Tuesday, October 10, 2006

from legal blog watch , news

Legal Blog Watch

Church, State and Employment

Though at least one popular '80s rock band sang about Losing My Religion, today's employees of religious institutions are singing a different tune: losing my employment. According to this extensive story from the New York Times, "Where Faith Abides, Employees Have Few Rights" (Nicole Bengiveno, 10/9/06), courts have expanded the "ministerial exception" -- which gives religious institutions wide discretion over employment-related decisions related to a "core expression of religious belief" -- to apply in situations that do not, on their face, implicate religious issues. Thus, (from the article):

Judges have routinely invoked the ministerial exception to dismiss lawsuits against religious employers by rabbis, ministers, cantors, nuns and priests - those "whose ministry is a core expression of religious belief for that congregation," as Mr. McNicholas put it.

But judges also have applied the exception to dismiss cases filed by the press secretary at a Roman Catholic church, a writer for The Christian Science Monitor, administrators at religious colleges, the disgruntled beneficiaries of a Lutheran pension fund, the overseer of the kosher kitchen at a Jewish nursing home and a co-founder of Focus on the Family, run by the conservative religious leader James C. Dobson. Court files show that some of these people were surprised to learn that their work had been considered a "core expression of religious belief" by their employer.

The article offers some truly heartbreaking cases, such as the termination of a nun-in-training after she was diagnosed with breast cancer or a synagogue's decision forcing a rabbi with Parkinson's discease to retire early on disability. In the case of the rabbi, as with many other cases in the genre of "ministerial exception," the court simply refuses to second-guess the religious institution's reason for the termination, even where it gives no justification at all.

Finally, the article updates us on the end result of Petruska v. Gannon University, which we first covered here. There, 3rd Circuit Judge Edward Becker (in what would be his last decision before his death) attempted to formulate a compromise that would allow employees, in certain circumstances, to pierce the ministerial exemption veil. However, as the article notes (as well as Mike Fox's subsequent update from September 2006 here), on rehearing, the 3rd Circuit reversed its decision, holding that the ministerial exception "applies to any claim, the resolution of which would limit a religious institution's right to choose who will perform particular spiritual functions. "

Posted by Carolyn Elefant on October 10, 2006 at 02:12 PM | Permalink | Comments (0)

Are You One of the 20 Percent?

Back in law school, I vaguely recall the dean telling us in his welcoming address to look around the room, because half of us would be in the top of the class, and half of us would be in the bottom. I'm quite sure that half of the law deans in the country use that line, but perhaps, in a couple of years, they'll modify it by telling students to "look around -- half of you will be blogging lawyers someday."

We haven't quite reached the halfway point, of course, but as Bob Ambrogi writes in this post at his home blog, Law Sites, nearly 20 percent of law firms publish their own blog, according to  The Survey of Law Firm E-Marketing Practices published by the Primary Research Group.  From Ambrogi's summary of the study, "firms with 20 or more practice groups were the most likely to publish blogs, with nearly 40 percent of such firms having them." In addition, firms are investing in Web sites and other electronic communications, spending a mean of $40,583 to overhaul Web sites, publishing e-newsletters and using e-mail marketing to promote the firm.

Kevin O'Keefe of Lex Blog questions the 20 percent statistic, as do I. This recent compilation of law blogs collected by Blawg Review, while comprehensive, doesn't seem nearly long enough to represent 20 percent of law firms -- especially if you eliminate the law student blogs from the list. Personally, I'd be surprised if more than 5 to 8 percent of law firms of all sizes blog, but that's nothing but a guess. If you have a guess -- or a link to other statistics on law firm bloggers -- feel free to share them below.   

Posted by Carolyn Elefant on October 10, 2006 at 01:36 PM | Permalink | Comments (0)

Litigation Is Big Business for Big Business

According to this survey just released by Houston-based law firm Fulbright and Jaworski, major United States companies are spending 70 percent of their legal budgets on suing or being sued, to the tune of an average of $20 million a year per company. According to the survey, some companies are more prone to litigation than others. Not surprisingly, the insurance industry tops the list, with an average of 1,700 lawsuits last year, followed by retailers and energy firms.

The subject matter of the cases is surprising, also. As the survey describes, corporate attorneys worry most about labor and employment claims and old-fashioned contract disputes rather than the stock option and corporate governance scandals that are now capturing headlines.

Apparently, the Fulbright survey is one of the most comprehensive annual studies on litigation trends. That's an awfully nice service that Fulbright's providing, because I'm sure its competitors use the survey to identify new trends and target new clients. Of course  Fulbright can afford to be generous, because with $20 million corporate budgets for litigation, there's more than enough to go around.

Posted by Carolyn Elefant on October 10, 2006 at 01:33 PM | Permalink | Comments (0)

Disclaimers: A Panacea or a Mindset We Ought to Avoid?

For lawyers, disclaimers, disclosures and sometimes flat-out bans have become a routine part of practice and an easy solution to circumventing tough decisions. Don't want to lose a client over a conflict? Just disclose and waive the conflict, even if dual representation potentially raises appearances of impropriety. Don't want to give the public the freedom to figure out for themselves that "Super Lawyers" is nothing more than paid advertising? Either ban lawyers from using the Super Lawyers designation in ads, or, as a pallid backup, require Super Lawyers ads to disclose that they are in fact paid advertising, as professor Michael Ambrosio suggests in this recent article, "A Disclaimer Would End Hubbub Over Super and Best Lawyers."

Now, as discussed in this National Law Journal article, "Law Blogs Raise Prickly Ethical Issues" (10/6/06), some are suggesting that lawyers place disclaimers on blogs to avoid restrictive regulation now under consideration by the New York bar. But one lawyer, Ernest Svenson (aka Ernie the Attorney), won't have any part of it:

I don't want to put any disclaimers on my blog," said Ernest Svenson, a blogger better know as Ernie the Attorney. "It's a buy-in to a mindset that I want to go away." Too many disclaimers and warnings create a cry-wolf situation, he said, and dilutes those messages that rightfully should protect consumers. He added that blogs have become a way to enhance the credibility of lawyers, one of the purposes of advertising restrictions.

Over at my home blog, MyShingle, I've taken the same approach as Ernie. Personally, I'd rather have the New York bar (of which I'm a member) try to regulate blogging and face an inevitable constitutional challenge than force bloggers to muddy our blogs with disclaimers that make us look like the types of mealy-mouthed lawyers that the public can't stand.

Posted by Carolyn Elefant on October 10, 2006 at 01:28 PM | Permalink | Comments (0)


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