Friday, August 03, 2007

Legal Blog Watch

Legal Blog Watch

Family-Leave Lawsuits on the Rise

This past Sunday, the New York Times Magazine featured this lengthy article on the increasing number of lawsuits over family-leave policies (July 29, 2007).

Increasingly, employees who take time off for family care obligations -- ranging from caring for sick family members to having a baby -- and are prohibited from returning to their job are suing their employers. Up until recently, employees typically relied on the protections of the Family and Medical Leave Act, but its scope is limited (it does not cover companies with fewer than 50 employees). But now employees and their lawyers are developing new legal theories to protect employees who must take extended leave for family care obligations. From the article: 

More than 1,150 [family care obligation] lawsuits have been filed in federal and state courts, a trend that has not gone unnoticed in the business world, not only because companies are well aware of the negative publicity lawsuits can generate but also because numerous plaintiffs have walked away with hefty damage awards. In one case, a jury granted $11.65 million to a hospital maintenance worker who was penalized for having to care for his elderly parents. In Ohio recently, a jury awarded $2.1 million to an assistant store manager who was demoted because she has several kids.

The workers pressing such claims have invoked a dizzying array of laws to prove they were mistreated. Some have relied on Title VII of the 1964 Civil Rights Act, which a number of courts have ruled prohibits not only overt sex discrimination but also seemingly neutral policies that have a disparate impact on women. Others have invoked the 1990 Americans With Disabilities Act, which covers both individuals with disabilities and, to a lesser extent, the people who care for them. Others still have drawn on the many state and local laws passed in recent years to safeguard the rights of employees with families.

The flood of cases reflects not just the increased presence of women in the workplace but also the growing difficulty Americans of all social backgrounds seem to be having in balancing the demands of work and family. Unlike so-called "glass ceiling" cases involving women barred from the top rungs of a handful of elite professions, the plaintiffs in these new work-family disputes have ranged across the occupational spectrum, from physicians to police officers to grocery clerks. While not all have become millionaires, more than half have prevailed in court — a success rate significantly higher than that of more conventional employment-discrimination cases, which is below 20 percent. Beyond causing headaches for their employers, the lawsuits are serving notice that the battle over "family values" is no longer just about gay marriage and abortion: it's also about workplace attitudes that some advocates believe do significantly more to undermine family life than those controversial practices do.

So how are employers reacting to the new slew of lawsuits -- and the new realities of the workplace? The article quotes Zachary Fasman, a partner at the New York office of Paul, Hastings, Janofsky & Walker who specializes in employment law -- and holds a skeptical view about these suits. From the article:

At the E.E.O.C. hearing back in April, Fasman testified that there is a danger the lawsuits will be used as a lever to force companies to change legitimate business practices (mandatory overtime, strict attendance rules) that not all workers can handle. Imagine the effect on the workplace, or the potential impact on America's competitiveness, if United States courts ruled, for example, that companies could no longer dictate to their employees what time the workday began and ended. "I'm not against work-life balance — who is?" Fasman later told me. "But the organization of the work force has always been left, to a large extent, to the discretion of the employer. So long as it doesn't discriminate, where a business draws the line on these things depends on the nature of the business. You can't rewrite the rules of the American workplace unless Congress does it."

But the article also points out that some companies are changing their policies voluntarily anyway, in an effort to attract and retain qualified employees.

As pointed out in this post at Labor Prof Blog, family care lawsuits "are fundamentally about family values, not gender discrimination. For this reason, they unite people on both sides of the political divide." But even with this unity, I don't expect a quick solution to these issues anytime soon -- because in my view, these are tricky problems. After all, no one opposes family values -- until they're the person who winds up picking up the slack at the office while co-workers are home caring for a child or sick family member.

Posted by Carolyn Elefant on August 2, 2007 at 03:52 PM | Permalink | Comments (0)

Recruiting Lawyers for Document Review ... in India

Here, in the United States, document review or "contract lawyer" jobs aren't viewed with much prestige, nor are they typically recommended as the optimal start to a successful legal career. So I was amused to read this article, Legal eagles for digital age, by Sanjay Kamlani, founder of an India-based legal process outsourcing (LPO) company (Hindustan Times, 8/1/07).

Kamlani writes:

When you work for an Indian law firm servicing some of the largest global multinationals, you certainly get the best exposure that you could possibly ask for in terms of the client base. However, in most cases, the transactions you are seeing from those clients are likely limited to India-centric transactions — setting up a subsidiary in India, availing tax holidays in India, and such. The scope of these transactions for Fortune 500 multinationals is not nearly as broad as the scope of transactions that are occurring globally.

Compare this with the work done at an LPO, where the virtual office environment created by the Internet enables the work done at an LPO to be truly global in scope. At high-end LPOs, lawyers are servicing multinational in-house lawyers and law firms on their global practice. Large multinationals, whether it be a GE, Microsoft, Boeing, Google, or a Goldman Sachs, are typically not approaching Indian law firms for activities that are not India-centric.  The exposure at an LPO also varies across industries. You could be reviewing a services agreement on a given day and a financial indenture on another. Thus, if one wants to move from an LPO to an Indian or an international law firm, the transition is easy due to the exposure gained.

I suppose that's one way of looking at the benefits of contract lawyering projects. I wonder whether these same arguments would play to U.S. lawyers in the U.S. 

Posted by Carolyn Elefant on August 2, 2007 at 03:49 PM | Permalink | Comments (0)

Online Contracts

Imagine the contract process, without lawyers. Apparently, one Spanish startup, Negonation (here's a link to the company blog), has done just that, developing a system called Tractis, the first Web platform that lets users create, manage and execute contracts online, as reported in this article from Business 2.0 magazine (8/2/07). According to the article, Tractis is "stocked with a database of contract templates from around the world, and its contracts are legally enforceable in the offline world, even if the parties are in different countries." Tractis also includes a verification system for parties to verify identity (thus facilitating enforcement) and  will reimburse users who are victims of fraud as a result of using a valid online contract. Right now, Negonation is targeting higher-end eBay transactions, hoping that the added level of security provided by a separate contract will appeal to eBay users. 

But what I found most interesting was this description of the Tractis dashboard. Apparently,

the dashboard displays the entire timeline of negotiations, permissions, invitations, and comments. Users can invite other parties to edit working drafts, or lock others out of the negotiations. And contract templates include software licenses, rental agreements, warranties, and financial services.

So what are the prospects for Tractis in the lawyer-reliant business market? Will Tractis replace lawyer-drafted contracts or simply provide contracts for transactions where lawyers were never involved to begin with? It seems to me that Tractis and legal representation aren't mutually exclusive either: You could use the Tractis tools to negotiate contacts and track drafting changes while still represented by a lawyer.

Posted by Carolyn Elefant on August 2, 2007 at 03:47 PM | Permalink | Comments (0)

Some Insight Into How Good Lawyers Go Bad

When I read about outrageous ethics violations by lawyers -- embezzling client funds or lying to clients that their cases are still ongoing, when in fact they were dismissed years before -- I always wonder how the lawyers reached that point. Were they lazy or disorganized or well-intentioned -- or simply bad, greedy and inherently evil? This article, Missing Lawyer Admits Embezzlement in Confessional Letter (8/2/07), via Legal Reader sheds some insight. The article reports on missing Connecticut lawyer Christopher Hoyt, who was last seen in early July. Hoyt's disappearance comes on the heels of serious financial troubles, including a March 2007 personal bankruptcy filing, not to mention a multitude of ethical and criminal violations relating to Hoyt's dealing with clients at the Hoyt Law Group. In a letter to his son, also a lawyer at the firm, the senior Hoyt admitted that his embezzlement followed a slippery slope of small takings, which got out of hand:

I have embezzled funds from my clients," business law attorney Jonathan Hoyt wrote to his son, attorney Christopher Hoyt. "Like most lawyers who fall into this trap I always did it with the idea that I would repay the funds, but of course once I started down this slippery slope there was nothing but failure waiting for me at the end."

Hoyt also apparently suffered from depression as well as financial problems, mentioned earlier.

Ever the lawyer father, Hoyt also advised his son on how to compensate defrauded clients, wrap up the business of the firm and continue with his law practice either on his own or with another firm. And he also made clear that he was solely responsible for the embezzlement and that his son knew nothing about it.

I suspect that most ethics and criminal problems experienced by lawyers start this way. First, you take a little money, intending to repay it. Then, you get in over your head financially, which can lead to depression, which impairs your work, which forces you to dip into client funds to cover your bills and starts the cycle all over again. The lesson here is clear as well: Don't ever touch client fund. And equally importantly, get help for depression -- a problem that the legal profession must also take more seriously seriously, not so much for how it affects lawyers but also because of how the aftermath of depression can impact clients. 

Posted by Carolyn Elefant on August 2, 2007 at 03:45 PM | Permalink | Comments (0)

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