SBM Blog

Foreclosure Bootcamp, on the Rocks, Please

Bloomberg News tells us of a four-day boot camp in the mountains of western North Carolina, taught by the grandson of a North Carolina governor, that at least one adherent says changed the trajectory of his professional life. Its focus is on defending in foreclosure and bankruptcy cases by exploiting creditors' mistakes.  The price tag is $7,775, which, in addition to 3,000 pages of material, includes covers 3,000 pages of materials, lodging, food and "unlimited wine, beer and single-malt Scotch."

HT: FP Legal Post

Laurence Tribe Probably Preferred the Root Canal

Laurence Tribe, Harvard professor, liberal icon, and occupier of what the New York Times describes as a "nebulous Justice Department niche", DOJ senior counselor for access to justice, has had better days.  A confidential letter he wrote to President Obama urging him not to nominate Sonia Sotomayor for the U.S. Supreme Court has been leaked by conservative blogger Ed Whelan of National Review online.  Among other things, the letter urges the President to consider making a "dramatic appointment like Jennifer Granholm, about whom I must confess I know less than I'd like to at the moment".  Here's the letter. (PDF)

Tribe described Sotomayor as "not nearly as smart as she seems to think she is" and worried that "her liberal impulses" would "backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the court.”

When a WSJ reporter tracked Tribe down about the leak Tribe said that he was  in the middle of a root canal and had left the dentist's chair to speak to the reporter.  Tribe must hope that the statement he gave to the reporter anaesthetizes the open wound of the letter:

[T]he reservations I expressed about Justice Sotomayor prior to her appointment were amply refuted by the closer study I was later able to give her record and that have been fully negated by her performance as a justice.

Other details of the leaked letter also required pain control: 

More on Supreme Court Recusal

The Chicago Tribune has an op-ed by Northwestern Law Prof. Steven Lubet, arguing for the full U.S. Supreme Court rather than individual justices deciding when a justice should be disqualified.  The question has been a hot academic topic since Caperton v Massey, but apparently the prospect of the Supreme Court weighing in on the constitutionality of the federal health care law is focusing attention on Justice Thomas and the activism of his wife in opposing the law.

First Amendment Now Includes the Right to Shop in Private

At least for some things, according to the federal district court of the Western District of Washington, which just held in Amazon.com v. Lay (W.D. Wash., decided yesterday) that Amazon's records of sales are protected from the North Carolina Department of Revenue's request for information related to sales to North Carolina residents.

The First Amendment protects a buyer from having the expressive content of her purchase of books, music, and audiovisual materials disclosed to the government. Citizens are entitled to receive information and ideas through books, films, and other expressive materials anonymously. In the context of distribution of handbills, the Supreme Court held that anonymity “exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995); Talley v. California, 362 U.S. 60, 64 (1960) (protecting anonymity in handing out campaign literature). The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights. In a concurring opinion, Justice Douglas highlighted the deleterious effect of governmental meddling in the reading habits of its citizens: “Some will fear to read what is unpopular what the powers-that-be dislike. When the light of publicity may reach any student, any teacher, inquiry will be discouraged.” United States v. Rumely, 345 U.S. 41, 57–58 (1953) (Douglas, J., concurring).

Face It: The Power of Appearance in Professional Success

Researchers at the University of Toronto and Tufts University gathered firm website headshots and yearbook photos of 73 of managing partners of the top 100 U.S. law firms.  They then asked people to rate the faces on dominance, maturity, attractiveness, likeability, and trustworthiness.  Dominance and maturity were considered a measurement of power.  They then correlated the ratings with public records of the partners' firms' profitability.  The result?  According to a press release on the study, "Power in the managing partners' faces predicted profit margin and overall profitability of the law firms. Not only did facial power in the current pictures correlate with profitability, but facial power in the decades-old yearbook pictures was nearly as effective at predicting profits."

Times being what they are, the faces were overwhelmingly white male.  It's not clear whether the same correlation exists for women and minorities with powerful faces, or, whether being white and male itself contributes to the power rating.  While we're waiting to find out, the study suggests that those of us seeking financial success as lawyers would be well advised to think "Master of the Universe" and put on our powerfaces when we leave for work in the morning.

Art: Honore Daumier

 

The Ethics of Justice O'Connor Robo-Calls

The first stories focused on the amusement of phone calls by retired Justice Sandra Day O'Connor promoting judicial merit selection in Nevada arriving in homes at 1:00 a.m. rather than 1:00 p.m.  ("Guess Which Former Justice is Making Robo-Calls?") But then people someone asked, "Wait, a retired U.S. Supreme Court justice is making robo-calls?"  Specifically, National Review Online commentator Ed Whelan asked whether the ethical rules governing federal judges allow a federal judge to participate in robocalls in support of a ballot initiative. Canon 5 of the Code of Conduct for United States Judges prohibits them from engaging in political activity,  except as permitted by Canon 4, which allows judges to speak to the public and to legislators about legal matters and the administration of justice. Whelan, a former law clerk to Justice Antonin Scalia, believes that personal advocacy of a ballot initiative does not fall within the Canon 4 exemption.  But, the code of conduct for federal judges does not apply to Supreme Court justices, sitting or retired. Although justices have said from time to time that they will conform their conduct to  the code, technically they are not covered. Jeffrey Shaman, a judicial ethics expert and professor at DePaul University College of Law, told the BLT, "the idea was that Supreme Court justices are so visible that any misconduct could be taken care of through the political process."  Shaman and ethics expert Stephen Gillers told BLT that they see nothing ethically wrong with what O'Connor has done. Shaman said that O'Connor's advocacy falls in the category of speech about the administration of justice that the canons permit.

Regardless, Justice O'Connor has issued this statement today: 

I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way. In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges.

Michigan Supreme Court Makes Significant Amendments to the Rules of Professional Conduct

The  Michigan Supreme Court has amended several provisions of the Michigan Rules of Professional  Conduct, effective January 1, 2011.  The affected rules include:

• 3.1  Meritorious Claims and Contentions
• 3.3  Candor Toward the Tribunal
• 3.4  Fairness to Opposing Party and Counsel
• 3.5  Impartiality and Decorum of the Tribunal
• 3.6  Trial Publicity
• 5.5  Unauthorized Practice of Law; Multijurisdictional Practice
• 8.5  Disciplinary Authority; Choice of Law

In addition, the Court added new Rules 2.4 (Lawyer Serving as Third-Party Neutral), 5.7 (Responsibilities Regarding Law-Related Services), and 6.6 (Nonprofit and Court-Annexed Limited Legal Services Programs). 

Especially notable are the changes to 5.5, which are identical to the ABA's multi-jurisdictional practice rule, and make Michigan the 44th U.S. jurisdiction to adopt a rule providing for the multijurisdictional practice of law.

Here's the order (PDF).

The Court's action brought to a close Michigan’s evaluation and adoption of portions of the American Bar Association’s Ethics 2000 Model Rules, a process begun in 2001. The changes announced Tuesday are substantially the same as those published for comment by the Court November 24, 2009, with the exceptions of Rules 3.3 and 3.6.  For a short description of how the new rules differ from those published, read on.

Good Heavens: Bible.com Lawsuit

We weren't aware until today that the Bible has shareholders, but now we know better.  The board of Bible.com is being sued by a shareholder for failing to cash in on the potential value of the internet site's name. The case is James R Solakian v Roy Spencer Miller, Betty Miller, Andrew Miller, Stacy Fornara, Edward Cude and Michael Magnant and Bible.com Inc, Delaware Chancery Court, No. 5911.

FP Financial Post nailed it: "Praise the Lord and pass the litigation."

El Greco, Jesus Driving the Money Changers from the Temple

Fans of Plain Language, Feast Upon This Ohio Opinion

Whether you approve of the outcome or not, you've got to love an opinion that contains the sentence, "Would that Harold had not lost the Battle of Hastings." And there's plenty more where that came from in this decision deciding the appeal of a dispute about a real-estate conveyance and a long-existing easement.

Here's the whole opinion (PDF).

HT: Michigan Bar Journal, Hon. Mark Painter, and D. Mattis

Fragment of the Bayeux Tapestry.

Guess Which Former Justice is Making Robo-Calls

It's Sandra Day O'Connor, on behalf of merit selection of judges in Nevada. Unfortunately for the former U.S. Supreme Court Justice and her cause, the robo-calling company scheduled the calls for 1 a.m. rather than 1 p.m., likely triggering the opposite of the intended effect.  SBM Blog guesses that the remedy, a robo-apology in prime time, probably didn't solve the problem. 

The robo-calling company has been fired.

HT: ABA Journal