21 October 2009

A Round Tuit (6)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

There was an intense period of navel-gazing in the legal blogging world this week, as the ABA Journal's "Legal Rebels" project hosted "24 Hours of Rebels". Over two twelve-hour periods, the site posted twenty-four essays and events highlighting areas where the legal profession may (or should) change in the coming years. I won't attempt to recap each of the postings because a) there are two dozen of them and only one of me; b) the 24 Hours of Rebels site doesn't look like it's going away anytime soon; and c) frankly, some of the posts were somewhat weak. Notwithstanding, there are several essays which I thought were worthy of particular attention.

Jordan Furlong wrote that lawyers and law firms no longer run the show; clients, particularly large corporate clients now control the terms of their engagements:
Clients, especially the corporate and institutional kind, are stronger and more sophisticated than they’ve ever been, while even consumer clients are walking into lawyers’ offices armed with information obtained free from Google Esq. They’re confident, they’re demanding, and they expect full access to continuous information about their matter and its cost. The day of the dependent client is ending.
He notes that many nontraditional legal services providers, including outsourcing firms in India and elsewhere, are now viable options for savvy clients. He's not pessimistic about the changes for lawyers generally; only for those who fail to adjust will be left behind: "Lawyers can thrive in this environment only if we shift the focus from ourselves to our clients — and if we shake off this odd idea that we’re entitled to anything by virtue of our membership in the bar. We don’t run this show anymore. We’re only a part of it, one set of providers among many."

Richard Susskind struck a similar note in his essay, focusing on the efficiencies firms need to achieve to remain competitive in this new environment:
Law firms face two challenges in these difficult times. The first is to steer their businesses through the short-term difficulties of the next 18 months or so.

There are no magic answers here. The best will control costs without incapacitating their practices and will invest in determined and focused marketing.

The bigger challenge, however, is the long term, when the recession recedes. I advise that, looking across a 3-5 year time frame, each business unit within a firm should currently be subjected to stress testing – a formal evaluation of how it can face the pressures the market will bring. Some may not withstand the scrutiny and may be seen as terminally threatened by new developments. Others will find opportunities for new and exciting lines of legal business. Either way, it is as well to know now.
If Furlong is correct that new realities mean that less of the traditional legal market is allocated to traditional legal providers in larger firms and Susskind is correct that only the most efficient of those firms will survive (or may not, despite their newfound efficiencies), the inescapable conclusion is that the traditional route into traditional legal practice — law schools — needs to fundamentally change as well. Mike Semple Piggot, who recently interviewed Susskind for his ongoing College of Law podcasting series and Furlong at his Insite Law Magazine, discussed the current disconnect between law schools and the legal community and the unsuitability of many law graduates for practice, especially in this changed climate. He wrote:
I fear, however, that the over supply problem is now reaching a point where many students going into law have absolutely no prospect of practising law , not because of the lack of work or an oversupply issue but, because they do not have the intellectual ability or other qualities needed by law firms and they are, therefore, unemployable ab initio. This raises quite demanding moral issues. The Bar Standards Board in England & Wales tried to address this issue, not by placing a cap on numbers entering the profession, but by requiring prospective barristers to sit an aptitude test. This was not acceptable to our Office of Fair Trading. It was deemed anti-competitive.

The solution now being looked at is to make the Bar examination more difficult, not at the point of entry, but at the point of exit. It will be more difficult to pass the examination. This is, in my view, the right policy – for it is not anti-competitive to demand high standards from prospective members of the profession and has the added benefit of raising the standard of young lawyer coming into the market and that can only be of benefit to the client end-user and the public interest.


[P]erhaps we need to address the issue of the oversupply of unsuitable candidates and focus attention on our law schools for taking on students who have little chance of success. It is not good enough to simply cite market forces and freedom of choice. I believe that law schools now have a moral duty to be very clear in their warnings to students about the realities of the profession and should be under a duty to assess, more closely and with reasonable care, the chances of each student enjoying a reasonable prospect of getting work as a lawyer or paralegal afterwards. I am not suggesting that law schools act as formal or official gatekeepers, but I do suggest that be under a legal duty to give a very fair and objective assessment of aptitude and a clear unequivocal health warning about the job market before taking the student on.


What worries me is the possibility that law schools, both public and privately owned, are attracted by the very high revenues and are taking on students who have no prospect of success. Perhaps recruitment of law students by law schools is moving dangerously close, morally, to a position – with students of lesser ability – where they are, in effect, saying the legal education equivalent of – ‘We supply you with drugs/arms, but we are not responsible for what you do with them?’ This cannot be right nor go on unregulated.
While Semple Piggot's focus was on the legal education system in the United Kingdom, his counsel is equally valid — if not more so — here in the United States, where despite the downturn in the legal economy, it seems that not a year goes by without a half-dozen or so new law schools opening their doors to hundreds of new victims. At its heart, as Semple Piggot notes, the question is one of professionalism. Students who lack the skills to perform as legal professionals should not enter law schools and law schools should not graduate them; firms must constantly refocus their efforts on serving the needs of their clients and, more broadly, fulfilling the highest standards of legal professionalism, by hiring and training only qualified practitioners and seeking efficiencies in the delivery of high-quality legal guidance to their clients (to name just two duties). Scott Greenfield, who declined an invitation to participate in the "24 Hours" project, felt that in reimagining and redirecting legal practice, professionalism was given short shrift, particularly by Susskind:
Disaster! We will all be shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom. While I've little doubt that the Biglaw pricing structure, internally absurd as it was, will change, it's not because we need to take the professionalism out of the law, but because it had grown to ridiculous proportions.


Had Susskind simply argued that lawyers have exacerbated their financial disconnect from clients by their refusal to consider, integrate and use available technologies to improve their performance and reduce their costs, I would be a fan of his too. Anything that enhances our delivery of excellent legal services to clients, particularly if it reduces the cost of legal services, is valuable to the profession and worthy of our interest. But that's not what he's saying.

Nowhere does Susskind concern himself with competence. Nowhere does Susskind address excellent client service. Quite the contrary, he promotes cheaper cost by reduced competence and professionalism. There is no place in Susskind's future for excellence. Reduce everything to the lowest common denominator, the cheapest, fastest possible, even if it means schlock. Who cares if the legal services suck, at least they're cheap.
Bob Ambrogi's and Bruce MacEwen's (separate) essays proposed what I thought was the most revolutionary (or should that be "rebellious"?) change. Ambrogi argued that our current system of state bar membership and regulation is outdated and counterproductive; he suggested that increased standardization and "federalization" of laws, widespread de facto specialization amongst attorneys, and the importance of attorney experience and "know how" all make state-level bar membership obsolete:
Geographic restrictions serve neither the public nor the profession. They are irrelevant to a lawyer's qualifications to represent a client. Lawyers should no longer be licensed by state. Instead, the profession should adopt a single national license, one that establishes that a lawyer has the proper education, training and knowledge to engage in the general practice of law. Perhaps there should also be additional certifications by practice areas.

State bar admission is an antiquated concept that has no relevance in a digital world. It is time to retire the concept, along with the manual typewriter, dusty library stacks and the fax machine.
MacEwen largely agrees, calling identification with and regulation by state bar associations "medieval":
As a card-carrying capitalist, I believe in the virtues of states competing amongst themselves to provide favorable business environments for purposes of their choosing. Delaware has famously done it for incorporating the Fortune 500, South Dakota for credit card processors, and Nevada for gaming companies (and, time was, divorcees).

Why not incite competition among states for law firm LLC/LLP incorporations? Let firms—and their individual practitioners—choose what jurisdiction they wish to be subject to. Perhaps New York or California, or Wyoming, would decide to grant its lawyers US-wide practice rights. Full faith and credit clause, anyone?

Does this call for abolishing the role of state bar associations? Precisely. Beyond the role of attempting to perpetuate outmoded notions of territorial guild societies, what is their role?
As an Oregon-admitted attorney practicing as a Registered In-House Counsel in California for a company with operations throughout North America and significant presences in Asia, the Middle East, and the South Pacific, I can certainly appreciate the types of practice challenges of which Ambrogi and MacEwen speak. I for one would be overjoyed if a single national-level bar would supplant the fifty-one state-level bar associations. Party-pooper Scott Greenfield suggests why that ain't gonna happen and I'm disheartened to admit that I think he's probably right.

From time to time, we're given cause to wonder why some attorneys go on television to discuss legal matters they're involved with or to comment on other topics. Some aren't thoughtful enough about what they're saying, or don't convey their thoughts well on television; some seem to put their own interests and desire for wider attention ahead of their clients' best interests. Some, like David Martin, who appeared on CNN recently to discuss his former client, Cameron Todd Willingham, seem to have no conceivable purpose for their appearances on television except self-aggrandizement.

Willingham was convicted of and executed for causing the arson-related deaths of his three children; his case has received considerable attention since a magazine article suggested that modern forensic science does not support the State of Texas' contention that the fire was caused by arson. Governor Rick Perry has been on the defensive of late against charges that his state executed an innocent man. If Martin, whose performance as Willingham's trial lawyer has not been questioned, had declined to appear on CNN to discuss the case, no one would have thought twice about it. If he had opted to appear on CNN to support claims of his former client's innocence or to argue that the considerable doubts raised should have precluded his execution just as they prompt reexamination of the penalty now, no one would have questioned that. It seems somewhat inexplicable then, that Martin chose to appear on CNN not to praise his former client but to bury him. Mark Bennett noted that Martin's televised arguments for his client's guilt probably do not run afoul of applicable disciplinary rules, but wrote that not being wrong does not make this right:
My position is that a) all facts the lawyer learns in the course of representation is privileged; and b) this privilege survives the end of representation and the client’s death.


I’ve got to wonder why Martin would want to go on TV to run down his client. Not to defend his own honor—there is, as far as I know, no suggestion that he was ineffective in Willingham’s trial. Maybe just for the publicity? Or to help out his fellow rancher Rick Perry?
Willingham's appellate counsel, Walter Reaves, was similarly mystified:
...I am sure that his conduct is not what people expect from their lawyers - and they shouldn't expect. You don't expect your lawyer to bad mouth you, even if you didn't get along with them. Although I don't think its in the rules, as a lawyer you ought to have some duty to not damage your client. At the very least, Mr. Martin is damaging Todd's reputation, and his ability to obtain some relief in through the forensic commission. The fact that he aligning himself with Gov. Perry ought to tell you something.

The hippocratic oath for doctors says to "never do harm" to thier patients. As far as I know lawyers don't have similar oath - but certainly its implied. Clients expect their lawyers to protect them - why else would you hire a lawyer. Unfortunately, lawyers put their own interests above those of their clients.

You might say you have no duty to your client after they die. To me, that's a cop out. I consider Todd my client. and will do whatever can to clear his name. I have the same feeling for any client. I've represented some pretty despicable people, and I would never bad mouth them in public. I listened to mother when she said if you can't something good about someone, don't say anything.
Jeff Gamso allowed that Martin is "right that you don't need to believe your client innocent to provide a stellar defense," but could not find any proper motive for his televised statements — "It really is inexcusable. Really. Inexcusable." Scott Greenfield agreed with Gamso: "If Martin truly believes what he's saying to be true, his statements are the most irresponsible, unethical, improper I have ever heard from the mouth of a criminal defense lawyer. Outrageously wrong. Utterly disgraceful." He continued:
There is no ethical duty of perpetual loyalty to one's client. A lawyer need not argue the client's innocence after his representation has ended. But that doesn't mean that the alternative is to smear his client, to argue his guilt, to expose his confidences, either. If Martin so desperately wanted his moment in the sun, then his options were limited to speaking in his client's best interest or discussing issues surrounding the present circumstances. There was no option of exposing communications, investigations, thoughts that existed solely within the defense. Martin had no right to offer that up in exchange for the opportunity to go on TV in his Texas rancher hat and tout himself at the expense of his client.

Lawyers weren't the only attention whores whose attention whoring received unwanted attention this week. It was widely reported that cable network TLC is suing "Jon & Kate Plus 8" father Jon Gosselin for breaching his agreement with the program's producers. Eriq Gardner's post was the first place I saw the news and his description of the claims is a good one. He noted that the claims center on Gosselin's alleged violations of the morals clause in the contract and the exclusivity provisions; the former from his very-public womanizing and the latter from his recent attention whoring on other networks. The program has been canceled after the public meltdown of Jon's and Kate's marriage prompted a freefall in the show's ratings. One might easily surmise which of the two is the more egregious sin in television executives' eyes.

Gosselin had some competition this week for father of the year honors. "Balloon Boy" Falcon Heene's father, Richard Heene, faces charges for allegedly orchestrating a hoax involving his young son and for naming him "Falcon". The hoax, meant to secure the family a reality TV gig, fell apart when Falcon blurted out on the Larry King program that it was done at his father's behest "for the show." Oops. At the Popehat blog, Patrick suggested that the "Balloon Boy" matter is a case study in why people who commit criminal acts should simply shut up:
Mistake number one. Reporters and the media are not your friends. Assuming that the Heenes are innocent of filing false reports and contributing to the delinquency of a minor, the ghost of Richard Jewell could have told them all about what can go wrong when ordinary people in strange situations talk to reporters.


Mistake number two. Assuming, again, the Heenes’ innocence, it was should have been pretty clear by Friday morning that the police weren’t calling because they wanted to find Falcon. He’d been on Larry King the night before. Yet, like lambs on a television reality show about the meat industry to the slaughter, the Heenes did not answer with the only response that makes sense:

"Gosh, I’d love to talk to you, but my lawyer won’t let me. Why don’t you call him. His telephone number is 555-1212. Thanks and goodbye!"
This week, a "mommyblogger" writing under the name "Nic" at the My Bottle's Up blog described in heart-wrenching detail how TSA agents at the Atlanta airport had physically separated her from her toddler-age son for an extended period during a seemingly-unreasonable search of her person and belongings: "I began to black out. I knew I was having a full on panic attack. I feared passing out.... It felt like hours... days even. My son was gone." The entire incident was horrible, unforgiveable... and completely untrue. That same day, TSA spokesman "Blogger Bob" responded to the allegations on the agency's blog:
Two things went through my mind after reading her post.
1. As a father of two small children, I empathized with her about the alleged circumstances.

2. As a TSA employee and former TSO, I felt it could not be true -- especially since our policy is that TSA will not ask parents to do anything that would distance them from their children during the screening process.
The agency didn't just deny the allegations, however; they posted raw CCTV footage from nine different cameras which had recorded the events and which put the lie to Nic's story. Her follow-on post, titled "my apologies" was more of an acknowledgement of the evidence against her than an acceptance of it:
to address the video... yes, i agree with many of you, my story differs from the one shown on tape....

in the video, it looks as though my son is playing happily in his stroller while i am being searched with a wand. obviously this is the big discrepancy with my story, since he was not in my sight at that time, and one that i too am thoroughly looking into. neither of the two phone calls i placed while seated in security are in the video either. what is shown in the video is incomplete as it leaves out when the security agent took my son to a separate area and out of my sight. this matter is one that is being handled between my family and the TSA.

i have no further accusations of the TSA, and ultimately who to believe is left up to you. there is nothing more i can do with regards to that.
"No further accusations" apart from the allegation that the TSA has doctored the video footage, that is. Why would someone concoct such a story and persist with it after it's demonstrably false? Another mommyblogger, Sara at the Suburban Oblivion blog, suggests an answer from Nic's own Twitter posts during the day after the alleged incident — tweets that she could "get paid if someone picks up my story," that the "full story can't be posted on my blog... publishers want it," and that she "may pitch it to publications and go waaaay out with it." Sara wrote that "I understand compassion, I understand wanting to protect your own, but I also understand the damage done to the credibility of the blogging community by bullshit publicity stunts like this. I'm not trying to imply anything, but when you want to be taken seriously, you might not aught to be posting stuff like this on the internet less than 24 hours after the incident."

Obama "Hope" poster artist Shepard Fairey has been locked in a three-way copyright infringement dispute with the Associated Press, which claims ownership of the photo on which it argued Fairey based his work, and the photographer who took said photo and who claims that it is his property rather than AP's. To this point, Fairey has claimed that the AP photo is not the one he used to create the poster; now, he admits that he lied about that and altered and manufactured evidence to support his previous denials. Bruce Boyden continued his excellent coverage of the ongoing dispute:
[I]t was a minor issue; certainly not worth fabricating evidence over. I looked at this issue more closely in a blog post in February, shortly after the filing of the complaint, in which I compared overlays of the poster on the two photos and concluded that Fairey’s claim was "highly implausible":
Perhaps Fairey has just had a memory lapse. But if not, and he's engaged in a little retroactive wishful thinking, it’s not for very much benefit; I think the strongest arguments in his favor have nothing to do with the framing of the original photo. Furthermore, to the extent a judge or jury comes to the same conclusion, it just plain looks bad to have a misstatement like this in the complaint.
That's true—and it looks even worse if you destroy evidence to cover it up. And it looks even worse than that if you manufacture evidence. All for very little benefit. Fairey's behavior here reminds me of insider trading cases where some billionaire risks prison in order to avoid a loss of $20,000.
Michael Masnick wrote that Fairey "harm[ed] his case for no good reason.":
Fairey still has a very strong fair use claim -- which is entirely separate from the question of whether or not Fairey did something incredibly stupid here. Even if he used the image the AP claimed he did (which he now admits), it still seems like this is an obvious case of fair use. But destroying evidence and lying -- especially when there was no good reason to do so -- just harms his credibility and makes it that much more likely that he'll lose his case not for any legitimate reason, but because of his own separate actions in dealing with this case. There are important fair use issues at play here, and Fairey just made it that much harder to maintain the high ground.
Dave Rein, writing at the aptly-named Owners, Borrowers, and Thieves blog, suggested that more than moral high ground may have been lost with Fairey's deception:
One of the four fair use factors analyzes the amount of copyrighted work taken. When the Obama Hope poster is compared to the picture that Fairey now confesses to using, this prong may now weigh against him where it may have helped in in the other picture.

But beyond the simple analysis of the factors, it should be remembered that the fair use defense is an equitable rule. Fairey's confessed dishonesty undercuts his ability to ask for equity, i.e. fairness. In other cases, the courts have not looked kindly on those accursed of infringing a work who denied that he or she used the accuser's work and then later tried to invoke the fair use defense. Further, should this case go to trial, the AP will likely be able to tell the jury that Fairey initially lied about the picture and that he lied because he thought that he would lose if the actual photograph was known. Much of the jury sympathy that Fairey might have had has likely been lost.
While the famous Shepard Fairey is unlikely to run from the civil courts or the court of public opinion even after his admissions this week, less-famous folks occasionally run from criminal courts rather than face the possibility of an adverse verdict. A Public Defender blogger Gideon wonders why it doesn't happen more often and whether he'd have the strength to face the music were he in his clients' position:
How, I asked myself, did they have the courage to step off that elevator and into that courtroom, knowing full well that they may never walk out again into those hallways and out those doors?


Everyone knows what the consequences are of going to trial and losing. It’s called the trial tax for a reason.

I’m more convinced than ever that I’d never take that risk. That I’d probably plead to something I didn’t do to spare myself the agony of the Russian roulette that is a jury trial.

I’m sure there are many more like me. Which means there are many, many more innocent people in jail than we currently estimate.


I don’t think I’d have the gumption to step off that elevator to hear a jury’s verdict. I’d probably run.
Following his podcast with Charon QC concerning the Trafigura "superinjunction" controversy (about which I wrote last week), Carl Gardner produced an excellent series of posts elaborating on aspects of the matter. He argued that it was premature to deem the injunction "unlawful", as some have and clarified that the parliamentary privilege discussed by some commentators applies only to members of parliament, not to the press. He wrote:
I’ve no problem with superinjunctions in principle – there are a range circumstances in which the publication of the fact of an injunction or the identity of the applicant might defeat the entire purpose of an injunction. An example would be, for instance, if a PLC successfully injuncted a story alleging that it was insolvent – regardless of the truth of the story, the PLC might well be brought crashing down anyway if “the markets” knew it had got such an injunction. If that PLC were a bank, say, then the financial system could be at risk if it were known even that an unidentified bank had sought such an injunction. So superinjunctions do make sense in some circumstances....

What’s obviously problematic is that such an order should extent to reporting Parliamentary proceedings. I doubt very much that the judge intended this order to have such a wide effect: what I suspect has happened is that the order merely prevented discussion of the privileged document, and that Carter-Ruck unwisely sought, in lawyer-to-lawyer discussions, to interpret that as extending even to a report of the Farrelly question. In my view that was far from reasonable, and Carter-Ruck should have sought to vary the terms of the order if they wanted it to extend so far.
In another post, he reiterated his view that superinjunctions are sometimes justifiable:
What I’m most afraid of, though, is that this affair will leave people with the idea that superinjunctions are always, and necessarily a bad thing, and that anyone interested in protecting free speech should be against them. I’m as fiercely in favour of free speech as anyone: but very few people believe in absolute free speech, and nor do I. I think there are some limited circumstances in which other important rights can outweigh the right to free expression, and I think superinjunctions have a place as being in some circumstances absolutely essential when nothing else will protect those rights.


There may well be too many superinjunctions – there probably are – and one did not seem appropriate from what we know of the Trafigura affair. But don’t let’s run away with the idea that they’re never ever, ever, ever justified. Superinjunctions have a place – and can on rare occasions be essential to protect important rights.
Since Gardner's posts, the Guardian newspaper, which was subject to the Trafigura superinjunction, published an eye-opening annotated version of that injunction, providing astonishing insight into the mechanics of such an order.

Finally, Lyle Denniston offered an outstanding analysis of the upcoming Kiyemba detention case. He noted:
Kiyemba is a case that at least four Justices (and probably more) wanted to hear, despite strong pleas from the government’s top lawyer, Solicitor General Elena Kagan. Urging denial of review of the plea of Chinese Muslim (Uighur) detainees to end their captivity, Kagan told the Court in May: “Activity in the political Branches on the disposition of detainees at Guantanamo Bay generally and [the Uighurs] particularly, including sensitive diplomatic undertakings, provides all the more reason for the Court to deny review.”

The Court’s choice to pursue the case anyway could not have been welcome news in the political Branches: the Court has entered the detention discussion repeatedly since 2004, and the end result has most often been a significant loss for what the other parts of the government wanted to do. The coming decision in Kiyemba could well turn on a constitutional question, just as did the Court’s ruling in 2008 that brought the most sweeping defeat yet for government detention policy – Boumediene v. Bush. Kiyemba, in fact, is a sequel to Boumediene, testing what detainees might expect if they successfully challenged their imprisonment under Boumediene.


Even before the briefing schedule starts to unfold, one question arises: will the government move the case beyond the Court’s reach by finding a place where the 13 Uighurs can be re-settled, thus making “moot” their plea for court-ordered release? (The Bush Administration and then the Obama Administration found ways to end major Supreme Court test cases on presidential detention authority of individuals captured inside the U.S. by charging them with crimes and moving them into the regular civilian courts, out of indefinite detention in military custody.) Efforts have been made to get another country to accept the Uighurs, but those endeavors seem presently to be stalled.

Even assuming that such a transfer can be worked out between now and final action by the Court in their case, the fundamental question of federal judges’ authority to provide an actual remedy in constitutional habeas cases involving wartime detainees will continue to arise. A significant number of cases on that very issue are pending in the lower federal courts, and many definitely will be making their way to the Supreme Court. The D.C. Circuit Court has started putting some of those cases on hold, pending the outcome in the Supreme Court of Kiyemba, but that could be only a temporary delay.

At its core, then, the three-way government contemplation in coming months of the law of detention is not so much a polite minuet as it is a serious rivalry between energetic branches determined to protect their own prerogatives. If the rivalry stays focused on constitutional interpretation, though, the Justices — with the “power and duty to say what the law is” — may well have the last word.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., boston.com/The Boston Globe, gillicious, and Paris Odds n Ends Thrift Store.

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