"The First Thing We Do, Let's Kill All the Lawyers"

Posted by wlansden | Filed under ,
By James Bowden

Apologies to Shakespeare, but I’ve been thinking about this quote too frequently recently.  First, it was because of an online video branding DOJ attorneys the “Al Qaeda 7.”  Later it was because of an interview on the Daily Show with John Stewart on the same subject.  Most recently, it was because of an Op-Ed piece in the Wall Street Journal.  More and more, it seems that Rule 1.2(b) of the Model Rules of Professional Conduct counts for naught outside of the halls of law.

I’m no hero, but I share a profession with some.  For many years the Nashville Public Defender was a man named Ross Alderman.  Ross defended the good and the bad alike against charges ranging from petty crimes to capitol offenses - he did so as a zealous advocate and at great personal sacrifice.  A motorcycle accident cut Ross’s career in public service short.  Soon after his death I saw an attorney from the District Attorney’s office who had regularly opposed him in court toast his memory; she wept as she spoke.  She didn’t weep alone.

The quote above is not a truism, as the legal profession’s detractors sometimes seem to think; it isn’t even a lawyer joke.  Shakespeare’s character, Dick the Butcher, was instigating for revolution, anarchy, and tyranny led by a villain that would be dictator named Jack Cade when he spoke.  The phrase is ironic; it stands for the necessity of lawyers in a free and just society, not the opposite.

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Why, [State Bar of] Georgia, Why?

Posted by wlansden | Filed under
By Brian Malcom

I am not usually one to quote John Mayer, but it seemed appropriate here.

The Georgia Supreme Court gave a slap from the bench to both a former Greenberg Traurig associate and the State Bar of Georgia.  The rapping follows a slap on the wrist by the State Bar of Georgia after an associate admitted that he stole about $493,000 between 2003 and 2009.

The associate, Michael J.C. Shaw, used fake identities to bill his firm for performing title examinations, skip traces and other investigative services as a bankruptcy and foreclosure associate at Greenberg.  Following his admission, Shaw filed a voluntary petition requesting a 6-to-12 month retroactive suspension, though the maximum penalty available to the bar is disbarment.  Georgia’s high court rejected the petition.

Despite Shaw’s troublesome personal life, his admission, and his restitution of $526,922 to his former firm, the Georgia Supreme Court wrote that Shaw was lucky not to be in prison for his actions.  In a concurrence, Justice Nahmias also found it highly troubling that the State Bar of Georgia and Shaw believed that such a short “break” from the practice of law was appropriate for a six-year scheme to defraud a firm of nearly half-a-million dollars.

I happen to agree with the high court that a “six-month to one-year suspension is an inappropriate sanction in view of the scope and extent of Shaw’s fraudulent and deceptive conduct.”  While Shaw had some personal issues that may have influenced his behavior, which is no excuse for what he did, Georgia’s high court has to think about the message it would send to give such a light punishment to such reprehensible conduct.

An attorney, or any member of society for that matter, should not be allowed to steal someone’s identity, misuse someone else’s SSN, and engage in a complicated scheme to defraud his company of nearly $500,000 and then walk away with what amounts to a long vacation plus a public “shame on you.”  A multi-year suspension (like 3 to 5 years) is the absolute minimum that the state bar should seek, and that is only because Shaw was highly cooperative and mitigating factors exist.  Certainly, no one would blame the state bar if they sought disbarment despite the mitigating factors.  While disbarment is a serious penalty, Shaw would still be able to consider himself lucky if he stays out of prison.

What are your thoughts?  The opinion is available here.

“Are you living it right?
Why, tell me why
Why, why [State Bar of] Georgia why?”

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Fighting Words in the Bluegrass State

Posted by wlansden | Filed under ,
By James Bowden

True story: since 1891, the Kentucky State Constitution has required all Members of the General Assembly, Officers, and members of the bar to take an oath that includes a statement that, “since the adoption of the present [Kentucky State] Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending.”

Apparently, in the twilight of the nineteenth century Kentucky was concerned about its growing reputation as the “Wow, That Escalated Quickly” state.  Legislative machinations are now afoot to amend the State Constitution to remove the language.  However, I wonder if eliminating the last vestige of an attempt to suppress a dispute resolution problem that harkens to the days of yore is really worth the trouble.  After all, it’s no secret that a few of the founding fathers weren’t above settling their problems from twenty paces; and a particularly famous Tennessean was allegedly quite fond of pistols at dawn (goes great with grits and red-eye gravy!).  I’m afraid that Kentucky may be losing a colorful part of its heritage if it goes through with stripping the oath of the “no dueling” rep.  In any case, is it really worth the time and effort of a Constitutional amendment?

Attorneys in Kentucky: what do you think?  Also, as a practical matter, how many attorneys make it through the oath without laughing?  My guess is about one in five.

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Check Your Laptops at the Door

Posted by wlansden | Filed under , , ,

By Brian Malcom

While "attractive nuisance" would be a terrific band name for a bunch of law students who are wannabe rock stars, it is also what a Georgetown law professor is calling laptops in the classroom.  In case you missed it, Washington Post has the story here.

Apparently, the professor has shaky confidence in his ability to sustain the rapt attention of his audience while the Internet and solitaire are tempting their wandering eyes.

I can't imagine why.  I know my mind never wandered to espn.com when we were discussing the Rule Against Perpetuities in law school.  Why would I care about my March Madness bracketology when the Testator's heirs' interest in Blackacre is hanging by a measuring life?  Why?!

Another problem with laptops in the classrooms, according to the professor, is that they can be used to spread rumors.  I know I got all of the juciest gossip in law school during class and straight from the professor's mouth.  This piece of logic ignores the fact that PDAs are just as capable at spreading rumors as laptops and even more portable.

Despite this insult to the students' ability to manage their own attention spans, some students support the ban on laptops in the classroom.  Most say they are more engaged in classroom discussion and could concentrate easier.

What are your thoughts?

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Pro Bono Could Cost You

Posted by wlansden | Filed under ,

Brian Malcom

No good deed goes unpunished, especially those done in violation of copyright law.  Copyrights & Campaigns posted about this very subject last week.  

Harvard Law Professor Charles Nesson led a defense team for a graduate student at the university pro bono.  The student was ordered to pay $675,000 for unlawfully downloading 30 songs on the Internet.  (Yes, that is $22,500 per song).  Here's hoping he really likes the songs. 

A while ago, the plaintiffs in the case filed a motion to compel seeking evidence regarding the posting of seven songs to a public website.  The federal district judge granted the motion to compel in June 2009.  The plaintiffs then filed a motion for costs and fees under Rule 37.  The motion for costs and fees is available here.  No opposition was filed. 

Last week, the judge also ordered the defendant and his attorney, Professor Nesson, to pay the costs and attorneys fees for the motion to compel filed by the plaintiffs.  Professor Nesson apparently posted some songs at issue in the case on his blog, with a public link for anyone to download the songs. 

The Lessons: 

  1. If you find yourself in a lawsuit concerning illegal downloading or distribution of copyrighted material, do not -- I repeat, do not -- post a link for everyone and their cousin to download the material for free;
  2. Respond to motions that seek to tax costs and fees against you and your client; and 
  3. Pro bono can cost you. 

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Good Idea - Bad Idea: Just Fake It?

Posted by wlansden | Filed under
Good Idea:    Doing the things you were hired to do.

Bad Idea:      Fabricating court orders and court documents in order to trick your client into believing you're doing the work you've been retained to do.  State bars frown on that.

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Practical Drafting Tips for Corporate Lawyers [Including an Attempt at Humor]

Posted by wlansden | Filed under , ,

By James Bowden 

Here are a few drafting tips that I’ve learned the hard way: 

“Due to” Always Means Money Owed – If the recession has affected a registrant’s financial position, “overall revenue decreased because of prevailing economic conditions.” Leave “due to” for promissory notes and the like. 

Define Terms and Use Them – It is best practice to write out the full “the 2010 Annual Report to Shareholders on Form 10-K (the “Annual Report”) as filed with the Securities Exchange Commission (“SEC”) on March 15, 2010” the first time the terms are used in each document. After that, writing the full description in detail is too cumbersome in a document that refers repetitively to the Annual Report and the SEC, especially since 10-K and proxy season dictates that emails to my spouse routinely refer to the Annual Report and the SEC (“I’m going to be a bit late – we’ve got to get the Annual Report to the SEC”). 

When Drafting Board Minutes, Stay Out of the Weeds - If you are drafting minutes to a meeting in which two engineers and a software executive on the Board of Directors get hot and wonky discussing the compatibility of a potential acquisition’s patented technology with the Company’s product line in endless and graphic detail, “A thorough discussion of the potential benefits of a strategic partnership ensued.” That is all. 

Triple Check People’s Names – Want to offend an executive officer who is very proud of their Scandinavian heritage? Pretend you are a customs agent at Ellis Island circa 1907 when you draft a document requiring their signature. Bonus points for feigning shock that “Bjerke” is a proper noun after granting the hapless exec an involuntary name change (“Since when is Sarah Burke our CFO?”).

 Plain Language is a Badge of Honor – Keep it direct and legible. Annihilate all unnecessary adjectives; eliminate superfluous SAT words with extreme prejudice. Leave “Whereas, the party of the first part heretofore dost transfer all dower and curtesy thereto to the party of the second part” in the nineteenth century where it belongs. The SEC has requested that I mention the benefits of justifying left. 

Replace-All Has Been Disabled – A friend of mine once told me that the fact* that the blender is always broken was the best lesson he learned in bartending school (“I’m sorry – I could spend 10 minutes making a sticky mess of the bar and ignoring other patrons while I make you a frozen daiquiri that you will not tip me for, but unfortunately the blender is broken. Can I get you a rum and coke instead?”). Similarly, it is a fact* that the “Replace-all” feature in your word-processing program has been disabled. That is, of course, unless you want to change every “unit” in your document into “membership interests,” including those in the Membership Interested States of America. It is also a fact* that reply-all has been disabled on your email.  

If you have any other drafting tips, please leave them in the comments section for my benefit. Please.

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So, What Have We Learned? Part I

Posted by wlansden | Filed under ,

So what have we learned in our first year blogging at the YLB?  Here is our totally opinionated list, derived specifically from our experience with this blog only:

For Part I, here are the dos:

  • DO have as many contributors as possible.  In addition to having articles coming from a variety of people, it helps to have a number of people involved in the editing and “managing.”  We, after all, have day jobs.
  • DO create recurring “themes” which can be used for articles on similar topics or forms.  Sometimes it is easier to “see” an article in a news story or experience in the form of something we have done before.
  • Do get people involved, who want to do it.  It is no use having a practice group leader “suggest” that someone write an article or participate in the blog.  People need to want to do it!
  • DO employ the grammar-police.  Like most writing, it is impossible for one person to catch all the mistakes and typos.  With more casual writing like this, it can be easier to make gaffes. 

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Happy Anniversary to Us!

Posted by wlansden | Filed under

The Young Lawyers Blog is one year old, which, obviously, makes it our blogiversary today!

Thanks for hanging in there with us. 

We’re working on a list of what we have learned with this blog this year.

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Expert Witness Tips from Vinny Gambini

Posted by wlansden | Filed under ,
By Eileen Burkhalter Smith

I was reminded this weekend, by Mona Lisa Vito, no less, about what can happen when an expert witness is hostile—your expert witness.  As is universally recognized, expert witnesses should be treated differently than fact witnesses—even if they are on your side.

In a recent trial, I saw counsel (for the other side, lucky for me) struggling with her expert witness.  Though the expert was saying everything technically as anticipated, it was clear that the expert did not think much of the party for which he was testifying.  The expert was testifying for the plaintiff, but made several derogatory comments about the plaintiff’s behavior in a slip and fall action.  The expert went so far as to state that the precautions that he thought should have been taken were akin to “idiot-proofing.”  Not only did this comment get a chuckle from everyone, including the jury, but the Judge picked it up as well—using the same phrase in side comments during the jury charge.

The expert was well-seasoned and clearly not interested in the subtle clues that my opponent was using to get him back on track.  In my opinion, the expert’s attitude really hurt my opponent’s case.  I would be willing to bet that his throw-away comment was the only thing the jury remembered from all of the experts!

Vinny Gambini knew when his expert was hostile, and immediately asked the Judge to allow him to treat her as such.  I am not sure my opponent needed to take that step, but I wonder if leading questions could have kept him a bit more tongue-tied?

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