobs reported were
full-time, permanent positions for which a law degree was required or
preferred. But, the graduates argued, this percentage was false because it
included any type of employment, including jobs that had absolutely nothing to
do with the legal industry, and which did not require a law degree or which were
temporary or part-time. In their words, a graduate “could be working as a
barista in Starbucks . . . and would be deemed employed and working in
‘business,’ even though such employment [was] clearly temporary in nature and
obviously d[id] not require a JD degree.” The district court concluded that the
graduates failed to state a claim for fraud under Michigan law for two reasons.
First, because the “percentage of graduates employed” statistic was literally
true[,]” MacDonald, 880 F. Supp. 2d at
788, and was “not objectively false.” Id. at 794. Second, the district court
held that the graduates’ reliance on the “percentage of graduates employed”
statistic as including “only graduates who were employed in full-time legal
positions” was unreasonable. Id. Again, we agree with the district court.
For example, the Employment
Report for 2010 states that the “average starting salary for all graduates” was
$54,796. On its face, the phrase “all graduates” means just that: all Cooley
graduates—not just the ones who responded to the survey—made, on average,
$54,796. One could assume that, because there were 934 graduates, the average
starting salary for all 934 graduates was $54,796. The title of the document containing
this statement is “Employment Report and Salary Survey.” Therefore, it cannot
be that the average starting salary of all 2010 graduates was $54,796, because
the document, entitled “Employment Report and Salary Survey ” (emphasis added) was not based
on the responses of all of the Cooley graduates in 2010; rather, the document states
that the number of 2010 graduates was 934, but the number of graduates with employment
status known was 780. So, the “[a]verage starting salary for all graduates” would
instead mean the average starting salary of graduates who responded to the
survey and chose to include their salary information—not the average salary of
all Cooley graduates in any given year.
We agree with the district court
that this statistic is “objectively untrue,” MacDonald , 880 F. Supp. 2d at
794, but that the graduates’ reliance
upon it was “also unreasonable,” id. at
796, which dooms their fraudulent misrepresentation claim. Despite the
statement’s untruth, the graduates cannot demonstrate that their reliance on
this statement was reasonable. Unreasonable
reliance includes relying on an alleged misrepresentation that was expressly contradicted
in a written contract that a plaintiff reviewed and signed. Novak , 599 N.W.2d
at 553–54; Nieves , 517 N.W.2d at 237–38. A plaintiff unreasonably relies on
one of the defendant’s statements if another of the defendant’s statements
I generally appreciate when judges participate in plea discussions, so long as the participation remains balanced and respects the autonomy of the parties and their advocates. In some cases, however, this active judicial participation could push the envelope on Model Code of Judicial Conduct 2.6(B) and the voluntariness of a guilty plea. New York does not follow Federal Rule of Crim Pro 11(c)(1), which prohibits judges from participating in plea discussions between the defendant and the government--although the recent Davila harmless error decision may have taken the edge off of this categorical rule. Which approach better balances efficiency against the risk of judicial coercion in criminal cases--the prophylactic rule of Rule 11, or New York's case-by-case, individualized approach to judicial participation?
UPDATE: The lawyer-blogger whose hearing is this morning, Paul Ogden, has this post about the event.
It's hard to tell exactly what happened from these two news articles in the Indiana Lawyer and the Indy Star, but it appears that an Indiana lawyer, Paul Ogden, criticized a judge in private email correspondence to opposing counsel and is now facing disciplinary charges under 8.2. [edited!] IU-McKinney professor Margaret Tarkington is quoted about lawyers' First Amendment rights. In the email, the lawyer had said that the judge in the underlying matter:
"should be turned in to the disciplinary commission for how he handled this case. If this case would have been in Marion County with a real probate court with a real judge, the stuff that went on with this case never would have happened.”
Tarkington's views are captured in this excerpt:
Tarkington, who has written extensively on professional conduct and the free speech rights of attorneys, said Ogden is not alone in finding himself at odds with an attorney disciplinary system for comments that most other citizens are free to make. It is an issue that free speech advocates and legal scholars say is becoming more common — and troubling — across the U.S.
“This really is a problem and not just in Indiana,” Tarkington said. “It is absolutely an encroachment on their (free speech) rights.”
It is not just the attempts to stifle criticism, particularly statements made outside the courtroom, that Tarkington and others find troubling. It also is how the disciplinary process works.
In defamation cases regarding public officials, the First Amendment requires that the victim prove the statement was false and that the speaker knew it was false or entertained serious doubts as to its truth. Yet in many states, attorney discipline cases require the accused to prove their statements are true, which Tarkington opines is in direct violation of established First Amendment law.
Then there’s the reality that, in cases involving criticism of judges, it ultimately is a panel of judges — the Supreme Court in Indiana — that makes the final determination on guilt and punishment.
Unlike other public and elected officials, Tarkington said, judges can insulate themselves from public criticism by the people who know the most about them — attorneys.
incorporate music into my classroom teaching to develop themes and connections,
and to add a fun element to student learning. One of my main, and sometimes
successful, hopes is that by offering music hooks in the classroom, I will
motivate students to preview upcoming subjects to recommend their own music
selections to me, investing students more in that subject when it arrives. I’ve
learned of some great music from students through this process.
I’d like to expand my professional responsibility
playlist, and a blog request previously helped me to discover some cool criminal law and
criminal procedure music selections. Broadly-themed lawyer
ethics music is great, such as, for example, “Blood in the Water” from the
Legally Blonde musical soundtrack. So are rule- or topic-specific tracks, such as The
Go-Go’s—Our Lips Are Sealed for Model Rule 1.6 and confidentiality.
about some good PR jams, music fans—the more the better!
The lede: "The revenue picture for law firms in 2012 was bright for large law firms — and bleak for smaller shops." Revenues at big firms was up 8.5%. According to Peter Zeughauser, the larger firms have been managing more aggressively: "The survey results indicate a "recovering economy that is tolerating
some rate increases," law firm consultant Peter Zeughauser said. Large
law firms have become "more tightly managed," partly through layoffs of
underperforming attorneys, he added." Smaller firms cater to small clients and revenues there fell 8%. I've been told, anecdotally, that some mid-tier firms have been surprised to see big firms chasing down-market business that big firms traditionally eschewed. Maybe that explains some of what's going on.
As of about a year ago, we were seeing an increasing segmentation among large and mid-tier firms and more variability in their economic performance, as economics continued to effect changes on a legal profession that was increasingly vulnerable to market forces. My sense is that the market continues to drive the changes and that the firm's won't regain all of their power over price even after the macro-economic cycle picks up again. Here's a graphic about the mid-tier firms from Jim Jones at Legal Management Resources. There has been a similar trend among the large firms.
This article addresses whether U.S. law schools are preparing their JD
students to work in the global environment that many — if not most — law
graduates will encounter. It begins by considering the significance of
globalization for legal education, drawing on research analyzing its
influence on legal practice, as well as on higher education. It then
explores possible settings and opportunities for learning to work in a
global environment. For the vast majority of students whose learning
must occur in the U.S., the presence of international students in their
law school offers the potential for creating a global learning
environment. Data from the Law School Survey of Student Engagement is
used to consider the quality and quantity of interaction between
students in JD programs — generally U.S. nationals — and international
graduate law students. Generally, the story is one of lost opportunity.
In order to address this void, schools must design interaction rather
than leave it to chance, and the elements of this, as developed in other
disciplines, are examined in the context of legal education. Finally,
the article considers the ways in which law schools are likely to use
globalization as mechanisms of competition, offering slightly different
opportunities and challenges. In each case, developing global learning
environments will require intentional choreography.
The “lawyer lending” industry — comprised of lenders who extend capital
to plaintiffs’ lawyers to finance personal injury litigation — has
blossomed. This industry has taken off, at least in part, because
attorneys are permitted to deduct interest on these loans from client
recoveries as an additional “expense” of litigation. The cost of the
burgeoning lawyer lending industry is, thus, in large measure, borne by
clients. This Article asks whether personal injury attorneys who choose
to take out loans to cover case costs and litigation expenses ought to
be allowed to offload associated interest charges. The Article shows
this question is important in its own right — with profound implications
for the quantity and intensity of tort litigation. And the question is
also an ideal point of entrée to identify, and begin to remedy, broader
deficiencies in three strands of current legal analysis. Examining the
propriety of interest pass-throughs first highlights the importance of
litigation costs — and the inter-connectivity of costs and contingency
fees — a topic that has suffered from too little investment in research.
Second, by separately considering just lawyer lending, (rather than
all third-party funding mechanisms simultaneously), and by studying a
mechanism’s on-the-ground operation, (rather than just its
birds-eye-view impact), the Article attempts to lead by example to
reorient future Alternative Litigation Finance scholarship. Third, the
Article underscores the need to push past bare formalism, and it
sketches an alternative theoretical framework that can be employed when
confronting certain ethical issues going forward.