Nice Ethics....

What am I supposed to think about this statement attributed to Alan Dershowitz?

I have been in touch with Claus repeatedly. I have not been in touch with OJ Simpson since his trial.

I'm sure it hurts OJ to have been dropped from the Christmas Card list but, whether or not he paid his bill,¹ I don't think his former lawyer should be publicly insinuating that he was guilty. Anybody else, opine away, but not the defense attorney.
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1. And we know that Dershowitz and the rest of OJ's legal team "got paid".

"We're Almost Full"

I enjoyed this observation by Seth Godin, in relation to the overwhelming amount of data that's not just available to us, but is directed to us each and every day: "The internet isn't full, but we are."

You can't keep up with the status of your friends on the social networks. No way. You can't read every important blog... you can't even read all the blogs that tell you what the important blogs are saying.

That reminds me of advice I see directed at law firms - that they start blogs ("blawgs") and that they can generate clients and referrals through social networking. But that's simplistic.

The blogging advice typically goes along the lines of, "Pick a niche subject, start a blog, post regularly, and make yourself an expert." Blawg of dreams. I'm reminded of Orin Kerr's brief departure from the Volokh Conspiracy to start his own blog. He did all of that, and what? Went back to the much more eclectic, much less scholarly atmosphere of the group blog because it had the traffic. That was two years ago, and the marketplace is now far more crowded. Sure legal blogs can generate business or make people think of you as an authority, but so can a other approaches such as posting online articles, traditional networking, teaching CLE courses, or writing for traditional publications. You may find that, when costs and time are considered, those other approaches offer a far greater return on your investment.

It's amusing to me to read a typical article about the glories of legal blogging, as there seems to be remarkable overlap between the bloggers who are interviewed about their experiences, and they almost always also rely heavily on quotes from people who design and support legal weblogs. You may not get rich mining for gold, but that doesn't mean you can't get rich selling pickaxes to the miners.

Meanwhile, if you look at the ABA's top 100 blogs, how many of them are actually focused on client generation for practicing lawyers? I suspect that if you looked at the blogs that are the most successful at generating business from the public at large, I doubt you would conclude that many of the authors were leading experts in their fields (although they may say that they are on their blogs), and I doubt that you would add many (perhaps not any) to your blogroll. Creating a blog that establishes your expertise to other lawyers such that they refer you cases? That's a lot harder, as you have to get them to notice your blog. And follow it. And, as much as possible, to link to it.

That brings us to social networking. An article I read recently described a lawyer who was active on multiple social networks, and that his combined efforts on his networks generated about $100,000.00 in business for his firm over the prior year. The article conceded that he's an outlier. But it's more than that. It's safe to say he's a younger lawyer, and that his network primarily revolves around younger lawyers. Telling an older lawyer (and no, I don't mean "old" - just old enough to find social networking bit alien) "Find a social network, create a profile, connect to your peers, and learn to use it", will often not be a good use of that lawyer's time, as many of his peers won't be participating in the network, and of those who are many will be passively participating - they will have created a profile that they may or may not check on occasion, and that they may or may not update on occasion, but they're not actively using the network or the service's features.

As for a younger lawyer who is active in five or more social networks, keeps his profile up to date, responds to his friends, and generates referrals, let's not miss this: The emphasis is still on social. I doubt you'll find a person who is that active in social networks who joined and participates primarily for business purposes; but you'll find a lot who participate for social purposes, with a business element growing out of that social involvement. The importance of social networking is likely to rise, as more and more younger lawyers emerge from a generation that is heavily invested in social networks. But unless you're going to be an active social networker, it's unlikely to become a significant source of clients and revenue.

A big part of the problem is the information overload. There are too many blogs (and "blawgs"), and too many social networks. There will be an increasing tendency toward monopoly - just as there used to be many search engines and now there are really only three that matter, one of which is dominant, eventually there will be similar consolidation among social networks. Because even people who can afford to spend hours each day maintaining their profiles on five networks, few of whom work for law firms, will exhaust at six, or seven, or twenty. People who aren't into social networking don't want to be advised to pick between five or more options and hope that their participation leads to more business. They want to be told, "Use this one," and not have to worry about the others. Many would probably perfer a simple, specialized tool - e.g., an enhanced ABA membership that provides simple tools for members to connect to their peers, track practice areas, perhaps follow legal news and weblogs, and refer cases.

Are Law Degrees Versatile?

The National Law Journal recently asked, Is the Versatility of a Law Degree Just a Myth? Well, yes and no. If you go to law school without any real desire to practice law, and with no concept of where your career might go afterward, you're probably going to find out that there are many degrees that are far more versatile than law. If you then try to enter a field outside of law, what employer wouldn't be curious as to why you sought the law degree, or how your law degree better qualifies you for the job than the degree of a more typical applicant?

And then there's often the question of why you're choosing a career path that pays less than legal practice. Is your explanation that you're looking for greater job satisfaction, and are willing to take a pay cut for a job you love? Is it, "Legal practice (or at least the practice I was in) doesn't pay what you think"?

When you look around and see lawyers in a wide range of fields, ask yourself how they got there? If they're older, and entered a business field back before the MBA was created, there's no direct comparison. When the degree of preference in a field has changed, the easiest way to enter that field is with the preferred degree. But what of the others? Are they truly there because of their law degree and its versatility, or because they found a way into a field by virtue of their personal interests and skills and, assuming their legal background remains relevant to their job duties, found a way to make their law degrees work for their employer.

I would not suggest to somebody who simply can't decide what they want to do "when they grow up", that they go to law school. For that matter, I would have words of caution for somebody who understands what legal practice entails and wants to join the legal profession. But really, if you're meandering, an MBA is generally going to be cheaper and will likely provide more flexibility (save for getting you a license to practice law). The flexibility I see in a law degree often has more to do with the person holding the degree than the degree itself.

Still, if you're from a modest background and are willing to put in the effort it takes to get through law school, position yourself to get into a well-paid legal position, and work yourself ragged for enough years to build up some capital, it's a slow, tedious way to get to the point that you can afford to truly follow your dreams.

Up To Your Neck In Debt? In Foreclosure?

Then you may be mentally deficient. At least according to a recent unpublished decicion of the Michigan Court of Appeals.

Under MCL 700.5401 a probate court may appoint a conservator for a person if:

The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.

Interpreting that provision, the Court of Appeals wrote:

As respondent notes, when a statutory term is not defined by the statute, this Court construes the term according to its plain and ordinary meaning. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 18; 651 NW2d 356 (2002). Resort to dictionary definitions is acceptable and useful in determining ordinary meaning. Id. “Mental” is defined as “of or pertaining to the mind.” Random House Webster’s College Dictionary (1995). “Deficiency” may be defined as “the state of being deficient; lack; insufficiency.” Id. In addition, “deficient” is further defined as “a person who is deficient, esp. one who is mentally defective.” Id. Based on these definitions, “mental deficiency” as used in the statute could plausibly refer to someone who has simply made consistently bad decisions with respect to his or her property, without being afflicted by some form of officially recognized mental illness or incapacity, as respondent argues.

Brickman v Brickman, No. 278403 (Mich. App., Oct. 16, 2008).

I am initially skeptical of the court's separation of the term "mental deficiency" into two separate terms. This can be problematic - consider the interesting results you could produce by defining "ice cream" in a similar fashion. Contrast what you find if you actually try to define the term "mental deficiency":

mental deficiency - n. See mental retardation. (The American Heritage Dictionary of the English Language, Fourth Edition).

That leads us to:

mental retardation - n. Subnormal intellectual development as a result of congenital causes, brain injury, or disease and characterized by any of various cognitive deficiencies, including impaired learning, social, and vocational ability. Also called mental deficiency. (The American Heritage Dictionary of the English Language, Fourth Edition).

A similar definition of "mental deficiency" can be found in Merriam-Webster and WordNet.

The fact that the term "deficient" could be used to "a person who is deficient, esp. one who is mentally defective" is not instructive. Applied in this context, this becomes a circular argument that, as somebody who is mentally deficient may be informally called "deficient", any person who is in any way deficient in any manner relating to their mental functioning is "mentally deficient". (And how far do we take this type of reasoning? Should we interpret the word "confinement" in the statute to reference the onset of labor in a pregnant woman?)

Further, consider what the court's interpretation means for the interpretation of the statute. The statutory language suggests that a court ruling on a conservatorship petition should find both that "The individual is unable to manage property and business affairs effectively" and that there's a reason for that incapacity "such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance." Under the new ruling a probate court need not find that there's a reason for the incapacity: "The individual is unable to manage property and business affairs effectively because the individual has not managed his or her property and business affairs effectively."

As I read the statute, making bad financial choices is not of itself grounds for the appointment of a conservator, nor should it be. But... now it is.

Making A Public Record Of Your Life....

Tapped points to a story about how a teen, hoping to avoid the draft in Israel, was foiled by the content of her FaceBook page. It established that she did not, in fact, lead the religious lifestyle she professed when seeking an exemption from military service. But anybody can do this, not just the military. Many employers look for this stuff. Lawyers should, as well.

Recently I dug up a FaceBook page by a witness who had "flipped", and was testifying on behalf of the government. My effort was 90% perspiration and 10% luck. (Or maybe that's the other way around.) The witness had nothing on his page that identified him by his actual name, or even by any alias or nickname known to the defense. But he sprinked enough into a comment he made on somebody else's page that I found him. I was brought into the case at a very late date, unfortunately, as I suspect his public page was just the tip of the iceberg - and I really would have liked to have seen the private content of his page, as well as getting his email addresses and following their trail to online email accounts or other sites that may have provided even more information about his activities and schemes. (The witness was demolished on cross, but the defendants were nonetheless convicted.)

If you're a lawyer, you have to look for this stuff - and you have to look early. For that matter, look late as well - if you find FaceBook or MySpace pages, blogs, or similar pages by jurors, see what they write about the case and when they write it. Look for posts by witnesses - in a recent fatal car-pedestrian accident I know about - as a friend of the family, not as a lawyer - a witness poured his heart out onto his blog. Would your trial and discovery prep be improved by having a witness account that is close to contemporaneous?

The Great Equalizer

Consider taking a moment to honor the bar exam.

Judicial "Sacrifice"

Reading through some letters to the editor in the New York Times, I came across this gem:

To the Editor:

After a career in public service, I regretfully say, I would not do it again.

Philosophy and point of view led me to doing good instead of doing well, so I never expected to become rich. But now that I’m in my 10th year of a frozen judicial salary - less than summer students are being paid at law firms - I have concluded that whatever I may have accomplished for the public, I have wasted 25 years of my life by serving on the bench.

Emily Jane Goodman
New York, June 23, 2008

The writer is a New York Supreme Court justice.

A recent article provides more information on the salary situation for justices.

Weighing in on a longstanding tug of war between New York’s jurists and lawmakers, a State Supreme Court justice¹ ordered the Legislature on Wednesday to give the state’s 1,250 judges their first pay raise in 10 years.

The ruling, by Justice Edward H. Lehner, came in response to a lawsuit filed last September by Patricia M. Nuñez of New York City Criminal Court, Michael L. Nenno of Cattaraugus County Family Court, Susan R. Larabee of New York City Family Court and Geoffrey D. Wright of New York City Civil Court. Justice Lehner gave the Legislature 90 days to increase the current salary of $136,700 for all New York State trial judges.

* * *

Mr. Smith, the lawyer for the four judges, said he believed that state judges should earn a salary comparable to that of Federal District Court judges, who currently earn $169,300 annually.

Now I don't want to get into a debate over judicial salaries beyond agreeing that New York's sound like they're on the low side, and ten years without a raise is a long time. But even at $136,700, I find it hard to sympathize with a judge who is upset that she has "wasted 25 years of [her] life" by serving as a judge because she wasn't paid more. If her qualifications approach those of the "summer students" she complains about, she should have been easily able to join a private firm at a vastly larger salary.

So why didn't she get another job? Step down from the bench, join a law firm, and double or triple both her workload and her income? Really - could it be that there's a benefit to a judicial work schedule, vacation time, retirement plan, medical benefits, support staff, job stability and prestige that provides a benefit above and beyond private practice?

When I think of public service legal jobs, judicial positions aren't the first that come to mind. Or even government jobs in general. I first tend to think of legal aid-type jobs that pay a fraction of a judicial salary, can carry oppressive caseloads, and come with virtually no prestige. I don't wish to diminish the important role of the judge in our legal system, and it's important that quality lawyers be drawn to judicial positions. But even when underpaid, judges tend to earn more than the median salary for practitioners, tend to have much more favorable working conditions and job benefits, and can leverage their judicial experience to get back into private practice if they wish to do so. Even a stellar legal aid lawyer is rarely an attractive prospect to most big firms; a judge wishing to return to practice can be a hot commodity.
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1. In New York, the Supreme Court is a trial court with civil and criminal jurisdiction. New York's highest court is the Court of Appeals.

Unethical, Money-Grubbing Opportunists, Or....

Well, take a look at this story about a Manhattan law firm Graubard Miller's legal fees and conduct toward its client, and tell me what the alternative interpretation is.

(I'm willing to assume that the article doesn't tell the whole story - news stories rarely do. But I'm at a bit of a loss to figure out what part of a theoretical "rest of the story" might make me sympathize with the law firm.)