Dollars and Sense

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.

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Client Fraud and the Lawyer

 

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)?

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Outliers

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.)

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