Sunday, October 23, 2011

Public defender pay lags behind other state lawyers

Attorneys who get their first job out of college with the state generally start at $40,000 a year, but if you’re in the Office of the Public Defender, the chance to increase your pay with experience is less than those of other government lawyers, a survey of salaries showed last year.

Also, the public-defender system, when it has to hire outside lawyer on contract, pays them $60 an hour - considerably less than the $165 hourly rate paid by the federal government to lawyers hired to defend indigent criminal defendants.

These discrepancies are one thing that officials with Montana's public-defender system mention when they say it lacks adequate resources.

They also say the system, which has about 115 lawyers and 20 investigators to cover the entire state, may need more personnel to meet the demands of representing poor people in criminal and family law cases, as dictated by the Legislature.

Fritz Gillespie, a Helena lawyer who chairs the Public Defender Commission that oversees the system, says attorneys who head regional offices may have to shed some of their caseload, to respond to criticism that the system needs more active management.

"But where are we going to put their caseloads?" he asks. "If we don't have the funding to put more people on the job, then that just increases the stress and pressure on the line attorneys."

The American Civil Liberties Union (ACLU) of Montana issued a report on the system this week, highlighting widespread problems, including overworked and undertrained attorneys with unduly high caseloads.

The system's attorneys earn anywhere from $40,000 to $71,400 a year, depending on experience. Except for the starting salary, Gillespie says that level is about $4,000 to $7,000 less than attorneys in other government agencies can make.

The system has a $23 million budget this year, an increase of about $3 million over last year.

Sen. Jim Shockley, R-Victor, who sponsored a 2011 bill that limited the caseload for the system's top managers, says he might support more funding for the system - but not until it "got their act together" on management flaws noted in the ACLU report and an earlier report.

He also says the system should make more of an effort to collect at least some payment from clients, who, while poor, sometimes can afford minimal fees.

By Mike Dennison, Gazette State Bureau

Source: Billings Gazette

Justice Department lawyers irked by plans to close offices

Dozens of career antitrust lawyers at the Justice Department are likely to quit if the department goes through with plans to close four regional offices, according to several of the attorneys.

Officials this month announced plans to close four regional offices of the department’s antitrust division, in Atlanta, Cleveland, Dallas and Philadelphia, and to move 94 attorneys and support staff members to offices in Chicago, New York, San Francisco and division headquarters in Washington. The plans would allow the department to consolidate operations and focus on larger criminal investigations, and department officials said they would pay to relocate the attorneys and support staffers willing to move.

But career antitrust lawyers affected by the plans said they were caught off guard, and they think the plans will result in de facto layoffs as colleagues decide to quit because they are unable or unwilling to move to another city.

"There aren't a lot of people who've been with the division a long time who can pick up and move," said an antitrust attorney based in the Philadelphia office. "Many people have families and spouses with jobs where they're already located. And there's no assurances that in two years there won't be further cuts, and then we'll lose a job we picked up and moved for."

Veteran antitrust attorneys from all four targeted offices contacted The Federal Eye and asked not to be identified for fear of retribution.

In announcing the plans, Attorney General Eric H. Holder Jr. said that consolidating office space "complies with President Obama's order to dispose of unneeded federal real estate, which saves American taxpayer dollars."

Obama last year ordered agencies to cut $8 billion worth of building costs by the end of the 2012 fiscal year. Shuttering the four offices would save Justice $8 million annually as part of Holder's broader plans to cut $130 million in operational costs, the department said. In anticipation of deeper cuts, Justice has implemented a hiring freeze and spending cuts for department-sponsored conferences.

Other agencies anticipating budget cuts also are consolidating office space, canceling programs and trimming staff. In recent weeks, congressional appropriators have warned that some of the nation's financial regulatory agencies, including the Internal Revenue Service and the Consumer Product Safety Commission, may have to furlough employees to fulfill budget cuts.

At least 23 agencies — including the departments of Agriculture, Education, Commerce, Interior and Labor; the Smithsonian Institution; and the Government Printing Office — are offering buyouts or laying off workers. Other agencies are scrapping long-planned projects and programs. At the Social Security Administration, officials plan to stop mailing benefits estimates to save money, while the General Services Administration is abandoning a multimillion-dollar renovation of its downtown Washington headquarters in order to complete similar construction projects for the Food and Drug Administration and the Department of Homeland Security.

Attorneys with the four regional offices affected by the DOJ's decision have spent decades prosecuting companies that violate the Sherman Antitrust Act, including dairy distributors that overcharged school districts, paving companies that bilked states out of millions of dollars in highway construction funds and cases involving gasoline price-fixing.

The Dallas regional office scored a $500 million fine in an international vitamins case and handled the only cases prosecuted as part of fraud and bribery investigations of Hurricane Katrina reconstruction projects. Attorneys in the Philadelphia office said they obtained a $134 million after-trial fine, one of the division's largest.

In Atlanta, one prosecutor said his office collects about $20 million in fines each year on an annual budget of just $2 million.

"If we cost $20 million a year and collected $2 million a year, you'd have a good case for closing our office," the Atlanta attorney said. "But if IBM had an office that cost it $2 million a year and it collected $20 million a year, I dare say IBM wouldn't close that office."

Gina Talamona, a DOJ spokeswoman, said the consolidation would save the department money and add staffers to larger international investigations.

But attorneys in Atlanta and Dallas disputed the plans, saying that domestic fraud cases more directly affect American consumers.

"Individual consumers have unquestionably suffered more direct financial harm from local conspiracies that raised the price of gas, increased the price of bread and milk, and raised the price of propane than they ever suffered from the air cargo, marine hose, or municipal bond investigations," a Dallas-based attorney said in an e-mail.

Most insulting, some said, is that the division is hiring new recruits for its New York office and paying hefty relocation costs despite the department-wide hiring freeze.

But antitrust lawyers based in the New York office "are not going to go down to Alabama, and San Francisco isn't going to go down to Texas to work on a case," an Atlanta-based attorney said. "And someone from New York can't go down to a grand jury in Dallas and prevail. They just don't know the people and know how to do the cases."

Talamona disagreed, vowing that "enforcement will continue everywhere."

By law, the DOJ must notify Congress of the proposed changes. Aides for the House and Senate appropriations committees said they are reviewing Justice's proposed cuts but could not yet comment on the details.

By Ed O'Keefe,

Source: The Washington Post

Tuesday, October 18, 2011

Law Students, Get Thee to a Patent Law Class

We’ve spent some time here on LB discussing bad economic straits for law school graduates and first-year attorneys. Is there any positive news for attorney job prospects? Turns out there is.

Patent attorneys are seeing a boom in demand, accounting for as much as 15% of law firm job openings, while representing only 3% of lawyers in the U.S., according to Bloomberg.

The catalyst for the increase in hiring for patent lawyers is said to be the America Invents Act, which is “the most sweeping change to the U.S. patent system in decades,” according to The National Law Journal.

The Act, which became law last month, is designed to bring the U.S. in line with European and Asian countries, which award patents on a “first to file” basis, as WSJ reported.

That shift means more work for in-house patent lawyers, as Corporate Counsel notes. There will be increased pressure on companies to file patent applications fast, perhaps even before all research has been completed.

As the Journal noted, some small businesses and investors opposed the change, pointing out the disadvantage they will have without access to an in-house legal department or patent lawyers on retainer.

“The quantity of qualified attorneys who can perform this work is limited,” T.J. Duane of the legal recruitment firm Lateral Link said to Bloomberg. Without the right kind of experienced lawyers, some law firms might use “general practice attorneys to focus on the nontechnical sides of these complex cases,” Duane told Bloomberg.

Patent attorneys in the U.S. must pass a separate bar exam, as required by the Patent and Trademark Office, and usually have additional degrees in engineering or computer science.

That’s right. A plum legal job awaits. All you gotta do is nab that bachelors of science, a masters in electrical engineering, do well at a top law school, pass the regular bar and pass the patent bar.

By Sam Favate

Source: Wall Street Journal

Facebook Presses Ceglia To Hand Over Emails In Ownership Suit

The New York man suing Facebook Inc. and its Chief Executive Mark Zuckerberg for a large ownership stake told his attorneys not to hand over emails related to the case, according to court filings, the latest wrinkle in the ongoing legal spat.

According to court filings on Friday, plaintiff Paul Ceglia instructed his attorneys to disregard court orders for Ceglia to hand over personal emails related to his allegations that he is entitled to a large stake in the social-networking service.

Ceglia's actions have spurred Facebook to press further for the emails and request that Ceglia pay its attorneys' fees, according to a filing in U.S. District Court for the Western District of New York.

Ceglia "has fled to Ireland, where from his apparent hideout he is now directing his lawyers to defy orders of a federal court," Facebook's attorneys wrote in the filing.

Ceglia originally sued Facebook last year, alleging that an arrangement he forged with Zuckerberg when the CEO was still a college student entitled him to an 84% stake in the Palo Alto, Calif., company.

The court had ordered Ceglia to hand the emails over as evidence in August.

In an order filed on Monday, U.S. Magistrate Judge Leslie Foschio wrote that Ceglia has until Oct. 24 to respond to Facebook's request that the emails be produced, and that the company is entitled to sanctions such as the payment of attorneys' fees. A hearing on the matter has been scheduled for Nov. 2.

A Facebook spokesman declined to comment.

By John Letzing, Dow Jones Newswires, 415-765-8230,

Source: Wall Street Journal

Sunday, October 16, 2011

Jackson Kelly Attorneys Honored as Lawyers of the Year

Eleven Jackson Kelly attorneys were honored as Lawyers of the Year

Eleven Jackson Kelly attorneys were honored as Best Lawyers' 2012 Lawyers of the Year, the firm announced Wednesday morning.

According to the firm's news release, only a single lawyer from each area of practice in each community is honored as Lawyer of the Year.

Lawyers are chosen by conducting peer-review surveys where thousands of leading lawyers confidentially evaluate their professional peers. The current edition of Best Lawyers is based on more than 3.9 million detailed evaluations.

The Jackson Kelly attorneys who received this honor include: Marcia A. Broughton, Morgantown, Trusts and Estates Lawyer of the Year; Ellen S. Cappellanti, Charleston, Litigation - Bankruptcy Lawyer of the Year; Stephen R. Crislip, Charleston, Legal Malpractice Law - Defendants Lawyer of the Year; Charles D. Dunbar, Charleston, Banking and Finance Law Lawyer of the Year; David M. Flannery, Charleston, Energy Law Lawyer of the Year; Timothy E. Huffman, Charleston, Workers' Compensation Law - Employers Lawyer of the Year; Thomas J. Hurney Jr., Charleston, Medical Malpractice Law - Defendants Lawyer of the Year; Robert G. McLusky, Charleston, Litigation - Environmental Lawyer of the Year; R. Henry Moore, Pittsburgh, Pa., Mining Law Lawyer of the Year and 2012 Pittsburgh Natural Resources Law Lawyer of the Year; George E. Roeder III, Morgantown, West Virginia Workers' Compensation Law - Employers Lawyer of the Year; and Michael B. Victorson, Charleston, West Virginia Mass Tort Litigation Lawyer of the Year.

By West Virginia Media

Source: State Journal

San Diego Bankruptcy Lawyers Comment on Skyrocketing American Credit Card Debt

The San Diego bankruptcy lawyers at the Golden State Law Group, a team of attorneys who work to help consumers move through the process of eliminating their debts, hereby comment on a recent report regarding the enormous spike in consumer credit card debt in the United States during the second quarter of 2011

The San Diego bankruptcy lawyers at the Golden State Law Group, which is a law firm that dedicates itself to providing legal advice and guidance with regards to the bankruptcy and debt relief process, hereby comments on a report that was released that concerned the overall amount of credit card debt that was accumulated in the United States during the second quarter of 2011.

Specifically, the San Diego bankruptcy attorneys would like to alert the public that according to the results of a recent study performed by, American consumers accumulated an additional $18.4 billion in credit card debt during the second quarter of 2011. This amount represents a jump of 66 percent when compared to the same quarter in 2010 and a 368 percent increase from the same quarter in 2009.

In addition, the number of American consumers who are seeking the help of a credit counselor is also continuing to drop. That number decreased in 2010 by a factor of 20 percent when compared to 2009, and the number of people seeking this type of help in 2011 so far is down by 38 percent when compared to last year.

These trends are seen as problematic by San Diego bankruptcy lawyers as well as other financial professionals because the poverty rate has risen precipitously and the national unemployment rate remains at over 9 percent, where it has stood for several consecutive quarters. The economic conditions overall remain largely the same for the consumer.

About the Golden State Law Group

The Golden State Law Group is a law firm that is comprised of a team of San Diego bankruptcy lawyers who dedicate themselves to the practice of helping consumers move out from under unmanageable debts by way of Chapter 7 bankruptcy cases, Chapter 13 bankruptcy cases, tax debt negotiation and lien stripping.

By PRWeb

Source: San Francisco Chronicle

Saturday, October 15, 2011

Miami Law Firms Go Internationa

Miami international law firms are competing with New York City as the number one city to practice international law in. International Attorney George Rocky Harper sums it up with this statement: “Miami is viewed as a lower-priced alternative to New York with equally as sophisticated lawyers.”

The rise of lawyers practicing international law in Miami, for the past decade, has happened, in part, because of the economic hardship felt in the United States. Firms had to get creative due to the fluctuating economy and Miami was the perfect place from which to launch an international law fire due to large multicultural population that resides in the city with ties all over the world, especially in Latin America. Global firms based out of Miami serve international countries including Canada, Asia, Europe, Central and South America.

Firms based out of Miami keep working to build up their international client base. One way a firm can build its client base is through a merger. This can allow an out-of-state office to stay in their current location but still retain the benefits of having ties with Miami. Law firms from out-of-state continue to move into Miami for the purposes of obtaining clients on a global scale. Firms out of Miami also represent foreign individuals and corporations who have ties to Texas and Georgia. The practice of this type of representation is referred to as “inbound law.”

People that know the law beginning to understand that the lawyers in Miami can handle it at an international level. These Miami-based attorney’s speak several languages and have represented clients based in foreign countries that include international governments, affluent individuals and companies who span across several continents. Simply put, these clients want the expertise found in Miami based law firms such as Astigarraga Davis. However, they don’t want to pay the high prices currently seen in New York City.

Local, prestigious law firms continue to show excitement due to international growth. Ed Davis, a shareholder with Astigarraga Davis, indicates why everyone is finally getting Miami’s role on the international playing field: “Our international lawyers are being hired for legal work in cases that have nothing to do with Miami or the United States.” What he means is that lawyers based out of the city are working with clients on an international level. The goal of most firms involves the successful merging of cultures. They don’t want to start any fires with attorneys with practices in other countries. Joey Zumpano of Zumpano, Patricios and Winker law firm in Coral Gables, explains it like this: “The last thing foreign lawyers want is an American law firm telling they can do it better and coming in to take their market share.”

The international law firms in Miami know that lawyers in other countries don’t want their feet stepped on. That’s why some law firms are choosing to place satellite offices in foreign countries. From the point they are in operation the international law firm then hires lawyers from that country to represent the clients who live there but have interests in the United States.

By JD Journal

Source: JD Journal

Lawyers squabble over Colonies grand jury transcripts

San Bernardino County's transportation planning agency, the city of Upland and Caltrans are fighting the county over the use of grand jury transcripts from the Colonies corruption investigation in a pending indemnity lawsuit.

In that lawsuit, the county wants the three public agencies - including the San Bernardino Associated Governments (SanBAG) - to pay any damages associated with storm drain construction that dumped floodwater into the Colonies development in Upland.

Rancho Cucamonga-based Colonies Partners LP had sued the county, which ultimately settled with the developer for $102 million - a deal tainted by charges of bribery and conflict of interest.

Attorneys defending SanBAG, Upland and Caltrans in the indemnity case, filed a motion Thursday in San Bernardino Superior Court requesting a hearing before Judge Michael A. Smith.

They want Smith to order that they can use the transcripts from the criminal case surrounding the settlement in their defense in the indemnity civil case.

The county should back away, they say, from going after the agencies in the midst of a criminal case in which the settlement itself is in question.

In a telephone interview Friday, SanBAG attorney Ken MacVey said the transcripts show that every attorney working for the county up to the time of the landmark settlement believed the settlement was, at best, excessive, and at worst, potentially illegal.

And the fact that the county is trying to prevent that information from coming out in the indemnity case "violate fundamental principles of fair play, jurisdiction and court comity," MacVey said in his motion.

"They're trying to prevent the truth coming out about what everyone of the lawyers had to say - that there was no basis for this settlement," MacVey said.

The county filed its motion on Sept. 16, arguing that allowing the defendants to use the April grand jury testimony in the indemnity trial would violate the attorney-client and attorney work product privileges. Under a confidentiality agreement with the District Attorney's Office, the county maintains it agreed to release the privileged materials to prosecutors solely for the benefit of the criminal investigation and nothing more.

The court-ordered unsealing of the transcripts on July 22 doesn't change that, the county maintains.

MacVey argued that the county understood that the information it provided to prosecutors may be disclosed to third parties pursuant to statute or court order.

"I think they have concerns that the information in there really does show that they have a real problem with their case, so they're taking these extraordinary steps," MacVey said Friday in a telephone interview. "We don't think they have any legal basis for doing this."

During its heated legal battle with Colonies Partners LP., the county sued the three public agencies in 2004 seeking indemnity for any damages that could arise from the litigation. The county maintains that the three agencies built a storm drain during the extension of the 210 Freeway that diverted floodwater onto Colonies' property, and therefore are liable for damages to the property. The county settled with the developer for $102 million on Nov. 28, 2006.

On May 9, the criminal grand jury indicted Colonies co-managing partner Jeff Burum, former county Supervisor Paul Biane, former assistant assessor Jim Erwin and Mark Kirk, former chief of staff for Supervisor Gary Ovitt. The four, who deny any wrongdoing, are accused of conspiring to secure the settlement in the developer's favor in exchange for bribes and political favors.

By Joe Nelson, Staff Writer

Source: San Bernardino County Sun

Thursday, October 13, 2011

Lawyers' online acts could land them in court

To help her colleagues spot and ultimately steer clear of the career pitfalls of social media, chat rooms, message boards and blogs, Pennsylvania attorney Jennifer Ellis has developed a popular online continuing legal education course called, "I'm Begging You -- Please Don't be an Idiot on the Web."

Ellis, a consultant who specializes in the intersection of ethics and technology, does not suggest avoiding such forums altogether. However, it's important to realize that dangers abound for lawyers on the Internet.

She represents part of a growing cohort of legal professionals helping their peers learn to navigate the Web ethically, safely and intelligently, and she has amassed a colorful collection of the mistakes that lawyers around the country have made to serve as warning to others.

Some of the violations Ellis cites are beyond the pale, such as the California lawyer who posted an ad on Craigslist for a secretary and then explained to a job candidate via email that she would have to have sex with him as part of the interview.

The job seeker reported the incident to the bar association.

In most cases, avoiding legal and ethical violations is a matter of common sense. The No. 1 rule, Ellis said, is: If you can't do something offline because it's unethical behavior, then you can't do it online either.

There are instances where forwarded emails have ruined careers. And, of course, the likelihood of getting caught if you post something on a public forum is exponential.

Which is why Harold M. Goldner, an Internet-savvy employment lawyer, was shocked to discover a blogger with a law degree lambasting his soon-to-be-ex-wife's divorce lawyer on his personal website.

The divorce lawyer was running for Common Pleas Court in Montgomery County, Pa., and the blogger critiqued him at length in an open letter. In the post, Goldner noted, the blogger claimed he was a lawyer but failed to mention he'd been administratively suspended, which is a violation of the rules of professional conduct.

The missteps lawyers make, according to several attorneys who track them, seem to fall into a few categories. On sites like Facebook and MySpace, they say, lawyers should beware of false "friending" -- in other words, seeking out or accepting online friendships with witnesses, judges or jurors, especially using a made-up identity, or having someone pursue false friendships on their behalf.

Florida has a law that it is illegal to "friend" a judge.

Elsewhere in the country, there is no explicit prohibition on judges being Facebook friends with attorneys who may appear in their courtrooms. It is up to individuals whether that relationship has the appearance of impropriety, but they should know that any communication they have in quasi-public forums are a permanent record that others may see.

On the surface, it seems obvious that attorney-client confidentiality must be upheld online, but lawyers may slip up inadvertently.

The public defender referenced a client whose case had been adjudicated and revealed that the client admitted to lying on the witness stand. Since lawyers are prohibited from disclosing perjury, she was called before the disciplinary board in her state and fired from her job of 15 years.

Attorneys may also harm their reputations if they share too much personal information on social networking sites. Goldner said he keeps his Facebook profile private and strictly personal, and, "for the most part, I don't friend clients or colleagues." He consciously opts not to have any professional Facebook presence, though he knows other lawyers who do choose that route.

If you have a professional blog where you comment on legislation or court rulings, several experts said, avoid getting specific in back-and-forth comments with readers and be sure to have a disclaimer explaining that information in the blog is not intended as legal advice.

Another matter bloggers or prolific legal commenters should consider is whether they are licensed in the state or country where the person is reading the dispatches lives. If they are not licensed to practice in the reader's jurisdiction and the reader interprets the comments as legal advice, the attorney could face charges for the unauthorized practice of law, which is a crime and could be subject to disciplinary action before the state bar.

In addition to watching their own backs, lawyers must keep an eye on their clients' online behavior. If attorneys fail to monitor their clients' online posts while a case is pending, it can backfire in court.

Despite the litany of cautions, several of the experts agreed that it's still important for a law practice to have an online presence. The key is to do your homework and get legal advice of your own as you go about it.

By Gabrielle Banks, Pittsburgh Post-Gazette, ppgbanks(at)

Source: The Republic

Dodgers Can Keep Lawyers, MLB Says, Ending Bid to Fire Firm

The Los Angeles Dodgers can keep using the two law firms that filed the team’s bankruptcy petition, Major League Baseball said, dropping an effort to have the attorneys fired.

Baseball Commissioner Bud Selig withdrew the motion to disqualify Dewey & LeBoeuf LLP and Young Conaway Stargatt & Taylor LLP after U.S. Bankruptcy Judge Kevin Gross in Wilmington, Delaware, said last week that he didn’t “think very highly” of the effort.

In a court filing last night, Major League Baseball said it decided to drop the attempt to fire the attorneys at the suggestion of a mediator who has been trying to negotiate a settlement between Frank McCourt, the team’s owner, and Selig.

Major League Baseball had said the law firms should be removed because they were representing McCourt’s interests and not those of the Dodgers. The team accused Major League Baseball of attacking the law firms to distract the attorneys as they prepared to defend McCourt’s plans to sell television rights to Dodger games.

The Dodgers filed for bankruptcy in June after Selig refused to approve a new television contract McCourt had negotiated with the current broadcaster, News Corp.’s Fox Sports.

Gross this month will hold a hearing to decide whether to grant Selig’s request to force McCourt to sell the team or to let McCourt try again to sell TV broadcast rights. Gross has said he expects both Selig and McCourt to testify at the hearing, scheduled to start Oct. 31.

The bankruptcy case is In re Los Angeles Dodgers LLC, 11- 12010, U.S. Bankruptcy Court, District of Delaware (Wilmington).

By Steven Church,

Source: Businessweek

Tuesday, October 11, 2011

Lawyer's license suspended over slurs

A Chicago attorney who used homophobic and offensive language to describe other lawyers has agreed to a temporary suspension of his license, officials said.

Thomas Guadagno, 66, used terms such as "gay scum" and "child molester" to refer to other attorneys while soliciting traffic court clients, a complaint filed by the Illinois Attorney Registration and Disciplinary Commission said.

The name-calling has gone on for at least six years, the complaint said, and in 2009 a Cook County judge found him guilty of disorderly conduct for yelling "scumbag" and "homosexual" at another attorney, the Chicago Tribune reported Monday.

In the newest action, the commission said Guadagno's license would be suspended for a month and he would have to complete two years of probation, see a therapist for anger management counseling and complete a seminar on attorney professionalism.

By United Press International

Source: United Press International

Budget Cuts Constrict Lawyers' Route to Federal Jobs

Federal agencies are cutting honors programs -- and for lawyers, that means an even tougher path to a job in government

If Richard Feinstein, who heads the Bureau of Competition at the Federal Trade Commission, was applying for an entry-level position as a lawyer with the agency today, he said, "I probably couldn't get a job here."

He's joking as he says it, but it also might be true. Not that Feinstein is a slouch -- he earned his J.D. from prestigious Boston College Law School -- it's just that competition for legal jobs with the federal government has grown fiercer than ever.

With agencies across the board facing severe budget constraints, job-seeking lawyers these days have few options. One of the few ways in is at the bottom, through so-called honors programs for new law school graduates. But even that pipeline is narrowing.

The U.S. Justice Department -- by far the largest employer of lawyers in the nation -- has slashed hiring for its honors program in 2012. This year, the agency welcomed about 165 new honors lawyers (down from 211 in 2010). Next year, there are only 70 to 80 slots available.

Federal belt-tightening is to blame. "The reduction in the number of projected hires is based on DOJ budget projections for 2012, and reflects the budget constraints that are being felt government-wide," according to an agency statement.

The Internal Revenue Service, which in recent years boasted the second-biggest honors program, is scaling back as well. The Office of Chief Counsel hired 55 honors lawyers in 2011, but has limited hiring for next year's class to those who worked for the agency over the summer, shutting out other applicants. Meanwhile, the U.S. Equal Employment Opportunity Commission has put its honors program on hold due to an agency hiring freeze.

Still, it's not all bleak news. The new Consumer Financial Protection Bureau is hiring three or four honors attorneys, and the Department of Energy has launched a small new honors program as well. The Federal Communications Commission (FCC) has reinstated its program after a three-year hiatus and plans to add several newly minted lawyers to the agency next year.

"We have a need for junior attorneys," said FCC Deputy General Counsel Julie Veach. "It's a great time to be in the legal market."

That's for sure. Agencies have routinely gotten dozens, even hundreds, of applications for each honors position. But during the past three years, as law firms have cut the size of their incoming associate classes, more new law school grads have looked to the federal government for work -- even as fewer positions are available.

Increased Student Interest

"There's been quite an upswing in interest in honors programs," said Christina Jackson, public interest specialist in the Office of Career and Professional Development at American University Washington College of Law. "Much of it is due to the constriction of the private-sector market."

Career counselors at other law schools have noticed it as well. Paula Nailon, assistant dean for professional development at the University of Arizona James E. Rogers College of Law, wrote in an email that student interest in honors programs has "increased dramatically in the last two years."

Last year, 20 federal agencies hired about 340 honors lawyers, according to data from the University of Arizona's Government Honors and Internship Handbook. The programs are open to lawyers coming straight from law school or a clerkship and are virtually the only way that agencies hire entry-level attorneys. (Unlike law firms, where profitability is premised on leveraging the work of junior lawyers, agencies can afford to rely on experienced attorneys to handle most tasks. As a result, the government hires comparatively few new lawyers.)

Statistics from the Honors handbook give a sense of just how competitive the hiring process has become. In 2010, the U.S. Securities and Exchange Commission, for example, hired six new lawyers out of 2,000 applicants; the Department of Housing and Urban Development selected 25 out of 1,100; and the Nuclear Regulatory Commission picked five out of 1,400.

So what does it take to get hired?

In many ways, it's more complicated -- and less predictable -- than landing a law firm job. The valedictorian of a top 10 law school might not even rate an interview, while someone from the same school with a lower GPA -- but who spent summers working on a public interest project in the practice area -- could be offered a job.

"We get extraordinary candidates year after year," said Feinstein of the FTC. "It's really remarkable the talent we have to choose from." The agency typically hires eight entry-level lawyers in the Bureau of Competition out of about 1,000 applications -- less than 1 percent of those who apply.

What makes someone stand out, Feinstein said, is "a demonstrated interest in antitrust or economics," as well as a commitment to public service. Such an interest, he said, is often shown by working for the FTC as a summer intern (1Ls are unpaid, 2Ls make about $25 an hour). "We look for strong academic credentials, strong interpersonal skills and strong writing ability," added Deputy Director Norm Armstrong.

What's not so important -- at least to the Justice Department -- are law school rankings. Lou DeFalaise, director of DOJ's Office of Attorney Recruitment and Management, said the agency contacts all 200-plus accredited law schools in the country and does on-campus presentations or interviews at about 90 of them each year. "We have a very broad spectrum of hiring," he said.

It shows. Recent honors attorneys went to law school at Yale and Harvard and Stanford, but they also earned J.D.s from schools including Faulkner University Thomas Goode Jones School of Law in Alabama, Florida Coastal School of Law and Roger Williams University School of Law in Rhode Island.

"We look for enthusiasm and good academics," DeFalaise said. A foreign language is a plus, and so are internships or other experience in the area of law that's of interest -- DOJ applicants may apply for jobs in three of the agency's divisions or offices ("components," in DOJ-speak), such as criminal, national security or tax. A clerkship helps too -- on average, 30 percent to 35 percent of DOJ honors lawyers had one before joining the agency.

This fall, DOJ got 2,622 applications for next year's 70 to 80 openings, DeFalaise said. The largest contingent of jobs -- 31 -- are in the Executive Office for Immigration Review, but unlike other DOJ honors positions, these are one- to two-year "clerkships," not permanent posts.

The next-biggest group will go to the Antitrust Division, which plans to add 13 honors attorneys. Environment and Natural Resources will hire seven, and the Civil Division -- the largest component in the 10,000-lawyer agency -- is taking on just three. U.S. Attorneys' Offices in West Virginia, the Northern District of Ohio and the Central District of California are all adding one or two honors lawyers. The Civil Rights Division, faulted by the agency's inspector general during the prior administration for improperly using political considerations in hiring honors attorneys, will take none.

Gaining Experience

For new lawyers, the appeal of working for the feds isn't the money -- most of the jobs start at about $62,000 (the GS 11 pay grade), compared with $160,000 at top New York firms. Rather, it's about the experience.

"One great part of working for the government is that you get substantive work from day one," said Katy Mastman, a New York University School of Law grad who joined the Department of Labor (DOL) as an honors attorney two years ago.

DOL honors lawyers in Washington rotate through four or five divisions of the National Office of the Solicitor before deciding on a specialty. "The goal is to give each attorney at least some exposure to all the various kinds of work happening in the department," Mastman said. Assignments might include arguing a motion before a federal circuit; negotiating with outside corporate counsel to settle Occupational Safety and Health Administration violations or drafting final orders and regulatory guidance memos stating the agency's official decision or policy.

It's one of the most competitive programs around -- DOL hired just seven honors attorneys this year out of about 1,500 applicants. "I love this program," Mastman said. "It's a fantastic way to get recent law school graduates and clerks into the department and give us a chance to do great work."

Amy Bender, a Harvard Law School graduate who joined the FCC as an honors attorney in 2005, is equally enthusiastic about her agency's program. "It's an opportunity for new lawyers to get involved on important issues and interact with stakeholders and the public," she said. "At a law firm, you're often the low person on the totem pole, grinding away on research with no direct contact with the client."

Bender, who is now deputy chief in the Telecommunications Access Policy Division of the Wireline Competition Bureau, praised the mentoring and variety of opportunities she got as a junior attorney at the FCC. "The agency is as interested in you as you are in them. You're part of a family that's looking out for you and your professional development."

Fellow FCC honors lawyer David Goldman added that the program "let me dive into subject matter I'm interested in," and also gave "the flexibility to move around and explore" within the agency and beyond -- he's currently on a detail to the U.S. Senate.

For honors lawyers who decide to jump to private practice, opportunities abound, said legal recruiter Cynthia Sitcov of Washington's Sitcov Director. "Coming from an honors program, especially DOJ, is an excellent credential to have," she said. Firms appreciate "the insider perspective, the training and the fact that you have to be really good to get an honors program job in the first place."

Indeed, honors program veterans have gone on to become some of the best-known lawyers around. Attorney General Eric Holder started off as an honors attorney in DOJ's Public Integrity Section, and Deputy Attorney General James Cole began his career in the Criminal Division.

Top antitrust lawyers William Baer of Arnold & Porter, George Cary of Cleary Gottlieb Steen & Hamilton and Steven Newborn of Weil, Gotshal & Manges were all FTC honors attorneys. Equally lauded, Jones Day's Joe Sims started as an honors lawyer in DOJ's Antitrust Division. So did telecom law giant Philip Verveer, who now holds an ambassador-level position at the State Department.

Tax expert James Bruton III of Williams & Connolly started off at the IRS, while Foley & Lardner sports law guru Irwin Raij was once an honors attorney at Housing and Urban Development.

Pillsbury Winthrop Shaw Pittman banking partner Joseph Lynyak III, who began his career as an honors lawyer at the Federal Deposit Insurance Co., recalled his first assignment: hopping a plane to Puerto Rico to help take over what was (at the time) the second-biggest bank to fail.

"The program gave me a specialty, an area of expertise, as a very junior lawyer," Lynyak said. "It was a wonderful experience."

By Jenna Greene

Source: The National Law Journal

Monday, October 10, 2011

Plea deal possible in Muslim GI's Killeen terror case

As a trial looms for a Muslim GI accused of plotting a terror attack in Killeen, attorneys say there are indications lawyers are working out a plea deal.

A deadline for filing a plea agreement in the case against Pfc. Naser J. Abdo was moved from Oct. 3 to Tuesday. Veteran attorneys say that's a sure sign a plea bargain is in the works, and that it makes sense for both sides.

"What it tells me is that the government and the defense lawyers are telling (the judge) they're working on it, but they need more time," said Geoffrey Corn, a professor at South Texas College of Law in Houston who specializes in criminal, military and national-security cases.

"I'm sure that the defense counsel wants to do a plea bargain because obviously there's an abundance of evidence," said Jeffrey Addicott, who heads the Center for Terrorism Law at St. Mary's University in San Antonio.

Held without bail

Abdo has been held without bail since being indicted Aug. 9 on federal charges of possessing an unregistered destructive device, and possessing a firearm and ammunition by a fugitive.

A Fort Campbell, Ky., infantryman who cited his Islamic faith in refusing to fight on Muslim soil, he could get up to 10 years in prison and a $250,000 fine on each count. Jury selection on the federal weapons charges is to begin Oct. 17, but prosecutors and Abdo's attorney, D. Keith Dorsett, have until Tuesday to submit a plea bargain to U.S. District Judge Walter Smith.

The deadline is not absolute, said Corn and Calvin Lewis, an associate dean at the Texas Tech University School of Law, and a plea deal could be struck even after the trial begins. But requiring a deal by a firm date, called local rules of procedure, brings efficiency to the court process.

Treece convinced

"The defendant could go into the court on the morning of the trial and say, 'I want to enter a plea of guilty,' " Corn said, "but the judge can be less favorably inclined to support the prosecution's recommendation."

Dorsett didn't comment when asked recently about the proceedings, and Texas Tech's Lewis wasn't sure an agreement was likely, arguing "it doesn't take a week to put a deal together."

But T. Gerald Treece, vice president, associate dean and special counsel to the president at South Texas College of Law, said the signs point to a deal.

By Sig Christenson, Staff Writer

Source: Houston Chronicle

Virginia State Bar’s crackdown on lawyer's blog raises questions

Virginia lawyers who blog about their cases, beware: the state bar may come after you for inappropriate advertising.

At least that's the message the Virginia State Bar seems to be sending in a case against Richmond criminal defense attorney Horace Hunter. The bar has brought a misconduct charge against Hunter, who blogs on his firm's Web site about cases he's worked on, as well as national and local criminal justice issues. Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it's an ad. Hunter argues the blog is news and commentary, and the bar's attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter's cases is considered advertising and must include a disclaimer "that puts the case results in a context that is not misleading," the charge said.

Hunter's case, which is scheduled for a hearing Oct. 18, appears to be the first time the Virginia State Bar has lodged a formal charge against an attorney over blogging and whether it violates advertising rules. State bar counsel Edward Davis would neither confirm nor deny the existence of previous charges against lawyers over blogs and advertising, but there is no record of disciplinary action against Virginia attorneys regarding the matter, according to the bar's archives of disciplinary actions dating back to 1999. The bar can suspend or disbar attorneys found in violation of legal ethics.

Davis declined to comment on the pending case.

Hunter's case has some lawyers — for whom blogging has become commonplace — as well as free speech and social media law experts questioning whether the bar is overreaching in its regulation of online speech in the social media age.

State bars prohibit misleading advertising, requiring lawyers when listing previous wins to include disclaimers saying every case is different and that prior results don't guarantee future success, said Rodney Smolla, a leading First Amendment scholar and president of Furman University in South Carolina. But Smolla, a former dean at Washington and Lee University School of Law who filed a brief before the state bar on Hunter's behalf, said Hunter's blog resembles journalism more than advertising.

"I don't think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients," he said. "Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it's worth."

Social media rules

The bar's position in Hunter's case conflicts with the general movement in legal advertising that encourages the use of social media without placing undue burdens on lawyers, said Brad Shear, a Bethesda attorney who specializes in social media law.

The American Bar Association's Commission on Ethics recently said no new restrictions were necessary to regulate lawyers' use of technology and client development, and that prohibiting Internet and other electronic advertising would "impede the flow of information about legal services to many sectors of the public. (See the commission's June recommendations here).

"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," said Shear, who has no ties to the Hunter case. "It becomes a slippery slope."

The Virginia State Bar is limited to regulating practices and disciplining lawyers in Virginia, but Smolla said its decision could set precedent in any jurisdiction.

"I don't know if other bar authorities would or wouldn't feel they'd want to prosecute these things, but it'd be a warning sign that this kind of activity could draw some sort of disciplinary action," he said. "It could exert a chilling effect on all lawyers that blog on litigation results, particularly if those results are involving matters on which they've worked as a lawyer."

Bob O'Neil, founder and former director of the Thomas Jefferson Center for the Protection of Free Expression and former president of the University of Virginia, said Hunter's blog is not misleading, and called the bar's standard on disclaimers "excessive."

"That strikes me as overkill," said O'Neil, who is not involved in the case. "Pretty innocent stuff like Hunter's [blog], I don't think that's regulable."

The charge, filed in March, also says Hunter blogged about information that would be "embarrassing" or "detrimental" to his clients, including using a pseduonym to discuss the case of a juvenile client. Hunter failed to show that he had obtained his clients' consent to talk about the cases, the charge said. Hunter calls the claims "frivolous" and maintains that the matters discussed on his blog are public, and that he had the permission of the juvenile's parents to talk about the case.

By Catherine Ho

Source: The Washington Post

Sunday, October 9, 2011

Attorneys for state rest in job discrimination case

A judge's decision still could be months away

Iowa lawyers rested the state's case on Thursday, inching a multimillion-dollar, class-action discrimination lawsuit closer to resolution after four years in the Polk County court system and four weeks of a statistics-laden trial.

Attorneys from both sides are scheduled to meet with Judge Robert Blink today to determine the coming schedule for the case of Pippen vs. State of Iowa, a lawsuit alleging that the state essentially failed to police its hiring bureaucracy and allowed racial bias to affect decades of hiring and promotion decisions in nearly 40 agencies and departments.

Blink's decision in the case, which may be months away, could be worth as much as $70 million, according to plaintiff-produced estimates about the money lost by African-Americans who missed out on state government jobs or promotions.

Lawyers have estimated that the case, which originally was filed in 2007, involves as many as 6,000 blacks who filed unsuccessful job applications dating to July 2003.

Both sides are scheduled to meet with the judge to make certain that they've assembled electronic copies of all the voluminous records, reports and depositions that have been cited during the monthlong trial.

Lawyers also will discuss a schedule for swapping legal briefs before Blink declares the evidence officially submitted.

There will be no oral closing arguments, the judge said Thursday.

"Frankly, given the complexity of the law and the evidence, I think it would be more succinct and effective if it were in writing," Blink said in court.

Iowa lawyers rested the state's case Thursday afternoon after plaintiffs took a full day to cross-examine Robert Miller, a Carnegie Mellon University professor who credited a racial difference in job hunting strategy for statistical gaps in the success of black vs. white job applications.

Professor Mark Killingsworth, a Rutgers University labor economist, previously had testified for the plaintiffs that blacks seeking jobs in Iowa's state government are statistically less likely to get interviews, less likely to get hired and, if they do get hired, are likely to learn less money than their white peers.

According to Miller, that's because blacks on average file more job applications than whites and seem to prefer a shotgun approach instead of the more targeted approach of whites.

By Jeff Eckhoff


Tribe battles BLM over Nev. gold mine in US court

Lawyers for environmentalists and several Nevada tribes urged a federal judge Thursday to keep in place restrictions from a 2009 court order that blocks the expansion of a gold mine at the base of a mountain that some Western Shoshone consider sacred.

Toronto-based Barrick Gold Corp.'s proposed expansion would make the mine at Mount Tenabo, about 250 miles east of Reno, one of the biggest open pits in North America.

Lawyers for Barrick Gold, as well as Justice Department attorneys representing the U.S. Bureau of Land Management, asked Judge Larry Hicks on Thursday to lift a partial injunction and clear the way for the digging of the 2,000-foot pit.

The BLM has corrected deficiencies in its formal analysis of potential environmental impacts, the attorneys told Hicks.

But opponents said the BLM's supplemental environmental impact statement is no better than previous assessments that the 9th Circuit Court of Appeals twice has found insufficient.

"This is obviously a very sensitive case," Hicks said during Thursday's hearing. "The court is aware of the sensitivity."

The appellate court in San Francisco ruled most recently in 2010 that the BLM had failed to adequately analyze the potential for the project to pollute the air and dry up scarce water resources in northeast Nevada's high desert.

About a dozen tribe members and supporters -- some with signs that read "Water is more precious than gold" -- gathered in front of the federal courthouse before Thursday's hearing in Reno for a "water honoring ceremony" and prayer.

"We have great concerns when large corporations and the federal government can trample our natural resources," said Bryan Cassadore, chairman of the Te-Moak Tribe of Western Shoshone.

"The spring water and natural resources of rural Nevada has always been important to the Western Shoshone Indians for thousands of years and continues to be," he said.

Justice Department lawyers said BLM's new analysis complies with all state and federal environmental laws.

"BLM very thoroughly analyzed the project's potential effects on Native American beliefs and cultural practices," wrote Ty Bair, a lawyer in the department's Environment and Natural Resources Division.

But lawyers for the tribes and the Reno-based Great Basin Resource Watch said the mining plans offer no specific protections for the environment, only a detailed schedule of monitoring intended to detect any potential pollution on groundwater supplies.

The BLM's plan to "monitor the drawdown and elimination of surface waters and springs/seeps, and then figure out a way to avoid these losses is the type of `impact first, develop a plan later' approach rejected by the Ninth Circuit," said Roger Flynn, a Denver-based lawyer who represents a number of Nevada tribes.

The appellate judges concluded BLM's review was inadequate under the National Environmental Policy Act, which requires a thorough examination of large-scale projects on federal land. They said the agency didn't fully consider the impact of air quality resulting from transporting ore to an off-site processing facility 70 miles away.

The judges also said the review didn't do enough to examine the likelihood that pumping water out of the pit would cause the groundwater level to drop and potentially dry up more than a dozen streams and springs.

Flynn said BLM has assessed the potential impacts on livestock, wildlife and irrigation but still has ignored the potential harm to the groundwater levels and tribal members' use of the water in prayer and other spiritual expressions.

"BLM is supposed to balance the interests. In this case, there is no protection of the groundwater and the Shoshone's uses of it," he said Thursday. "What they approved was exactly what Barrick wanted. There wasn't any negotiation, any compromise."

Francis Wikstrom, a lawyer for Barrick based in Salt Lake City, accused the opponents of trying to stall the project to death.

"They are moving the goal posts at every juncture to make BLM go back to the drawing board and reanalyze and reanalyze and reanalyze," he said. "It's clear they are setting these arguments up for another trip to the 9th Circuit."

By Scott Sonner

Source: BusinessWeek

Saturday, October 8, 2011

Digitek lawyers broke rules, attorney claims

Lawyers for drug maker Actavis broke ethical rules by asking expert David Bliesner about errors in a declaration for a case in West Virginia while deposing him for a case in Oklahoma, according to lawyer Don Ernst.

On Sept. 30, Ernst asked U.S. District Judge Goodwin to sanction Actavis lawyers and rule that they can't refer to Bliesner's deposition.

He wrote that they didn't tell him they would depose Bliesner in the Oklahoma case.

"While plaintiffs do not contend that defendants are precluded from deposing disclosed experts in other litigation, where (as here) it is clear that their intent was to develop evidence for use in this case, opposing counsel must at a minimum be given reasonable notice of the deposition," he wrote. "Defendants went well beyond the confines of Dr. Bliesner's opinions in the Oklahoma case and were specifically cross examining him on his expert report and declaration submitted in this federal action.

"The court should not permit defendants to benefit from its attorneys' transgressions."

Ernst, of San Luis Obispo, Calif., represents the family of Daniel McCornack, from the same city, in a claim of wrongful death from heart medicine Digitek.

Goodwin, who presided over settlement of about 3,000 Digitek suits from federal courts around the nation, now presides over two.

In the McCornack case, in August, Ernst filed a declaration that Bliesner had signed.

On Sept. 8, Actavis asked Goodwin to strike it as a sham affidavit.

On Sept. 19, at a deposition in Florida for the Oklahoma case, Actavis lawyer Michael Anderton of Cleveland pulled Bliesner through a series of admissions.

When Anderton read a bullet point confirming batches of Digitek tablets with assays out of specification, Bliesner said it was an incorrect statement.

When Anderton read about blend uniformity defects, Bliesner said it was an error.

When Anderton asked if his indication that Actavis employed Dan Bitler in charge of quality from 1995 to 2008 was an error, Bliesner said it was a typographical error.

When Anderton read that product was released to market on Dec. 5, 2007, Bliesner said it was an incorrect date.

Anderton said, "How do you make a mistake like that, Dr. Bliesner?"

Bliesner said, "When you're reviewing thousands and thousands and thousands of documents that have pages of documents that have no lineage or connection to it, it's very easy to get a date messed up."

Anderton read that the Food and Drug Administration inspected Actavis facilities due to deficiencies in prevention and remediation of double thick tablets and blending failures.

Anderton asked if that was why FDA conducted the inspection, and Bliesner said it was an incorrect statement.

Anderton read that they stored the recalled product in a warehouse and kept producing Digitek, and said, "They didn't make any other Digitek after the recall, did they?"

Bliesner said it was an error, and then he rose to his own defense.

"I don't think that there's any correlation between errors in a report and the overall conclusion in the end," he said. "Because there's errors in the written document after a review of various other documents that are all thrown together and handed out in piecemeal fashion and say that's because somebody has got poor analytical skills, that's just a total stretch and I won't stand for that."

Actavis lawyer Richard Dean of Cleveland provided a transcript to Goodwin on Sept. 27, in support of the motion to strike the declaration.

Ernst objected, calling the errors "alleged inconsistencies suggested by the defendants."

"If defendants wish to quibble with Dr. Bliesner's typographical errors, or what it means to be out of specification, they will have an opportunity to do so through their own retained experts," he wrote.

On Oct. 4, Dean replied, "Defendants had an absolute right to thoroughly examine Dr. Bliesner about these opinions."

He wrote, "Indeed, had they not conducted such an examination, defendants' counsel would have failed their clients," he wrote. "The contradictions exposed by Dr. Bliesner's testimony are not 'alleged inconsistencies' that are confusing or vague."

He asked Goodwin to reject any suggestion that he should impose sanctions.

"In fact, the circumstances surrounding this issue strongly suggest imposing sanctions on plaintiffs' counsel," he wrote.

By Steve Korris, Kanawha Bureau

Source: West Virginia Record

Texas County's Lawyers to Ask Permission to File MERS Suit

Attorneys for the Texas county that includes Houston will seek permission Oct. 11 to hire outside lawyers to sue Mortgage Electronic Registration Systems Inc. over $100 million or more in unpaid mortgage-filing fees.

The proposal was posted today on the agenda for the Harris County Commissioners Court, the governing body for the county. County attorneys will hire the same law firm, Malouf & Nockels, that handled a similar lawsuit filed by Dallas last month, County Attorney Vince Ryan said in an interview today.

The Dallas County district attorney's lawsuit claimed Merscorp Inc.'s MERS, which runs an electronic registry of mortgages, cheated the county out of tens of millions of dollars in uncollected filing fees. MERS tracks servicing rights and ownership interests in mortgage loans on its registry, allowing banks to buy and sell loans without recording transfers with counties.

"Our preliminary estimate, based on very superficial knowledge, is we're looking at a minimum of $11 million and it could be much, much more depending on the number of times the real estate was used as collateral and should've generated a filing fee," said Ryan, the Harris County attorney.

The county may be seeking more than $100 million in unpaid fees, he said. Janis Smith, a spokeswoman for Reston, Virginia- based Merscorp, declined to comment on the county's plan.


"Our cause is mirrored by every other county in Texas that can tag onto this," Ryan said. "This thing is huge." Ryan declined to name a bank that Harris County might sue or to say whether the county will sue a bank for using MERS.

The Commissioners Court must approve hiring of outside attorneys to pursue the suit before it can be filed, Ryan said.

The lawsuit could be filed next week or the following week, John Odam, assistant county attorney for special projects in Harris County, said in an interview today.

Dallas County District Attorney Craig Watkins, who also sued Bank of America Corp. (BAC) last month, claimed that his county could be owed as much as $100 million in filing fees. The clerks of Kentucky's Christian and Washington counties sued MERS, Chase Home Mortgage Corp., CitiMortgage, Wells Fargo & Co. (WFC), Bank of America and others in federal court in Louisville in April over unpaid fees, seeking to represent all 120 counties in the state.

Pennsylvania Suit

Washington County, Pennsylvania, sued U.S. Bank N.A. in state court over fees last week, contending that MERS was set up "for the express purpose of circumventing the payment of assignment of mortgage fees to county governments." The suit, brought on behalf of all counties in the state, doesn't name MERS as a defendant.

"Because the matter is in litigation, we cannot comment," said Thomas Joyce, a spokesman for Minneapolis-based U.S. Bank.

Branch County, Michigan, sued MERS, Chase and others in state court in August, alleging they improperly failed to pay real estate transfer taxes.

"I don't think there's any question this is growing," said Christopher Peterson, associate dean and professor at the University of Utah S.J. Quinney College of Law. He said he has had discussions with officials in Utah considering a similar claim. He declined to identify the county.

MERS says on its website that it aims to place every mortgage in the country on an electronic, rather than a paper, system that allows members to buy and sell mortgages.

Buy and Sell

MERS acts as the lender's nominee and remains the mortgagee of record as long as the note promising repayment is owned by a MERS member. Dallas County claims this allows banks to buy and sell loans without properly recording transfers with counties and paying the fee.

"We're looking at that suit as a parallel for ours," said Ryan, the Harris County attorney.

"Ours is very similar."

Odam said $11 million was a conservative estimate based on only one transfer per property.

"The evidence will show that there were at least two transfers, with history showing there have been multiple transfers with foreclosures and all that's occurred in the real estate market in the last few years," Odam said. Each of these transactions should have generated a filing fee for the county, he said.

The cases against MERS include: Dallas County v. Merscorp Inc., CC-11-06571-E, County Court at Law, Dallas County, Texas; and Christian County Clerk v. Mortgage Electronic Registration Systems Inc., 5:11-cv-00072, U.S. District Court, Western District of Kentucky (Louisville).

By Margaret Cronin Fisk, and Laurel Brubaker Calkins,

Source: Bloomberg

Wednesday, October 5, 2011

New Orleans defense attorneys sue sheriff, citing lack of privacy for client consultation

Instead of speaking privately face-to-face, defense lawyers and inmates held in Orleans Parish Prison must sit within earshot of a roomful of people and speak over jail telephones or yell through crude and filthy Plexiglas-mesh partitions, according to a lawsuit filed Tuesday against Orleans Parish Sheriff Marlin Gusman. The lawsuit by the New Orleans public defenders office alleges that the jail makes it nearly impossible for lawyers to meet privately with clients, violating both the U.S. Constitution's right to counsel and the Louisiana code of criminal procedure.

Due to "unpredictable and unreasonable wait times and restricted visitation hours," the suit says, publicly financed lawyers must sometimes wait hours at the Orleans Parish jail to see indigent clients.

Marc Ehrhardt, a spokesman for the sheriff, said it is Gusman's policy not to comment on pending litigation. Gusman has defended his practices in the past by noting that he must limp along with Hurricane Katrina flood-damaged buildings until a new $145 million, four-story jail is completed in 2014.

The suit was filed in Civil District Court by retired Louisiana Supreme Court Chief Justice Pascal Calogero, who is joined at the plaintiffs' table by lawyers Philip Wittmann, Stephen Haedeicke and Elizabeth Cummings.

The suit says that the situation bleeds scarce dollars from the public defenders office, whose lawyers represent more than 80 percent of the defendants in 13,000 state cases brought this year in Criminal District Court.

"(T)hese conditions waste countless hours of valuable attorney time and disproportionately affect Orleans Parish Defenders' staff, whose indigent clients are the most likely to be confined pre-trial because of their inability to post bail," the suit says.

The city's prison complex holds roughly 3,000 inmates in five facilities: Templeman V, the Old Parish Prison, Conchetta, South White Street and the 10-story House of Detention and its eight FEMA tents. Wait times and conditions seem to be worst at the House of Detention and the tents, which together hold half of the jail's population.

There are some differences between facilities' visiting areas, illustrated in the lawsuit through schematics and descriptions. But the challenges are similar in all structures, according to the filing, which describes how lawyers and clients must talk about sensitive parts of cases or discuss plea deals while being overheard by inmates, visitors and deputies.

And instead of being able to privately review documents together, lawyers and jailed clients typically speak loudly on jail telephones or yell through partitions of thick, smeared Plexiglas and rough metal mesh.

In addition, four of the jail's five facilities have no pass-through slots, according to the suit, which cites lawyers' accounts of how they had to shuttle sensitive documents to their clients through jail deputies, who often failed to deliver them.

The suit asks the court to order Gusman to reduce wait times for lawyers, extend lawyer visitation hours to include evenings and weekends and "to make permanent improvements" allowing lawyers and inmates to talk privately and look over documents together.

By Katy Reckdahl, or 504.826.3396


Justices weigh whether inmate should die after mailroom slipup

The Supreme Court appeared inclined Tuesday to give an Alabama death row prisoner another chance to appeal his conviction after a mailroom mistake left him unable to pursue further claims in court.

At issue is whether a missed deadline to file a key appeal is justification to grant Cory Maples a second chance, when the error was not the inmate's fault, and the result would mean a punishment as serious as lethal injection. The compounding series of errors and negligence involved both state officials and the private attorneys representing him.

His new legal team, supported by some civil rights groups, says the criminal justice system has been turned on its head by allowing prisoners to suffer the consequences of their lawyers' mistakes or incompetence.

But state attorneys argue that long-established rules on filing often complex paperwork must be strictly enforced, to ensure that all parties -- including the courts -- get a proper chance to hear the claims in an orderly fashion. And the state says that in this case, Maples' initial appellate attorneys were from a blue-chip law firm in New York.

Several justices expressed concern the inmate was not being treated fairly.

"Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances," said Justice Samuel Alito. "Now, when his attorneys moved to file an out-of-time appeal, why wouldn't you just consent to that? If he did not receive an effective assistance of counsel at trial, why not give a decision on the merits of that? Why push this technical argument?"

Maples was convicted in the 1995 murder of two companions, Stacy Alan Terry and Barry Dewayne Robinson II, with whom he had been drinking heavily. Court records showed that Maples took a .22-caliber rifle in his Decatur, Alabama, home and shot both men twice in the head, execution-style. He later confessed to police but offered no explanation for the crimes. The defendant was convicted, and the jury recommended the death sentence by a vote of 10-2.

Post-conviction, two attorneys from the law firm Sullivan & Cromwell -- working on behalf of Maples for free -- filed a motion in an Alabama court, claiming ineffective assistance by the trial defense. The chain of errors may have begun when the appellate lawyers did not list the name of their firm in the papers filed in Alabama.

When that court later sent two copies of its ruling denying the motion to the New York-based attorneys, the mailroom inexplicably sent them back unopened. Both envelopes were labeled "Return to Sender -- Left Firm" and similar language: "Return to Sender -- Attempted Not Known."

Both lawyers had, in fact, left the firm, but no notice of new legal representation at the same firm was given to either the court or to Maples himself. A local lawyer in Alabama not heavily involved in the appeals also received the initial ruling, but he, too, did not follow up to ensure that the New York lawyers continued the necessary filings.

By the time the mix-up was discovered, apparently thanks to inquiries by the inmate's mother, Maples' window for appeals had run out.

The local judge was not sympathetic, saying the county clerk was not required to follow up or investigate why the key documents were sent back without acknowledgment.

"How can a circuit court clerk in Decatur, Alabama, know what is going on in a law firm in New York, N.Y.?" Morgan County Circuit Judge Glenn Thompson asked in his ruling.

Subsequent state and federal courts also refused to grant Maples another chance to file his appeals, saying the 42-day deadline was standard and non-negotiable.

During arguments Tuesday, the questions came down to who shouldered most of the blame: the county clerk or Maples' lawyers? Justice Antonin Scalia was particularly animated, speaking 50 times in the 60-minute argument, and favoring the state's position. He said it was the obligation of the local attorney to ensure his out-of-state colleagues had all the paperwork.

"He failed to check with the New York lawyers who were working with him," Scalia said. "Why is the state responsible for that?"

But a majority of his colleagues questioned the Alabama solicitor general's position.

Justice Ruth Bader Ginsburg noted that after the deadline to appeal had passed, the local prosecutor had sent a letter just to Maples -- and none of his lawyers -- notifying him he had just lost the case in an Alabama court.

"So the state's attorney must have thought that Maples had been abandoned by his lawyers because he didn't notify any of them" about losing, and about his right to appeal in federal court, Ginsburg said.

"Of course, he didn't have to send the letter. That letter had no legal effect, did it?" interjected Scalia, suggesting the state notice to Maples was a simple courtesy.

Not so fast, said Chief Justice John Roberts. "Why did he do it, then? Just gloating that the fellow had lost? What was the point of it? He must have thought there was a problem, right?"

"If Maples shows that the letter came back, and shows this was abandonment or close thereto, then the state ought to know that this individual had no idea about filing a piece of paper, and thinks somebody else is doing it," said Justice Stephen Breyer. "And that's enough to say this is not adequate state ground that would block" Maples from continuing his appeals.

Justice Elena Kagan was more blunt: "The notice inquiry (by the state) is supposed to be a pragmatic one," she said, citing past precedent. "The question that we are supposed to ask ourselves is: Is this what somebody would do if they actually wanted to accomplish notice, if they actually wanted the person to get that letter. ... So you (the state) send off this letter and you get it back (unopened) from the principal attorneys, and you ask yourself: 'Huh, should I do anything now?'"

Because so much of the facts and testimony of the various parties remains in question -- particularly the actions of the county clerk and the in-state attorney for Maples -- the justices appeared likely to throw the case back to a lower court to sort out the matter.

Alabama Solicitor General John Neiman made clear to the court, "Maples is unquestionably guilty of murdering two people, and his conviction is now 15 years old. He has received some sort of judicial review of every claim he has made."

Sullivan & Cromwell employs about 800 lawyers, charges premium client rates, and does significant pro bono work on behalf of a variety of indigent prisoners. The firm is more than 130 years old.

Among the 34 states with the death penalty, Alabama alone does not automatically give all its 200 or so current capital inmates taxpayer-funded legal assistance to file papers challenging their convictions, sentences and lethal punishment. Big firms like Sullivan & Cromwell often step in and tackle the often long and expensive appeals process.

Lawyers for Maples say that such missed deadlines -- whatever the reasons -- have occurred before and that some flexibility should be built into the system, especially when it involves crucial constitutional issues like habeas corpus and the death penalty.

"It's really an almost unthinkable situation, and anyone, even the most ardent supporters of capital punishment, ought to be concerned about the result in this case and should not want a decision allowing a man to be executed in these circumstances, because that can only erode public confidence in the system of capital punishment," attorney Gregory Garre told CNN in a recent interview.

The case is Maples v. Thomas (10-63). A ruling is expected in a few months.

By Bill Mears, CNN Supreme Court Producer


Tuesday, October 4, 2011

California Employment Lawyer Norm Blumenthal Selected as a 2011 Super Lawyer in San Diego

California employment lawyer Norm Blumenthal of Blumenthal, Nordrehaug & Bhowmik Selected to Elite Super Lawyers List

Attorney Norm Blumenthal has been named to the California Super Lawyers list as one of the top attorneys in California for 2011. No more than 5 percent of California employment lawyers are selected by Super Lawyers.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area.

Norm Blumenthal was elected to Super Lawyers for being recognized as a leading San Diego employment lawyer. Blumenthal, Nordrehaug & Bhowmik focuses on employment law issues in San Diego county involving overtime pay laws, wrongful termination laws, employment discrimination and other employee rights violations.

By San Francisco Chronicle

Source: San Francisco Chronicle

Redistricting attorneys OK'd for Legislature

A team of private lawyers will defend the Democratic-controlled Legislature in a court fight over redistricting, state legislative leaders decided Monday despite objections from Republicans.

The Legislative Council voted along party lines to authorize the lawyers. They will represent the Legislature in lawsuits over plans for new boundaries of districts for Congress, the state House of Representatives, the state Senate and Public Regulation Commission.

Senate GOP Leader Stuart Ingle, of Portales, said in an interview that separate lawyers should have been authorized for Republicans as well as Democrats, who hold majorities in the House and Senate, because redistricting decisions were largely divided along party lines during the special session.

"If one side is going to get lawyers paid for, the other side should get it too," said Ingle.

Senate President Pro Tem Tim Jennings, D-Rowell, said both political parties will have an opportunity to voice their views during the lawsuits. Groups of Democrats and Republicans, including the No. 2 House GOP leader, are among those who have brought lawsuits so far.

Republicans opposed Democratic-backed House and Senate redistricting plans passed by the Legislature, and GOP Gov. Susana Martinez was expected to veto those proposals. The Legislature failed to approve a congressional redistricting plan, although a proposal passed the Senate with only Democrats backing it.

The Legislature needs lawyers for redistricting litigation, Jennings said, because the governor is named as a defendant in some cases. Also named in several of the lawsuits were House Speaker Ben Lujan, D-Santa Fe, and Jennings, who will be represented by the Legislature's lawyers.

The lawsuits will present a court with "confrontation between the executive and her veto authority and the legislative branch and our authority to make a decision on what our districts are," Jennings said.

"We're doing this as an institution," Jennings said.

The same legal team represented the Legislature in lawsuits over congressional and House redistricting a decade ago. Its three main lawyers also were hired last year to advise legislators on redistricting issues before and during a special session, which ended last month.

The three, who are being paid $260 an hour each, are Luis Stelzner of Albuquerque, Richard Olson of Roswell and Michael Browde, an emeritus law professor at the University of New Mexico. Stelzner and Olson, a former GOP state legislator, work for separate law firms.

For their work 10 years ago, the team was paid about $653,700 for litigation costs, including fees for expert witnesses during trials, according to the Legislative Council Service. The council makes administrative decisions for the Legislature, and its members include Democratic and GOP leaders in the House and Senate, as well as rank-and-file legislators.

Taxpayers footed the bill for nearly $3 million in other legal fees for redistricting a decade ago, paying for lawyers representing then-Gov. Gary Johnson, the lieutenant governor, groups of Democrats and Republicans, Indian tribes and Hispanic activists.

House GOP Leader Tom Taylor of Farmington said the lawyers are "very upstanding individuals."

"But the fact of the matter is, they work for the majority because the majority can hire and fire those guys without the minority," Taylor said.

The state Supreme Court is expected to decide later this month whether it will consolidate redistricting lawsuits in Santa Fe. The court has told lawyers to submit their arguments on the proposal by Oct. 10.

A group of Democrats, including Rep. Brian Egolf of Santa Fe, asked the justices last week to consolidate all redistricting cases and appoint one judge to handle them in state district court in Santa Fe.

Republicans have filed separate redistricting lawsuits in Lovington, in southeastern New Mexico, and in Albuquerque. Lawsuits were filed in Santa Fe by Democrats and Laguna Pueblo.

By Barry Massey, Associated Press

Source: Houston Chronicle

Monday, October 3, 2011

Lawyers argue Haynesworth's innocence before Appeals Court

Prosecutors in Richmond and Henrico County, as well as Virginia's attorney general, all believe Thomas E. Haynesworth is innocent.

Now it's up to the nine judges on the Virginia Court of Appeals.

The court on Tuesday heard arguments from Attorney General Ken Cuccinelli and lawyers from the Mid-Atlantic Innocence Project on behalf of Haynesworth, who is seeking writs of actual innocence to clear his name of crimes officials now believe, thanks to DNA evidence, that he did not commit.

Haynesworth, 46, who spent 27 years behind bars before being paroled by Gov. Bob McDonnell in March, attended the 30-minute hearing, during which judges questioned how much weight should be given to testimony from eyewitnesses that was used to convict him in 1984.

"I just want it to be over, move on with my life and put it behind me," the soft-spoken Haynesworth said after the hearing.

The judges also wanted guidance on how much emphasis should be placed on the fact that the state's attorney general, who would normally be in the position of defending a conviction, is fully convinced of Haynesworth's innocence.

Lawyers argued that it should be given great weight, noting that support for Haynesworth's innocence is supported by DNA evidence, based on thorough investigation and backed by commonwealth's attorneys whose offices previously prosecuted him. Given the evidence, neither would do so today.

"It's definitely unusual, but we were there for a reason," said Cuccinelli, saying he believed it was his duty under the law to argue for Haynesworth. "We believe there was a miscarriage of justice. It is our job to try to fix it."

For years, law-enforcement agencies have maintained that the same person committed a series of sex assaults in the Richmond neighborhood where Haynesworth lived.

Because DNA evidence has exonerated Haynesworth in two of the cases and implicated another neighborhood man — convicted serial rapist Leon Davis — who bore a resemblance to Haynesworth, lawyers argued that eyewitness testimony linking Haynesworth to the crimes in Henrico and Richmond was similarly mistaken.

Haynesworth remains convicted in two cases for which there are no biological tests that can be conducted. Davis, who is serving more than 100 years in prison, has refused to discuss the case.

The Court of Appeals must conclude that, given the new evidence, no reasonable juror would find Haynesworth guilty. There is no timetable for the court's decision. It can grant the writs of actual innocence, reject them or refer the cases to the circuit courts for further review.

Though he is a free man today, without the writs Haynesworth must remain registered as a sex offender and is subject to the laws governing them.

"Thomas is out right now," said Shawn Armbrust, a Mid-Atlantic Innocence Project lawyer who argued before the panel. "But he isn't free."

She said the organization would appeal the case to the Virginia Supreme Court if Haynesworth's petition is rejected.

"Twenty-seven years of my life has been taken," said Haynesworth, who now works at the attorney general's office.

"I want [the judges] to take consideration of what I have been through."

By Jim Nolan

Source: Richmond Times-Dispatch

Former HomeGold executive appeals conviction

A former executive involved in one of the biggest bankruptcies in South Carolina history is appealing his conviction for securities fraud, saying that the state failed to prove its case and that a judge shouldn't have allowed heartbreaking testimony from investors who lost nearly everything.

Attorneys for former HomeGold Financial Inc. Chairman Jack Sterling will ask the state Supreme Court to also throw out his 5-year prison sentence during arguments Tuesday. It's a high-risk appeal for the 73-year-old executive, who has been allowed to remain free on $100,000 bail since he was found guilty of securities fraud in March 2009.

Sterling was one of six executives who were convicted by a jury or pleaded guilty after Carolina Investors went bankrupt in 2003, leaving 8,000 investors with a combined loss of $275 million. Trustees would eventually recover about 18 cents on each dollar invested, but that was hardly enough to replenish the nest eggs of many investors.

Sterling's lawyers said he tried to do anything he could to save HomeGold and therefore save its subsidiary, Carolina Investors, but his solutions just didn't pan out, in part because of the actions of other executives. Prosecutors said he made reckless decisions and didn't explain his reasons to investors.

Two of the executives convicted in the case have already had their appeals rejected by the Supreme Court.

But Sterling's attorneys said his case is different because state prosecutors never proved Sterling lied directly to investors, according to briefs filed with the court.

Instead, prosecutors convinced jurors, based on the judge's erroneous instructions to them, to convict Sterling because he withheld information about bad decisions he made trying to save HomeGold, Sterling's attorneys said.

In court papers, Sterling's lawyers also go point by point through his indictment, arguing the state never proved its case. They said the jury's decision to find Sterling not guilty of a conspiracy charge bolsters their case that he never intentionally misled investors. They said the judge was wrong to tell jurors that prosecutors only needed to prove Sterling was "severely reckless," instead of having to show he willfully defrauded investors.

"Jack Sterling consistently ensured that all material information — good, bad and ugly — was fully and properly disclosed to the public. No rational jury could find beyond a reasonable doubt that Sterling willfully misrepresented or omitted material facts," Sterling's lawyers wrote in one of their arguments.

Sterling's attorneys also said he did not get a fair trial because a judge allowed five investors to testify about the hardships and heartbreak they suffered when they lost their money. One man testified he was once a millionaire, but after Carolina Investors collapsed he couldn't afford a funeral for his wife and had her cremated without any ceremony.

Those investors never met Sterling, only speaking with executives at Carolina Investors, so it wasn't fair for jurors to hear their stories, according to court papers.

The state attorney general's office responded to the allegations by saying Sterling's lawyers at his trial didn't object to any of the items in his appeal, meaning the justices shouldn't be able to consider their arguments.

They said the testimony from investors was relevant to the case because those people would have never continued to put their money into Carolina Investors if Sterling and others had let them know the company's true financial state.

Sterling "engaged in a course of business or scheme to omit materially relevant information which would likely have changed the decisions of many CI (Carolina Investors) investors," according to court papers filed by the attorney general's office.

Sterling's lawyers used their briefs before the Supreme Court to aggressively attack the state's case, saying that prosecutors treated him terribly in their "zeal to convince the public that justice has been done."

"The state obtained Sterling's conviction without a shred of evidence," Sterling's lawyers wrote in court papers. "Its brief supporting that conviction is without a shred of legal analysis."

By Jeffrey Collins, Associated Press

Source: Houston Chronicle

Sunday, October 2, 2011

Diversity Digest: Cracks in the Glass Ceiling

Women haven't advanced as far in the legal profession as some had hoped, but many individuals have success stories to tell

Michele Coleman Mayes has been a member of a select group—women general counsel in the Fortune 500—for almost a decade now. But when she first got serious about becoming a GC, she thought she'd been rebuffed.

It was around 1990, and Mayes was then working in-house at Unisys Corporation. She put a question to Andrew Hendry, the head of the company's law department: Would he help her become a GC like himself? "He stared at me like I was from Mars, and proceeded to tell me all of the things I was lacking," Mayes recalls. She specialized in litigation, and Hendry—who was a deal lawyer—"didn't see litigators as real good talent for the GC job."

Shortly afterward, Hendry left Unisys to take the general counsel post at Colgate-Palmolive Company. "I said to myself, 'Well, check that box, that's never going to come to pass,' " says Mayes. But then she got a call from Hendry, who had a question of his own: Did she want to join him at Colgate? "I had a long debate with myself—did it make sense to follow him?" Mayes recalls. After all, Hendry had just become Colgate's GC, so it was unlikely that the position would open up anytime soon. (Indeed, Hendry still helms the company's law department.)

But Mayes says that Hendry told her: " 'If you don't get to be general counsel here, I'll get you ready to be general counsel someplace else.' And that's what he did." Hendry helped Mayes expand her skill set—she did a stint heading Colgate's human resources department, for example. And then, in 2002, Mayes was hired by Pitney Bowes Inc. to be its general counsel. Five years later, Mayes was tapped for the GC post at The Allstate Corporation, where she remains.

Today, Mayes is one of 100-plus women GCs in the Fortune 500. That may sound like a lot, but as she notes, "We're still 20 percent—so let's not start having a party." Still, female GCs are faring better than women at elite law firms. According to one study, only 6 percent of the country's 200 highest-grossing firms have a female managing partner.

The low numbers are a source of frustration for many observers, especially since women have received more than 40 percent of all law school degrees awarded each year since 1986. Through the nineties, they continued to advance steadily in the profession. But over the past decade, their progress seemed to stall. Even the percentage of female law school graduates, which peaked at almost 50 percent in 2004, dropped for several years afterward.

One lawyer who expected more progress is Stasia Kelly, who has been extremely successful in her own right—she held the GC post at four different companies before becoming a partner at DLA Piper. "I would have thought by now that there would have been a critical mass of women at the top of law firms and the legal profession," says Kelly. "But the past ten years have not seen as much robust growth as the previous ten years."

Why not? For years, the conventional wisdom was that women lawyers were leaving the profession to have children. But recent studies have challenged that idea. Many women, it turns out, have tried to keep practicing law while raising a family. Rather, the problem seems to be that women are less likely than men to have a stay-at-home spouse to help take care of the kids. That can put female attorneys at a disadvantage, particularly in law firms where the best rewards go to the lawyers who work the most hours.

Another popular assumption is that women have more success in law departments than at law firms. While there's little data comparing the two environments, the perception that women do better in-house will be reinforced by Courageous Counsel, a new book that Mayes cowrote with Kara Baysinger, a partner at SNR Denton. They interviewed 42 current and former female GCs in the Fortune 500 for the book, making it the most detailed history of women in-house lawyers yet.

Mayes does think that companies provide more options to women. "There's a lot in the way that companies have evolved that has made them a more welcoming environment," she says.

Whether female lawyers do better at firms or in departments, Baysinger believes that they have more confidence in pursuing their careers now. "There's more of an assumption among women that 'Well, why shouldn't we be considered for these jobs,' as opposed to feeling like it's an exception to the rule that they be considered for these jobs," she says. "The GC job is one that many of these women feel that they have the skills to accomplish, full stop."

Susan Hackett is familiar with the challenges that women face in law firms. She graduated from the University of Michigan Law School in 1986 (the same year that female graduates crossed the 40 percent threshold). "It was a brave new world," she says. "We were almost half the class, we had the grades that the men had, we were getting offers to the same extent that the men were." She herself took a job as an associate with Patton Boggs in Washington, D.C.

But, Hackett continues, "what became pretty quickly apparent was that even if you worked as hard as we all did in the eighties on dressing like a man and sounding like a man and trying to be like a man, it didn't work." After only a couple of years at Patton Boggs, "I ran screaming from the building," she jokes. Hackett joined the Association of Corporate Counsel, where she later became general counsel. (She resigned from the ACC this past spring to cofound Legal Executive Leadership, LLC, a Washington, D.C.–based consulting firm.)

According to Hackett, "Huge numbers of women peeled off" from law firms. She believes that one reason that women were "disproportionately" pushed away from firms was that "they couldn't choose to do both firm and a family as easily as they could have."

However, cultural issues also played a role. "We just never quite fit in the club the same way," Hackett says. "I can remember working all day at the firm and realizing that at 6:30 all the guys were sitting down in one of the partners' offices downstairs drinking Jack Daniels. It wasn't that I didn't get along with those people, and it wasn't that I wanted to drink Jack Daniels with them that much, but I thought to myself as I watched this, 'There's something happening here that I'm not part of.' "

Of course, many women have succeeded at law firms. Stephanie Scharf, a former president of the National Association of Women Lawyers (NAWL) was a partner at two large firms, Jenner & Block and Kirkland & Ellis. Scharf says that she "greatly enjoyed" her time at each: "I worked with excellent colleagues with whom I developed many warm friendships, all while being handsomely paid and advancing into leadership positions." But Scharf, who is now a partner with the women-owned firm of Schoeman Updike & Kaufman, adds, "My experience was more fortunate than most, as I did see many women struggle to advance and leave big-firm practice for various reasons."

Since 2006, Scharf has conducted a NAWL study that quantifies how women lag behind men at large firms. Each year the association sends a questionnaire to the Am Law 200 firms, the highest-grossing firms in the country as ranked by The American Lawyer , a sibling publication of Corporate Counsel . The survey has had an average response rate of around 60 percent.

According to NAWL's 2010 report, 46 percent of associates are women—closely matching their representation among recent law school graduates. But the percentage of women drops as they move up the promotion ladder. They constitute 36 percent of of counsel, 27 percent of nonequity partners, and about 15 percent of equity partners. Likewise, their compensation steadily declines in comparison to men. According to NAWL's 2008 report, women earned 97 percent of what men did in the associate position; 93 percent in the of counsel position; 91 percent in the nonequity partner position; and 87 percent in the equity partner position.

"Women are not advancing in firms as well as they should," says Scharf. In particular, she highlights the low percentage of equity partners who are female, which she says has not appreciably changed since NAWL conducted its first survey. "It's always been flat—around 15 percent, never much more than that."

Why aren't women doing better? Scharf says that the pressure at elite firms to bill as many hours as possible is one reason. "When you have a promotion model that insists on a high number of hours, that's going to have a negative impact on women, and firms will consistently lose many more women than men," she explains.

A report coauthored by Joan Williams of the Project for Attorney Retention and Veta Richardson of the Minority Corporate Counsel Association reached a similar conclusion. Williams is a cofounder of PAR; Richardson was executive director of MCCA until this summer, when she became CEO of the ACC.

In their report, which was published last fall, they wrote, "A most-hours-wins system tends to disadvantage women because it favors law firm partners who have a specific family form that most male law firm partners, but few women law firm partners, have: the 'two-person career.' " Williams and Richardson went on to explain, "A lawyer with a two-person career has the advantage of a spouse who takes care of most, or all, of the lawyer's nonwork responsibilities, from waiting for the cable repairman to picking up the dry cleaning to caring for children and elders."

The PAR/MCCA report was based on a survey of nearly 700 women law firm partners. Only 13 percent of the respondents had a spouse who was at home full-time, while just 10 percent had a spouse at home part-time. According to the report, previous research has shown that around half of male attorneys have wives at home full-time.

The report also discussed how women are affected by the fact that at most firms, the leaders who make the decisions about promotions and compensation are overwhelmingly men. Williams and Richardson wrote that the issue isn't that these leaders discriminate against women, but rather that they show favoritism toward those who are like themselves—i.e., other men.

NAWL's surveys show just how underrepresented women are in leadership positions at Am Law 200 firms. According to the association, the proportion of firms with a female managing partner has stayed at around 6 percent over the years of its study. And women are also a rarity on their firm's highest governing committee. Around 80 percent have two, one, or no women on this committee, which averages about ten members.

Though the perception is that women are doing better in law departments than in law firms, it's hard to make an exact statistical comparison of the two environments. NALP (formerly the National Association for Law Placement, Inc.) conducts an annual diversity survey among a wider range of law firms than NAWL does. According to NALP's 2010 study, almost 33 percent of all lawyers at its responding firms were women. A rough comparison can be made by looking at the membership of the ACC. The in-house bar group reports that as of this year, 42 percent of its members are women.

As in law firms, it appears that the percentage of women declines as they climb up the ladder in law departments. There's not a full set of in-house numbers equivalent to NAWL's statistics on the percentage of women in each law firm position. However, MCCA conducts an annual survey looking at the top in-house position—general counsel. According to Lori Garrett, an MCCA vice president, there are now "just over 100" female legal chiefs in the Fortune 500—more than 20 percent. (MCCA will publish a full list of these GCs in the September/October issue of Diversity & The Bar .)

The percentage of female general counsel will be significantly higher in another report that MCCA will issue at its annual diversity conference in late September. The association sent a demographics survey to all members of both MCCA and the ACC. Garrett says that a total of 765 law departments responded, ranging in size from one attorney to more than 500. And the survey showed that women are general counsel at one-third of these departments.

Hackett, the ACC's former general counsel, believes that women have tended to do better in law departments than in law firms for a number of reasons. "First of all, a lot of really high-quality women have left firms—more so than similar high-quality men," she says. As a result, the pool of people looking for in-house jobs is very strong with regard to women. Also, Hackett believes that "companies are on the diversity streak, with a lot more focus and a lot more success than firms." In her view, "firms are focusing on it, but it's more because 'we have to.' " By contrast, "companies found out some way back that they really did have strategic advantages from being diverse."

And women are benefiting from being, well, women. As Hackett puts it: "Companies have tended to reward the kinds of skills that women in general are known for bringing—the ability to accommodate and collaborate, the ability to lead teams, the ability to look for different kinds of solutions."

The suggestion that women are better at certain things than men can be a tricky one to raise in discussions about female advancement. Mayes says that she and Baysinger "had big debates" about gender differences while they were writing Courageous Counsel . But, Mayes continues, "what I came to say is that women have been socialized as a gender to be a certain way." And, she believes, "the bottom line is that certain of the things that we do well have played very strongly to the model of the GC as it has evolved."

Still, Mayes stresses that their book "is not about saying one gender trumps the other—we're very definitive about that. All I'm suggesting is that we have a slight advantage, because some of the things that we've been doing are things that are now being rewarded."

Mayes, one of the 42 general counsel who relate their experiences in Courageous Counsel , says that she knew many of the others already: "The circle is relatively small, so once you're in it, it doesn't take long to meet somebody." Mayes adds that she'd heard a number of these GCs tell their "extremely powerful" stories before. But once she and her coauthor started to work on the book, she says that the question became, "What would make it interesting beyond these stories?"

Baysinger says that's when the the project "got more exciting." An insurance regulatory lawyer at SNR Denton who counts Allstate as one of her clients, she explains, "We started to think of it as a mentoring tool, as an opportunity to have these amazing women share kernels of wisdom with potential readers."

One of the biggest pieces of advice that the book has to offer is that it's important to take risks. "Each one of the women took what I call a flying leap at at least one point in her career," says Baysinger. "It's important to focus on the opportunities. And in every situation, there's an opportunity."

But the book also stresses the importance of creating opportunities. Mayes cites an anecdote from Louise Parent, who was a law firm attorney before embarking on a path that eventually led to her current position as general counsel of American Express Company. "Louise tells a wonderful story about how she's sitting in a room looking at documents," Mayes says. "She looks out the window at the Empire State Building and says to herself, 'Wait a minute, this is my birthday.' And she decides, 'I'm not doing this anymore,' and walks out."

Another lesson from the book is that "there's no one path for career success," Baysinger says. "We talked to 42 women GCs. There are 42 completely different distinct routes to get there. Not one of them mirrored another." She continues, "That's actually a really powerful message for women—and men—who are thinking about how to get ahead. Just because you don't look like or act like or have the same CV as the person who did a job before you, that doesn't mean you aren't precluded from doing it too."

The book is unapologetically inspirational, starting with its title. Mayes says, "It was so apparent, when you read the text of the interviews, that that was a common thread—that you encountered these risks, they're windows of opportunity, but you need courage to tackle them."

However, readers will find another message too. "It wasn't all pretty," Mayes says. "No one got there without some bumps in the road. There are some stories in there where people say, 'That didn't go so well.' But so what? Failure is only fatal if you let it be." That's advice that all women lawyers can use as they continue to work toward full equality in the profession.

By Brian Zabcik

Source: Corporate Counsel