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Should Law Firm Clients Control Law Firms' Pro Bono Work?
A few weeks back, I posted about how large corporations are demanding diversity in the ranks of the law firms that serve them. While we may find that distasteful, to me, that demand is also fair, consistent with a client's freedom to choose a lawyer. But do private clients have the right to demand that their law firms drop pro bono clients with unpopular causes? And how should law firms respond when clients make these demands?
What's gotten me thinking about these issues is this editorial, Unveiled Threats (Washington Post, 1/12/07). The Post editorial harshly criticizes recent comments by Assistant Deputy Secretary of Defense Cully Stimson on large law firms' pro bono representation of Guantanamo detainees. Specifically, Stimson remarked:
The Post editorial rebuked Stimson for his veiled threats against law firms. From the editorial:
But is Stimson's position entirely off base? Back in January 2006, Deroy Murdock of the National Review questioned the decision of so many large law firms to represent detainees. Somewhat like Stimson, Murdock raised the argument that because law firms are working pro bono, their Fortune 500 clients and shareholders "indirectly subsidize legal aid and comfort to suspected Islamo-fascist terrorists." But Murdock also wondered why firms would choose to represent alleged terrorists rather than, for example, families rendered homeless by Katrina.
Michael Froomkin at Discourse.net disagrees strongly with Stimson (and, presumably, Murdock as well), asserting here that Stimson's attempt to "put the economic screws on lawyers ... is just disgusting." Froomkin writes:
And Froomkin also adds: "The first firm to cave on this issue is going to find it awfully hard to recruit elite law students, as they will have demonstrated a serious lack of moral fiber."
I agree with Froomkin that firms may have difficulty attracting top students if they stop representing detainees under pressure from clients. As I discussed here in March 2006, Ropes and Gray dropped longstanding client Catholic Charities after various gay and lesbian student groups from Harvard Law School argued that Ropes' work for the charity conflicted with otherpro bono work the firm had done for gay and lesbian interest groups. Apparently, Ropes feared that student criticism might impair its recruitment efforts at Harvard.
As for me, here's where I come down on these issues. Personally, if I'd been on the law firms' pro bono committees, I wouldn't have chosen to represent detainees when there are so many far more compelling, but less sexy cases (such as defense of indigent criminal defendants accused of capital crimes at the trial level rather than up at the Supreme Court, for starters) where litigants desperately need representation. But having decided to represent detainees, law firms are obligated to follow through on their commitment, irrespective of client objections (or student objections, for that matter).
As to law firm clients, I see nothing reprehensible about them complaining about and potentially dumping a firm that chooses to represent detainees. Murdock is right on this one: Large firm fees subsidize law firm pro bono programs. One reason why firms charge the rates that they do is to cover their overhead costs, which include pro bono projects. So in my view, clients have a legitimate gripe when firms handle pro bono matters that clients don't support -- because paying clients' fees are subsidizing those cases. But there, too, clients have a remedy -- they can choose another law firm. And that's basically all that Stimson was suggesting that they do.
iPhone, uPhone, We All Sue for iPhone
As reported in articles such as this one, Cisco has sued Apple in the U.S. District Court for the Northern District of California, alleging that Apple's use of the name "iPhone" for its new product release has infringed Cisco's registered iphone trademark. (See here for a picture of each phone.) According to the article, Cisco trademarked the term iPhone in 2000 and subsequently entered into negotiations with Apple after Apple sought permission to use the iPhone name.
The "i" vs. "i" lawsuit has generated discussion in the blogosphere on both procedural and substantive matters. For example, as Kevin O'Keefe writes here, Cisco's GC, Mark Chandler, is using his blog to disseminate Cisco's reasons for the lawsuit. O'Keefe points out that he's never seen blogs used this way before. And from Wired GC's perspective, Cisco is winning the war on the blogging front with this argument from Chandler:
As Wired GC notes:
Given that Cisco has held the iPhone trademark since 2000 (something that Apple implicitly acknowledged by negotiating to obtain those rights), does that mean that Cisco's case is a slam dunk? Hardly. Leaving aside conspiracy theories that Cisco's suit is merely a plot for more publicity or a temper tantrum because Cisco simply isn't as cool as Apple, Marty Schwimmer's extensive list of defenses that Apple has suggests that Cisco will have an uphill climb. Among other things, Schwimmer explains that Apple can argue that the form of trademark that Cisco selected (a Section 8 rather than a Section 15) may not give it a presumption of continuing use and, in fact, may give Apple grounds for arguing that Cisco abandoned its trademark rights. Schwimmer also explains that given Apple's cache in the marketplace, it is unlikely that consumers will confuse Apple's iPhone with Cisco's.
Overall, the only consensus in the blogosphere at this point is that the Cisco-Apple fight will provide much more fodder for bloggers. Stay tuned ...
Work-Life Synergy eGuide Now Available
Arnie Herz at Legal Sanity has just announced the release of an eGuide, Beyond Balance: How to Cultivate Work-Life Synergy in the Law, that he's co-authored with his wife, Lori. Herz argues that lawyers invoke the phrase "work-life balance" to express a variety of feelings, such as loving work but lacking time for personal life to feeling drained and depleted from work and co-workers. And when lawyers experience these feelings, they wonder: What is the purpose of this? I want to experience more meaning in life. How do I find my way to happiness?
Take a look at Herz's eGuide and see if you can find a way down a path to your own personal happiness.
EQ, Rather Than IQ, Predicts a Lawyer's Success
In this interesting article, EQ Predicts A Lawyer's Success Better Than IQ, Lexi Herrera (from The Complete Lawyer, V.2, issue 5) argues that while law firms will always hire those with the best academic credentials, EQ -- or emotional intelligence -- may be a far better predictor of ultimate success. Essentially, EQ describes how individuals identify and use their own emotions and those of the people with whom they interact.
If you think EQ is too "touchy feely" to apply to real lawyers, think again. Herrerra gives a tangible example of how EQ can impact lawyers professionally:
If Herrerra's example doesn't convince you that EQ is important for lawyers, then consider Bruce MacEwen's post, What's Your Social Intelligence Quotient? MacEwen writes for and counsels large law firms, and he too argues, convincingly, that EQ matters to success in the legal profession:
MacEwen discusses ways to improve your EQ, a difficult task in today's climate, where it seems that everyone is multitasking. But EQ requires lawyers to "be fully present'" and "mindful of what is happening." People who are mindful are good listeners, fully engaged in the moment. And as MacEwen concludes:
Sounds like a worthy goal to me.
RODRIGO GONZALEZ FERNANDEZ
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