lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Judges and Elections

The lede on this story is that Don Blankenship, the chief executive of a large coal mining company in West Virginia $3 million of his own money on tough advertisements attacking a justice of the State Supreme Court who was seeking re-election. That justice lost and the man who won his seat, Brent D. Benjamin, subsequently refused to recuse himself and cast the deciding vote in 3-to-2 majority that threw out a $50 million jury verdict against Mr. Blankenship’s company, Massey Energy.

My favorite line in the article surely made more sense in whatever context Mr. Blankenship originally meant it, but cracked me up nonetheless:

“When you’ve got to choose between a guy who released a pedophile and a coal executive, it’s a tossup,” he said.

This will be a case worth watching not only for its effect on the willingness of elected judges to recuse themselves but also the ripple effect on judicial campaigns across the country.

MPRE

I will be flexing my ethical muscles today. It won’t be pretty. Anonymous girlfriend duped me into signing up for the MPRE since she enjoys sharing misery. It didn’t occur to me at the time that with my second-half summer course final looming in a week I would be in no mood to brush up on the finer points of conflicts of interest and fee division. That final I can’t retake in November, the MPRE I can. So the extent of my preparation has been flipping through my professional responsibility outline and doing some practice questions I bummed off someone with it enough to do the BarBri session. So off to reap the fruits of my lack of labor…

I have a feeling I’m not alone. Law Ingenue is hallucinating about it. Nontraditional Law Student seems to be taking a healthy approach of fear and motivation. Namby Pamby has an even more active imagination than I do (and reinforces my secret hope that there is such a thing minimally sufficient studying). Jeremy Blachman (anonymous lawyer guy) lays seige to the MPRE with irony (but see Raffi Melkonian). Peanut Butter Burrito has no worries. Western Justice proffers the What Would Jesus Do? method, but doing the opposite, because we’re, you know, thinking like lawyers.

Susan M. Case, the Director of Testing for the National Conference of Bar Examiners, gives us the straight dope in the article The Testing Column: Standards on the MPRE (.pdf) (via the Legal Profession Blog)>, noting that many people believe the standard for passing is higher than it actually is, providing the nugget of hope that “even in the toughest states, one would only need to answer 27 of 50 right on that exam.”

For the November 2005 MPRE, these standards required the following percent correct scores:

75 48% (lowest standard jurisdiction)
77 50%
79 51%
80 52%
85 53% (Texas)
86 54% (highest standard jurisdiction)

A discussion of statistical basis for the scaling model ensues here and here, noting that even the examining boards “don’t really know what score, if any, predicts a career of ethical practice” and that the numbers equate to little more concrete predictors than failure rates – for instance “a score of 85 passes roughly 75% of the takers, a score of 80 passes a little more than 85%, and a score of 75 passes about 90% of all takers.”

Does anyone else find it odd that each state picks its own passing rate to set the baseline for professional ethics? Apparently the appropriate response to arbitrariness is … arbitrariness.

Video: No Legal Recourse

Ah clients, surely legal ethics would be stuck in the stone ages without them.

Texas Lawyers are Ready for Their (Ethics Committee) Close Up

Mary Alice Robbins features the haute couture of lawyer schlock, the YouTube spot, in the Texas Lawyer’s Internet Video Solicitations Need Ad Committee Review, Bar Says. I was planning on taking the opportunity to post a few of my favorites but they’ve scattered like prairie dogs. As of this writing a query against the YouTube database for “texas lawyer” yielded zero hits.

Kim Davey, the State Bar’s spokeswoman, says the Advertising Review Committee began noticing lawyers’ ads on YouTube and similar Web sites within the past six months to a year.

Wow, I guess they’ll be discovering facebook any year now.

Houston’s own Mark Bennett has a cameo –

Houston criminal-defense attorney Mark W. Bennett has broadcast several videos on YouTube since August 2007. But Bennett, a partner in Bennett & Bennett and president of the Harris County Criminal Lawyers Association, says he has not submitted his videos to the Advertising Review Committee. Bennett also says he has not received a letter from the committee reminding him to do so.

Bennett says he considers his YouTube videos to be commentary and informative for the public rather than a solicitation.

“I’ve never put up anything that says, “Hey, if somebody sees this, they will want to hire me,’ ” Bennett says.

One of the Bennett & Bennett videos features Bennett discussing how to avoid being arrested for driving while intoxicated when stopped by a police officer. The toll-free number of Bennett’s firm and its Web site address appear on the screen throughout the video.

Bennett says that before Texas Lawyer called, he had never given any thought to whether he should have submitted the videos to the Advertising Review Committee. But Bennett says he will submit the videos to the committee for review.

“It’s better to be safe than sorry when dealing with the Texas State Bar,” Bennett says. “It’s better to pay.”

But Bennett says he considers the fees charged for such reviews to be just “another money-maker for the State Bar.”

Alas the rules are begrudgingly clear – 7.07 Filing Requirements for Public Advertisements and Written Solicitations requires that

(a) Except as provided in paragraphs (c) and (e) of this Rule, a lawyer shall file with the Advertising Review Committee of the State Bar of Texas, no later than the mailing or sending by any means, including electronic, of a written, audio, audio-visual, digital or other electronic solicitation communication…

While we at the Blawgraphy prefer our First Amendment sunny side up, prior restraint of lawyer speech is a small price to pay for the hallowed and unbesmirched reputation of attorneys in the community as pillars of……. tact.

Only one clause truly gives me pause… lawyers shall provide with their submissions:

(3) a check or money order payable to the State Bar of Texas for the fee set by the Board of Directors. Such fee shall be for the sole purpose of defraying the expense of enforcing the rules related to such solicitations.

Which leads me to the truly frightening apprehension that somewhere in the dark recesses of the state bar offices a person sits in a lonely cubicle (chained to the desk?) whose sole professional occupation is the serious evaluation of lawyer advertisements on YouTube.

… the horror…. the horror….

Lawyers in Flight, Full-Billing Grounded

As I learned in Professional Responsibility this semester, nothing so stimulates the discussion as the subject of lawyers getting paid. The WSJ Law Blog’s Dan Slater piqued the ire of the inner Ayn Rand in hearts of the lawyers commenting below the fold in Traveling But Not Working? Can’t Charge Full Hourly Rate, Court Says – with a woeful tale of travel recompense found wanting:

Caplin & Drysdale was appointed national counsel for the asbestos claimants’ committee in the bankruptcy of Babcock & Wilcox, a maker of boilers and generators. The firm sought about $6.3 million in fees and costs for it services, and charged its full hourly-rate for travel time. The bankruptcy trustee objected to paying the full hourly rate for travel time not spent working, and the bankruptcy judge agreed, awarding attorney’s fees at 50% for those hours — trimming $135,685.80 from Caplin & Drysdale’s tab.

This is interesting mostly because it gives me a chance to vent about the hoary hypo of legal ethics in which a lawyer flies on business for one client, works on the case of another while in the air then charges for both. Spoiler alert – this is unethical.

This case would seem to indicate that not only can you not bill two client’s for the same time, you can’t even bill one client your full rate.

The reality is a bit more pedestrian and unsurprising result as the firm couldn’t be bothered to (1) specify in its employment agreement that it would bill the full hourly rate for non-productive travel time or (2) establish at trial that “comparably skilled practioners” charged the full hourly rate for travel time (feebly arguing that the law firm always does it that way and that the lawyer’s old firm did it that way too) and (3) they had to overcome an abuse of discretion standard on appeal.

Tellingly the court cites Henry v. Webermeier, 738 F.2d 188 (C.A.Wis., 1984) (a Posner opinion, somehow, not sure what he was doing in Cheesehead country), which vacated and remanded a decision in which the district court declined to award expenses and reduced attorneys fees when the plaintiff’s attorneys helpfully established the market rates for southern Wisconsin civil rights trial lawyers by affidavit. There’s a little more to it than that, as Posner goes on –

Moreover, to award nothing for travel time in this case would be unreasonable. As the defendants do not contend that the total number of hours that the plaintiffs’ lawyers put in on the case was excessive, the travel time must have been worthwhile, and the only question therefore is the appropriate billing rate for it. Probably that is the same billing rate as would be appropriate for the other time the lawyers put in on the case. When a lawyer travels for one client he incurs an opportunity cost that is equal to the fee he would have charged that or another client if he had not been traveling. That is why lawyers invariably charge their clients for travel time, and usually at the same rate they charge for other time, except when they are able to bill another client for part of the travel time (a lawyer might do work for client A while flying on an airplane to a meeting with client B). If, though reasonable in terms of the amount of time consumed, the travel is unnecessarily luxurious, the court should not reimburse the plaintiffs for the entire out-of-pocket expenses of travel; but that is a completely separate issue from the hourly billing rate and an issue that the defendants will be entitled to explore on remand. The presumption, which the defendants have not attempted to rebut, should be that a reasonable attorney’s fee includes reasonable travel time billed at the same hourly rate as the lawyer’s normal working time.

The analysis is typically (wonderfully, IMHO) Posnerian, in that it recognizes the appropriate starting point for determining reasonableness is not whether or not it sounds reasonable (what a tiny fraction of litigation would pass that test, I wonder…) but whether, given the alternatives and information available at the time, the lawyers and clients would have agreed to do it all that differently.

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