Legal Ethics Forum

A Reverse 2000?

I don't know who'll win the election but Obama has more safe and likely electoral votes than does Romney and this advantagage has held. Obama has an easier path to the magic 270 as a result, because he has to win fewer swing states.

But Romney according to some polls has the popular vote advantage, leading to the possibility of a reverse 2000: where the Democrat will have the electoral college majority but the Republican the popular majority. 

Will Romney go to court to claim that the electoral college did not survive the Fourteenth Amendment?  Gore didn't. But Romney could.

Now here's where it gets interesting. Republicans have long supported the EC system beause it has been favorable to them. It gives non-urban states, traditionally Republican in a national election, a disproportionate say in who wins. But that is changing. A generic Democrat can now expect to get 221-247 EC votes, depending on how you count, compared with 191 for a generic Republican. (The identity of the nominees can change that, of course. These numbers are for generic nominees.)

So whereas at one time, the GOP might have tried to dissuade a popular vote winner who has lost the EC from challenging the EC system, because the EC was disadvantageous to the GOP in the long run, maybe it no longer is. Today the GOP might see such a challenge as a good thing. Or not. In any event, it cannot stop a candidate from bringing such a challenge -- all the way to the Supreme Court.

I doubt the challenge would win but that analysis is above my pay grade. For Romney, if he's the popular vote winner who loses the EC, it's either a court challenge or rapid obscurity. Would the Scalia Court come to his rescue under the banner of saving democracy?

And we're told the next President will choose 1-3 justices. So the justices have a certain interest, not that it should matter. Of course. 

Charles Harmon Oates, "Law Practice Technology: A Law School Course?'

Article. Abstract:

Technology is transforming the practice of law, but law schools are being left behind. Until relatively recently and only to a very limited extent, law school curricula have not reflected the revolutionary changes in the ways that technology is altering the practice of law. Today’s law students, unlike their predecessors, are comfortable with technology, but anxious about entering a severely competitive profession. For most lawyers, economic survival will depend upon their ability to utilize technology to maximize efficiencies and comply with court-mandated applications of technology.

With the pervasiveness of technology in all areas of law practice today, a course in law practice technology should be a part of every law school curriculum. The concept is simple. Expose law students to all of the applications of technology that lawyers are using. In so doing, the law school will be taking an important step toward better equipping students to practice law consistent with the mandate of the Carnegie Report, equipping its students with a competitive advantage in finding employment, and enabling them to be readily assimilated into the marketplace, whether with a technologically proficient law firm, a prospective employer that wants to move forward with technology, or to hang out a solo shingle.

Todd Marlin, 'Game Change — The Justice Department Gets More Aggressive on eDiscovery Guidelines'

Main Justice carries the story, which makes reference to the new guidelines issued by the AO and DOJ regarding the exchange of ESI in corporate criminal matters (April 2012 press release ; recommendations at the link below).

Download Final-esi-protocol

Morriss on Tamanaha on law schools

In his review of Brian Tamanaha's book, Failing Law Schools, Andrew Morriss argues that Tamanaha doesn't take his critique far enough. (h/t: Volokh)

Lawyers & free speech

From the WSJ Blog, Joe Palazzolo, Oct. 16:  Do Lawyers Have a 1st Amendment Right to Be Cross with Judges?

A federal appeals court upheld sanctions against a veteran Florida bankruptcy lawyer who called a judge’s findings “half-baked,” and then sent a bottle of wine to his chambers with a handwritten note.

The case raised an interesting question, at least in theory: What First Amendment rights do lawyers have to get sharp with judges?

Lawyer Kevin Gleason disagreed with a ruling by Bankruptcy Judge John Olson, and he let the judge know it.

“It is sad when a man of your intellectual ability cannot get it right when your own record does not support your half-baked findings,” Mr. Gleason, whose practice is based in Hollywood, Fla., wrote in a brief filed in April 2011.

The dispute concerned commissions Mr. Gleason’s client received from a real estate deal. Judge Olson ruled that the commissions had to be turned over to the administrator of the client’s Chapter 11 bankruptcy plan. Mr. Gleason believed they were exempt.

A couple weeks later, Mr. Gleason delivered a bottle of wine to Judge Olson’s chambers, with a hand-written note that read: “Dear Judge Olson, A Donnybrook ends when someone buys the first drink. May we resolve our issues privately?”

Judge Olson returned the bottle. According to Mr. Gleason, Judge Olson never read the note; it was still sealed when he got it back.

A panel of bankruptcy judges in the Southern District of Florida voted to suspend Mr. Gleason from practicing before the court for 60 days. The court didn’t consider whether Mr. Gleason’s criticisms of Judge Olson’s legal findings were correct, only his tone in conveying them. Mr. Gleason told Law Blog he has already served the suspension.

Mr. Gleason appealed the sanctions finding to the U.S. Court of Appeals for the 11th Circuit. He argued — and still does — that he got the law right and Judge Olson got it wrong. Sure, Mr. Gleason said, he could have pointed out the judge’s alleged errors with more diplomacy, but doesn’t he have a First Amendment right to be tetchy?

No, the 11th Circuit said in a ruling Monday.

“Gleason has identified no authority supporting his contention that the First Amendment shields from sanctions an attorney who files an inappropriate and unprofessional pleading and then contacts a presiding judge ex parte with an offer to share a bottle of wine and ‘privately’ resolve their dispute,” the court wrote.

Courts can impose sanctions for “inappropriate and unprofessional documents” based on their inherent power to oversee lawyers who practice before them, the 11th Circuit said.

Mr. Gleason said he was consulting with his lawyer on his next move. The case, he said, has “significantly negatively impacted my practice.”

Can New York regulate the elite law schools?

New York has made a couple of changes that have the potential to affect elite law schools (where, presumably, a substantial portion of the students want to maintain the option of taking the NY bar). One is the requirement for a stand-alone PR course. I have over 30 PR students this semester who are foreign LLM students and many of them have told me that they need to maintain their NY eligibility. The other is NY's new 50 hour pro bono requirement for people sitting for the bar exam. Reuters and Above the Law are reporting that the loose standards for what counts as pro bono may mean that the requirement will have little impact on many students and little benefit to the under-represented poor.

If the New York, California, Texas, Florida, and Illinois bars had a mind to reform legal education, they might be able to effectively regulate most law schools. I don't imagine that they'd really want to take on an overhaul of legal education, but they might seek some significant changes. For example, California is considering adding a requirement for practical skills training. No doubt, the law schools will oppose many of these measures. (At The Faculty Lounge, Dan Filler has a post on the possibility that states will get more involved in law school regulation.)

Partner Runs "Top Associate" Reality TV Show-Style Hiring Program

ABA Journal story here. "It's brutal," the California partner says, "but everyone knows it's going to be brutal, so nobody's feelings are hurt." This hiring process reportedly produces "incredible" associates, whom the partner later describes as "super gung-ho." The partner adds that this hiring competition also "perks up my existing asociates."

I'm not a regular reality TV watcher, but I'm not sure I'd want to practice in a law officer version of The Apprentice.

Gideon for Animals on the Horizon?

The N.Y. Times reports: Lawyer Is Dog's Best Friend.

Who owns that Linked-In site?

Over at Real Lawyers Have Blogs there is a discussion of a case where a terminated women sued after her former employer took over the Linked-In account that the employer had apparently managed for the terminated employee.

Suppose that the marketing department of a law firm is tasked with creating and maintaining Avvo, Linked-In, and similar sites for the lawyers at the firm. Are there any property rights issues for the lawyers? Kevin O'Keefe offers his thoughts at that blog.

More on that 3M disqualification

Alberto Bernabe discusses the case at Professional Responsibility Blog. Alberto notes that the client has already sued the now-disqualified law firm, Covington & Burling.

Richard (whose post is below) says he may have to more to say about the case. I'm trying to track down all the expert opinions that were proffered and if I can find them I (or Richard) will post them.