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Unaccredited but Unbroken, Mass School of Law Soldiers On

 Joining the chorus of criticism of legal education today is one of the American Bar Association’s most persistent critics.

Massachusetts School of Law is not accredited by the ABA, has sued the organization repeatedly for alleged anti-trust violations, and continues to press for an end to the ABA’s authority over American law schools.

The school of 600 has fought for 15 years, so the recent widely publicized criticism of the cost and focus of American law schools must afford some comfort to the self declared “leader in the reform of legal education.”

The Mouse Continues to Roar

“So to the ABA: Spare us the kind words and coronets. Reform our higher education system now,” according to a recent missive from Michael L. Coyne, associate dean.

“Allow innovative, low-cost colleges and law schools to develop. Let those schools compete on an even footing with the barons in their ivy-towered campuses who preside over schools for students to whom money does not matter.”

Although unaccredited by the ABA, School of Law graduates are eligible to take bar examinations in Massachusetts and Connecticut.  If successful, most other New England states allow avenues to admission as well.

Night Classes, Practicing Instructors

The school was founded on principles that may seem unrelated to traditional law school education:  to provide a “practical” and “affordable,” as well as quality legal education.  The school says it charges just over one-third of the average ABA-accredited school tuition.  It has also tussled with the national group over faculty standards;  the Massachusetts School of Law, emphasizing preparation for the practice of law, encourages its faculty and instructors to practice.

Coyne presses a sore spot: costs.  He points out that ABA-accredited schools have doubled tuition in the last nine years, during a period when inflation increased less than 25%. 

Recent criticism of the accuracy of law school data on the success of typical graduates has lead to questions about the real value of a law degree.  Coyne asserts that  “our country’s middle class finds itself hard-pressed to see the promise of opportunity that a law degree provides as nothing more than a mirage on an ever elusive horizon.”

 Coyne’s letter appeared in the National Law Journal.

Attacks ABA’s “Exclusive Club”

The school, which presents classes at nights and on weekends, as well as weekdays, cites FTC legal papers supporting its challenge to what the school called the ABA “iron fisted” monopoly rule of legal education.

According to the FTC brief, “there is a potential for abuse when accreditation standards are promulgated and applied by economically interested parties who possess the ability to raise barriers to entry or to destroy a rival’s ability to compete by misleading consumers.”

The school trains law students “not to just think like lawyers but how to act like lawyers while representing real clients.”  That approach, according to Coyne, threatens the ABA’s reason for existence: “ensuring high fees for lawyers by charging exorbitant admissions fees to enter its exclusive club.”

New York Follows Nation, Eases Multi-Jurisdictional Rules

Beginning next week, lawyers licensed outside New York will able to counsel clients in the Empire State without fear of ethical violation.

Under a new rule that goes into effect April 20, out of state lawyers who pay a biennial $375 registration fee, meet the state’s continuing legal education requirements and are subject to its disciplinary rules can operate legally.

But in house attorneys who are not licensed to practice law in New York will continue to be prohibited from providing legal services to the general public, appearing before agencies or other tribunals, or providing pro bono services.

Change Sought By New York Lawyers

The decision by New York’s highest court was sought by several bar associations.

Proponents argued that large corporations are concerned that some in-house counsel may be practicing law without a license when they offer advice in New York.  Companies regularly shift personnel between states and continents.  In house counsel are commonly among those rotated.

The revisions should make it easier for international and national companies to operate in New York.

New York Claims Competitive Edge

“By accommodating the growing need for the provision of in-house services, the new registration rules give New York a competitive edge in attracting corporations and other entities that in the past may have been reticent to locate here because of concerns over the unauthorized practice of law,” Chief Judge Jonathan Lippman said in a statement.

New York becomes the 44th state – plus the District of Columbia — to allow in-house counsel licensed elsewhere to legally practice in the state under a proposal recently endorsed by the New York State Bar Association.

Attorney Joseph Neuhaus, who helped draft the measure, last fall successfully urged the New York State Bar Association to support it, saying:

“We are at the back end of a trend that is truly sweeping the country.”

Lawyer Who Abused Confidentiality Fined In The Public Interest

Judges got tough on a lawyer who marked more than half of his appeals brief “confidential,” including common case citations and principles of black letter law.

U.S. Court of Appeals for the Federal Circuit imposed a $1,000 against lawyer Daniel P. Shapiro for his representation of Sun Pharmaceutical Industries, Ltd.  in a patent infringement case.

“The confidentiality markings in this case were so extensive that the non-confidential version of the brief is virtually incomprehensible,” according to the opinion.  “For example, on nineteen of the thirty-four pages in Sun’s opening brief all material information is marked as confidential and thus omitted from the public version of the brief.”

The court found the violations of rule 28(d) to be “severe”.  The court cited an opinion stating that in order to handle court business efficiently, the court “must insist on strict compliance with its rules.”

Lawyer Deprives Public of Necessary Information

The dispute involved Sun’s alleged infringement of a patent on a cancer drug.  Sanofi-Aventis U.S. LLC  also sued a group of other alleged infringers, with whom it settled.  Sanofi and Sun then settled their similar dispute under a complex agreement by which Sun could continue to sell if competitors did so, and would refrain if that’s the course of conduct competitors followed.

But thereafter, a district judge ruled that Sun had not infringed.  Because the earlier settlement had not been entered by the district court, Sun resumed sales, following the other competitors.    Sanofi then renewed its settlements with all the alleged infringers except Sun, against whom it sought to enforce the earlier agreement.   A district judge did so, but Sun appealed, claiming the non-existence of an entry of judgment on which an order could be based.

“No good faith reading of our rule could support Sun’s marking of its legal arguments as confidential,” judges wrote.  “The action of Sun’s counsel bespeaks an improper casual approach to confidentiality markings that ignores the requirements of public access, deprives the public of necessary information, and hampers this court’s consideration and opinion writing,” according to the opinion imposing the fine.

Law Firms Move To Plug Marketing Posts; Recruiters Hopeful

Recent moves by several law firms to hire marketing executives reflect a level of comfort with the economy– and the marketplace for legal services –unseen in years.

At least according to officials with several search firms, the developments show that law firms are now moving more aggressively to raise their profiles, according to a recent AmLaw Daily post .

Observers said law firms are much less likely to let vacancies in key positions go unfilled for long.   Some new hires have collected signing bonuses, according to recruiters.

No More Vacancies — At Least For Some

Among the firms recently filling top marketing jobs are White & Case, Dechert, Mayer Brown, Freshfields, and  Squire Sanders & Dempsey

“At the same time, industry watchers note that it wasn’t just concerns about the broader economy that kept some legal marketing posts–especially high-level ones–vacant for so long, according to AmLaw. 

“The industry’s hiring process, recruiters say, can be painfully slow, with multiple rounds of interviews conducted in multiple cities over the course of several months.”

Consumer-Friendly Mediation Recommended Pre-Litigation

  If you have forgotten how client and consumer-friendly mediation can be, consider an article in in The Recorder in San Francisco.

Mediation – particularly pre-litigation mediation – can save money, time, avoid risk, and produce predictability.

But “all too often, personal, financial or business concerns” intervene.  The conclusion is that  “pre-suit mediation is a grossly underutilized,”  according Richard M. Williams.

No CEO Likes Litigation

“Most companies are in business to produce a product or service, not to litigate,” Williams writes. “Find a room full of CEOs, and I will bet none is a fan of the practical toll litigation takes on day-to-day business.

Williams points to recent developments in confidentiality, particularly in California, to suggest that a commitment to a confidential mediation process entails many advantages – and little risk.

“ ‘Don’t ask a question unless you know the answer’ has been the mantra of cross-examination for centuries,” Williams writes.  “I pose the question, ‘Why not?’ If you are committed to a confidential mediation process, what is the harm in asking that question?”

A Viable Alternative to Filing Suit

Perhaps primary is the advantage of risk avoidance. “The parties are in total control of the result; not the media, stock holders, judge or jury, arbitrator, counsel or public opinion,” according to Williams.   Should mediation succeed, the benefits are obvious:  a certain outcome, a known future and a sound basis for the ongoing conduct of their business.

Time savings is the key.  The time to make the effort is “before suit is filed and the first shot is fired, when a good faith effort to mediate and settle the matter is in order.”

“Like a good general who never puts his troops unnecessarily in harm’s way,”  Williams states, “the wise business person, and her counsel, should always consider pre-suit mediation as a viable alternative to filing suit after the initial analysis of the issues. “

Data On Credentials Key To Powerful Attorney Web Sites

The most important factor that converts visitors to a lawyer’s website to clients is information about credentials and experience, according to a new nationwide survey.

Lawyers also must offer visitors a way to take immediate action by email, a phone call, text message, or printed driving instructions in order to succeed online.

“It’s the combination of giving people the right information to make a decision and the option to act now that will help advertisers convert more online traffic into new business,” according to  the WebVisible survey.

Visitors Value Legal Information

In addition to data about credentials, consumers appreciate information to educate themselves about legal procedures and answers to common legal questions.

The question posed was “If you were to use the Internet to look for an attorney or legal services, what would help you make a decision?”  

Choices included details about credentials, special offers and discounts, a video of the service provider, a video customer testimonial.

Younger People Value Discounts

Options included  a non‐video customer testimonial, personal referrals and recommendations, information about legal procedures, and expecting the service provider to show up in a variety of online directory listings.

The survey showed that most women particularly value information on legal procedures and answers to common questions.

Younger people are particularly keen on discounts, particularly those under 44 years old, according to the survey.

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Florida Residents Face Dire Cutoff of Access to Courthouses

Judges from California to New York now struggling to keep access to courts unfettered by adjusting to reduced revenues would do well to consider their brethren in Florida.

There the funding crisis is acute because the court system is unusually dependent on revenues generated by filings in foreclosure cases.  Much of that activity has been stalled as the scandal over “robo signers” unfolds, along with the collapse of law firms that once dominated the foreclosure market.

The picture is bleak through the current fiscal year, ending June 30.    Some court officials have predicted that courtrooms will go dark up to 14 days over the next two months, statewide.

Reliance on Foreclosure Fees Misplaced

As the foreclosure filings plummeted, the funding available to the $435 million state judicial system declined from a modest surplus to a $70 million deficit, according to court officials.  Foreclosure filings at present make up the great majority of the court’s operating budget, according to reports in the St. Petersburg Times .

“We’re at basically about one-third of what they (revenues) were just a few months ago,” one court official said.

Legislators appropriated more general fund money beginning the next fiscal year, based on recognition of the volatility of foreclosure fee trends.

Foreclosure Backlog Relief at Risk

The threatened closure of courts could mean a moratorium on criminal trials, and no work toward settlement of divorces or child custody cases.

A panel has recommended  eliminating special resources devoted to the backlog of mortgage foreclosure cases, dismissal of hearing officers for traffic cases, and a freeze on interpreters and capital expenditures.

The foreclosure factor has intensified the Florida judiciary’s budget woes.  California is facing massive cuts, and plans by New York Chief Judge Jonathan Lippman to assure state residents have the help of a lawyer when faced with loss of things like a home or children are in jeopardy.

Legal Marketplace Grapples With Investments By Non-Lawyers

The UK is allowing for the first time non-lawyer investment in law firms.  The economic efficiencies of the change – and the prospect of a new phase of transAtlantic competition – has sent shivers down the spines of American traditionalists and innovators alike.

One interesting take in the Am Law Daily.  by Steven Harper  suggests the outcome may be similar to the creation of Goldman Sachs, the mortgage banking giant.  The bottom line:

“As law firms have embraced metrics that maximize short-term partner profits, they’ve moved steadily in Goldman’s direction,” Harper writes.

Tipping Point

“If America follows Australia and the UK in permitting non-attorneys to invest in law firms, a tipping point could arrive.”

Many big law principals are driven to focus on near-term profits – precisely the allure that poses the greatest danger. 

“Many of those in big law who already take a short-term economic view of their institutions would jump at the opportunity for a one-time payday that discounted future cash flows to today’s dollar.

Attorney/Partner Ratios Balloon

“In fact, a big lump sum will tempt every equity partner who worries about next year’s annual review,” according to Harper.

The article identifies several characteristics that Goldman has come to represent since it went public in 1999.  These are identified as similar to where big law may be headed:

Goldman came to be “adept” at managing conflicts.  Harper says big law has become good a maximizing representational flexibility in order to remain open to subsequent lucrative offers.

The Future May Be Now

Big law attorney to equity partner ratios have double in the last 25 years.  At Goldman, the ratio is  475 partners to 35,000 employees.  Compensation has followed upwards.

 That Darwinian future may be what’s in store for big law.

“Then again,” said Harper, “some firms may already be there.”

New Jersey Paralegals Can Write Letters Without Fear of UPL

In an abrupt about-face, New Jersey has decided that paralegals no longer engage in the unauthorized practice of law when they sign routine communications.

The change comes in a joint opinion of  the Advisory Committee on Professional Ethics and the Committee on the Unauthorized Practice of law, named by the New Jersey Supreme Court.

The opinion seems to base the relaxation of unauthorized practice of law rules on the recognition that the “caliber, training, and professionalism of paralegals have risen significantly,” as well as recognition that the old rule came into play “when busy attorneys overly rely on non-lawyer assistants.”

No Estimate of Consumer Cost Savings

There was no estimate of how much money consumers and clients will save as a result. 

“ The Committees find that the Rules of Professional Conduct do not prohibit paralegals from signing routine, non-substantive correspondence to clients, adverse attorneys, and courts,” according to the joint opinion.

The big victory for New Jersey paralegals comes as the committees reiterate that lawyers retain “the ethical responsibility to directly supervise their paralegals.”

Baby Steps — Paralegals

Mere “baby steps,” huffed a popular paralegal blog.  The old rule restricted paralegals to “sign only routine correspondence that is not directed to clients, opposing lawyers or courts.”.

“Although it may sound like Opinion 720 is still restrictive and not such a great cause to celebrate, if you live and work in New Jersey, this is great news and a step, albeit a baby step, in the right direction,” according to the blog.

The opinion which allows paralegals to sign correspondence with courts, lawyers and clients can be found at Opinion ACPE 720/CUPL 46.

The move toward liberalization is widespread. 

New Jersey Lawyers Backed Change

In Ontario, The Law Society of Upper Canada was considered a proposal to allow paralegals to make limited appearances in family law matters.

For now this opinion will stand, unless the court overturns it. The opinion modifies the long standing ACPE Opinion 611, which goes back to February 18, 1988, and

The State Bar Association had supported the change.  The committees found the question a matter of style and respect rather than one of ethics.

The joint committees noted that the old provision was ineffective.   The committees found that the ban was likely “violated on a daily basis.”  The report suggested that innocent and non-substantive communications occur regularly between paralegals and law firm clients, and should continue without fear of UPL.

Madoff Joins Lehman Bros. in Billion Dollar Fee Club

Fees will top one billion dollars in the Bernard Madoff fraud litigation, a “gusher of cash,” according to the Washington Post.

Costs as of the end of the year were $288 million, and the larger projection of $1.1 billion total was made by the Securities Investor Protection Corp. which manages the liquidation of failed brokerage firms such as Madoff’s.

The Madoff fraud is being unraveled by regulators and lawyers who are tracing his money and that of alleged associates.

Regulators Should “Watch More Closely”

The SIPC’s Inspector General H. David Kotz warned recently that oversight of fees paid to outside contractors need closer scrutiny, and “urged regulators to watch more closely to make sure the payments are appropriate,” according to the newspaper.

Kotz suggested that the growing fees could exhaust the SIPC’s funding, forcing the government to intervene.

Trustee Irvine H. Picard and his team have charged as much as $742 an hour, and have collected tens of millions of dollars in fees so far.

Fees Called “Shocking and Unconscionable”

Several Ma­doff victims have tried, without success, to persuade a judge to reject some of the fees, calling them “shocking and unconscionable.”

The bank collapse and the great recession have seen huge payouts to lawyers and specialists tasked with unwinding some of the biggest failures.   For instance, fees in the Lehman Brothers bankruptcy topped $1 billion last year

And bankrupt firms such General Motors, Washington Mutual, real estate company Thornburg Mortgage Inc. and commercial real estate finance company Capmark Financial Group Inc, are among the biggest in American history.

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