Legal Ethics Forum

"Why are female lawyers leaving BigLaw?"

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."

Sixth Circuit: it was unreasonable for Cooley applicants to believe Cooley's "objectively untrue" statements

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 .

[p]

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.

[p]

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 contradicts it.

[edited since 1st posting]

Judicial Participation in Criminal Case Dispositions

The New York Times today ran another story on troubled Bronx criminal courts. This time the report notes how a Brooklyn judge, Patricia DiMango, has helped to alleviate the Bronx criminal case disposition logjam. Judge DiMango's active, even forceful, participation in plea discussions is highlighted as contributing to her case disposition efficiency.

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?

Hearing today about Indiana lawyer who criticized judge in private email

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.

Crowdsourcing Professional Responsibility Music

I often 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.

Let’s hear about some good PR jams, music fans—the more the better!

 

"Revenues Up [8.5%] at Larger Law Firms" and Down 8% at Smaller Firms

There's news of the new Survey of Law Firm Economics ($1,600) at the National Law Journal. I'm betting most of our readers will check out the free story rather than buy the study.

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.

[edited since posting]

Carole Silver, " Getting Real About Globalization and Legal Education: Potential and Perspectives for the U.S."

Article. Abstract:

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.

Nora Freeman Engstrom, "Lawyer Lending: Costs and Consequences"

Article. Abstract:

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.

Welk, et al. v. Ally Financial, Inc., et al.

From Justia.  Appellate court affirmed imposition of sanctions against lawyer representing plaintiffs in a "show me the note" case. That theory had repeatedly been rejected by the courts.

"Is Ginni Thomas' Expanding Activism a Problem for Supreme Court Justice Clarence Thomas?"

Mother Jones carries the story.