Tuesday, February 13, 2007


Legal Blog Watch

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:

Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there,' and you know what, it's shocking," he said. 

Mr. Stimson proceeded to reel off the names of these firms, adding, "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

The Post editorial rebuked Stimson for his veiled threats against law firms. From the editorial:

It's shocking that [Stimson] would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking -- though perhaps not surprising -- that this is the person the administration has chosen to oversee detainee policy at Guantanamo.

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:

It's true that the list of law firms donating time to representing the victims of torture, humiliation (and a total lack of due process) at Guantanamo reads a bit like a who's who of the elite of the corporate bar. And they deserve credit for it.

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.

Posted by Carolyn Elefant on January 12, 2007 at 05:15 PM | Permalink | Comments (0)

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:

If the tables were turned, do you think Apple would allow someone to blatantly infringe on their rights? How would Apple react if someone launched a product called iPod but claimed it was ok to use the name because it used a different video format? Would that be ok? We know the answer – Apple is a very aggressive enforcer of their trademark rights. And that needs to be a two-way street.

As Wired GC notes:

No response yet from new Apple GC Donald Rosenberg; he’s probably still unpacking his bags. And Apple employees don’t blog. But they certainly can innovate.

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.   

Still, Cisco will have some strong arguments as well, as summarized here by Jessie Seyfer at Legal Pad. From the post:

Robert Andris, IP attorney and partner at Ropers Majeski Kohn & Bentley’s Redwood City office, thinks Apple could fail with some arguments and succeed with others.

"Apple's argument that its use of the mark iPhone would not be infringing because the two products are materially different will be a tough row to hoe. In infringement actions, judges and juries are allowed to consider the differences between the products using a mark when deciding whether there is a likelihood of confusion. But they are also allowed to consider whether the products are sold into similar markets and whether it is likely the mark holder's product line will be expanded to move into the infringer's market. 

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 ...

Posted by Carolyn Elefant on January 12, 2007 at 05:10 PM | Permalink | Comments (0)

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.

Posted by Carolyn Elefant on January 12, 2007 at 05:05 PM | Permalink | Comments (0)

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:

EQ involves harnessing emotions and using them to your best advantage. For instance, raising your voice to stress the importance of a statement in the courtroom is often an effective tactic.  Conversely, raising your voice to prove you are right when speaking with a co-worker can result in a negative outcome. Emotions are an important part of our everyday lives: we actually experience 465 emotions in one 16-hour work day1. Knowing how to identify, understand, use, and manage them effectively separates us from other species. Why not use this form of intelligence to our benefit?

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:

All of you who are about to "check out" psychologically or emotionally because this piece is starting to look like it will dwell on "soft" and not "hard" issues, let me ask you to bear with me for a few more paragraphs.  I promise it can pay off to litigators and transactional lawyers alike (not to mention the usual suspects, managing partners, senior partners, and executive committees).

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:

Wouldn't you aspire to be seen as worth deeply engaging by clients, colleagues, and heck, even your spouse and kids?  Be, then, of the moment.  Be mindful.  Be socially intelligent.

Sounds like a worthy goal to me.

Posted by Carolyn Elefant on January 12, 2007 at 05:03 PM | Permalink | Comments (0)

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Santiago, Chile