Legal Ethics Forum

Lockstep compensation in Asia

This article recounts the use of lockstep compensation in Asia.  Although lockstep is considered a "relic" in the US, when handled properly it can incent team playing within a firm.

Biglaw lawyers: never out of reach?

This amusing article recounts the efforts of a Cleary partner to ban those "out of office" email messages.  According to that partner, the messages are acceptable only while the lawyer is on a long flight, and even then the lawyer must identify in the message when she will land what time zone she will be in.  (What happens once voicemail and Skype are available during flights?)

It made me recall an incident many years ago when my practice group leader (formerly of Cleary, by coincidence), announced that when we circulated internal memos about our vacations we could not announce that "I will not be checking voicemail."  Checking email was mandatory, we were told.  One associate piped up to say that she was going to vacation in a part of Provence that still used rotary dial phones -- that she couldn't access voicemail because she couldn't push the buttons that generate the tones by which you navigate through voicemail. The practice group head announced that he would stop by Radio Shack and buy her a phone tone generator that she could take with her and then place over the mouthpiece.  We all sat in stunned silence.  

Amazing lawyer ads

If, like me, you derive a guilty pleasure from cheesy TV ads for lawyers, check out the entries on this page.  It begins with my all-time favorite: Jim "The Hammer" Shapiro.

Responding to Mr. Smartass

If you teach legal ethics long enough, you will eventually meet Mr. Smartass.  He's the guy at a wedding, bar mitzvah, or some other social gathering who is, put simply, a smart ass.  You're introduced to him, and he quickly moves to the dreaded question.

"What do you do for a living?," he asks. 

Sensing danger, you offer cautiously, "I'm, uh, a law professor."

"Oh really?," he says.  "What do you teach?"

You have a moment to decide between honesty and diversion. At a recent wedding, you mentioned your econometrics approach to 19th century Malaysian corporate securities law.  Nobody talked to you, so this time you opt for honesty.

"I teach legal ethics."

Mr. Smartass chuckles, and the stink of alcohol tells you that you just made a mistake.

"Legal ethics?," he asks. "That must be a short course."

You offer a goofy grin and think to yourself,  "I knew it. Next time just say that I'm an accountant!" 

Mr. Smartass, smelling blood, asks, "Do you use a book in that course, or is it just a pamphlet?" 

He finds this very funny, and the stench of alcohol is now erupting from him.

"That's good," you say.  "I haven't heard that one before."  Of course, you have heard that one before, far too many times, but you're hoping to change the subject before Mr. Smartass realizes that he has overlooked the most obvious joke. The joke.

You see it in his eyes.  He has figured it out, albeit a little later than most.

"Isn't legal ethics some kind of oxymoron?" He thinks this is brilliant and looks around to see if anyone else has discovered his genius.

You retort, "It takes an oxymoron to know one, Mr. 'Smart...ass.'"

Mr. Smartass, no longer smiling, looks as if he has just been struck with an unexpected left to the head.

Sensing a possible verbal escalation, you move quickly to more mundane matters. "Uh, didn't Jacob do a great job with his Torah portion?"

...

Let's face it, folks.  If you teach legal ethics, you've probably had a conversation like this one.  Well, maybe not exactly like this one, but you know what I mean.  So tell me, what legal ethics putdowns have you heard from Mr. or Ms. Smartass?  And do you have any better ripostes than mine? 

Guest Blogger Alex Long's Ten Things You May or May Not Know About Caperton v. A.T. Massey Coal Co.

Professor Alex Long has passed along this wonderful post in anticipation of the Supreme Court's decision in the Caperton case:

Thanks to Andrew Perlman, who invited me to blog a little about the Caperton v. A.T. Massey Coal Co. case now pending in front of the Supreme Court.   I imagine most readers are more or less familiar with the gist of Caperton.  There has been a good bit of mainstream media coverage of this case since the facts really do read like something out of a John Grisham novel.  In a nutshell, the CEO (Don Blankenship) of a coal company (Massey) spent about $3 million to help unseat Justice Warren McGraw of the West Virginia Supreme Court of Appeals.  The newly elected justice, Brent Benjamin, refused to disqualify himself in Massey’s appeal of a $50 million fraud verdict and ultimately voted in Massey’s favor in a 3-2 decision.   The Supreme Court heard arguments in March as to whether there was a violation of the other side’s Due Process rights resulting from Benjamin’s failure to recuse, so a decision may be out soon.

To help pass the time before the Court delivers its opinion, I thought I’d do a series of posts on the case.  I’ll start here with Part 1 of my attempt to pass along a little in the way of background on the case and on judicial selection in West Virginia.  Note:  As far as I know, I don’t know anybody having anything to do with the West Virginia Supreme Court of Appeals, so there shouldn’t be anything too “inside baseball” about this.  I just maintain an interest in the case based on the fact that I used to live in the state, am still a member of the bar there, and wrote an article on the subject of judicial selection in West Virginia many moons ago.  So, here are five (with five more to come) slightly less well-known facts about judicial selection in West Virginia and the Caperton case that may help to put the whole mess into context:

Ten Things You May or May Not Know About Caperton -- Part II

This is a continuation of guest blogger Alex Long's first post on Caperton, which can be found here.

(6) It wasn’t just the general election that was ugly.  The Democratic primary, in which McGraw was challenged by circuit court judge Jim Rowe, also got ugly.  Rowe was backed by the Chamber of Commerce and reportedly spent over $800,000 in the primary. The race proved to be closer than a lot of people initially thought would be the case, with both men trading tough charges.  According to an April 4, 2004 article in the Charleston Gazette, one of McGraw’s allies on the court, Justice Starcher, actually heckled Rowe from the crowd during a judicial forum.  For a while, McGraw supposedly referred to Rowe on the campaign trail as “Jim Crow.”  Benjamin later accused McGraw’s campaign of distributing Rowe campaign buttons with the letter “C” added to the front of Rowe’s name.   McGraw said he was simply misunderstood when he pronounced Rowe’s name and that the mix up was due to his thick accent.

Op-eds offer defense strategies for authors of torture memos

Michael Stokes Paulsen and Victoria Toensing outline possible defense strategies for the authors of the torture memos.  Brian Tamanaha disagrees with Paulsen.  UPDATE:  David Luban has posted his written testimony to the Senate Judiciary Committee, which concisely states the case that the torture memos breached legal ethics.

Updates on biglaw lawyers near financial scandals

Wall Street Journal's law blog has updates on Tom Sjoblom of Proskauer, who represented Stanford Financial, and on Mayer Brown's Joseph Collins, the former outside counsel to Refco whose criminal trial started this week.

Piomelli on Democratic Lawyering

Professor Ascanio Piomelli of the UC Hastings College of Law has posted a new paper entitled “The Challenge of Democratic Lawyering” on SSRN.  The abstract is as follows:

This essay, written for the Fordham Law Review's symposium on The Lawyer's Role in a Contemporary Democracy, argues that a diverse movement of social-change lawyering that has emerged over the past two decades is united by a commitment to fostering robust democratic participation in collective action by low-income and working-class people and people of color. The essay describes the democratic vision that unites these lawyers, with its focus on enhancing ordinary citizens' abilities to act in concert with others in self-government broadly construed. This vision challenges the long-prevailing, thinner conception, which limits democracy to a political process that provides a say in selecting one's representatives and an incentive structure to encourage representatives to act wisely. This essay argues that these democratic lawyers and their partners challenge deep-seated individualistic, aristocratic, and formalistic cultural predispositions in the United States and its legal profession. These prevailing - but contested - predispositions relate to: what democracy means and how we practice it; how we understand individuals and groups, intelligence and expertise; and the relative importance we place on formal rights or on the power of people and groups to change their living conditions.

In a series of articles over the past decade, Piomelli has analyzed and interpreted writings from the 1980s and 1990s from legal scholars who deeply and critically explored the professional role and practices of lawyers for low-income clients and those from subordinated communities.  The result is an emerging affirmative vision of what law practice can be on behalf of such individuals and communities.  Piomelli’s work is not likely to be of interest to those primarily concerned with legal ethics issues in corporate law practice or with the content of professional responsibility rules and codes.  However, for any who work with moderate or low-income clients, perform pro bono legal services, or are simply interested in how lawyers might help the numerous victims of the current financial meltdown, Piomelli’s vision is worth exploring.

 

C.S. Peirce on law and the search for truth

In comments on an exchange on the infamous non-hang-up hang-up case, Monroe left me and Clare with the query: What ever happened to the search for truth?  That sent me in search of my misplaced copy of The Essential Peirce, the source of my favorite quotation on the subject.  From Deduction, Induction, and Hypothesis (Popular Science Monthly, 1878): 

"Some persons fancy that bias and counter-bias are favorable to the extraction of truth--that hot and partisan debate is the way to investigate.  This is the theory of our atrocious legal procedure.  But Logic puts its heel upon this suggestion.  It irrefragably demonstrates that knowledge can only be furthered by the real desire for it, and that the methods of obstinancy, of authority, and every mode of trying to reach a foregone conclusion, are absolutely of no value."

Peirce was a brilliant man, and to read him (for me, at least) is to be humbled.  But it is good to keep in mind in reading this quotation that he was a natural and not a social scientist.  No geologic formation ever planted evidence and then lied about it.  

DM