Tag Archives: ABA

ABA Adopts Disputed Antidiscrimination Rule: The Law Finally Catches Up To Businesses It Represents

A new ethics rule by the American Bar Association (A.B.A.) sounds more like a satirical headline than a legitimate news article: “The [A.B.A.] says it is professional misconduct to discriminate against or harass opposing counsel, or anyone else for that matter, in the course of practicing law,” writes The New York Times and not, surprisingly, the Onion.

“It is time for the A.B.A. to catch up,” Myles Lynk, chair of the A.B.A.’s ethics committee, said during debate over the rule Monday (via the WSJ Law Blog).

The “new” ethics rule now prevents comments or actions that single out a person based on race, religion, sex, disability or other factors (duh!). Although almost two dozen U.S. State bars, including the District of Columbia, have already enacted such a rule, there was never a national ban on such behavior.

Without a strict rule prohibiting demeaning and misogynist behavior or parlance, it has been easy for opposing counsel or others in the legal profession to use it as an intimidation tactic with zero to no consequences.

“I got the pat on the head,” Jenny Waters, chief executive of the National Association of Women Lawyers, explained to The New York Times earlier this month, discussing a memorable incident while working in private practice (via the Huffington Post). Other attorneys also spoke of receiving “grating” remarks or being victims of demeaning actions, such as having an arm draped around their shoulders.

Shocking as it may seem, the rule has been controversial, igniting debate in the legal industry for months. Some claim the rule limits a lawyer’s personal freedom to practice law as he sees fit. But, to most, the rule was long overdue—now limiting hackneyed “honeys” and “darlings” to courtroom dramas, rather than courtrooms.

“I think it’s absolutely shameless that as lawyers we’re not the model for how businesses should run,” New York lawyer Wendi Lazar told the Wall Street Journal a few months earlier.

Nevertheless, opponents of the rule were able to dampen the language of the original text; in the end, the rule only applies where “the lawyer knows or reasonably should know [behavior] is harassment or discrimination,” which is a demonstratively weaker version than the original, reports the WSJ Law Blog.

Luckily, the rule still spells out what constitutes sexual harassment and which settings are included in this when it comes to practicing law. For example, settings include the courtroom, as well as “interacting with witnesses, co-workers, court personnel, lawyers and others” and “managing a law practice or law firm” or “participating in bar association, business or social activities in connection with the practice of law.”

On that, there seems to be no debate.

“Half my students are women. A quarter are students of color,” legal ethics expert Stephen Gillers, of New York University School of Law, told the Wall Street Journal (via the Huffington Post).

“The ABA has looked to them like an organization of old white guys. This vote will help.”

Let’s hope so. It’s about time.

-WB

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Legal Competition To Rise After ABA Considers Foreign Accreditation

The economy for job-seeking lawyers is already dire. Now, it’s about to get worse.

Today, at the annual ABA meeting in Chicago, the Section of Legal Education and Admission to the Bar is ready to review whether or not to begin accreditation of overseas law schools, reports the National Law Journal.

A panel of law professors, deans, judges, and attorneys already recommended that the council expand its accreditation power to those foreign schools following the U.S. model.

One such university—the Peking University in China—aims to be the first to seek accreditation by the U.S. The university wrote a letter to the council that read, “The decision the Council will make is of great importance not only to [the Peking University]…”

“It will determine whether American legal education can be a global model or whether other countries will turn elsewhere.”

Peking Law classes are conducted in English and in Chinese, which was part of the university founder’s plan—former University of Michigan Law School dean, Jeffrey Lehman—to bring American-style legal education abroad. And, Peking Law is not alone.

But, these schools seeking accreditation are not alone in the debate, either. In addition to ample support, the idea has garnered much disapproval from U.S. law students, deans, judges, and bar officials.

After the ABA surveyed 645 relevant professionals, it found that most critics worried that (1) the developing accreditation standards and monitoring overseas wouldn’t be stringent or financially possible; (2) foreign legal education would not include the ethical and cultural nuances of the American system necessary for accreditation; and (3) ABA resources would be reallocated away from U.S. law schools.

“In addition, many respondents, primarily students, raised concerns about the impact of expansion of the Accreditation Project would have on the employment opportunities for U.S. law graduates,” wrote an executive summary of the public responses, according to the National Law Journal.

In the past, lawyers only had to compete nationally for jobs. Now, it seems attorneys may need to watch out for overseas resumes bringing tumultuous competition to an already stormy industry market.

The question for law firms is: Will this have an impact on your hiring practices?

Do you consider it an asset to have an American-trained, but native Chinese speaker represent your law firm during our increasingly globalized world of corporate litigation?

The economic recession has already made it clear that the U.S. market for law is supersaturated with qualified attorneys. What happens to the market for post-grads when foreign law schools are accredited?

Luckily for American lawyers, this issue has been debated since 2008 and a council decision twice delayed. So, while it may be a valid issue, it’s just not one that seems to be on the ABA’s priority list…. yet.

-WB

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Sick of New Year’s Resolutions? Add The ABA Power Of Attorney Health Care Guide To Your 2012

Sick of New Year’s resolutions yet?

This time of year, suggestions for lifestyle changes toward a healthier, happier home compose the majority of individuals’ New Year’s resolutions. Losing weight, getting fit, and joining a gym are among a person’s top ten goals for 2012.

Unfortunately, fewer than half of people stick to these resolutions.

It may explain why obesity is still prevalent in the U.S. And, why one survey, according to the CDC, found that around 30 percent of adults are sleep deprived—getting six or less hours of sleep at night—which can cause a variety of health problems. For lawyers, this is certainly not news.

In the ideal world, 2012 would be filled with joy and good health. Sadly, life and illness can be unpredictable.

That’s why—just in time for the holiday season—the American Bar Association (ABA) Commission on Law and Aging released a new publication that provides a simple, durable power of attorney for health care. This free publication meets the legal requirements of all but five U.S States.

The nuances of State laws make it difficult to create an overarching handbook, but the ABA’s guidelines are surprisingly applicable to every State except Indiana, New Hampshire, Ohio, Texas and Wisconsin.

“The ‘bare bones’ approach provides solely for the appointment of a health care agent with broad decision-making authority,” explains the ABA.

The publication, titled, Giving Someone a Power of Attorney for Your Health Care: A Guide with an Easy-to-Use Legal Form for All Adults, is available in English and Spanish.

The new guide gives individuals three, simple directives:

1. Think carefully about whom you want as your health care agent;
2. Provide guidance for the agent to make treatment decisions for you; and
3.Fill out the form and sign in the presence of two witnesses.

So, this year, instead of celebrating with chocolate and champagne, ring in the New Year at your law firm with a more responsible handout. Advise your employees to complete the ABA’s new form, available here online.

The publication may be “bare bones,” but there’s no need to also attach a skull and cross bones. Thinking about your health shouldn’t ruin your holiday spirit. As law firm administrator, give your employees a discount to the neighborhood gym or a gift card to a natural foods grocery store in addition to the ABA guide.

Giving someone a Power of Attorney for health care should be both a chilling reality and cheerful source of positive energy.

Have a happy, healthy New Year!

-WB

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How To Do Your Online Shopping Due Diligence

­Black Friday came and went. For those people who did not fulfill their gift list, the next few weeks will be dedicated to window browsing, valet parking lines at shopping malls, and waiting in long, hectic holiday queues.

Or, for time-pressed lawyers, online shopping during their lunch hour.

In fact, the number of people who shop online has been steadily increasing. At least 38 percent of consumers shop online at least once a month, according to J.P. Morgan senior analyst Imran Kahn and his annual report (via TechCrunch). With the upcoming holidays, this number will undoubtedly grow.

According to Kahn’s forecasts, e-commerce revenue will grow to $680 billion worldwide, and increase of 18.9 percent from 2010. Online retail commerce in the U.S. alone will grow 13.2 percent to $187 billion, according to the same report.

In light of these trends, consumer law experts at the ABA have put together a list of safety tips for buying products online. It’s especially important to practice safe online shopping to avoid viruses when installing software, to prevent identity theft, and to protect yourself when making e-payments.

The ABA’s tips include the following:

Passwords. Your passwords should be unique for each site you frequent. Create passwords that consist of a mix of at least five letters, numbers and punctuation marks, and avoid obvious combinations such as your name and birthday.”

This is a good reminder to keep a unique password for your computer and phone. Be sure that you use different passwords for each online shopping site and gadget; in the event one gets compromised, you won’t have to worry about all of them.

Also, do not keep a list of all your different passwords on your computer. If you must, write them down on a piece of paper and keep them in a safe at your home.

Online Shopping. Verify that the shopping site is safe.  Look for at least one of the following:

  • An icon of an unbroken key or closed lock in your browser window.
  • Either one indicates that security is operative.
  • A broken key or open lock indicates that the site is not secure.
  • A web address beginning with “https” on the page that asks for your credit card information, instead of ‘http.’
  • The words “Secure Sockets Layer” or a pop-up box indicating that you are entering a secure area.”

These days, a person can hack into your computer remotely. It’s important to pay attention to the site on which you are surfing. Because a good portion of online shopping may occur form a work computer, any breach of security during an online shopping session may have profound negative consequences in terms of confidentiality breaches for the firm.

Firm administrators should ensure its IT Department has tightly honed its security measures this month, in anticipation of online shopping cheer and to avoid holiday workplace tears.

Telephone Shopping. If you give your credit card information to a store representative over the phone, write down the name and work ID of the person you spoke with, the phone number you called, the time of the conversation and the name of the company.”

Online shopping is no different than gathering facts for a legal case. The more information gathered, the more rock-hard the evidence. So don’t be afraid to keep a folder at work or at home with print-out receipts of all transactions. And, write down the date and time for each purchase. Check that your credit card statements match your notes at the end of the month.

Doing your due diligence during the holidays is as important to your own well-being as to your firm’s.

To read more tips from the ABA, go here.

-WB

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Value Billing Saves Lawyers and Clients Headaches and Overheads

The problem with federal and state budget cuts within the legal system is that these measures eliminate not only the costs associated with court systems, but also the much-needed justice that comes with them.

Today, Thomson Reuters reports on some alarming statistics: During the past three years, 42 states have cut their judicial budgets, with some decreasing budgets by as much as 12 percent. Over two-thirds of states have fired court employees and even more aren’t hiring to fill clerk vacancies. Finally, an astounding 23 states have curtailed their court operating hours,reports Joseph Schuman for Thomson Reuters (TR).

As a result of these disturbing trends, the ABA has set up aTask Force on the Preservation of the Justice System led by David Boies and Theodore Olson.

“There has not been a natural constituency for the justice system,” David Boies, managing partner with Boies, Schiller & Flexner LLP, explained to the Times (via TR).

“We are now at the point where funding failures are notmerely causing inconvenience, annoyances and burdens; the current funding failures are resulting in the failure to deliver basic justice.”

The other half of the court system—lawyers and their firm—is facing similar funding failures and all the inconveniences, annoyances, and burdens that come with it. Within firms, budget deficiencies threaten the foundation on which lawyers have based their practice—seeking justice forthe common man, winning cases as well as the respect of their peers andclients.

Instead of justice, attorneys fees have become the center of attorney-client relationships. Hourly billing during a recession has caused firmmanagers daily headaches, with clients pushing for lower legal fees and firms fighting to keep higher profit margins.

Attorneys spend a noticeable amount of time fixing their timesheets and writing work descriptions in order to stay accountable to new, more stringent requirements by their clients. Even then, hours are cut to please courts and clients alike.

“[I remember when] lawyers had relationships with clients: If there was an issue with the bill, we’d sit down and talk about it,” ABA President Stephen N. Zack said to the ABA Now.

Today, too many attorney-client disagreements result from confusion over billing. “Both in-house and outside counsel hate the billable hour. It hurts relationships,” lamented Joseph K. West, associate generalcounsel, Walmart, to the ABA Now.

Budget cuts and economic inefficiency caused the Morrow County Municipal Court in Ohio—just one of many courts—to limit its hours to a four-day workweek, reported TR. Firms may be the next cog to collapse within the legal system. So, instead of shutting down under fiscal pressure, law firms should start looking to the past and adapt.

“I remember when lawyers billed for legal services rendered,” Zack exaplained to the ABA Now. And that’s exactly what firms are re-initiation today.

Fixed fees, flat fees, and success fees, are just a few names for what is known as “value billing.” Value billing is a flat rate forwork for the year. This billing scheme frees lawyers and firms from recording billable hours and allows attorneys to go back to the basics, focusing on client relationships, winning cases, and making meaningful impacts on the industry of law.

“We became lawyers because we’re passionate about justice,we want to be liked and respected, and we enjoy winning,” Boies said to the ABA Now.  “Value billing feeds all of those reasons.”

The ABA points out that value billing also provides anopportunity for firms to gain expertise in areas in which they may not be know n s specialists. For example, “If a corporation has a flat fee for a year, a firm can go the company and say, ‘You’re already paying us, you might as well use us,’” explained Boies to the ABA Now.

When a client is tempted to hire another firm for specialized services, value billing keeps that business in-house. Corporations won’t lose a dime with a flat-fee structure, and your firm is given the opportunity to show off and develop its diversified services.

Finally, flat fee arrangements allow lawyers to recalibrate their priorities and return to a love of the law and a passion for justice.

Don’t let 10-minute increments of billable time lead to the demise of a firm you worked 10 years or more to build.

-WB

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Will A Question Mark in Your Law Review Article Title Get It Published?

A lot of cyberbuzz is stirring today about an article written in The Guardian regarding the format of academic journal article titles and whether or not certain punctuation leads to more downloads and citations of the writing (read here and here).

A recent study shows that the titles of academic papers do, in fact, impact their rate of citation and download.

There are three major findings to the study, published in Scientometrics:

  • Articles with question marks in the titles tended to be downloaded more but cited less.
  • Articles with longer titles were downloaded slightly less than the articles with shorter titles.
  • Article with long titles containing a colon had fewer downloads and fewer citations.   

A lawyer can certainly extrapolate reasons for why these conclusions may hold true. For example, articles with question marks in the titles may be more provocative, leading to more downloads. But, perhaps articles with question marks in the title are also more editorial in nature, leading to less citation.

Lincoln Was Self-Taught . . . So Why Go To Law School?” is an interesting title leading to a controversial article of limited scientific fact, for example.

In addition, article titles that are more succinct reveal their subject matter more readily, thus appeal to inquiring minds. So, it is understandable that articles with shorter titles would be downloaded at higher rates.

While the study certainly sheds light on strategies to increase the readership of an attorney’s academic writing, lawyers looking to publish work in Law Reviews or similar legal journals should read another message between the printed lines.

Successful legal writers have done significant legal reading.

That is to say, if you want to be an expert at a task—whether that be research, analysis, or writing—it’s vital to put in the time and practice.

So, renew that subscription to the Administrative Law Review or even the ABA Journal. These publications are essential for a continued, comprehensive knowledge of your practice area. But, also, these academic sources (and their over-punctuated titles) mark the first step toward publishing pertinent research of your own.

The best way to have an article published, read, and cited, is to have 10,000-hours of expertise and to be familiar with the competition.

-WB

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Beware Of Blogging: Virginia State Bar’s Message To Attorneys Via Surprising Misconduct Charge

Considering a blog site for your law firm? Perhaps you should check with your State Bar first.

In one of the first cases of its kind, the Virginia State Bar has brought a misconduct charge against a criminal defense attorney in the state for blogging about cases on which he has worked.

The State Bar alleges that Richmond criminal defense attorney Horace Hunter is using his firm’s blog site for advertising, read the full charge here. Hunter counter-argues that his articles consist of news and commentary, read his blog here.

Does Virginia’s charge violate Hunter’s rights to free speech? Or, are lawyers using firm blogs to get around the ethical and legal requirements of advertising?

In light of the economic recession, lawyers are looking to improve their practice and attract new clients through a variety of social media. Articles advising firms to open Twitter accounts, Facebook pages, and blog sites are abound.

And, for good reason.

In 2011, four out of five American businesses with 100 or more employees use social media marketing, according to research conducted by eMarketer. That’s a significant increase from 2008 when a mere 42 percent of companies marketed via social media, reports the same source.

So, businesses are using social media, like Twitter, Facebook, LinkedIn, and Blogger, both to seek customers and to also find appropriate legal representation. Law firms, for their turn, are competing with one another to sign as many corporate clients as possible.  

Standing out in a technology-driven crowd can be difficult for law firms. Impossible for those behind the digital times.

But, at least one State Bar is sending a message to its attorneys that ethical and legal rules about advertising your firm still apply in the blogosphere, reports The Washington Post.

Except discussing cases—even your own—has been a longstanding tradition for lawyers nationwide. Usually it’s done in speeches, post-courtroom press talks, or newspaper interviews.

Are blog posts any different?

“If the Virginia Bar believes that blogs that discuss news and commentary should have stringent disclaimers that precede the content because they are deemed to be advertisements, then the Virginia Bar may have to require that every blog post, blog comments on other blogs and other user-generated content by an attorney to contain a strict disclaimer,” Brad Shear, a Bethesda attorney specializing in social media law, said to The Washington Post.

“It becomes a slippery slope.”

 

Whatever your opinion on this matter, it’s important to understand the risks of creating a blog for your firm.

If you decided to do so, protect your firm via the following four steps:

  1. Create a disclaimer on the “About” page or at the end of each post; 
  2. Get written consent from your clients to discuss their cases on the blog;
  3. Implement an internal Social Media Policy for your firm; and 
  4. Remember Nicole Black, attorney and author of Social Media for Lawyers: The Next Frontier, a good rule of thumb is “if you can’t do it off-line, you can’t do it online.”

-WB

 

For more information, attend C4CM’s course, “Social Media Policy Dos and Don’ts: Employees, Networking Sites and the Law.”

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