Tag Archive for 'attorney'Page 2 of 14

Top Legal Stories of 2011

Share on TwitterSubmit to StumbleUpon

2011 has been an interesting year. The economy remained sluggish. The 2012 presidential campaign got into full swing. We had a war in Libya (remember that?). Of course, this is a law blog, so I won’t dwell on those subjects except to the extent that they have a significant legal angle.

But there’s still plenty to write about – 2011 has been an incredibly eventful year in the legal world. Important constitutional questions about the power of the president were brought to the forefront of public discussion. The Supreme Court agreed to hear what may well be its most momentous case in decades. A longstanding policy regarding sexual orientation and military service was changed. And there were plenty more, far too many to discuss in a single blog post.

So, without further ado, here are what I view to be the most important legal news stories of 2011, in no particular order, and chosen by my subjective opinion of which stories were the most interesting, along with a bit of arbitrary whim. So, it’s the definitive list, obviously.

  1. The legality of the military invention in Libya: 2011 may be remembered as a year of profound change in the Middle East, with one of the most notable cases being in Libya, where the U.S. and its allies, backed by a UN resolution, launched air strikes, helping rebels overthrow Moammar Ghadaffi. However, there has been some controversy over America’s role in the operation. Under the War Powers Resolution, passed after the Vietnam War, the President must obtain the approval of Congress for any overseas military engagement lasting longer than 60 days. President Obama did not seek such approval (to be fair, every president since the law was passed has ignored it, arguing that it’s unconstitutional). Given the divided political culture in Washington, some politicians and commentators have argued that the U.S. intervention in Libya was illegal. This controversy brought the War Powers Resolution back into the public limelight, and sparked a heated (though brief) public debate about this important constitutional issue.
  1. “Don’t ask, don’t tell” is repealed: The policy that barred gay and lesbian soldiers from serving openly in the U.S. military was repealed in December of 2010, and the repeal went into full effect in September of 2011. As of the writing of this blog post, there have been no reports of any significant problems resulting from the repeal. There are predictions that, in the long run, allowing gays and lesbians to serve openly will have broader positive implications for expanding the legal rights of gays and lesbians.
  1. Massive employee lawsuit against Wal-Mart thrown out: The largest class-action lawsuit in U.S. history (and it’s now likely to hold on to that record forever, for reasons that will soon be obvious) was thrown out by the U.S. Supreme Court on the grounds that the proposed class – comprising 1.6 million current and former female Wal-Mart employees – was too large. The court never ruled on the merits of the plaintiffs’ claims that Wal-Mart engaged in a pattern of gender discrimination, leaving the plaintiffs open to bring a new lawsuit with a smaller class of plaintiffs, which marks a trend of the Roberts court limiting consumer class-action lawsuits.
  1. New York legalizes same-sex marriage: The state of New York became the largest state in the country to legalize same-sex marriage. It also marked the first time a Republican-majority state legislature passed such a law. Once again, it brought into focus the fact that the federal government does not recognize these unions, denying lawfully-married same-sex couples the many federal benefits that come with marriage.
  1. States take immigration enforcement into their own hands: Several U.S. states set themselves up for a legal showdown with the federal government over who has (and doesn’t have) the power to enforce federal immigration laws. Immigration is generally considered the exclusive domain of the federal government. However, with immigration becoming a hot-button political issue, many states began passing laws giving state authorities unprecedented authority to enforce immigration laws. The federal government, concerned about diplomatic relations with foreign countries and maintaining a consistent nationwide immigration policy, is challenging some of these laws in court. You can bet that 2012 is going to see much more of this.
  1. Supreme Court to hear healthcare reform cases: Legal challenges to President Obama’s signature legislative accomplishment – the Patient Protection and Affordable Care Act – began almost immediately after the law was passed. Federal courts considering the constitutionality of the “individual mandate” (the provision of the law that requires almost all Americans to obtain health insurance or pay a financial penalty) have come out on both sides. The Supreme Court, as everybody predicted, is going to hear the case, and hopefully resolve the issue once and for all. However it rules, you can bet that the court’s decision (expected in the summer or fall of next year) is going to be one of the top legal news stories of 2012.
  1. Free speech applies to the worst of the worst: Westboro Baptist Church, the group best known for its virulent anti-gay stances, and its claims that every bad thing that happens in the world is a result of God punishing humanity for allowing gay people to exist, and picketing the funerals of U.S. soldiers killed overseas, which, naturally, the friends and families of these soldiers found incredibly upsetting. One family sued the church for intentional infliction of emotional distress. The Supreme Court ruled that the church’s actions were protected by the First Amendment. Most legal commentators reluctantly agreed that the court’s ruling was correct, even if almost everyone found it personally distasteful.

2011 was definitely an eventful year in legal news. And considering that most of the stories discussed above are far from over, I wouldn’t be too surprised if a lot of them make the 2012 list, as well.

Incoming search terms for the article:

Should There Be a Right To a Free Attorney in Civil Cases?

Share on TwitterSubmit to StumbleUpon

The American Bar Association has filed a brief in a New Hampshire court in favor of state funding of appointed counsel in certain civil cases.

As you may know, you have a constitutional right to have a lawyer appointed to defend you in most criminal cases, if you can’t afford to hire a lawyer. This makes perfect sense. After all, in a criminal case, a whole lot can be at stake. Usually, losing a criminal case means, at the very least, losing one’s freedom for a fairly long period of time. And, in the most extreme cases, the defendant’s life could be at stake. So, if we want to believe that we live in a free and fair society, we have to do absolutely everything we can to ensure that all criminal defendants get a fair trial. One essential element of that is a defense by a competent attorney, whether the defendant can afford it or not.

However, the law generally does not recognize a constitutional right to a free court-appointed lawyer in a civil lawsuit, whether you’re the plaintiff or the defendant. To some people, this doesn’t make sense, because in many civil cases, just as much can be at stake as in a criminal case.

In a landlord-tenant lawsuit, a loss may result in a family being evicted from their apartment, and thrown out onto the street. In a lawsuit over eligibility for disability benefits, the applicant’s ability to obtain basic healthcare may be at stake. And, if parents are accused of abusing or neglecting their children, the state may initiate a civil action to have the children removed from their home (this issue is completely separate from the parents’ criminal liability for the alleged abuse). Generally, the law says that you have no right to a court-appointed attorney in these cases, even if you can’t afford one, and everything is at stake.

Many individuals and organizations, however, are seeking to change that.  The American Bar Association has advocated for state and federal authorities to provide attorneys in adversarial legal actions where “basic human needs” are at stake.

This is sometimes called a “Civil Gideon” rule, which refers to the Supreme Court case of Gideon v. Wainwright, which first recognized the constitutional right to court-appointed counsel for defendants in criminal cases.

California has led the way in this push. Back in 2009, the state legislature passed a law which closely mirrors the policy advocated by the ABA. It authorizes funding for court-appointed attorneys to indigent parties in civil cases that involve basic human needs, such as eviction and foreclosure cases, child custody cases, and cases involving eligibility for healthcare benefits such as Medicare or Medicaid. Anyone whose income is 200% above the poverty line or lower is eligible for court-appointed attorneys in these cases. For a family of four, this is an annual income of a little over $44,000.

Personally, I think that this is a sound policy, at least in theory. With the budgets of many states (notably California) being strained to the breaking point, adding yet another funding mandate is a tough pill to swallow for many Californians.

Also, some (mostly) conservative commentators have noted that such a rule will make it more difficult and expensive for landlords to carry out legitimate and justified evictions, which could end up raising rents on everybody, including the low-income renters that this law is intended to protect.

That’s probably the most compelling argument against this law. However, I think the pros of a rule like this most definitely outweigh the cons. It’s pretty hard to argue that a parent who is facing the prospect of losing custody of their children shouldn’t have a court-appointed lawyer in such cases. And if a severely disabled individual is denied SSDI benefits, it’s hard to argue with a straight face that they shouldn’t be able to pursue every legal avenue available to them to appeal this decision, as effectively as possible.

Obviously, such a system can never be perfect, and many practical issues come up, particularly having to do with its implementation. For example, should there be a dedicated state organization staffed by full-time lawyers, tasked with handling cases like these (like the office of the public defender)? Or should all California lawyers be required to participate in it? There are advantages and disadvantage to both approaches.

Another possible sticking point is the question of where to draw the line on what constitutes a basic human need. It’s likely that the courts will become involved in clarifying this language. After all, it would be prohibitively expensive to provide indigent parties with a lawyer in every civil case. And that was never the intent of this law.

In any case, I think the ABA has made the right decision in calling on state and federal governments to provide court-appointed lawyers in some civil cases. Given the fact that just as much can be at stake as in criminal cases, it’s really hard to argue that the same interests of justice do not apply to some civil matters.

Incoming search terms for the article:

Does Overworking Lawyers Encourage Fraud?

Share on TwitterSubmit to StumbleUpon

There are a lot of widespread perceptions about the legal profession. One of the most common one is that lawyers, especially new associates at law firms, are overworked.

The main reason for this, besides the fact that the practice of law is inherently time-consuming, is the fact that many law firms revolve around the “billable hour.” Many law firms bill their clients by the hour, and they’ll bill a client for any and all work done by the firm’s associates on the client’s case. Work that can be billed to a client is measured in billable hours.

Since this is the primary source of a firm’s income, many law firms require their associates to work a minimum number of billable hours, or “billables,” per year. A typical requirement at a firm is about 2,000 billable hours per year. This amounts to 8 hours a day, 5 days a week, with two weeks per year of vacation.

However, not all the work done by lawyers can be billed, so while a 2,000 hour per year requirement seems reasonable (it amounts to a standard work week), it usually means that a lawyer will have to work many more hours per week to meet his or her billable requirements.

One firm has taken this requirement to seemingly-new heights. A firm in Southern California required its associate attorneys to bill 3,000 hours per year. This amounts to working 8 hours per day, 7 days per week, every week of the year. Taking into account the fact that not every hour a lawyer works is going to be billable, you can see how such a requirement is completely unrealistic. And with the job market for new lawyers being what it is, it’s easy to imagine the desperate measures a young associate might take to meet this requirement.

The story linked above discusses a lawyer who was fired from the firm with the 3,000 billable hour requirement who is now suing his former employers, alleging that this requirement encouraged associates to forge their timesheets, effectively committing billing fraud against their clients.

In order to avoid losing their job, the former law firm employee alleges in his lawsuit that associates routinely falsified their timesheets, where they keep track of their billable hours. Generally, law firms bill in 0.1 hour (or 6-minute) increments. Associates would bill one such unit for opening an email, another for reading it, and yet another for responding it, even if all these things took far less than the time being billed for.

Now, I’m not saying it’s impossible to honestly bill 3,000 hours per year, assuming a law office actually has enough work for its associates to fill that time. Obviously, meeting that quota without padding one’s timesheets would require a great deal of discipline, and a pretty miserable work-life balance, but it could probably be done.

However, people being the way that they are, it seems far more likely that an associate would pad his or her bills.

So, what could be done about this? Obviously, it’s up to law firm management to make it perfectly clear to its associates that billing fraud will not be tolerated, and foster a workplace culture that values honesty and ethics over billing.

This should probably be coupled with reasonable and slightly more flexible billable hour requirements.

Or, perhaps some firms should rethink the billable hour system altogether. I’ve written before about how the legal industry appears to be changing. With clients becoming more budget-conscious, especially when it comes to the price of legal services, some law firms are starting to charge flat fees for certain services, rather than billing by the hour.

In theory, this structure eliminates any incentive for lawyers to drag their feet on simple projects, simply to run up their billables, since they’re getting paid for the end result of their work, rather than the amount of time they spend on it. If a large number of legal services could be billed for in such a way, it may well result in better-quality work product, produced much more efficiently, while discouraging billing fraud.

Obviously, the billable hour is not going away entirely any time soon. Sometimes, it can’t be known in advance how complicated or time-consuming a legal task is going to be before work starts on it, it makes sense to charge by the hour, assuming the lawyer bills honestly. However, humans have an extraordinary capacity to expand any task assigned to them to fill the time allotted. If someone can do a task in a day, but they’re given a week in which to do it, you can bet that most people will simply make the task take a week. In a culture that appears to value the amount of time spent on a task at least as much as the level of quality, you can see how some law firms end up operating somewhat inefficiently.

There’s no perfect solution to this. However, I think it’s important for lawyers (as well as state bar associations) to remember that a lawyer’s most important obligation to his or her client is to provide competent legal representation, at a reasonable fee. If a firm requires its lawyers to bill an insane number of hours each year, it may be worth looking into whether such a requirement is compatible with either of those primary obligations.

Incoming search terms for the article:

Lawyer Suspended for “Secretary With Benefits” Job Ad

Share on TwitterSubmit to StumbleUpon

A memo to all employers out there: it’s probably a good idea to try and get your jollies outside of the office, on your personal time. Also, it’s generally illegal to solicit sexual favors in exchange for money. I believe the legal term for this is “prostitution.” Finally, it’s illegal to sexually harass your employees, and this includes making employment contingent on the performance of sexual favors.

And you know who, in particular, should be aware of these facts? Lawyers.

So imagine my surprise and confusion when I read this (with more detail on the Legal Profession Blog). Yes, a lawyer posted a job ad to Craigslist, in the “adult gigs” section, looking for a secretary to work in his law office, and perform traditional secretarial duties, while also performing sexual favors for the lawyer and another lawyer who shared his office.

This has to be one of the most bizarre sexual harassment claims I’ve ever read about (though it’s not even close to the weirdest story about Craigslist I’ve ever read, interestingly enough). Unfortunately, sexual harassment is still fairly common in the workplace. According to LegalMatch.com case data, thousands of people, in a wide range of industries, have sought legal counsel to help in their case against employers who have allegedly harassed them.

And over the last several years, the percentage of sexual harassment claims filed by men has increased, suggesting increased awareness that anybody can be the victim of sexual harassment in the workplace.

However, I noticed an interesting statistic recently: while the number of sexual harassment claims filed in the U.S. seemed to hold steady from the late 1990s to 2008, they dropped fairly sharply (down from about 13,000 claims to 11,000) in 2009 and 2010.

I’ve wondered why this is, because I seriously doubt that thousands of people all of the sudden had a change of heart and decided overnight to stop engaging in inappropriate behavior at work. And cases like the one I mentioned above show that some employers are still incredibly brazen in the way they engage in this despicable conduct.

So, what’s the explanation for the sudden drop in reported sexual harassment cases? Unfortunately, I think the state of the economy and the job market is partly to blame.

Most employees are probably pretty anxious about their ability to keep their jobs, especially those who occupy lower places in the business hierarchy.

So, it shouldn’t come as much of a surprise that some employees are probably afraid to report sexual harassment for fear of losing their jobs. Although it’s unlawful for employers to retaliate against employees for filing, in good faith, a claim for sexual harassment (even if the claim ultimately turns out to be without merit), that doesn’t mean that these things don’t happen.

Also, if an employee has filed sexual harassment cases in the past, even if they’re legitimate, future employers might be reluctant to hire that person, out of fear that they might file sexual harassment claims in the future. Again, this is illegal, but it’s usually pretty easy for an employer to come up with a plausible legal reason to not hire an employee, especially when the job market is as competitive as it is, and there are many qualified applicants for a given position.

I’m honestly not sure how we can deal with this problem. I should note that, although the number of sexual harassment claims filed each year is probably much smaller than the actual number of incidents of sexual harassment, the numbers are still tiny compared to the total number of working people in the United States.

This strongly suggests that the vast majority of employers have strong anti-harassment policies, and implement them effectively.

Hopefully, the rest of the employers in the country (especially our former-lawyer friend) get the memo that sexual harassment in the workplace is completely unacceptable.

Facebook Postings May Be Used Against You in a Divorce

Share on TwitterSubmit to StumbleUpon

Social networking websites have often found their place in court, especially during voir dire or criminal proceedings.  Yet again, social networking sites are being used, but now in a different context.

In a Connecticut divorce proceeding, a judge is requiring that a couple submit their social networking passwords to the court.  Attorneys of both parties are to exchange passwords for their clients’ Facebook and dating websites.  Such evidence is being used to help evaluate how each party feels about their children, and their ability to take care of them.  Essentially, these passwords are being used to help resolve a custody battle.

The court issued an injunction to deter both parties from deleting any material on the websites, and ordered the attorneys to exchange passwords.  It has also been ordered that neither party will go on the websites of the other and post any messages, status updates, etc.

There are mixed reactions to the judge’s orders.  People are objecting because they feel this is an invasive discovery tactic which invades the privacy of the other party.  People log onto their social networking sites almost every day, sharing thoughts, exchanging communication, and revealing information about them.  Is it really fair to have all of these expressions used in court?

Divorce proceedings in particular are sensitive because they deal with the dissolution of a valued institution, as well as potential custody issues regarding children.  Can a judge really evaluate parents’ true personas and abilities as caretakers from information on these sites?  Many feel that these sites only reveal everyday expressions that are not relevant to an individual’s caretaking abilities.  Moreover, such information is an invasion of privacy and may be used unfairly to determine if a person is fit to take care of his or her child.

Of course there is another side to this argument.  This tactic does compromise Facebook’s policy of not exchanging passwords.  It also invades someone’s privacy.  However, when an individual enters into legal proceedings, it is expected that a certain amount of private information is revealed.  Unfortunately, this is a natural consequence of litigation; there are times when a door is opened, and the other side learns of personal information.  Therefore, many feel that there is nothing wrong with the judge’s order.  Common sentiments are that this information will increase our legal system’s ability to make the “proper” decision.

A potential solution that people have proposed is to label any printed documents from these sites as “privileged.”  Therefore, this information will fall under the attorney-client privilege and will not be submitted into evidence.  People, however, need to better educate themselves on this privilege.

A client cannot just “put” information into the protection of privilege because it may be pertinent evidence.  The attorney-client privilege ensures that communication between attorneys and clients, be it written or oral, will be confidential.  Further the work product doctrine falls into this privilege and ensures that an attorney’s mental impressions and/or work put into the case will remain confidential.  The other side may never obtain the attorney’s mental impressions.

However if a significant showing of necessity is pleaded in court, then a party may obtain work product such as interviews, reports, notes documenting meetings, etc.  Overall, the court does establish guidelines on what information can be privileged.  Clients cannot just put any information they want into the “privilege bubble.”

All in all, as technology consumes our lives, it also finds its way into court.  Lawyers already use sites such as Facebook to learn about jurors and/or defendants in criminal proceedings.  It is only natural that such a tactic be used in other legal proceedings as well, such as ones involving divorce.

Incoming search terms for the article: