Law And More

Suicide: The Final Message

The act of suicide is a powerful way of sending a message.  Unfortunately for the victim, it's the final message.  And, even more unfortunate for the survivors, it's a message filled with ambiguity that will be interpreted and re-interpreted perhaps for an entire lifetime.  That burden on those left behind has led some to theorize that suicide is actually a form of homicide.  It can wipe out an entire family.  The legacy of multiple passive suicides did mine.

Therefore, there are probably too many at Kilpatrick Stockton preoccupied with the Mark Levy suicide this morning.  Levy shot himself in the head at the office, not at home, not in a hotel, not in the woods. To me that's a type of performance art. It's meant to communicate a message.

What message could Levy have been sending?  Could that message have been sent in a way that hurt the survivors less?

CA SC Contingency Amicus - "Gov has artificial incentive to pursue monetary damages award," NPCA

The use of contingency agreements between government entities and private counsel has always been controversial. 

In the 1980s, the matter came before the California Supreme Court in a public nuisance case.  The CA SC ruled against contingency.  Then the issue emerged again in the Santa Clara lead paint public nuisance lawsuit.  The defendants pushed against the use of contingency.  The lower court agreed.  The appeals court did not, okaying it as long as the government entity maintains full control. Here is that appeals court opinion - pay close attention to the concurring one Download H031540.  No way can that control being maintained, decried the defendants.  They requested and got a review by the CA SC.

Since then, the contingency debate has turned red hot.  In Pennsylvania there's a motion for that state's SC to review the alleged link between awarding contingency contracts, without competitive bidding, to major campaign contributors.  In Florida is a bill to make transparent every aspect of that process in the office of the attorney general.  Here is the opinion of Lisa Rickard, president of the Institute for Legal Reform, on that Sunshine legislation.  As may of you know, the Rhode Island SC okayed the use of contingency Download Statev.LeadIndustriesAssoc.,Inc.

That's where things stand now.  Given the influence of the CA SC rulings, the decision could impact everything from the power of the state attorneys general to the number of class-action suits filed.  Amicus briefs have been submitted to the CA SC.  One has been filed by the National Paint & Coatings Association.  As you might recall NPCA had submitted a seminal amicus brief to the RI SC in the lead paint public nuisance litigation review Download RIamicusbrief.  As I saw it, the NPCA brief provided the RI High Court with a narrow passageway through the nine years of legal proceedings in the litigation.  The Court overturned the verdict against the defendants. 

The author of both the CA SC amicus brief and that RI one is Thomas J. Graves, Vice President and General Counsel at NPCA. Both briefs were prepared by appellate attorney Eric Lasker of Spriggs & Hollingsworth, Wahington DC.

In this amicus brief filed by NPCA, Graves asks the CA SC to reverse the appellate decision which would permit state and local entities to enter into contingency fee agreements with private attorneys.  Here is a copy of the NAPA brief Download AmicusBrief.

In this particular situation, Graves goes on to point out, the agreements involve pursuing public nuisance suits based on the premise that the government lawyers can remain neutral and supervise these "subordinate" private attorneys.  That would, it's contended by contingency supporters, prevent any pecuniary interests tainting the impartial pursuit of justice.

NPCA, notes Graves, concurs with the defendants that the CA SC case precedent deems these types of arrangements as anathema to ensuring the government lawyer's neutrality, which is essential to the system of justice and the confidence of society in that system.

By allowing private attorneys, continues the brief, to take this case on behalf of municipalities against old lead paint and pigment manufacturers, NPCA emphasizes, the Court of Appeal failed to recognize the distorting impacts of contingency fee arrangements. Those include not only the effect on the decision-making of the private attorneys retained but also on the decision-making of the government attorneys who retained them.  At stake is the proper balancing of government authority.

Perhaps Graves's strongest point is that in practical reality, the government has an artificial incentive to pursue monetary damages award (in the billions) rather than to seek purely equitable or injunctive relief (or electing to suspend the litigation in favor of other government public interest action.)  The other options may not be all that attractive because they don't provide the financial payout the government now needs to retain its outside legal team.

Thus, summarizes Graves, the enticement of a "no-cost" arrangement actually comes at the price of tipping the scales in the balancing of interests in the abatement of public nuisances of the sort the CA SC has already pronounced "cannot be tolerated."

At the National Paint and Coatings Association, Thomas J. Graves, General Counsel, can be reached at TGraves@paint.org, 202-462-8743.

 

"FL AG McCollum champions legislation that'd require him to do the public's business in public," Lisa Rickard, ILR

Letting the sun shine in isn't always easy, particularly politically. Here, Lisa Rickard, president of the Institute for Legal Reform, deconstructs the benefits which would come from the Florida bill bringing transparency to the state attorney general's office as well as the obstacles.

The gains would include preventing those pay-to-play scandals as well as needless lawsuits.  The obstacles, you got it, are being put in place by those who are gaining currently from those deals with government.

A hopeful sign, points out Rickard, Florida's own Attorney General "McCollum has championed this legislation that would require him and future Florida AGs to do the public's business, believe it or not, in public."

Kilpatrick Stockton: Police respond to "an unconscious male with a gunshot wound to the head," LEGAL TIMES

Twice "Without a Trace" had episodes exploring the too-high cost we human beings allow ourselves to pay for our careers.  Because of that tragic flaw, Agent Jack Malone was put in mandatory therapy.  This week a wounded journalist tackles with the same demon. 

At Kilpatrick Stockton a lawyer might have paid the ultimate price.  Today, Marisa McQuilken reports in LEGAL TIMES that there was a death of an attorney at law firm Kilpatrick Stockton. [Yesterday, the firm laid off 24 associates and counsel.] There is no comment from the firm but McQuilken tells us that Kilpatrick Stockton "posted an internal e-mail sent to firm employees Thursday morning, stating that the Metropolitan Police Department was responding to 'an unconscious male with a gunshot wound to the head on the 11th floor.'"

Unemployed attorneys - there's hope and help.  Free one-hour presentation/career transition coaching by email [Mgenova981@aol.com] or phone [203-468-8579]. You have nothing to lose by contacting Jane Genova.  Here's my own story of a career which had cost me way too much, including my talent Download Geezerguts.

 

"Resilience" by Elizabeth Edwards - Will this bring back career of John Edwards?

Part of her new book "Resilience" is about forgiveness, says Elizabeth Edwards.  Well, good for her.  We who have done our time in anything from 12-step programs to Buddhist monasteries know the power of letting go of resentments.  It the process works, we're free of all that.

But, my experience with Elizabeth leads me to see this book as her attempt to catapult a comeback for her husband John and the father of her children.  During the husband's presidential campaign I spoke with Elizabeth about items I had posted on my communications blog.  She was no ordinary political wife.  Cool as a cucumber but warm, highly intelligent but operating on a platform of common sense, Elizabeth is the most persuasive influential I have ever encountered.

It's in her family's self-interest that John restores his good name and puts his talents to good use in public service.  This book could jump-start that.  And why not let the miscreant have a second shot?  After Eliot Spitzer is on his redemption stump, Henry Blodget is doing just fine again, and Larry Summers is back in the big time.

RI - If Chafee runs for gov, he's off to lousy start

Was the supposed non-announcement that Rhode Island former U.S. Senator Senator Lincoln Chafee was running for governor meant as a trial balloon?  If so, it crashed to earth with a thud.  And his opponent or opponents can make plenty of "Saturday Night Live" type humor of this.  I would.

Today, in THE PROVIDENCE JOURNAL, Amanda Milkovits and Katherine Gregg report that Chafee has said "that his interview on MSNBC's Rachel Maddow Show Tuesday night wasn't intended to be an 'official announcement' as a candidate." He added that he "was bolstered by the 'encouragement' he's gotten during his exploratory campaign."

This guy has been in politics.  And in the tough political state of RI. His father had been a senator and a RI governor.  He knows the game.  He knows how to word statements so that they don't mislead.  So, what's the story, former U.S. Senator Chafee?

"Digital belongings are company property," Joseph De Avila, THE WALL STREET JOURNAL

The amazing thing is that employees - full-time, part-time, just-in-time - would have any personal information or item in the digital system of the organization which signs their check.  More than two decades ago we were wise to the folly of that when, at Kraft in Rye Brook, New York, we went through the network and find a higher-up's resume, along with a cover letter.  When I consult onsite, you bet I bring my own digital equipment for my communications with other accounts and friends.

So, why is there an article today by Joseph De Avila in THE WALL STREET JOURNAL about the terminated being stunned that their "digital belongings are company property?"  As De Avil reports, "Employees who spend the majority of their time at the office often treat the company PC as their personal gadget, filling it with music, photos, personal contacts."

Given that we live in a litigious era, this mixing of company with self is especially dumb.  Anything with an electronic trail can be used against an employee, including the allegation of excessive amount of time spent on personal communications.

The imperative to separate work for an organization from all-else might extend to other aspects of communications such as even elevator talk.  That's exactly why social or emotional intelligence, particularly about being smoothly guarded, has become such a survival skill.  Here's one e-book on that Download CUsersjasneDocumentsjg and here is another Download SavingSoulsJaneGenova.

Transparency in AG Office - FL could be sunshine state

Politics could take a major setback in how decisions, such as contingency agreements, are made in the office of the attorney general.  Often, as we experienced in Rhode Island lead paint public nuisance litigation, contingency contracts are awarded by the AG without competitive bidding or much if any transparency.  Florida could lead the way on this movement to opening up the doors to the powerful function of the state AG.

In FL, a bill is waiting the approval of House Speaker Larry Creful.  It would require, reports John O'Brien in LEGAL NEWSLINE, "more transparency in the Florida Attorney General's office ... Among the regulations set forth are a cap on attorney's fees in contingency fee cases, the requirement of time sheets to determine how much work the outside counsel performed, the availability in the public of any contingency fee contract and a document signed by the attorney general every time outside counsel is hired stating its help is essential to winning the case."

The original bill made it through the House but was amended in the Senate and then passed. 

2012 in 2009, for BigLaw: No Ordinary Downturn

Journalist Gregg Braden says that cosmic shift scheduled for 2012 will happen because of "a reversal of the Earth's magnetic poles."  For BigLaw, it is appearing that what's being referred to as "2012" is already under way. No, in the legal business, this is no ordinary downturn.  This is a systemic and irreversible upheaval.

Take breaking news about Cravath, Swaine & Moore.  As Susan Beck reports in THE AMERICAN LAWYER, this once pillar of the White-Shoe Legal Establishment experienced a 13% drop in revenue and a 24% decline in PPP.  Its cash cow - that deep-pocketed Wall Street - is no more, at least not for a long time.  Beck observes that "the future" of Cravath" and about 14 other elite firms "is as uncertain as the Wall Street world they draw their strength from."

The layoffs go on and on.  The latest are the 10 more associates cut at Wildman, Harrold, Allen & Dixon.  Nixon Peabody reduced first-year salaries to $145,000 from $160,000.  Meanwhile associates at Nixon Peabody are bumping into Pay-for-Performance slashes of up to 20 percent in salary.

What's going down, pun intended, in BigLaw is analogous to what occurred in the early 1980s in Corporate America.  That whopper of a recession, along with the emergence of a global economy driven by technology, triggered a model restructuring which is still a work-in-progress.  The term "redundancy" was shorthand for radically eliminating full-time high paid employees who had benefits. 

A pioneer in this former GE Chief Executive Executive Jack Welch was nicknamed Neutron Jack.  After he visited a GE facility, the buildings were left but the people were disappeared.  The new workforce became just-in-time, were paid standardized contract wages, and had no benefits.  Management visionary Charles Handy described this emerging model in his book "Age of Unreason."  Incidentally, those good corporate jobs lost today are never coming back. That work has been re-distributed among just-in-time workers like myself.

The current economic crisis is plenty of reason as well as an excuse for law firms to make urgency reductions-in-staff.  But you can bet they're calling in the consultants on how to restructure, particularly since, as Beck notes, even the deepest pockets are sending letters demanding, not requesting, discounts in their bills. Often the General Counsel has to get approval for expenditures from Central Purchasing.  The spending leash is a lot shorter.

In addition, we all know about technology. Cloud computing, for instance, makes much of law more portable.  That makes it more possible and lower cost for lawyers to start their own boutiques. And those boutiques, like The Rimon Group, can be virtual.  Virtual means billing at significantly less than what BigLaw has to charge because of overhead.

Then, of course, there are all those model deletions and additions involving outsourcing, automation, and doing more assignments in-house.

Prediction:  Law will be not for those who want to become wealthy but, like writing, for those who love the craft.  Some anticipate starting salaries in larger law firms at about $75,000.

You 20,000 Accidental Entrepreneurs - Forget ad-supported model

Already 20,000 attorneys are stranded in unemployment without a port to land in.  There will probably be more, predicts the Am Law Report.  BigLaw overhired without comparable growth in revenues or PPP.  Now, with demand down and no uptick in the near future, those who lose jobs will have to think how to leverage their knowledge, experience, skills outside law-firm life.

Thus we are seeing accidental entrepreneurs among former risk-averse lawyers.  No surprise, with student loans to still pay off, they are focused on enterprises with low or no startup costs.  That brings them to the web.  One caution there.  We digitals are still struggling with how to monetize our ventures in cyberspace.  And one thing has recently become clear.  That stream of revenue ain't going to come through selling advertising.

First of all advertising is dying in a era when the tools exist to promote ourselves, our brandnames, our services and products without the advertising middleman.  Secondly, advertising never had much credibility.  Now with the supposed authenticity of the web, it has even less.  Third, it's expensive.  Few have the money to risk on taking out an ad.

In the May 11, 2009 edition of FORBES, Rebecca Buckman reports on how the smart money, including that being invested by venture capital firms, is shunning anything that runs on ads.  She quotes Robert Ackerman, who is with Allegis Capital, as observing, "Nobody wants to hear about ad-supported models." 

This migration away from advertising isn't just playing out in new economy businesses.  Old economy empires are collapsing because they were built on ads.  Think Conde Nast.  PORTFOLIO just folded.  And its other titles aren't doing too hot either. As THE NEW YORK POST notes, ad pages are down 31% at iconic VOGUE and 49% at ARCHITECTURAL DIGEST.

So, how do we monetize our web enterprise? 

An excellent model is Mediabistro.com, which was sold by the founder for multi-millions.  It provides special events, training seminars, access to affordable health and dental benefits for members, classified, and a sense of community. 

Another viable model is using the site as a primary new-business development tool.  That's how I monetize - indirectly - this and my two other - here and here - blogs.

A third model is the site as a platform for the social marketing of products and services.  It's an easier sell because that's how social media work.

Forget ads?  The display kind, probably.  But classified still can pull in revenue.

A useful read might be the 2008 guide  "The Truth about Profiting from Social Networking," by Patrice-Anne Rutledge.