Judge Catches BP Counsel Sneaking Extra Pages into Its Brief

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Category: Environmental Law, Legal Ethics, Legal Practice, Legal Writing, Public
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BPIn a new twist on the BP litigation, BP filed a brief in a Louisiana federal court that seemed to comply with the already-enlarged 35-page limit. But the judge in the case, the Hon. Carl Barbier, uncovered BP counsel’s tactic of reducing the line spacing to cram more material into the brief than the page limit would have allowed. In this way, BP was able to fit in an extra 6 pages worth of material.

Judge Barbier had this to say about BP’s brief:

The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.

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Do Like a Lawyer

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Category: Legal Education, Legal Ethics, Legal Practice, Legal Writing, Marquette Law School, Pro Bono, Public
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The start of the new academic year means a new group of first-year law students, ready for the three-year adventure that is law school. And each fall, those same students hear much about what they’re going to learn in law school. Usually the main thing they hear is that they will learn to “think like a lawyer.”

It’s certainly true that law school will teach students a particular way of thinking critically that will infuse all of their thinking from here forward. It’s also true that lawyers ought to be thinking critically. (So should everyone, in my view.) But law school should do more than teach students how to “think like a lawyer.” It should teach students how to “be” lawyers.

It is on this thought that I am reminded of Steven M. Radke, L’02.  The Law School invited Radke, vice president of government relations at Northwestern Mutual Insurance Co., to speak at its orientation event in fall 2006. Radke gave an entertaining and informative speech to that year’s entering class, the text of which can be found here. At one point, Radke discussed the often-stated law school goal of learning to “think like a lawyer,” a goal, he said, that is a bit troubling, particularly if it suggests that there is a single way lawyers think. He continued,

[I]f, God forbid, I someday find myself being wheeled into an emergency room, I hope the person preparing to operate on me doesn’t just think like a doctor.  I want him or her to be a doctor.

Radke’s point is spot on. Law school should not only teach students how to “think like a lawyer,” but it should also teach students how to be a lawyer.  Read more »

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Trusts & Estates and the “Businesslike” Practice of Law

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Category: Legal Education, Legal Ethics, Legal Practice, Public
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In 1980, I had the opportunity to interview Louis Auchincloss. Known for his novels about New York’s traditional elite, Auchincloss also maintained a successful and sophisticated trusts and estates practice. In fact, I interviewed him in his corner office on Wall Street. His thoughtfulness, dignified manners, Brooks Brothers clothing, and elegant office stuck in my mind over the years as an illustration of top-drawer T & E.

It came as a surprise to me over thirty years further down the road to learn that the white-shoe Manhattan firm of Debevoise & Plimpton was eliminating its T & E practice. It turns out that Debevoise & Plimpton is only the latest big firm to take this step. Weil, Gotshal & Manges and also Gibson, Dunn & Crutcher, among other big firms, have also in recent years done the same.

Why are the big firms ending their involvement with T & E? According to the analysts, T & E is an uncomfortable fit in the emerging big-firm business model. Genteel and personalized, the T & E practice of somebody like Louis Auchincloss cannot assign large numbers of junior associates and run up the tab in the process. Drafting wills and trusts generates fewer billable hours and profit than big-time litigation, corporate bankruptcies, and mergers and acquisitions.

The contemporary legal profession has its share of problems, but the elimination of big-firm T & E practice underscores the problem that is perhaps the most troubling. Namely, the market economy is swallowing up the legal profession. Every day, we see the practice of law becoming just a business. If legal educators share my perception and are troubled by it, we might reduce skills training and hold off teaching law students “to hit the ground running,” that is, graduate ready to make a buck. Legal educators might instead redouble efforts to teach ethics, honor professional norms, and endorse genuine humanistic values. These are the features of professionalism that distinguish it from unbridled profit-seeking.

 

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Counselor at Risk: Does Specialization Threaten the Attorney’s Function as Counselor?

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Many law firm shingles still read “Attorneys and Counselors at Law.”  Each term carries with it a distinct meaning and independent importance in the legal profession.  Do we risk marginalizing the counselor role as we strive to achieve efficiencies in the delivery of legal services through specialization?  And if so, why does it matter?

Lawyers are trained to analyze the law and to prepare legal documents; however, in order to provide effective legal advice, and in order to exercise their highest and best use in our justice system, lawyers must possess much more than technical knowledge and skills.  Lawyers must also be able to fulfill their roles as counselors.  This requires that they be able to craft creative solutions, sustain client morale during difficult times, and to offer wisdom and sound judgment, not just knowledge.  (See, e.g., Anthony L. Cochran, They Don’t Call Us “Counselor” For Nothing.) Read more »

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This Day in Legal History—September 28, 1918

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Category: Legal Ethics, Legal History, Public
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On September 28, 1918, outside of the French village of Marcoing, British Private Henry Tandley of the 5th Duke of Wellington Regiment came across an escaping wounded German soldier. The encounter took place near the end of the British capture of the village, and thus the military situation, though winding down, was still very much rife with hostilities. The soldier was presumably armed and posed a potential threat to Private Tandley and his fellow infantrymen.

Private Tandley was presented at that moment with a serious ethical question: shoot preemptively in self-defense, not knowing the capability of the German soldier or the extent to which other German soldiers were present, or spare the soldier’s life and let him return to his unit, either to survive or to die in the arms of his own comrades. Private Tandley did not then know that an armistice with Germany would come within a matter of weeks, nor did he know whether the soldier had a wife and children to whom he might return after the war. He knew nothing of this German soldier other than that he was another human being who was injured.

Private Tandley decided to spare the soldier’s life, and the soldier continued on his way, apparently nodding to Tandley in appreciation.

This story is presented in here because, if Tandley’s account is correct, his decision to spare the life of this German soldier changed the course of the 20th century, with vast consequences not only for the law but also for every other aspect of culture and society across much of the world. Read more »

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Social Responsibility and Giving Back

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Years ago, I attended a seminar where the late Attorney Harry M. Philo was one of the speakers. I don’t remember where the seminar was or who the other speakers were, but I will never forget one thing that this very prominent lawyer said, “The primary social responsibility of personal injury lawyers is to prevent accidents and reduce the number of injuries. It is only when we fail in this responsibility that we move to our secondary responsibility of obtaining compensation for our clients.” This message was one of social responsibility and giving back to the community, two things we should take seriously throughout our careers.

Social responsibility is an ethical ideology that focuses on individuals’ obligations to act for the benefit of society as a whole as opposed to acting solely for their own interests. As attorneys, it is our responsibility. As a lawyer, I feel pride when I am able to achieve a good result for a client. I’m also proud of the fact that I am part of a profession that advocates for the general public’s rights and safety. It is one thing as a personal injury attorney to obtain compensation for an injured plaintiff but it is another thing altogether to advocate for a change in the law or raise public awareness to prevent accidents and injuries. This same message applies to all attorneys throughout every practice area: it is our job to successfully advocate for our clients, but it is our social responsibility to act for the benefit of society as a whole.   Read more »

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The Need for Transparency

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Category: Legal Ethics, Public
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When there is a culture of secrecy within a closed group, information generated in and by those individuals can be kept within the confines of the group. This behavior may lead to public harm if a closed group keeps secret information that negatively affects other individuals who are not group members. When a public harm is a possibility, the group must install transparency so as to prevent that harm. While complete transparency might be extremely difficult, there does need to be some concession to candor and accountability. Lawyers, like many other professional groups, are commonly thought of as a closed group. We, like those in other groups, must be vigilant to maintain some transparency. In doing so, we protect and uphold the integrity of our profession while preventing harm to our clients and other citizens. This need for transparency is best illustrated through examples.

An undeniably important example is the recent conviction of Jerry Sandusky on 45 of 48 sexual abuse charges. Read more »

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From the Inside Out—a Law Student’s Perspective

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Category: Criminal Law & Process, Legal Ethics, Public
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The Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 

 –Oliver Wendell Holmes Jr., The Path of the Law

While writing my Honors Scholar Thesis my senior year at DePauw University, Justice Holmes’ words became the perfect frame for my interdisciplinary study of legal ethics. This quote was taken from an address from an 1897 Harvard Law Review, The Path of the Law, 10 Harv. L. Rev. 457, (1897), in which Holmes offers a piece of pragmatic wisdom to the practicing lawyer. In essence, the lawyer should assume the role of “the bad man” who is not concerned with principles of ethics, axioms and systematic reasoning. Instead, the lawyer should be concerned with self-interest, preservation, and the immediate consequences influencing one’s actions. From this perspective, the lawyer better positions himself to protect those interests that “the bad man” might have in predicting how the court will respond, given the facts and circumstances that surround a particular case. As a somewhat critical undergraduate student, I noted that this perspective makes broad, “questionable” assumptions about the client while offering a somewhat cynical philosophy for the role that the lawyer must play for a successful study and practice of law. The emphasis on practice and prediction is a hallmark of Holmes’ pragmatic view of the law with experience at the foundation.

Holmes represented a critical juncture in the theory and practice of law, drawing attention to the intellectual content of the law, reviving historical relationships between law, ethics, and practical wisdom. Holmes believed in demystifying the law, removing notions of omnipresent knowledge and appeals to “the infinite” in order to focus on practical application and reasonable prediction. As a philosophy student, with a focus in ethics and morality, I was never a fan of pragmatism. In fact, I was rather perturbed by Holmes’ candid admission. Nonetheless, I found Holmes’ position to be “reasonable” and incredibly helpful as I embarked on my interdisciplinary study of legal ethics, specifically focusing on the duty to protect client confidences. Read more »

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Restoring Public Confidence in the Judicial System

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Category: Judges & Judicial Process, Legal Ethics, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court
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“[A] lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Taken from paragraph six of the Preamble[1] to the Model Rules of Professional Conduct, this quote sets out our duty to educate the public.

In April 2009, then Wisconsin State Bar President Diane Diel discussed this very quote in a short article published in Wisconsin Lawyer magazine.[2]  The article focused on the negative effect judicial elections have on the public’s confidence in the judicial system — discussing current Justice Michael Gableman’s allegedly unethical ad that aired during his campaign against Justice Louis Butler and his subsequent disciplinary hearing — and the ever-controversial topic of judicial recusals, focusing on whether judges should be required to recuse themselves from deciding cases in which they received campaign contributions from an interested party.

Diel’s article seems to have foreshadowed the current turbulence in the Wisconsin Supreme Court, which has led to plunging confidence in the judicial system.   Read more »

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Why Were the Lawyers Wearing Blinders?

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Category: Criminal Law & Process, Legal Ethics, Public
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In the September 2009 issue of the ABA Journal, the author of the article “Town Without Pity,” Wendy Davis, asked, “Where Were the Lawyers?”  Judge Mark Ciavarella had been giving jail sentences to juveniles that were shocking to the conscience for minor offenses.  All the lawyers in the court system, including the district attorney, knew what was happening, but very few challenged Ciavarella. Barry Dyller, a local Wilkes-Barre attorney quoted in the article, stated that “only the absolute strongest lawyers, who didn’t mind facing his wrath” ever argued with the judge’s decisions. The other defense attorneys, the article notes, appeared resigned to these rulings. Additionally, if there were any lawyers who suspected the judge was taking bribes, there is no record of any stepping forward.

In August 2011, Ciavarella was sentenced to 28 years in federal prison on racketeering charges, among others, in a case that was called “Kids For Cash.”  Ciavarella, along with another Luzerne County judge, accepted bribes totaling over $2.6 million from the builder of juvenile detention centers in exchange for sending thousands of children to newly built facilities in order to ensure the facilities would be adequately utilized.  Read more »

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Signing a Recall Petition Does Not Require Judicial Recusal

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Category: Constitutional Law, Election Law, First Amendment, Judges & Judicial Process, Legal Ethics, Political Processes & Rhetoric, Public, Wisconsin Court System, Wisconsin Law & Legal System
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We live in interesting times.  A segment of the general public is quick to forgive the killing of two young men in Slinger, Wisconsin and Sanford, Florida as the unavoidable consequence of the exercise of a constitutional right.  Yet at the same time, state court judges who have exercised their constitutional right of self-governance by signing a recall petition are being publicly called out by both special interest groups and the media, as if by signing the petition they have transgressed some moral boundary.  These are interesting times, indeed.

The signing of a recall petition is a right guaranteed by Article XIII of the Wisconsin Constitution.  It is a procedure whereby any voter can request that the continuation in office of an elected official in the State of Wisconsin should be put to the vote of the full electorate.  If a sufficient number of voters sign the petition, a recall election is held.  A recall can only succeed in removing the officeholder if both a sufficient number of recall signatures are filed and a majority of the electorate votes in favor of removal.  The Recall is democratic self-governance in its purest form, and along with the Initiative and the Referendum it is one of the three structural vehicles by which Progressive Era voters sought to bypass the influence that special interests hold on elected bodies.

The Wisconsin GOP has filed an official complaint against Dane County Circuit Court Judge David Flanagan with the Judicial Commission on the grounds that the judge should have recused himself in a case challenging the constitutionality of the Wisconsin Voter ID law.  Must judges who have signed a recall petition subsequently recuse themselves from sitting on any case in which the Governor, or Republican legislators, or the Republican Party of Wisconsin asserts that the signing of the petition evidences a bias against them?  The answer is “no.”  There is no explicit provision that prohibits judges from signing a recall petition or that mandates that they recuse themselves from any politically charged case if they have done so. Read more »

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3,000 Billable Hour Requirement – Believable?

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Category: Legal Ethics, Legal Practice, Public
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Did everyone happen to see this article in the ABA Journal? If you missed it, an attorney who had been fired is now suing his former law firm because the firm’s alleged requirement that attorneys bill 3,000 hours per year encouraged fraud.

There are so many great conversations/debates that could be started by this lawsuit:

– the merits of the billable hour system

– the long hours often worked by attorneys (i.e., work-life balance)

– the controversy over billing time in minimum increments

But before we get to that, I have to ask whether there is any truth to this lawsuit and the alleged 3,000-hour requirement in the first place. Read more »

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