Archive for August, 2011

Remember that generational clash among lawyers? It’s here. The front line combatant in this conflict is Gregory Berry, a New York attorney who until recently worked as an associate at Kasowitz Benson Torres & Friedman. Apparently he made a few whistleblower-type complaints and engaged in some self-aggrandizement within the firm, and now is no longer employed there, according to Reuters and a lawsuit Berry filed:

Gregory Berry, a former first-year associate at Kasowitz Benson Torres & Friedman, accused the firm of unethical behavior and lying about its work culture in a lawsuit filed on Monday in Manhattan state Supreme Court.

Two partners are also named as defendants in the suit. Berry accuses them of interfering with his job, inflicting emotional distress and trying to thwart his career prospects.

Berry claims he “immediately began doing superlative work” when he started working at Kasowitz last September after attending law school at the University of Pennsylvania.

But he ran into trouble after a few months when he e-mailed partners asking for more responsibility, he said in the lawsuit.

“It has become clear that I have as much experience and ability as an associate many years my senior, as much skill writing and a superior legal mind to most I have met,” his email said, according to his complaint.

He was informed by a partner at the firm that his email had “burned bridges” in the office, and he was fired a few days later, according to the lawsuit.

“There’s simply no room in a big law firm for an intelligent, creative lawyer with real-world experience, and I had to find that out the hard way,” Berry told Reuters.

In the lawsuit, he also said he was fired for comments he made about “possibly fraudulent” billing practices at the firm.

Is Berry out of his “superior legal mind”? Perhaps. Law school produces many innovative and creative legal minds. Big law firms, with their strict business models and general aversion to risk, stifle such innovation and creativity most of the time. I had never heard of Kasowitz before this morning, but a cursory review of the interwebz suggests they have a reputation as a “benevolent dictatorship.” Maybe Berry was fired for threatening to expose dirty secrets, maybe he was fired for having an ego, or maybe it was something else entirely. The truth may or may not come out in his lawsuit. The point is that we have a brand-new lawyer butting heads with his firm’s culture and getting the boot for one reason or another. Bring your own popcorn.

My attempt at creating a fair use graphic

Now that he is free of the corporate yoke of BigLaw, he did what every young attorney who is too smart for the strictures of old-school legal culture should do: he started his own practice. And he did it with a bit of flair: his website states that:

[Berry] graduated from the University of Pennsylvania School of Law and began his legal career at the “big-law” firm of Kasowitz, Benson, Torres & Friedman, where he quickly discovered that the emphasis in “big-law” firms on generating billable hours rather than on applying creativity and intelligence to devising unorthodox and cutting-edge legal strategies left Mr. Berry wasting his talents. Mr. Berry became a lawyer to fight for justice and to use his powers for good. He started this law firm to lend his abilities to clients who need the highest legal talent possible.

Here is a screengrab of that page, in case he has to edit any statements contained therein. I look forward to seeing what “unorthodox and cutting-edge legal strategies” Berry develops in his new position. Just watch out for those pesky ethics rules–they’ll come at you from all over.

I for one welcome this opportunity for NewLaw (I now claim credit for coining that term, even if someone else has the website) to put itself up against BigLaw. The new versus the old.The small versus the big.  The innovative versus the time-tested. Let the battle royale begin.

“I do not like my Blackberry. I would like to torture it until it begs me to kill it.”

“Science cleared that guy. A lawyer put his a** in prison.”

I soooooo wish I had written this.

A mother in Oregon, Trisha Conlon, recently lost a custody battle with her ex-husband, John P. Cushing Jr. The reason this has been news is because Cushing is now re-married to Kristine Cushing, whom he divorced after she murdered their two children in 1991. Kristine Cushing was found not guilty by reason of temporary insanity, and she attributed her actions to a bad reaction to Prozac. Conlon is understandably upset that she will now have an active role in raising Conlon’s two teenage sons.

This is a doozy of a case. What struck me, leaving aside the very pertinent issues of the safety of the children, is what the judge had to say after making his ruling:

Commissioner Leonid Ponomarchuk said that because the boys had been spending time with Kristine Cushing since 2008 with no problems — even if it was unknown to Conlon — there wasn’t evidence of a change in the situation that would warrant an alteration of the parenting plan.

“I have to look at this dispassionately,” Ponomarchuk said. “Would I ever want my children around her? I would say no. But that is an emotional reaction coming from a parent.”

As emotional as the case is, I agree with the judge here. I cannot say for certain if I agree with the ruling itself, but he is right about his duty to be dispassionate. Kristine Cushing was ruled temporarily insane, was treated at a psychiatric hospital and released, and has by all accounts “paid her debt to society.” If her actions (which technically do not constitute a crime) really were caused by an adverse reaction to Prozac (which, while controversial, is not unheard of), then she should not be a danger to the children as long as her psychiatric condition is monitored and she stays away from drugs like Prozac. It is difficult, if not impossible, to make that kind of analysis if you view the situation emotionally. Emotionally, the notion that CHILDREN ARE IN DANGER overshadows all other considerations, even when the evidence suggests that the danger is unlikely. It is an uncomfortable situation, but I cannot say the judge was wrong in his decision. I know he was right in his duty.

This case also led me to wonder what might happen if, instead of a woman who had killed her children, it was a man on the sex offender registry at the center of the story. Obviously the public outcry would likely be the same or greater, but how a judge might rule is an interesting question. Something somewhat like this is going on in Florida. In the case of Miranda Wilkerson, Donald Coleman has been awarded custody of his 4 year-old daughter Miranda. Coleman is on the sex offender registry for impregnating the child’s mother, whom he later married despite a 24-year age difference. The child’s mother died shortly after she was born, and the child went to live with her maternal grandmother, Rita Manning. Manning is now fighting to regain custody. An interesting tidbit here is that Coleman is the legal father of the child, since he was married to the mother when she was born, but he is not the biological father.

In many circumstances, it might seem noble for a man to fight for the right, and obligation, to care for a child who is not biologically related to him, as opposed to rejecting any responsibility. This is not one of those cases, unless it is. It appears that everyone in this case has some baggage: Coleman has a history of domestic violence (according to local news) and is on the sex offender registry, while Manning has received probation for child neglect. If the only things you hear are SEX OFFENDER and CHILD IN DANGER then it is easy to conclude that the judge made a colossal error. Court documents show, however, that this is indeed a complicated case:

Court documents released Friday afternoon detail how, after First Coast News started asking questions about why Coleman was fighting to get custody of another man’s child, his attorney filed a motion to get Miranda.

The motion said the woman who has been caring for Miranda since birth, her grandmother Rita Manning, was keeping him from the child and that Miranda was in danger.

The motion said Manning has a history of arrests: In 1995, she was charged with contributing to the delinquency of a child, but the case was later dropped.

In 1997, Manning was charged with child neglect. Around the same time, Manning’s then 14-year-old daughter, who is Miranda’s mother, got pregnant by Coleman who was 38-years-old. Manning got probation.

Coleman was sentenced to register as a sex offender for the rest of his life.

Perhaps Coleman was the best of some bad options. His status as a sex offender creates some automatic negative associations that must have weighed against him in court. He broke the law and did something many find both abhorrent and creepy, but it is a fair question whether his status as a sex offender by itself proves that he poses any ongoing danger. The same can be said for Manning and her history. It takes quite a bit of dispassion to slog through this mess of facts, arguments and innuendos.

We may not always like the way judges rule. We may suspect the impartiality of judges at times, and we are right to always demand adherence to the rules of judicial conduct. What we should never do is demand that judges use emotion to determine their rulings.

The State Bar of Texas Appellate Section is hosting a “Twitter Brief Competition” in preparation for its annual meeting in September. It’s exactly what it sounds like: craft an appellate argument in 140 characters or less.

Be honest, this is the moment the legal profession has been dreaming of. No more verbose jargon! No more impenetrable legalese! An end to “heretofore” and “thereunder”! Short prepositions only!

But seriously, it seems like some lawyers might have an edge in this competition. Section co-chair Anne Johnson seems to agree:

“My initial observations is we may see some generational differences,” Johnson says. She explains: “People who are used to posting on Twitter are going to have an advantage.” There’s another commonality among many competing Tweets so far: They focus on a “theme of waiver,” Johnson says. For example: “Honorable court, the claim has been waived. Respectfully submitted, appellee,” says Johnson, adding: “That’s an argument that is pretty simple and can be said pretty quickly.”

Personally, I would prefer to see an appellate haiku competition. Here are a few of my own:

The appellee lacked

Standing to sue, and venue

Was improper too.

The First Amendment

Dictates dismissal of this

Meritless action.

Appellee tried this

Once before, and did not win:

Res judicata.

This Court can review

Just abuse of discretion.

No de novo here.

I guess we’ll have to wait and see if practicing law by Twitter catches on.

Fiverr.com is a terribly entertaining site, where artists, designers, programmers, and other enterprising individuals sell a variety of services for $5.00.

I obtained this drawing from a Fiverr seller, for example:

Now, I have decided to offer some variants of my legal training to Fiverr users, by offering some legal jargon on demand. More offers to follow, I’m sure.

The old adage is very true for lawyers: it’s not what you know, it’s who you know. For the vast, vast majority of people, lawyers are utterly indistinguishable from one another. Some people will hire a lawyer because of an attention-grabbing TV ad, a slick website, or a clever blog (or so I’ve heard, anyway). Others might hire the lawyer who looks meanest, or toughest, or flashiest. Most people will hire someone they know, trust, and/or respect. The best (some would say only) way to get business that way is through word of mouth–either with referrals from previous clients or with networking referrals. “Networking” is a dirty word to many lawyers, but it shouldn’t be.

True, the return on investment from networking may seem low, particularly if you only go to formal networking events through a chamber of commerce or an organization whose sole purpose is to host networking events. These types of meetings tend to drop people into an environment that is only comfortable to people whose job is to schmooze corporate decision-makers 8+ hours a day. I could give you a list of rules for successful networking (and I probably will), but it comes down to one single principle:

Be Yourself.

Some networking events even have free coffee!

This should not be a difficult concept, but it is for many lawyers. Lawyers do not see it as their job to be themselves; they are paid to be either warriors or Stoic gatekeepers. Very little of an individual lawyer’s personality comes out in a typical representation. That may work in some lawsuits or negotiations, but it is a terrible way to approach business development. Unless someone is looking for a brutal litigation juggernaut, they probably want a real live person for a lawyer.  I can break my one principle down into a few corollaries:

1. Non-lawyers really want to know what lawyers are like. It takes about two minutes in a conversation with a lawyer for a non-lawyer to realize that lawyers are not really like Atticus Finch, or even Denny Crane. They want to know what a real lawyer is like. Talk about business, but be yourself.

2. People like to talk about themselves, and they don’t think lawyers listen very well. Let’s face it–lawyers are talkers. Sure, we listen when a client is telling their story, but we only listen to hear what we need, then we rewrite the story in legal format and give it back to the client. To the extent people know anything about lawyers, they suspect that we are all a bunch of blowhards. The purpose of networking is not just to find out who can help your business. It is also to help others (in the hope that they will help you later). Even if you are not in a position to immediately help the kitchen floor laminate sales rep you met at the Rotary meeting, you can at least talk to them and dispel a few misconceptions about lawyers. That will come around to benefit everybody.

3. People have no idea what lawyers do. After years of introducing myself at networking events as a family lawyer (and before that a real estate lawyer) and offering a detailed description of my ideal client, I still fielded inquiries about how many people I had gotten out of jail that day. No matter what we say, it is almost as though the daily world of lawyers is shrouded in a fog of magical secrecy that non-lawyers cannot penetrate. So try talking to people in your normal human voice. It may be disappointing for them to learn that we don’t spend all day every day cross-examining Colonel Jessep, but at least a sense of the real you and your daily grind will come across.

Once you are established as a real person, you can build rapport and trust. Then you can build business. And if you build it, they will….oh never mind.

Not pictured: Rockwall, Texas

The city of Rockwall, Texas has become the second Texas city to adopt a no-kill policy:

The Rockwall City Council voted unanimously Monday night to make Rockwall a No Kill community. It’s the culmination of a volunteer-driven campaign by Rockwall Pets, an independent nonprofit, to stop the killing of healthy and adoptable animals at the city shelter. Following meetings between Rockwall Pets board members and city management, the issue was sent to the city council.

The council directed city staff to maintain a minimum 90% live outcome rate at the city’s open-admission municipal shelter. The city must now adopt, return to owner, or save the lives of at least 90% of the animals it takes in. The No Kill Advocacy Center established what has become the industry standard, allowing a maximum euthanasia rate of 10% for animals who are gravely ill or irredeemably aggressive.

[snip]

“I see the 90 percent, but I’m wondering why not 100 percent?” asked councilman David White, getting into the spirit of the discussion. “I wish that extra 10 percent could be cute little Yorkies.”

It may take as long as two or three months to retool Rockwall Animal Services to meet the council directive. In the meantime, councilwoman Margo Nielsen asked city staff to present a revised euthanasia selection protocol at the next council meeting. Rockwall Pets hopes this overhauled procedure, coupled with ongoing efforts from volunteers, will begin saving more lives immediately.

I applaud Rockwall for taking this step. It looks like they have some good citizen support, which is essential for a no-kill plan to succeed.Austin, of course, was the first Texas city to adopt no-kill, back in March 2010, and we have surpassed the 90% live outcome rate for most of 2011. This is the crucial time of year, when kittens and puppies are brought to the shelter in droves. Austin had a 93% live outcome rate for July 2011, according to the article quoted above, and Rockwall had a 83% live outcome rate. That still puts Rockwall far above many Texas cities.

Today’s post is from a guest blogger, the Legalese Generator:

Key employees, or other paper or the Company will be furnished by the event royalty by the recitals or mental disability shall be disclosed under the Plan have personal collection upon which the parties HEREBY and as aforesaid parties hereto, without negligence has been established on the Committee may also to the right to be registered Warrants in accordance with respect of the Date such date. As expressly noted herein. Amendment to the Company, be made in the proceeds of the acceleration of his work duties of manufacturing and shall be ignored if any), and all of the Warrant Agent is currently receiving benefits from any other information as the Stock Option granted hereunder; and decision shall be merged or more beneficiaries to initiate any other compensation PLAN may be assigned, sold or longer. This Plan, and conditions, not be evidenced thereby circumventing this Agreement. The Warrant certificates to time by the Committee so authenticated by promissory notes or the balance converted to such loans available resources to the consent of the laws of the extent not directly interfere with any other agent. (a) The corporate Bond rate. Section 3.1 and exclusive and the Corporation. The death (or any deferral account, together with the premises and binding upon with the Stock in writing its remaining after grant. (b) The form of the Committee. Stock were not be made with the shares subject to the acquisition by the Company expects such shares of its sole and all or shall mean the Stock Options and CHARACTERS (IMAGE) cannot be released at any communications containing terms of the Licensee shall execute, acknowledge and , as to subcontract, use of Exercise price of this User Agreement and the Committee may consult with the Purchaser, the scope of the following MUTUAL COVENANTS or for which the Internal Revenue Code of the forgoing, this User Agreement may be addressed to be canceled, modified, amended from time a sum sufficient to be subject to become payable to such notice of the Offered Debt Securities or access to anyone else for such exchange [or transfer]. (d) METHOD OF the Committee may deem advisable; to such terms and biological parents that it in writing by the earliest   to the Date the public. (E) Certain Conditions.

You can have your own bit of legal gibberish too!

Attorney Mark Baer was recently interviewed by the Pasadena Star-News about the role of lawyers:

“Law schools train attorneys to spot problems but not how to solve them,” Baer said. “By teaching lawyers to identify problems but not training them to solve them, the practice of law has shifted from resolving conflict to creating it. This is particularly detrimental in cases dealing with children and families as it causes wounds that often last a lifetime.”

I have seen time and time again in divorce cases where situations that might have come to a peaceful resolution with a bit of guidance, or that might even have worked themselves out, were made worse by an overzealous lawyer. Lawyers, in the cases where they actually make matters worse, do not always do so out of malice, but also out of overzealousness or even just habit. Lawyers are indeed trained to spot problems and to look for ways to persuasively present a position, but not necessarily to consider all positions and work towards a compromise. Lawyers are trained to be warriors, or at least carpenters–to quote Abraham Maslow, “If you only have a hammer, you tend to see every problem as a nail.?

The other day a young attorney named Rachel Rodgers wrote a post at Solo Practice University called “Ethics Should Not Be Used as a Weapon Against Young Lawyers.” The post outlines a bit of the tension between older attorneys and the hordes of young lawyers now entering the marketplace and not finding jobs, many of whom are now starting their own practices (this was largely the theme of my post from yesterday, “Too Many Lawyers?”).

It’s a complicated issue, and it’s not even entirely clear what the points of contention are. I have commented a bit at Ms. Rodgers’ post, but the blawgosphere is starting to light up about it. Ms. Rodgers states that:

Professional ethics is supposed to be a code by which we lawyers operate to ensure that we are maintaining the highest level of integrity as we practice law. Unfortunately, many experienced attorneys have taken to using the word “ethics” and all of its connotations as a weapon against any attorney serving their clients in a way with which the criticizing attorney is unfamiliar or does not approve. Sadly, given that young and innovative lawyers are blazing a trail for new ways to both practice law and deliver their services, we tend to be the target for such ridicule. I have even seen some lawyers claim that young lawyers, especially solos, cannot possibly be ethical without the hand-holding (otherwise known as chiding) of more experienced attorneys.

Not the way to run a law practice

The thing about that is that legal ethics is a pretty vast field stretching back for centuries, and it is often difficult for even gray-haired lawyers to fully grasp it. Technology is fast outpacing ethics rules when it comes to advertising by attorneys–today’s ethics rules are useful for Yellow Pages ads, but not so much for blogs. That said, the question is whether the changes in ethics rules that need to happen can best be achieved through research and deliberation, which is pretty much how it has always been done, or through innovation and experimentation in a free market setting. Lawyers have never been much for a free market when it comes to how we actually practice law. We are not a profession with a great love of risk (quite the opposite, in fact).

Scott Greenfield remarked on Ms. Rodgers and her practice back in June, and Brian Tannenbaum picked up the story yesterday:

Used to be that lawyers would work for someone and then go solo. Now there’s no jobs so lawyers are going from law school graduation, right to the computer to create their law firm twitter account and Facebook fan page, and presto – a practice is born with an “experienced, aggressive” attorney. Today we fake it until we make it, as the marketers encourage young lawyers to do.

I can’t exactly be critical of a newly-licensed solo, since I used to be one (technically I was a newly-licensed shareholder in a firm of three newly-licensed lawyers, but I became fully solo within 3 years, so close enough). At the same time, I have seen quite a few sketchy schemes from solo lawyers, and the value of having a mentor cannot be denied. I think law may be the only profession where brand new practitioners are allowed to jump head first into the pool right away, so maybe we need some sort of apprenticeship system. Just a thought. Matt Brown sums up the concern very well:

No lawyer, especially a young lawyer, is going to see every ethical pitfall. Whatever it is that you want to do may be the next best thing in lawyer marketing since sliced bread, but there’s no rule insulating from attorney discipline those lawyers who engage in innovative but ethically-prohibited business practices. The truth is that ethics rules will prevent plenty of lawyers from opening up certain types of “cutting edge” practices, just as the criminal laws ultimately stop many of my clients from operating their “cutting edge” businesses.

On the other hand, there is much to be said for reevaluating the risk-averse culture of lawyerdom. An extreme, possibly sarcastic example appeared on the blog What About Clients? the other day. A series of mantras, supposedly dating to 1836, appeared in the post “The 7 Habits of Highly Useless Outside Corporate Lawyers”:

1. Be risk-averse at all times. Clients have come to expect this from their lawyers. It’s tradition. Honor it.

2. Tell the client only what it can’t do. Business clients are run by business people who take risks. They need to be managed, guided, stopped. Don’t encourage them.

3. Whatever you do, don’t take a stand, and don’t make a recommendation. (You don’t want to be wrong, do you?)

4. Treat the client as a potential adversary at all times. Keep a distance.

5. Cover yourself. Write a lot to the client. Craft lots of confirming letters which use clauses like “it is our understanding”, “our analysis is limited to…” and “we do not express an opinion as to whether…”

6. Churn up extra fees with extra letters and memoranda and tasks. Milk the engagement. (If you are going to be a weenie anyway, you might as well be a sneaky weenie.)

7. As out-house counsel, you are American royalty. Never forget that.

I have my doubts about the historical authenticity (as does the blog’s author), but it does nicely illustrate how lawyers emphasize the avoidance of risk almost over all else. Quite often, that is exactly what corporate clients hire their lawyers to do. The question is whether that attitude should extend to lawyers’ own businesses. I used to tell my business client that I was their “professional pessimist.” In other words, they started their business to make widgets (or whatever), not to worry about contract terms or premises liability, so they should pay me to worry about it for them.

That’s not a bad way to help a client, but it’s far from the best way to run a business.

It’s not like young lawyers and old ones are fighting in the street. Thus far the debate seems to be limited to blog exchanges and ABA conferences. Sooner or later, the question of new lawyer innovation will butt heads with traditional risk aversion (some might say it has already happened), and it will be fun to watch.