LEGAL BLOG WATCH

Legal Blog Watch

New Money Maker: Patent Your Practice Area! This New York Times article, You Can't Use That Tax Idea.  It's Patented (10/20/06), reports that in the wake of a federal appellate ruling of 1998 [State Street Bank v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998), discussed here] that provides for patents for "business methods," 49 tax-strategy patents have been issued, with numerous more applications filed. And apparently, lawyers are among those filing for and invoking the patent. For example, the article reports that after an ABA conference where tax strategies were discussed, "participants got a letter warning that using one idea mentioned would be in violation of a patent." Some lawyers, however, have have stepped up to argue against issuance (or enforcement) of tax strategy patents as a policy matter. From the article: In an article in Legal Times this week, Paul Devinsky, John R. Fuisz and Thomas D. Sykes, three lawyers from McDermott, Will & Emery, suggested that a company might figure out a tax strategy that would save it a lot of money, and then patent it. Then the company could refuse to license the patent to its competitors, thus raising its rivals' cost of doing business.  Tax patents, the lawyers wrote, amount to "government-issued barbed wire" to keep some taxpayers from getting equal treatment under the tax code...After all, as Mr. Devinsky and his colleagues wrote, "The successful patenting of tax strategies now limits Congress' ability to shape economic policy through legislation, and places that power in the hands of individual patent holders." What's next -- patented techniques for drafting legal briefs or setting up estate plans? Will law schools have to pay licensing fees to patent holders when they teach students strategies under patents? Where's the end to all of this? Posted by Carolyn Elefant on October 20, 2006 at 01:16 PM | Permalink | Comments (0) Will 'Cheat Sheet' Help Women Find Family-Friendly Firms -- or Lead to Lawsuits? This article, Cheat Sheet Helps Women, Moms Pick Friendly Firms (Recorder 10/20/06), reports on the creation of a "Cheat Sheet," i.e., a list of in-depth questions that women can ask to ascertain a firm's commitment to retention and advancement of women. From the article: [The cheat sheet] focuses on areas that, historically, have been stumbling blocks for women, including mentoring, workplace flexibility and partnership advancement. Deborah Epstein Henry, principal author of the "Cheat Sheet" and founder of Flex Time Attorneys, argues: "The goal is to really work change in the profession." I'm assuming that the "Cheat Sheet" is intended for use after an applicant secures an offer. If not,  I would think that the "Cheat Sheet" creates an unfair "Catch 22" for law firms. If female applicants ask "Cheat Sheet" questions on an interview, a firm that does not have family-friendly policies might reject these women, determining that they're not a "fit" for the firm (just as a firm with a high billable hours requirement might reject a male applicant who asks, "What kind of billables requirements do you have? I need to have enough time for working out.") These female applicants might then turn around and sue (perhaps invoking the FRD discrimination claims I described earlier), arguing that they were unfairly denied a position because they expressed an interest in work-life balance. Or perhaps, more cynically, that is the purpose of the "Cheat Sheet" -- to set firms up for future discr imination claims. I've always been taught that you don't raise questions about salary or workload on an interview, because if the employer doesn't like your answers (e.g., if you seem too interested in money or lazy), it won't hire you. So instead, you secure the job first and ask those details later (with the understanding that some lawyers, like Dan Hull  may not want to hear it). Moreover, employers are precluded from asking women about their personal situation during interviews. But the "Cheat Sheet" turns  job interview etiquette on its head, by encouraging women to ask the same kind of work-life questions that employers can't -- and then giving female applicants grounds to sue if they don't like the consequences of asking about work-life balance. I'm not so sure if this is the kind of "work place change" we want to see. Or i s it? I'm eager to hear your comments below. Posted by Carolyn Elefant on October 20, 2006 at 01:13 PM | Permalink | Comments (0) Blogs Haven't Changed the Practice of Law? Where Have You Been? Over at Concurring Opinions, Frank Pasquale posts here about blogger Tom Bell's skeptical view on the impact of blogs, expressed in this article from May 2006. From his opening paragraph, Bell writes: I have nothing against blogging, as I blog myself.  I simply don't think it will change the practice of law very much.  Why not? First, because blogs seldom offer the sort of detailed and applied legal analysis that attorneys need to perform.  Second, because an ethical attorney would find it impossible to practice law via a blog. Pasquale disagrees with Bell, from a more academic professor. Countering Bell's claim that blogs don't offer quality analysis, Pasquale points out: As Ian Best's taxonomy of blogs (and citation tracking) shows, some courts have used blogs to help them sort through cutting edge legal topics. I also think that law student blogs (done well!) may be a good way for students to develop their interests and demonstrate their abilities. And Pasquale also notes that lawyers are using blogs for marketing. Pasquale has the right idea, but I don't think his critique of Bell goes far enough. As someone who has actually practiced law for 18 years, I can testify that blogs have absolutely revolutionized the practice of law. Blogs open up huge archives of information by academics and legal experts who were never previously available (certainly not for free) and in so doing are rapidly levelizing the playing field between large- and small-firm practitioners. Professors and academics often underestimate the value of information to those of us who are regular attorneys. Academics have unlimited access to Lexis, Westlaw and all kinds of other computerized date bases that enable them to stay current in their field, and as such, they take the value of free information for granted. But for practicing attorneys like myself, the free information I gain from blogging gives me a competitive edge over my large-firm competitors and enables me to serve my clients more competently and at lower cost. More importantly, blogging is the one (and only) tool that I've come across that breaks down the entrenched stratification within our profession. Before blogging, the last time I'd ever spoken to a law professor was in law school. Now, through comments or offline correspondence, I engage in dialogue with academics. Before blogging,  I don't think that a large-firm attorney ever called me with a referral; now I generate those contacts through my professional blogs. Before blogging, I was persona non gratis within the DC Bar, with letters that I'd written with comments or suggestions simply ignored without response. But this year, as a result of my blog My Shingle, I was invited to run for and now serve on a Bar steering committee. When we look back on the  history of our profession, I think we will regard blogging, along with the Supreme Court's ruling in Bates v. Arizona (permitting lawyer advertising) and the advent of computerized research like Lexis and Westlaw as milestones of change in our profession. Tom Bell may think that blogs are one big snooze, but that's a view that will lose in the long run and, in fact, is losing now. Posted by Carolyn Elefant on October 20, 2006 at 01:06 PM | Permalink | Comments (0) FRD Lawsuits: Coming Soon to a Workplace Near You Michael Fox of Employers Lawyer Blog tells us about a new category of lawsuits that we anticipate: Family Responsibility Discrimination, or FRD. Fox assures employers that FRD isn't a new statute; rather, it's an acronym being promoted by the Center for Worklife Law at Hastings College of Law. Examples of FRD include cases where a pregnant employee is told to get an abortion if she wishes to remain employed, a less qualified parent without children is promoted over a more qualified parent (typically, this one hits women harder) or a male state trooper is denied leave to care for his newborn and told by his supervisor that his wife would have to be "in a coma or dead" for a man to qualify for leave as the primary caregiver. This report by the Worklife Center offers some statistics on the latest FRD cases. Not surprisingly, 92 percent are filed by women. Moreover,  small, local businesses make up the largest component of companies sued for family caregiver discrimination. That's not surprising either, because small businesses don't have as much redundancy in the workforce and may not have as much ability as a larger company to offer flexible schedules to working parents. George Lenard of the Employment Blawg offers some discussion of the legal theories underlying FRD litigation. He suggests that FRD suits are grounded in sex or pregnancy discrimination. But Lenard doesn't find this basis satisfying. Lenard believes: A more promising basis for such claims would seem to be the Family and Medical Leave Act (FMLA), a statute that does specifically - and with great precision - protect employees against undue conflict between family responsibilities and work responsibilities. Lenard concludes that the FRD line of cases are really nothing new at all -- either "good old-fashioned disparate treatment gender discrimination" or potential FMLA violations.  Posted by Carolyn Elefant on October 20, 2006 at 01:01 PM | Permalink