SCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a course of action would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

Cross posted at Life Sentences.

Continue ReadingSCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

America’s Largest Law Firms Keep Getting Larger

law-firm-12086-largeEven with a seemingly endless stream of stories in the lawyer press about lay-offs at large corporate firms, the largest law firms in the United States continue to grow larger and larger.

In the National Law Journal’s recently released list of the 350 largest law firms in the United States, two Chicago-based law firms have broken through the 4000 lawyer barrier. DLA Piper leads the list with 4036 lawyers while Baker and McKenzie is close behind at 4004.

There is a considerable gap between these two firms and the next largest firm, although three law firms–Jones Day (New York), Hogan Lovells (Washington, D.C.), and Latham & Watkins–each have more than 2000 attorneys. An additional 17 firms had more than 1000.

In spite of the leap upward by DLA Piper and Baker and McKenzie, the overall growth of the top 350 was quite sluggish with only a 1.1% increase in total size since 2011. (The 2013 ranking are based on 2012 employment numbers.) Nine of the 21 largest firms are actually smaller now than a year ago and a 10th firm is exactly the same size. DLA Piper, in contrast, grew by 7.7% as it added 290 additional lawyers. However, much of its growth game through the acquisition of other law firms including firms in France and Australia.

Six Milwaukee firms made the list of 350. The top five combined declined by a single lawyer over the last year. The six are, with their national ranking:

31. Foley and Lardner (872 lawyers, down 2 from the previous year)

107. Quarles & Brady (413, same as the previous year)

202. Reinhart Boerner Van Deuren (203, up 1 lawyer)

207. Michael Best & Friedrich (198, up 2 lawyers)

233. Godfrey & Kahn (170, down 2 lawyers)

309. (5-way tie) Whyte Hirshboeck Dudek (130 lawyers, new to the list)

Even when the economy is sluggish, the dramatic growth in the size of corporate law firms, especially the largest firms, relentlessly continues. This phenomenon has been one of the most significant developments in the legal profession over the past four decades.

When I was in law school in the fall of 1976, I had an interview with the Nashville firm of Bass, Berry, and Sims. At the time, it was the largest law firm in the city of Nashville with a grand total of 17 lawyers. Today, the firm is still the largest law firm in Nashville, but it now has more than 200 lawyers (even though it did not choose to offer one of those positions to me).

I also remember, sometime around 1980, how amazed observers of the legal profession were that the Houston law firm of Fulbright & Jaworski (now Norton Rose Fulbright) had passed the 400 lawyer mark, something that had been unthinkable only a decade or two earlier. Now Piper has passed the 4000 lawyer mark.

Where this ends, nobody seems to know, but can the 10,000 lawyer firm be that far away? Of course, when this happens it will more likely be the result of a series of mergers rather than through entry level hiring.

 

Continue ReadingAmerica’s Largest Law Firms Keep Getting Larger

Lindsay Lohan and the Law

lindsay-lohan-mug-shot-2011-la-sheriffI have two friends (and fellow classmates) who love to flood my email inbox and Facebook account with pictures of Lindsay Lohan. I think they love it more than summer break. Admittedly, I had this coming. These friends showed me a particularly startling picture of Ms. Lohan during a study break 1L year, and I let out a sort of shriek that I’m not proud of. I understand that actions have consequences. The pictures began rolling in during fall of 2011 and haven’t stopped since.

Feelings of disregard pervaded those first few months. But as the seasons changed, so did I. Most pictures came with headlines, and the more I read, the more I wondered how someone can so frequently break laws, violate probation, and skip out on court dates, and yet avoid any meaningful jail time. Then again, it’s not necessarily her fault that she’s been able to avoid consequences better than I have. The question, for me at least, is whether the justice system has treated her differently than it would you or I. And if so, why?

Continue ReadingLindsay Lohan and the Law