SBM Blog

"Idiotic Metrics" -- A Rant About Law School Rankings

Basically, everybody hates U.S. News & World Report's and its imitators' rankings of law schools.  Except, of course, all the law school aspirants who use the ratings, and the administration and alums of whichever law schools come out on top on any given ranking at any given moment. So while it's not hard to find scholarly critiques and online rants against the rankings, once in a while a fresh one jumps out of the pack. The latest example is this AMLawDaily post "Worse Than Cheaters," from Stephen Harper, an adjunct law professor at Northwestern and former Kirkland & Ellis partner.  Within its detailed condemnation of the rankings and the machinations of law schools in response to them is this interesting nugget -- the test-preparation business has flourished as a result of the rankings.

Facebook and Hiring: What You See May Be What You Get

The Wall Street Journal (sub. req.) reports on a study out of Northern Illinois University that shows a strong correlation between personality traits as revealed on Facebook and job performance.  Researchers rated the Facebook posts of over 200 college students on such traits as agreeability, dependability, intellectual curiosity, and emotional stability, and then six months later compared the ratings to the job evaluations of 56 of the students who were working. There was a strong correlation. Here's the study (PDF).

HT: ABA Journal

Breaking: Michigan Court of Appeals sides with CMU in employee political activities suit

The Michigan Court of Appeals ruled yesterday that a Central Michigan University policy for employees who seek political office does not violate Michigan's Political Activities by Public Employees Act.

The CMU policy requires that employees seeking political office notify their supervisors, who must then certify that employees' political activities will not create a conflict of interest or affect their work. A union representing CMU employees argued that this policy violated the state political activities act by hampering employees' ability to engage in political activities during non-work hours.

A MCOA panel, consisting of judges William C. Whitbeck, Christopher M. Murray, and Pat M. Donofrio, cited a Michigan Supreme Court ruling that recognized that a public employer does not have a right to curtail an employee's off-hours activity, but that the employer does have the right to deal with the adequacy of job performance.The MCOA panel ruled that the "candidacy policy only regulates an employee's work and not an employee's activities outside of work. .... The state may regulate the off-duty political activities of public employees where those activities interfere with job performance."

Want to know more? Download the Michigan Court of Appeals opinion here.

Posted by Samantha Meinke

The Future of Legal Ethics

The next wave of changes in the Model Rules of Professional Conduct is building up offshore as the work of the ABA's Ethics 20/20 Commission begins to draw to a close. The terrific Legal Ethics Forum blog has a post by the Commission's chief reporter, Andrew Perlman, that serves as a handy guide-at-a-glance to where things stand at the moment. Gelman has posted in the hopes of getting detailed, helpful comment by the Commission's next meeting in early April. Here's the guts of the post:

Technology and Confidentiality

Amendments to Rule 1.0 (Terminology) to elaborate on the definition of a “screen” in order to emphasize the importance of taking appropriate precautions regarding electronically stored information.

Amendments to Model Rule 1.1 (Competence) to emphasize that a lawyer has a duty to keep abreast of changes in technology, including the benefits and risks associated with its use.

Amendments to Model Rule 1.4 (Communication) to update existing Comment language that refers to the duty to respond promptly to client telephone calls.

Amendments to Model Rule 1.6 (Duty of Confidentiality) to address a lawyer’s ethical obligations to protect a client’s confidences from inadvertent and unauthorized disclosures as well as from unauthorized access.

Amendments to Model Rule 4.4 (Respect for Rights of Third Persons) to clarify a lawyer’s obligations upon receiving inadvertently disclosed confidential information in electronic form.

Technology and Client Development

Amendments to Model Rule 1.18 (Duties to Prospective Client) to clarify the definition of a prospective client so that lawyers can better understand the implications of the Rule given the various new ways in which lawyer and clients communicate.

Amendments to Model Rule 7.2 (Advertising) to address how the prohibition against paying others for a “recommendation” applies to Internet-based client development tools.

Amendments to Model Rule 7.3 (Direct Contact with Prospective Clients) to clarify when a lawyer’s online communications constitute “solicitations” that are governed by the Rule.

Outsourcing

Amendments to Model Rule 1.1 (Competence) to clarify that lawyers have an obligation under the Rule to make reasonable efforts to ensure that the work outsourced to lawyers is performed competently and contributes to the overall competent and ethical representation of the client.  A new Comment identifies the relevant factors to consider when assessing whether those efforts have been reasonable. 

Amendments to Model Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) to underscore that lawyers should make reasonable efforts to ensure that nonlawyers outside the firm provide their services in a manner that is compatible with the lawyer’s own professional obligations, including the lawyer’s obligation to protect client information. The changes also alert lawyers that they have an obligation to give appropriate instructions to nonlawyers outside the firm when retaining or directing those nonlawyers. 

Mobility Issues (here, here, and here)

Amendments to Model Rule 1.6 (Confidentiality of Information) that explain the ethical considerations associated with the disclosure of confidential client information to detect and prevent conflicts of interest, such as when lawyers move to another firm or when firms merge.

Amendments to Model Rule 1.17 (Sale of Law Practice) to clarify the information that can be disclosed to the potential purchaser of a law practice in light of the proposed changes to Rule 1.6

A new Model Court Rule on Practice Pending Admission that would enable a lawyer licensed in one jurisdiction to establish a systematic and continuous presence in a new jurisdiction while diligently pursuing admission in the new jurisdiction through one of the procedures that the jurisdiction authorizes (e.g., admission by motion or passage of that jurisdiction’s bar examination)

Amendments to Model Rule 5.5 (Multijurisdicitonal Practice of Law) to offer more guidance on when a virtual practice could give rise to the establishment of an office in another jurisdiction

Amendments to the ABA Model Rule on Admission by Motion that would reduce the time in practice requirement from 5 years to 3 years and a resolution urging jurisdictions that have not adopted this Model Rule to do so without additional restrictions, such as reciprocity requirements.

How Much Is Too Much? Where Recusal Rules Stand Today

In his dissent to Caperton v Massey, Chief Justice Roberts warned that the standard the majority opinion articulated as the basis for a required recusal — "probability of bias" — does not provide clear, workable guidance for future cases. He then famously laid out 40 questions raised by the majority opinion, starting with "How much money is too much money? What level of contribution or expenditure gives rise to a 'probability of bias'?"  In "Show Me the Money: States, ABA Try to Figure Out When Campaign Cash Leads to a Judge’s Recusal," the ABA Journal tracks states' efforts to answer the questions, and analyzes the further complications posed by Citizens United.  Spoiler alert: progress has been slow:

Nearly three years [after Caperton],... fewer than a dozen states have rewritten their recusal rules to account for more common instances of political spending that may not rise to the level of the hard constitutional foul called in Caperton, but that nevertheless create potential conflicts of interest for judges significant enough to warrant disqualification.

Michigan earns a mention in the piece.

GPS Monitoring By The Government: An Expert Complains About The Popular Reporting

SBM Blog's post "How Many GPS Devices Was the FBI Monitoring Before the Supreme Court Said No," which reported that the FBI has disabled 3,000 GPS devices in the wake of U.S. v Jones, prompted a complaint from one of Michigan's foremost lawyers on criminal procedure -- Wayne County's Chief of Research, Training & Appeals,Tim Baughman. As have many news reporters and commentators, SBM Blog said that the Supreme Court in U.S. v. Jones nixed the use of GPS monitoring without a warrant.  Baughman writes:

After the Supreme Court ruled in U.S. v. Jones that the use of the monitoring devices without a warrant violated the 4th amendment,... ." There is no such holding in the case, which held that installation/attachment of the devices to gather information is within the 4th Amendment, without reaching the questions of 1)the level of cause needed, or 2)whether a search warrant is needed. See Tom Goldstein from scotusblog.com: "describing the case correctly is important. In this post I explain how I think that the press got the case wrong. The Court’s only holding is that the installation of a GPS monitoring device is a search. That is a different question from whether it requires a warrant and whether it requires probable cause, as opposed to a lesser standard like reasonable suspicion. The Court in Jones did not decide the government’s argument that this “search” (installing the GPS device) did not require a warrant.. . . The upshot of the coverage of Jones is that the American public now seriously misunderstands the law on a significant issue. The inevitable impression left by at least most of these pieces is that the police always have to get a warrant from a judge to use GPS tracking. That is simply not true. That question is at best unresolved, and at worst it may prove to be completely incorrect when the courts later addressing monitoring over the course of a short time."

Pass it on.

How Many GPS Devices Was The FBI Monitoring Before The Supreme Court Said No?

3,000, according to a story in the Wall Street Journal. After the Supreme Court ruled in U.S. v. Jones that the use of the monitoring devices without a warrant violated the 4th amendment, the FBI actually had to petition courts to turn some of them on, briefly, in order to locate and retrieve them. Andrew Weissmann, general counsel for the FBI, told a gathering at the University of San Francisco that the ruling has caused a “sea change” inside the U.S. Justice Department.

Clarence Thomas For President?

The speculation about a brokered Republican convention and a new candidate emerging to steal the nomination away from the current crop of contenders has led UCLA law professor Adam Winkler to suggest that Republicans look to the Supreme Court for a candidate. In the Daily Beast Winkler says that Justice Clarence Thomas would energize Republicans and grab media attention from President Obama. Turns out that the idea has been floated before, by Kashmir Hill and David Lat, in a 2010 op-ed in the Washington Post.  And batted down by Volokh Conspiracy's Ilya Somin.

Primary Eve: The Candidates And The Courts

According to the Secretary of State website, the February 28th Michigan Republican primary election ballot will include the names of Michele Bachmann, Herman Cain, Newt Gingrich, Jon Huntsman, Gary Johnson, Fred Karger, Ron Paul, Rick Perry, Buddy Roemer, Mitt Romney and Rick Santorum. The Democratic ballot will include only the name of Barack Obama. From the official websites of the candidates actively campaigning in Michigan, here, in alphabetical order, are the candidates' statements on the judiciary and the courts:

Feeling Sleep-Deprived? Blame Your Profession

According to a national study reported in the New York Times Economix blog, only home health care workers are more sleep-deprived than lawyers. If you're one of the afflicted, you might want to check out the February Michigan Bar Journal article, "Be Still and Listen: Mindfulness."

HT: ABA Journal