Archive | Legal Profession

Jim Hannah on “Abandoned Practices” of Dead or Disbarred Lawyers

I spent Thanksgiving weekend in Ohio, where our local paper ran a quite interesting story about the chaos that can ensue for his/her clients when a lawyer dies or is disbarred. If the lawyer is part of a firm, the other lawyers at the firm generally have an obligation to continue the representation; but if the lawyer works alone, there’s nobody automatically designated to take over. Lawyers are encouraged, and sometimes required, to name a “surrogate” lawyer in the case of their death, but like all death-planning this does not always happen, and apparently the surrogates are often not compensated.

Two additional thoughts about the article:

1: It’s nice to see a long, interesting, insightful article by a local journalist. I’d never heard of the author, Jim Hannah, but I’ll be keeping an eye out for his future work.

2: One interesting question is whether there’s a case for state intervention here — either by requiring surrogates to be named (as I gather many states do) or providing state compensation for them (perhaps coming out of bar dues).

The obvious libertarian take is that such a regulation is unnecessary or even counterproductive. The risk that your lawyer will suddenly die or be disabled is one of the risks you take when you retain a solo practitioner, and presumably makes solo practitioners slightly cheaper.

That said, consumer information about lawyers is pretty bad, and the market for lawyers is already so heavily regulated that it may be too late to analyze marginal regulations in pure libertarian terms. (In economic terms this is the problem of the “second best.”) I do think such regulations are probably a bad idea, but I’m not sure I can prove it. […]

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When a “Ridiculous” Argument Is Correct

This morning’s lesson comes from Judge Kethledge of the U.S. Court of Appeals for the Sixth Circuit in Bennett v. State Farm Mutual Insurance Co.  Judge Kethledge’s opinion for the court begins:

There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, “the better practice is usually to lay out the facts and let the court reach its own conclusions.” Big Dipper Entm’t, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir. 2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.

FWIW, the entire opinion is only three-pages.

UPDATE: It’s probably worth quoting the key portion of the opinion:

The question presented is whether Bennett was an “occupant” of the Fusion—as that term is defined by State Farm’s policy—at the time she was on the vehicle’s hood. If she was, then she is entitled to coverage for the injuries she sustained there; if not, then not. . . .

The argument that State Farm calls “ridiculous,” State Farm Br. at 4, is that Bennett was an occupant of the Fusion per the policy’s terms. Under Ohio law, courts construe insurance agreements “in accordance with the same rules as other written contracts.” Hybud Equip. Corp. v. Sphere Drake Ins. Co., 597 N.E.2d 1096, 1102 (Ohio 1992). Here, as a matter of ordinary English usage, one might be skeptical that Bennett was an “occupant” of the Fusion during the time she was on its hood. Occupants are 

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“Average is Over” and The Future of Lawyers

I’ve just finished reading, and rather enjoyed, Tyler Cowen’s latest book: Average is Over. At a macro level, it is a claim about the dramatic changes we can expect in the economy and our society over the next century. But it has a lot of strange side discussions I wasn’t really expecting. I still can’t figure out if it is utopian or dystopian.

In any event, much of the book is sort of about “how to get a good job” and “what kids today should be doing” and I thought readers would be interested in what Cowen had to say about legal education and the legal job market.

First there was this:

So a young person gets a good education and is deciding what to do with it. Why are so many of these people going into finance, law, and consulting?

There is a common impression — by no means illusory — that smart young people from top schools can walk into high-paying jobs in these areas with relative ease, even if they don’t have much or indeed any real-world experience. They start at salaries above the US median household income, and very quickly many of them are earning above six figures. . . . Beneath all the chatter is a sense that these salaries are possibly unmerited or unjust, because, to repeat an expression I used to hear from my father (he was a businessman of the old school): “I wouldn’t trust him in charge of a candy store.” If you took a few of these same young workers out of the consulting firm and put them on a factory floor, they probably would be lost. They do seem to be an impractical bunch. . . .

These freshly minted students will seek out jobs that rewards a

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SCIL Loses First Amendment Challenge to Bar Passage Disclosure Requirement

As I noted here, the Southern California Institute of Law sought to challenge a requirement that it disclose the bar passage rate of its graduates.  The San Francisco Chronicle reports that the judge was not too impressed with this argument. SCIL’s attorney says the school may appeal.  More from the WSJ Law Blog and ABA Journal. […]

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Law School Applications Continue to Drop

Law school applications are down 18 percent and the number of applicants is down 12 percent. Paul Caron has details here. Relatedly, the LA Times reports on shrinking law school class sizes at California schools. Most schools face a stark choice between shrinking the size of incoming classes and lowering admission standards. In the coming months we’ll all learn more about the choices different schools have made.

UPDATE: The greatest drop in law school applications comes from graduates of top colleges. […]

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The “New Normal” in the Legal Profession

UNC’s Bernard Burk has an interesting new paper on changes to the legal profession and legal job market, “What’s New About the New Normal: The Evolving Market for New Lawyers in the 21st Century.” Here’s the abstract:

Everyone agrees that job prospects for many new law graduates have been poor for the last several years; there is rather less consensus on whether, when, how or why that may change. This article analyzes historical and current trends in the job market for new lawyers in an effort to predict how that market may evolve.

The article derives quantitative measurements of the proportion of law graduates over the last thirty years who have obtained initial employment for which law school serves as rational substantive preparation (“Law Jobs”). In comparing entry-level hiring patterns since 2008 with those in earlier periods, a significant development emerges: While other sectors of the market for new lawyers have changed only modestly during the Great Recession, one sector — the larger private law firms colloquially known as “BigLaw” — has contracted six times as much as all the others. Though BigLaw hiring has historically accounted for only 10%-20% of each graduating class, it is responsible for over half the entry-level Law Jobs lost since 2008.

While some observers predict a return to business as usual as the economy recovers, this article is skeptical of that account. The article identifies significant structural changes in the way that the services traditionally provided by BigLaw are being produced, staffed and priced that diminish BigLaw’s need for junior lawyers both immediately and in the longer term. These observations suggest that entry-level BigLaw hiring, and thus the market for new lawyers overall, will remain depressed below pre-recession levels well after demand for the services BigLaw has traditionally provided recovers. At the same time,

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California Law School Claims First Amendment Right Not to Report Bar Passage Rates

The WSJ Law Blog reports that the Southern California Institute of Law claims that it cannot be required to disclose the bar passage rate of its graduates as a condition of accreditation. Such a requirement, SCIL claims, runs afoul of the First Amendment.

Southern California Institute of Law is suing bar association officials for requiring that it include information on its website advising students where they can view exam passage rates online.

The school argues — in a federal lawsuit filed February — that the rule infringes on its speech rights. It claims that it forces them to endorse the notion that a school’s exam passage rate reflects the quality of its legal education. SCIL thinks one has nothing to do with the other.

“[D]efendants have no right to foist their ideology onto SCIL and compel it to refer or disclose bar passage rates of its graduates,” the school stated in a legal brief last week. . . .

None of the 43 SCIL graduates who took the 2012 California Bar Examination passed, according to state data. Over the course of a dozen test cycles between 2007 and 2012, SCIL graduates failed 93% of the time, the defendants claim.

“There are good years, and there are bad years when it comes to bar passage,” said SCIL’s attorney, George Shohet. “It’s not something that the school can control.” He said going to law school and passing the bar require “different skill sets.”

Note that SCIL is not objecting to a particularly detailed dislcosure. Rather, according to the above report, it objects to having to post the following statement on its accreditation page:

For information relating to bar pass rates, on this school and other CBE-accredited law schools you may consult http://admissions.calbar.ca.gov/Examinations/Statistics.aspx

Hat tip: Paul Caron . […]

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Sixth Circuit Affirms Dismissal of Suit Against Cooley Law

Today, in MacDonald v. Thomas M. Cooley Law School, the U.S. Court of Appeals for the SIxth Circuit affirmed the dismissal of a suit by several former students at the Thomas M. Cooley Law School. Here’s the court’s summary of its opinion.

The plaintiffs, twelve graduates of the Thomas M. Cooley Law School, sued their alma mater in district court, alleging that the school disseminated false employment statistics which misled them into deciding to attend Cooley. The graduates relied on these statistics as assurances that they would obtain full-time attorney jobs after graduating. But the statistics portrayed their postgraduation employment prospects as far more sanguine than they turned out to be. After graduation, the Cooley graduates did not secure the kind of employment the statistics advertised—or in some cases any employment at all. They claimed that, had they known their true—dismal—employment prospects, they would not have attended Cooley—or would have paid less tuition. Because their Cooley degrees turned out not to be worth what Cooley advertised them to be, they have sought, among other relief, partial reimbursement of tuition, which they have estimated for the class would be $300,000,000. But because the Michigan Consumer Protection Act does not apply to this case’s facts, because the graduates’ complaint shows that one of the statistics on which they relied was objectively true, and because their reliance on the statistics was unreasonable, we AFFIRM the district court’s judgment dismissing their complaint for failure to state any claim upon which it could grant relief.

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Debating the Value of a Law Degree

The new study by Michael Simkovic and Frank McIntyre estimating the value of a law degree has sparked a substantial amount of debate and commentary, as I noted here and here. Most recently, WUSTL’s Brian Tamanaha, author of Failing Law Schools, went after the study on Balkinization arguing it systematically overstates the value of a law degree and understates the risk of assuming debt to obtain a law degree. Simkovic has responded forcefully against Tamanaha’s “straw men,” here and here. John Steele, Frank Pasquale and Stephen Diamond also have comments on the exchange.  I am quite certain there will is more to come.

UPDATE: There are more entries in the debate. One from Tamanaha, another from Simkovic. Pasquale also comments again here.

UPDATE: Simkovic has yet another post respnding to Tamanaha’s critiques here.

THIRD UPDATE: Another round from Simkovic and Tamanaha. […]

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More on the Value of a Law Degree

Following up on his posts at Concurring Opinions discussing his study (with Frank McIntyre) attempting to measure the value of a law degree, Michael Simkovic rounds up the commentary and critiques of the study on Leiter’s Law School Reports. I noted prior coverage of the study here, and Paul Caron rounds up some additional coverage here. […]

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On the Value of a Law Degree

In the NYT‘s Dealbook column, Ohio State’s Steven Davidoff discusses a new study, “The Economic Value of a Law Degree,” by Michael Simkovic and Frank McIntyre. This study purports to show that a law degree remains a good investment for many people. Here is the study’s abstract:

Legal academics and journalists have marshaled statistics purporting to show that enrolling in law school is irrational. We investigate the economic value of a law degree and find the opposite: given current tuition levels, the median and even 25th percentile annual earnings premiums justify enrollment. For most law school graduates, the net present value of a law degree typically exceeds its cost by hundreds of thousands of dollars.

We improve upon previous studies by tracking lifetime earnings of a large sample of law degree holders. Previous studies focused on starting salaries, generic professional degree holders, or the subset of law degree holders who practice law. We also include unemployment and disability risk rather than assume continuous full time employment.

After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historic norms.

We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

A PowerPoint file highlighting the study’s findings is available here, and co-author Michael Simkovic is blogging about the study and the debate it has triggered at Concurring Opinions. Davidoff’s column also discusses what the study does and does not show.

A one might expect, this study has provoked quite a bit of response. ATL’s Elie Mystal calls it […]

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Advice to Lawyers (Which Seems Surprisingly Necessary): Don’t Use Vulgarities in Court

From In re Foster (N.C. Ct. App. May 21, 2013) (nonprecedential):

The State’s evidence tended to show the following facts. On the evening of 5 November 2011, a Saturday, defendant entered the Buncombe County Detention Facility and went to an area designated by sign as a “Magistrate Court.” Defendant told the magistrate on duty that she was an attorney, was present on behalf of some Occupy Ashville protestors, and then asked, “‘What the hell is going on around here?’” The magistrate told defendant to “watch her language” and stated that, as an attorney, defendant should know not to curse in a courtroom.

Defendant proceeded to request a list of names of individuals for whom warrants had been issued in connection with a protest march. The magistrate declined to give defendant the names, but said she could check whether defendant had an active warrant. After defendant requested she do so, the magistrate told defendant that she did not have an active warrant. Defendant then stated: “‘What the fuck is going on around here?’” The magistrate again warned defendant not to curse in the courtroom and asked defendant to leave.

In response, defendant stated, “‘Oh, yeah, I said “fuck,” “This is fucking ridiculous,” and “This is fucking crazy.”‘” In total, defendant made approximately five statements containing the word “fuck.” After the third or fourth time defendant said “fuck,” the magistrate “informed her that [the magistrate] was going to hold her in contempt.” Defendant continued cursing and walked towards the door. Although the magistrate told defendant to stop and return because she had been held in contempt, defendant exited the office.

Foster’s contempt conviction was reversed on procedural grounds, but it’s pretty clear that the court viewed her conduct dimly:

We are, however, very troubled by defendant’s use of profanity in the

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A Cautionary Tale for Young Lawyers

Prof. Dennis Crouch, at the respected and often-cited Patently-O blog, had a post several weeks ago with a heading that was good advice, Don’t Write This Letter to the Patent Office:

We all get frustrated. After an examiner rejected his client’s application for a telescoping tripod sprinkler, patent attorney Andrew Schroeder could no longer resist and filed the following remarks:

REMARKS: Are you drunk? No, seriously…are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are… (I don’t want to say the “R” word) “Special.”

Numerous examples abound in terms of this particular Examiner not following the law. Clearly, the combination of references would render the final product to be inoperable for its intended use. However, for this Special Needs Examiner, logic just doesn’t cut it. It is manifestly clear that this Examiner has a huge financial incentive to reject patent applications so he gets a nice Christmas bonus at the end of the year. When in doubt, reject right?

Since when did the USPTO become a post World War II jobs program? What’s the point of hiring 2,000 additional examiners when 2,000 rubber stamps would suffice just fine? So, tell me something Corky…what would it take for a patent application to be approved? Do we have to write patent applications in crayon? Does a patent application have to come with some sort of pop-up book? Do you have to be a family member or some big law firm who incentivizes you with some other special deal?

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A Cautionary Tale About Driving and Bar Fitness

Law students thinking ahead about not just passing the bar exam, but also the fitness and character requirements might take a lesson from a former student of mine.  He contacted me with some alarm a few days ago to tell me that the Virginia bar committee that has to approve fitness and character of applicants had expressed concern in his case on account of a large number of traffic citations.  Not unpaid tickets or parking tickets, or anything as serious as a DUI – simple speeding, in nearly all cases caught by automatic cameras in DC.  How many?  Nine in the past 18 months – he says many for the same stretch of DC road caught in the middle of the night by automatic radar/camera.

I don’t think this will cause him problems in the end, but it’s not something one wants to have a discussion about with the bar fitness and character committee either.  I’m submitting a special character reference about his general sense of responsibility and law-abiding nature.  Anyway, word of caution to law students looking down the road to getting sworn in.  (At least until self-driving cars take over DC roads and remove temptation; some commentators see a future in which insurance companies give lower rates to self-driving car users, precisely to remove these kinds of issues, once the insurers conclude that on balance the robot car is safer.) […]

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Epstein on The Lawyer Bubble

Richard Epstein reviews Steven Harper’s The Lawyer Bubble: A Profession in Crisis in today’s WSJ. The review begins:

Law schools are under siege. Applications have dropped to around 54,000 annually, from around 100,000 in 2004. First-year enrollment has slipped to under 40,000 students, from 50,000 in 2010. Jobs are scarce—especially for students coming from lower-tier law schools. The average annual tuition has risen to just over $40,000 per year, from about $23,000 in 2001. Average debt on graduation has followed suit, jumping to about $125,000 in 2011, from $70,000 in 2001. No wonder many experts expect perhaps a dozen schools to close their doors within a year while other schools slash their class size, faculty and staff to stay open.

Meanwhile “Big Law”—the largest 200 or so law firms, which serve elite corporate clients in major urban areas—are under stress. Firm size has topped out, and both partnership shares and entry salaries are treading water at best. Clients now scour bills and disallow certain fees. Alternative, transaction-based fee arrangements are now more common. Competition has replaced cushy long-term relationships.

Terrible news, for sure. But is the “Profession in Crisis,” as the subtitle of Stephen J. Harper’s “The Lawyer Bubble” has it? The answer is no. A bubble may have burst, but not for the high end of the profession or for the thousands of attorneys working in specialized niches. Mr. Harper, a former partner at Kirkland & Ellis, a 1,500-lawyer global firm headquartered in Chicago, and an adjunct at Northwestern University Law School, takes undue pride in chronicling how the mighty have fallen. But he misses how they may rise again.

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