As an exercise for my ethics class, I had each student write down his or her top ten commandments of billing. My hope was that the students would both learn these rules and have them in a nice, easy place to find and print once they start practice. As the Ten Commandments was on this past weekend, it seemed appropriate to post the top ten commandments from the class.
1. Thou Shall Keep Track of One’s Time, Whilst Not Waiting Until the End of the Month to Write Them Down.
2. Thou Shall Scribble Thy Fees on Papyrus and Present Them to Thy Client
3. Thou Shall Not Overbill, Nor Double Bill, Nor any Multiples Thereof
4. Thou Shall Not Bill Your Client for an Hour of Work Because You Thought About the Case for Two Minutes in the Shower
5. Thou Shall Not Runneth The Meter for Additional Billing Hours
6. Thou Shall Not Wing It; Thou Shall Have and Hold to Thy Billing Guidelines
7. Thou Shall Not Recycle Thy Work as if It Had Been Born Anew
8. Thou Shall Return Thy Clients’ Phone Calls
9. Thou Shall Not Sue Thy Clients for Unpaid Bills (Unless You Want to be Countersued for Malpractice)
10. Thou Shall Not Sell Thy Soul to a Firm with Billing Requirements that Do Not Meet Thy Personal Expectations for a Work and Family Balance
Are we missing any of your favorite commandments? What else should we make sure our students think about in order to avoid the messiest of conflicts, those with clients?
If you like thinking about the way lawyers use words and how and why that usage is different from the way normal people, er, I mean, non-lawyers use words, take a moment this Friday afternoon to read Language Log’s take on the New Jersey case of a slip-and-fall verdict overturned because a law professor subsequently wrote an article about his experience on the jury, including his efforts to help explain what “proximate cause” means. Continue reading “The Concise Gibberish of the Law”
I recently taught about successive conflicts in my ethics class, and there could be no better timing than the Fish & Richardson case to explain the hot potato scenario. The “hot potato doctrine” means that firms are generally prohibited from dropping smaller clients (like hot potatoes) in order to pick up more lucrative clients.
Apparently, Fish & Richardson represented, until recently, headset maker Aliph in its regulatory work out of Fish’s D.C. office. Aliph is now suing to have Fish & Richardson disqualified from representing a direct competitor against it in a patent case. As the Recorder explained:
Aliph Inc. moved to disqualify Fish from representing Bluetooth rival Plantronics in the patent case two weeks ago, arguing that the firm shouldn’t be allowed to sue its own client or get out of the mess by suddenly disowning Aliph at 8:30 p.m. the night before . . . .
Continue reading “Hot Potato Conflicts”
I was scanning the Legal Writing Prof Blog this afternoon, and I noticed a post stating that, in an effort to save money, one large law firm is now requiring its attorneys to use Loislaw, rather than Lexis or Westlaw, for some of their research. Evidently, the firm has imposed a three-part policy:
- All non-billable legal research involving case law, statutes, or regulations at both the state and federal level should first be performed using Loislaw.
- Loislaw should also be used for billable research where appropriate, resulting in a much lower cost to the client.
- If additional research is required on Lexis or Westlaw, that research must be billed to a client/matter.
This post raised two issues for me. First, it made me think about what sources I should be including in my first-year courses. Continue reading “Dollars and Sense”
As the disaster in the financial markets continues to unfold, greed and avarice – the usual suspects – are being overshadowed by pervasive fraud as a prime mover. We have, of course, the infamous Bernie Madoff and now the “mini-Madoffs” upon whom we can heap large helpings of blame, but deceit, misrepresentations, and fraud seemingly resonate throughout the markets, as illustrated by the subprime scandal, the mortgage mess, and the flood of worthless consumer debt. And what was the role of lawyers in all this? Financial transactions of this sort inevitably involve lawyers at some stage. Investigations and lawsuits may soon give us a clearer picture of the role lawyers may have played in exacerbating the nightmare, but the question for today is whether lawyers could have, or should have, acted to prevent any of this. And my focus is not Sarbanes-Oxley or securities regulations, but on the fundamentals of lawyers’ professional responsibility.
Lawyers are not permitted to “assist” or “further” crimes or frauds committed by their clients. To do so – provided anyone finds out – eviscerates the venerable lawyer-client privilege and exposes both lawyer and client to civil and criminal remedies. This is comfortably familiar and uncontroversial. But what of the lawyer who is aware of a client’s fraud but who arguably has done nothing to assist or further it? Assume further that the fraud is on-going and not a past act. What is the lawyer’s duty or professional responsibility, especially considering that lawyers are enjoined not to disclose client confidences or privileged communications without client consent (and the reality is that few clients will approve of their lawyer’s whistle-blowing)? Continue reading “Client Fraud and the Lawyer”
Like many lawyers and law students, my holiday reading list studiously omits overtly legal topics. Well almost. I co-teach a course at the Law School called Quantitative Methodology, which drew me to Malcolm Gladwell’s book Outliers (Little Brown, 2008). In statistics, an “outlier” is an observation that is “markedly different” from others in the sample. Gladwell’s book is itself an outlier of sorts; how many books that revel in statistical analysis have been number one on the New York Times‘ nonfiction list? Part of the answer lies in Gladwell’s remarkably lucid writing style. What makes the book fascinating, however, is that Gladwell’s focus is not statistical concepts as such, but a particular kind of outlier, namely, successful people and the reasons for their success. And as I finish grading exams for the fall semester and prepare for the spring semester that starts on January 12 (today), the time is ripe to consider both success and failure. My comments below scratch just the surface of a more complex argument, but it will give you a sense of Gladwell’s purpose.
Gladwell’s book ranges widely over the domain of successes. Why are the best Canadian and Czech hockey players usually born between January and March? What explains the staggering success of a Bill Gates or Robert Oppenheimer while other even more brilliant types fade into obscurity? How come “gifted and talented” kids from the suburbs often do not fulfill the promise predicted by their IQ tests? Why are the socially disadvantaged children who attend the KIPP Academy in the South Bronx so good at math? And, for that matter, why is it that Asian children are also so much better at math than typical American kids? (Teaser: the answer lies not in genetics, but in culture and the language (literally) of mathematics.) Continue reading “Outliers”
Professor Michael W. Loudenslager of Appalachian School of Law has ventured into the thorny thicket of affirmative duties to disclose in his provocative article, Giving Up the Ghost: A Proposal for Dealing With Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for Such Attorneys, 92 Marq. L. Rev. 103 (2008). The crux of the issue is whether behind-the-scenes drafting of one or more litigation documents for a pro se litigant, by a lawyer who does not appear in the matter nor otherwise disclose her involvement, constitutes misconduct. The principal concern is whether the court and adversary are likely to be misled inappropriately by the nondisclosure. The issue arises frequently because so many matters must go to court, from collection cases to divorces to traffic offenses, and the cost of full representation is either beyond the reach of many litigants or is, in their judgment, not cost-effective. The authorities are divided as to whether disclosure should be required. Loudenslager does a fine job of taking us through the arguments and offers a solution of his own. It makes for engaging and thought-provoking reading.
I’ve just received my brand-new, hot-off-the-presses issue of the Marquette Law Review, which has several articles I am looking forward to reading. Here are the contents:
Nantiya Ruan, Accommodating Respectful Religious Expression in the Workplace, 92 Marq. L. Rev. 1 (2008) (SSRN version here).
Scott A. Schumacher, MacNiven v. Westmoreland and Tax Advice: Using Purposive Textualism to Deal with Tax Shelters and Promote Legitimate Tax Advice, 92 Marq. L. Rev. 33 (2008).
Michael W. Loudenslager, Giving Up the Ghost: A Proposal for Dealing With Attorney “Ghostwriting” of Pro Se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure and Allowing Limited Appearances for Such Attorneys, 92 Marq. L. Rev. 103 (2008).
Barbara O’Brien & Daphna Oyserman, It’s Not Just What You Think, But How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 Marq. L. Rev. 149 (2008).
Joan Shepard, Comment, The Family Medical Leave Act: Calculating the Hours of Service for the Reinstated Employee, 92 Marq. L. Rev. 173 (2008).
Charles Stone, Comment, What Plagiarism Was Not: Some Preliminary Observations on Classical Chinese Attitudes Towards What the West Calls Intellectual Property, 92 Marq. L. Rev. 199 (2008).
Congratulations to the student editors of Volume 92 for the successful completion of their first issue!
A humorous top-ten list, including, at the end, the hairy-hand scene from The Paper Chase.
The post is obviously a joke, but it is funny because the items on the list ring a little too true, so it is worth thinking about them. I think. Thanks to Feminist Law Profs, where I found the link.
The Advanced Legal Research courses at Marquette have a “real world” focus. For my part, I have tried to select research problems for final projects and assignments that place students in real world practice situations.
To the extent that I can, I avoid the “hunt and find” type research problems for which there is one right answer hidden somewhere. The legal issues the students have to research sometimes, but do not always, have a straightforward answer.
In the “real world,” legal research and legal writing go hand in hand. Thus, in addition to their research plan and research log, the students must then submit a written product such as a letter or a memo summarizing their research results for a supervising attorney, a judge, a client, etc.
This past semester I added a more detailed cost-effective research component than I had in the past. In some of their research assignments students only had limited Lexis/Westlaw packages (like Westlaw PRO). In order to completely and accurately respond to the research problem, the students had to come up with a cost-effective research strategy that involved using only a subsection of their current academic Lexis or Westlaw subscription in conjunction with the print materials in the library and the freely available online legal resources like PreCYdent, GPO Access, Thomas and the Cornell Legal Information Institute that we discussed in class. The student response to my focus on the free legal research options has been largely positive.
This coming semester I plan to deliver research assignments in the variety of different formats students will encounter in practice. This includes the delivery of research assignments through a larger case file, brief email messages that require further questions for clarification, longer written memos, and spoken conversations. I look forward to the feedback I will get from my students after next semester.
Thanks so much, Deans Kearney and O’Hear, for the invitation to serve as the inaugural alumni blogger on this most excellent effort. I added the MULS Faculty Blog to my RSS reader the day it was announced, and am glad to have done so.
You’ll forgive me if I start the new month by focusing on last month’s question: who was your most influential law school professor? I had originally intended to modify the question slightly and praise Professor Christopher Wolfe (pictured above), but I understand all the best points were already covered at the STMS banquet by Dean Kearney and Katie Longley.
So instead, allow me to praise the question itself. In short, it is good that we reflect on who influences us, and it is worthwhile to identify people we look up to and admire. I am currently researching and drafting a law review article that encourages lawyers to be more intentional about selecting a hero to learn from and emulate. (I take the liberty of suggesting several candidates for the job as well.)
Continue reading “The Usefulness of Heroes”
A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN. Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law. She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.
Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.” She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond to their position within the traditional hierarchy of federal decisional law.” Continue reading “Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?”