I just watched a Good Morning America segment on “mommy bloggers,” the point of which is that there are a host of mommies out there blogging away for loot.  Some get free stuff for their kids from, and I quote, “hundreds of companies,” while another held herself out as professional, supporting her family on her blogging income. 

One of the complaints was by a reader, who wanted to know the best stroller, and later realized that the blogger upon whom she relied was a paid shill.  This was offered as the genesis of the FTCs consideration of bringing blogs under their control, to prevent the mommies of the world from promoting goods without disclosing that they are on the dole.

What struck me most was the proud pronouncement that the blogger who was keeping the deliveryman so busy bringing hot new kiddie stuff to her home that she had 2000 readers.  No, they didn’t leave a zero off the end.  Just 2000.

Curiously, this isn’t a problem for lawyer blogs.  At least not for this lawyer blog.

Granted, people send me books to read and review, and the occasional movie.  Of course, as my reviews make clear, there is absolutely no connection between the free book and my take on it.  Whether I love it or hate it, my opinion is never colored by the fact that it’s gratis.

But where are the other perks that are flying out the door to the mommy bloggers?  I’m not getting squat.  Zero.  Zippo. Nada.  Is it me or is it us, lawyers, that hold no interest for those who have great stuff to sell us? 

It seems most likely that it’s me rather than you.  Whenever I go to a meeting or convention, there are always a wealth of vendors trying to entice us to buy their wares, with flashy porn to suck us in to switch from Lexis to Westlaw to Whitney to Lois.  They want our money, and send their people across the country to sell, sell, sell.  They just don’t do it here.

I get a ton of emails trying to get me to promote stuff for free.  For free, they’re interested in me.  It’s borderline idiotic, much like the offers to exchange links with websites offering feminine hygiene products because of the wonderful overlap in our respective audiences.  What possible reason would I have to promote your commercial enterprise?  Either they’re morons or they think I am.  Again, the answer is unfortunately obvious.

It’s often crossed my mind what the same companies that are bent on lawyer hegemony don’t do two things: First, allow blawgers access to their offerings, from Lexis to the various fee-based publications.  I am not going to link to your story if I can’t read it, and I am not going to pay you for access so that I can give you some free advertising. 

Second, you’ve got a lot of nerve sending me your press releases about your new and improved service or product, as if I’m going to post about it, when you haven’t given me your product to use.

Now here’s the downside, and perhaps one of the reasons why you aren’t keeping my mailman busy.  If your product sucks, I will say so in no uncertain terms.  I don’t care how much you love me, or how sweet your love note.  Crap is crap, whether for free or not. 

But the fact that this stuff is flowing freely to the mommy bloggers, while not a drib nor drab is coming to the lawyer blawgers, tells me one more thing.  We are just one sucky market as far as business is concerned.  We’re just not worth the effort.

Two thousand readers?  Sheesh. I would do better to blog about pampers.

Of the many significant rights that our Constitution protects, there is probably none so basic as the freedom to walk down the street without having to explain yourself to an officer of the government and obtain his approval before proceeding on.  Take a walk.  It’s so basic.  Yet the District of Columbia, in its misguided desire to stem “the violence that plagued the Trinidad neighborhood,” decided to take it away.

After an injunction was refused by the district court, the D.C, Circuit, in an opinion in Mills v. District of Columbia by Chief Judge David Sentelle, rejected this abrogation of one of our most fundamental rights, the right to go where we pleased along a public road without having to explain ourselves to the police.

The plan was called the Neighborhood Safety Zone, no doubt because Neighborhood No-Rights Zone sounded unpleasant.  But the court wasn’t fooled.

Dan Hull, the guiding force behind What About Clients?, which subtlety transitions into What About Paris? every weekend, is a lawyer who knows right from wrong.  And he makes no apologies. And he takes no prisoners.

This is the guy who asked the question, why are we paying associates who can’t produce viable work so that law schools can spend three years discussing the Law of Basket Weaving 101.  It seemed to Hull that they ought to be paying firms for the training (and perhaps suing their law schools for fraudulent inducement).

Hull’s blawg has been a consistent award winner and voice for sanity in the blawgosphere, and he’s gone on a new tear against the specter of anonymous comments, proclaiming No Name, No Publish.

Policy: On this blog, the ethos is Step Up: (1) Say Who You Are, and then (2) Say What You Think. We need both bona fides to publish. Exceptions are special needs cases: e.g., CIA undercover operatives, abused housewives, Cuban or Iranian dissidents, ex-hookers who work with severely retarded children, Gen-Ys, or unwed teenage moms, bona fide members of the dreaded Club Ned, and serious non-wimp trailblazers. Garden variety risk-averse lawyer-CPA chickenshits need not apply.**

Paul Lippe jumped in head first when he published his challenge to law schools to pull their collective heads out of their butts when it comes to their failure to turn out viable lawyers after three years of mush in the AmLaw Daily.  Comparing the education provided by law schools to that of medical and business schools, Lippe proclaimed that they have failed to adapt and grow.

Law professors didn’t like what Lippe had to say.

Lippe, borrowing from the currently popular lingo, proclaimed it’s time for Law School 4.0, offered some concrete suggestions:

–An accelerated curriculum, with no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school.

–More practice orientation in teaching, with far more adjunct faculty who are active practitioners (a random e-mail I received yesterday said, “One of the reasons I chose Northwestern for law school is I believe in the type of changes that Dean Van Zandt is trying to make. My favorite instructors were not academics but adjuncts who were successful practicing attorneys.”)

–Better use of technology (both connectivity, like video or Web conferencing, and Web 2.0 social networks) to connect schools and practitioners and clients. Faculty (rightly) hate the notion of students tweeting each other in the classroom, but they can easily rely on professional networking services to connect to actual practitioners who are dealing with the issues discussed in class. In a networked world, the ability to get someone who knows the answer to help you is a far more valuable skill than the ability to hypothesize your own answer.

–-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting–e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?

–A move back to mission-centered management. In a recent meeting with law school deans, I asked, “If you decided the purpose of law school was to maximize the comfort and income of the faculty, what would you do differently?” The answer: “Nothing.” When my wife’s grandfather was a law school dean, it was understood that the law school was there to serve society, the profession, and students–not vice versa.

–A lifetime (or at least ten years) of orientation for skills development for students/alums. While law schools need to figure out how to get graduates out the door faster and for less money, they also are the logical source (although realistically, today, not the most fully competent source) of skills (as well as reputation and network) development for lawyers to become fully functional, especially as firms’ appetite for subsidizing training will decline. Medical schools and business schools make a ton of money at continuing/executive education, so this is a great opportunity to enrich the faculty and student experience, generate an income stream, and engender more alumni loyalty.

1. Lippe repeatedly suggests that medical and business schools have got it right and law schools provide “inferior training.” Oh really? So, when our nation is in the throes of a debate over the runaway costs of health care and the global economy is in a massive recession due largely to the utter largess and indulgence of our big business and investment industries, law schools should emulate medical and business schools? I think not.

2. Lippe goes further, arguing that “law schools will have to produce fully functioning lawyers who can quickly become economically viable–not just proto appellate clerks.” Just like medical and business schools do, right? Wrong. Medical schools do not produce “fully functioning physicians” and business schools do not produce “fully functioning corporate executives.” Medical residencies and corporate ladders are the next training grounds for graduates of those professional schools.

3. Nowhere, for that matter, does Lippe define what a “fully functional lawyer” is. What does Lippe expect law schools to produce? Is it a lawyer equipped out of the box to argue a case in the U.S. Supreme Court? To take the deposition of a Fortune 50 CEO? To negotiate the terms of a major corporate acquisition? Of course not.

4. Part of the problem with Lippe’s pitch in this respect is that he talks about law schools preparing graduates for the “legal profession” as if the legal profession consists exclusively of private law firms and corporate counsel offices, where, if I understand him correctly, the theory and policy of law are irrelevant.

5. Lippe’s central objection with law school faculties is that they “have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say, literature or history), as opposed to a professional pursuit, like, say, medicine or business.” But if one believes there is any value to ensuring that law students learn to think about the “ought” and not just the “is” of law, there has to be an emphasis on the part of the faculty to exploring the “ought” in order to be able competently to teach their students how to do so.

6. Along with his claim that law schools have “have grown more distant from the profession,” Lippe goes so far as to claim that law professors hold law firms “in low regard.”

We must get control of the cost of legal education–it is pricing people of modest means out of the profession and making it near impossible for new law grads to enter public service. We must deliver the skill set that will enable our grads to enter the path to becoming a “fully functional lawyer,” a path that is clearly changing at their feet. And we must continue to ensure that law school is about the law student, not the law faculty.

As much as I hoped to never be compelled to use the word “Slackoisie” again, something new comes to me and the little devil on my left shoulder whispers in my ear, “you can’t ignore this.”  I can’t.

Following some of my past posts on the subject of Gen Ys demands and characteristics, I’ve received a wealth of colorful comments informing me in well-chosen expletives of a few salient details, foremost of which is that I am a blithering idiot and have grossly mischaracterized an entire generation.  While I’m not inclined to support the proposition that there are two sides to every story, I do believe that the Millennial should have the chance to defend and explain themselves. 

My young friend Adrian Dayton has sought to carry the water for his generation, establishing himself as the voice of reason for the unreasonable.  There is now some competition for the job, Meet Edmund Scanlan. 

He’s 32 years old and views his purpose in life to tell American CEOs how to do their job.  He “strongly believes” (as in lawyers who “strenuously object”) that all CEOs should all be on twitter, for example.  He used to believe that everything sounded way cooler if you put 2.0 after it, but no longer believes that since Obama used it to describe the Whitehouse (which makes it uncool by definition). But foremost, he explains why it’s necessary for all of us to “reinvent” the day job.



In case you’re wondering, “hey, is this guy available to take control of my firm and guide us successfully into the future,” the answer unfortunately is no.  He already has a company, called Total Attorneys, dedicated to selling lawyers the road map to work/life balance.  He offers this Slackoisie manifesto:

There was once a time when the small town police force was the norm.  The local fathers (there were no local mothers back then, as they were home baking cherry pies) believed that they were every bit as entitled to control their own destiny as any big city, and part of that control was to make sure that life in their bucolic burg stayed just the way it had always been.

But times change.  And cops cost money.  Relative to other local concerns, cops cost quite a bit of money, as they carry quite a bit of baggage with them, like cars, guns, uniforms, new comfy shoes, black leather belts and communications equipment.  Even the occasional taser on their shiny black leather belts.  Someone has to pay for all this.



For those of a certain age, the memory of Andy Griffith and his aide-de-camp, Barney Fife, reflect both the best and worst of small town police.  On the one hand, they weren’t exactly the paradigm of professionalism, the mere sight of a gun on Barney’s hip being enough to make one wince.  This was not a person who should be allowed within a mile of a weapon, for his own sake if not the rest of us.

On the other hand, the small town police force had the enormous virtue of personal responsibility.  The disconnect between police officer and the community she serves didn’t exist.  Cops were our neighbors and friends.  We talked to them over the barbecue on a warm summer night, just like they were real people.  Because they are, once the uniform comes off and they have a beer in their hand.

It’s far harder to shoot a taser at the 14 year old daughter of the fellow you shared a burger with the day before.  Everyone in town is a person.  You know them.  They know you.  The anonymity that allows a police officer to dehumanize his perp so that he feels neither concern nor remorse for his conduct, whether it’s a show of force or just a lousy attitude, is almost non-existent in the small town police force.  Do something to someone and everyone knows it.  And they will remember it for a long, long time.

This didn’t help the transient passing through a small town, who suffered the twin maladies of being suspect by cop and local alike, and having no humanizing connection to prevent the police from seizing the opportunity to enjoy his authority unconstrained by either humanizing connection or adequate training and oversight.  The tourist passing through might as well have a bulls-eye painted on his back, and did well to mosey along quietly, attracting as little interest as possible.

The small town police force was an important piece of Americana, and will be missed in many ways as they fade into oblivion.  Whether their demise means that we’ve finally come to grips with economies of scale, or the “new professionalism” that Nino keeps dreaming about, I don’t know.  But many will miss the fact that they know they names of their local cops.  And more importantly, that the cops know their names and the names of their children as well.

To the new kids in town, we’re all going to be tourists.

Via Doug Berman, the Williams v. Jones habeas decision out of the 10th Circuit raises a bunch of interesting issues about ineffective assistance of counsel, as well as the cure for the disease.  The set up is that Michael Joe Williams, charged in Oklahoma with first degree murder, is offered a 10 year sentence on a plea to second degree murder before trial. 

Williams wants to cut his losses, but his lawyer, believing Williams to be innocent, refuses to be party to the deal.  The lawyer tells Williams that he will withdraw from the case if Williams wants to pursue the plea.  Williams goes to trial, loses and is sentenced to life without parole.

There was no question as far as either side was concerned that Williams’ lawyer was ineffective, which may come as a surprise for those of you SCOTUS wonks who are thinking to themselves, but what about the Arave v. Hoffman case, with cert granted in 2007??  I know!  Me too!  For those of you who are more wank than wonk, that case was about the defendant being ill-advised by counsel to reject a plea based upon a mistaken interpretation of precedent, who then went to trial and lost.  Unfortunately, the defendant withdrew his IAC claim and it won’t be coming to the Supreme Court.  Bummer.

Here, there was no discussion of the integrity of the attorney’s position, or the potential that the defendant may in fact have been innocent of murder.  The court goes to great length to note that the only question before it is remedy for a conceded IAC claim, even though the IAC claim itself raises some fascinating ethical challenges. 

I’ve addressed these issues in a variety of cases in the past, with the lawyer put to the test of standing idly by while an innocent person lies under oath to admit commission of a crime just to get the deal, and they remain as vexing as ever.  Ultimately, the decision to accept a plea offer belongs exclusively to the defendant, regardless of what the lawyer thinks.  While we are duty-bound to advice the client, as fully and honestly as humanly possible, and without resort to manipulating the client to reach the conclusion we believe to be correct, the decision must always rest with the client, painful as that may be. 

Others, of course, have disagreed with me, and believe that they, as counsel, should exercise a level of control to save the client from themselves.  While conceding that the decision is the defendants by law and ethical proscription, they feel that there is a moral duty to steer the client toward the decision they believe best.  As it’s the defendant, not the lawyer, who lives with the consequences of this crucial decision, I cannot agree that anything beyond the fullest and fairest explanation of the consequences is an appropriate exercise of our persuasive powers.  It’s not our life, and not our choice.

The 9th Circuit, however, limited its decision to the question of whether the remedy provided for the ineffective assistance, reducing the sentence from life without parole to the lowest possible sentence available for the crime for which the defendant stood convicted, life with parole, was proper.  It said no.

In fashioning the appropriate remedy for ineffective assistance of counsel, the remedy “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” We think it axiomatic that the remedy for a properly presented constitutional violation should not be frustrated by the sentencing options available under state law, but rather should be consistent with federal law.

The deficient performance was counsel’s advice concerning the plea agreement—advising Mr. Williams he would be committing perjury by accepting the plea offer and insisting that Mr. Williams proceed to trial or find new counsel if he wanted to accept it. As the OCCA no doubt recognized, the prejudice Mr. Williams identified was that, had he been adequately counseled, there is a reasonable probability that he would have accepted the plea offer and limited his exposure to ten years.

Want to get noticed in the legal blogosphere?

Blog about legal blogging!

Herrmann went off on a frolic and detour (from drug and device law) in a couple of recent posts, first noting that none of the ten firms with the highest profits per partner sponsored blogs and then speculating about why that’s so.

The blogosphere lit up like a Christmas tree!

Zach Lowe, over at AmLawDaily, did the kind of thing that reporters do: He called the managing partners of the high profits-per-partner firms and asked why they didn’t sponsor blogs. Jonathan Schiller, managing partner of Boies Schiller, was blunt: “I think the lawyers here are just too busy,” he says. “I’m too old to blog. I’d rather play golf if I have a bit of free time.”

Here’s a blogging self-assessment quiz:

You’ve just gotten a phone call from a new client who wants to retain you for a new matter that is likely to generate $10,000 in fees. What’s your reaction?

A. “Thank God! Now I have something to do!”

B. “Eureka! If I score another dozen just like this one, it’ll be a banner year!”

C. “Refer it out. It’s not worth doing a conflict check for 10 grand in fees.”

If you answered A or B, blogging may be a great business development tool for you. If you answered C, blogging may yield a far less attractive return on investment.

The government has recommended that a federal judge in Manhattan impose a 145-year sentence on Marc S. Dreier, the prominent New York lawyer who has pleaded guilty to a fraud scheme that bilked hedge funds and other investors out of at least $400 million.

In seeking some measure of leniency we appeal not to sympathy but to reason.  We request a sentence that is both rational and proportionate. As colossal frauds capture national headlines, sentences for while collar offenders must not become disproportionately long.  In many ways, the goals of sentencing as embodied in 18 U.S.C. 3553 (a) have suffered collateral damage in the war on white collar crime.

There are thousands of lawyers in this and other jurisdictions, who are surrounded by the wealth and lifestyles of the clients they serve. Imposing a long term of imprisonment in this case will serve to deter other lawyers who are tempted to steal, cheat or otherwise dishonor their profession to achieve personal wealth.