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Would Silicon Valley Have Been as Successful With Stodgier GCs? In the wake of recent scandals related to pretexting and backdating of stock options, Asbhy Jones of The Wall Street Journal considers  the role of the in house counsel at Silicon Valley companies in Silicon Valley's Outsiders:  In-House Lawyers? (WSJ Online, October 2, 2006).  Jones writes: Lately, two scandals -- Hewlett-Packard Co.'s board-leak investigation and the backdating of stock options -- are shining a light on the role of in-house lawyers at Silicon Valley technology companies.  Those situations each present different facts. But lawyers inside and outside the valley say in-house lawyers at technology companies sometimes lack the respect the position commands elsewhere. One indication: Some big Silicon Valley companies don't have general counsel -- the title typically conferred on top in-house attorneys. Among other things: General counsel in Silicon Valley are still sometimes "seen as a blockage to the execution" of the company's plans, says Scott Bohannon, general manager of the General Counsel Roundtable, a Washington research organization. As a result, "No -- the message in-house lawyers often have to deliver -- isn't the message some driven entrepreneurs want to hear." Jones points out that at large, more established companies, in house GCs were once relegated to the position of second fiddle.  But: In the past 20 years, however, general counsel have won a stronger voice with senior executives and directors. One key figure in that development was Benjamin Heineman Jr., the top lawyer at General Electric Co. from 1987 to 2005. Heineman recruited high-powered legal talent. Many of his protégés went on to become strong and respected top lawyers elsewhere, including Maura Abeln Smith at International Paper Co. and Jeffrey B. Kindler at McDonald's Corp. and Pfizer Inc. Kindler was named Pfizer's chief executive in July. One message of those interviewed for Jones' piece is that as the high-tech industry grows and matures, companies will need stronger in house counsel who won't, as Brad Wendel describes, turn a blind eye to inconvenient facts.   But at the same time, Jones' piece also makes me wonder:  would the Silicon Valley companies have had the same success with more assertive GCs?  Posted by Carolyn Elefant on October 2, 2006 at 12:23 PM | Permalink | Comments (0) Is Justice for Sale in Ohio? Is justice for sale in Ohio?  Or do coincidence or inaccurate study metrics explain the correlation between campaign contributions and rulings by the Ohio Supreme Court?  These are some of the questions explored in this extensive New York Times report by Adam Liptak and Janet Roberts, Campaign Cash Mirrors A High Court's Rulings. Among the article's findings: An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O'Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court. In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors' cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just nine times. In accordance with the code of judicial ethics, judges frequently recuse themselves from cases where they have a financial interest that might create even an appearance of impartiality -- for example where a judge holds stock in a litigant's company.  But according to the article, campaign contributions have been considered an exception to the financial interest recusal rule. As the article explains: Many judges said contributions were so common that recusal would wreak havoc on the system. The standard in the Ohio Supreme Court, its chief justice, Thomas J. Moyer, said, is to recuse only if "sitting on the case is going to be perceived as just totally unfair." Still, if you think that this article will result in reforms, such as mandatory recusals in cases where judges have taken campaign contributions, or replacing judicial elections with appointment, think again.  For starters, the justices interviewed for the article do not believe that recusal would result in change: None of the justices interviewed suggested that more frequent recusals from contributors' cases would be a positive step rather than a recipe for havoc. Last year, though, five justices did recuse themselves from a case involving a Republican fund-raiser, Thomas W. Noe. They had taken $23,510 from Mr. Noe and his wife. Appeals court judges filled in for the justices. Others, apparently, do not even acknowledge a problem with the existing system: Justice O'Donnell, who has raised more than $3 million since 2000, refused to be interviewed for this article despite more than a half-dozen requests to his campaign, his chambers and the court. In a statement, he said, "Any effort to link judicial campaign contributions received by a judicial campaign committee for major media advertising to case outcomes is misleading and erodes public confidence in the judiciary." If anything, the article gives incentive for non-business groups to work harder to outspend their opponents.  The article notes that: Not long ago, the Ohio Supreme Court was controlled by liberal justices whose campaigns had been financed in large part by plaintiffs' lawyers and unions. Now that business groups are outspending their adversaries, the court has become dominated by more conservative justices. And the court's decisions are no longer markedly sympathetic to people claiming injuries[...] "The current wars are epic battles between businesses and trial lawyers," said Bert Brandenburg, the executive director of Justice at Stake. "Over the past half-decade, business groups are outraising and outspending trial lawyers." In short, why should interest groups spend their money on developing an impartial system, when it's easier to spend the money to buy the judges you want instead?  Posted by Carolyn Elefant on October 2, 2006 at 12:16 PM | Permalink | Comments (0) Preview of the Supreme Court's October Calendar In this article, A Look Ahead to the First Oral Arguments of the New Supreme Court Term, Howard Bashman of How Appealing previews some of the questions that the Supreme Court will address when the court starts its new session on Oct. 3.   Of the nine cases scheduled for Oct. 3-11, four come from the 9th Circuit.   These include:  United States v. Resendiz-Ponce, which presents the question whether the omission of an element from a federal indictment can constitute harmless error (9th Circuit says no); Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., on whether a provider of pay phone services can sue a long distance carrier for alleged violations of the Federal Communications Commission's regulations concerning compensation for coinless pay phone calls (9th Circuit says yes); Cunningham v. California, a sentencing case involving whether whether California's Determinate Sentencing Law violates the 6th and 14th amendments to the U.S. Constitution by permitting California state court judges at sentencing to impose enhanced sentenced based on their determination of facts neither found by the jury nor admitted by the defendant; and  Carey v. Musladin, reviewing the 9th Circuit's decision to overturn a murder conviction of a defendant who claimed he was denied a fair trial because the victim's relatives appeared in court wearing buttons with the deceased's picture on them. Bashman doesn't hold out much hope that the 9th Circuit's reputation as the most overruled circuit will change this term.  He concludes: Although none of the 2006 term's blockbuster opinions may emerge from the Court's very first oral argument session, it does appear that the 9th Circuit is well on its way to being reversed in at least three of the four cases to be argued in October. Posted by Carolyn Elefant on October 2, 2006 at 12:03 PM | Permalink | Comments (0) Blawg Review #77 On this first Monday in October, we find Patent Baristas host to an October-themed Blawg Review #77.   Perhaps because autumn coincides with the start of the school year, this week's Blawg Review features a  large number of educational or explanatory posts, including Tom Collins of morepartnerincome  on the six basic law firm metrics that every firm should track; Larry Bodine on how to jump-start cross-selling in your law firm; Invent Blog has a nice overview of how to tell if a patent has been liti gated over; and Dennis Kennedy explains blogs and RSS.  Also, in the educational vein, Kaimipono Wenger at Concurring Opinions asks whether blogging can teach verbose lawyers to become better writers. (the answer, resoundingly, is no). Next week, Blawg Review #78 comes to Human Law. Posted by Carolyn Elefant on October 2, 2006 at 11:59 AM | Permalink | Comments (0)

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