SBM Blog

Diane Akers Receives SBM Business Law Section Schulman Award

Diane Akers, of counsel to Bodman PLC in Detroit, has received the ninth annual Stephen H. Schulman Outstanding Business Lawyer Award from the State Bar of Michigan Business Law Section.

Akers worked as a key leader in the effort to establish business courts in Michigan, through the SBM Business Law Section and as a member of the SBM Judicial Crossroads Task Force. Business cases were once very expensive to handle and unwieldy in the circuit court system. So Akers and others began working together in 2001 to streamline the process, and it took them over nine years to get a law passed establishing business courts. They are now up and running across Michigan.

Akers was also involved in an effort to lessen the pressure that law enforcement officials at the federal and state levels were putting on businesses to waive the attorney client privilege in criminal investigations in order to gain favor with investigators. This effort was led by SBM Business Law Section's Attorney Client Task Force.

“We wanted to raise awareness as to how dangerous this practice can be. As a business owner if you think something internally going on is improper, you should conduct an investigation. But if there is a risk that if you find out something has happened that is against the law, and you let investigators know, they could use that information against you,” Akers said. Moreover, waiver of the privilege for one purpose constitutes waiver for all purposes, so the consequences can be very far-reaching, she added.

So Akers and many of her colleagues worked to raise awareness with Michigan businesses and met with prosecutors to change attitudes and practices.

Akers has held numerous leadership positions within the State Bar of Michigan, including service as chair of the 3,500 member Business Law Section, chair of the Ad Hoc Committee on Climate Change and Sustainability, co-chair of the Task Force on Attorney-Client Privilege, chair of the Business Court Ad Hoc Committee, chair of the Commercial Litigation Committee of the Business Law Section, and a member of the Judicial Crossroads Task Force and co-chair of its Business Impact Committee. She is a former member of the executive committee of the Alternative Dispute Resolution Section of the Detroit Metropolitan Bar Association.

The Business Law Section established the Stephen H. Schulman Outstanding Business Lawyer Award in 2006, to be presented annually and to honor business lawyers who consistently exemplify the highest quality of professionalism and practice and an unwavering dedication to service, ethical conduct and collegiality. It was named after Prof. Stephen Schulman, a beloved Wayne State University Law School professor who was instrumental in drafting much of Michigan’s corporate law.

Past recipients of the Schulman Award include Cy Moscow, Martin Oetting, Hugh Makens, James Bruno, Charlie McCallum, Verne Hampton, G. Ann Baker, Justin Klimko, Alex DeYonker, James Cambridge, Jeffrey Ammon, and Daniel Minkus.

Posted by Samantha Meinke

Barry Howard Named 2013 Winner Of Hilda Gage Award For Judicial Excellence

The Michigan Judges Association has named former Oakland County Circuit Court chief judge Barry Howard as  the winner of its 2013 award for judicial excellence. The award is named for former Michigan Court of Appeals judge Hilda Gage. Now a prolific mediator of counsel to Lipson, Neilson, Cole, Seltzer & Garin PC, Howard co-chaired the State Bar's Judicial Crossroads Task Force along with former State Bar President Ed Pappas. For their work on the Task Force, which has received state and national recognition, the two were awarded the State Bar's Champion of Justice award.

Study: Michigan's Mental Health Courts Work

When the State Bar's Judicial Crossroads Task Force called for making the development of a problem-solving approach to suitable cases a standard feature of trial court operations throughout the state, we were endorsing a path that the Michigan Supreme Court had already begun to pave. This week the State Court Administrative Office released a study that indicates the wisdom of that path. Looking at ten Michigan mental health courts over a three-year period, the study finds that participants re-offend at significantly lower levels than comparable groups of offenders who do not participate in the mental health courts. Read the report here.

State Bar Representative Assembly Endorses End To Age Discrimination In Judicial Selection, Skittish On Attorney Inventory Rule

After spirited debate, the Representative Assembly approved a resolution calling for an end to the constitutional prohibition on appointment or election of lawyers over the age of 70 to judicial office in Michigan. After similarly spirited debate, a proposal for a rule requiring Michigan attorneys who represent clients other than in-house clients to identify the name of an active member to serve as an inventory attorney in the event of the attorney's death, disability or disappearance did not receive the Assembly's approval.

The judicial age limit proposal was among the issues presented to the Assembly by former Chief Justice Marilyn Kelly on behalf of the Judicial Selection Task Force that she co-chaired with former Michigan Supreme Court Justice James L. Ryan.  A key element of the Task Force's report, urging the amendment of the Michigan Campaign Finance Act to require disclosure of expenditures for electioneering in judicial campaigns, was adopted by the Representative Assembly in 2010.

Making Michigan Courts Better: On "Good Measurement And A Commitment To Follow The Data"

The Governor, Chief Justice, and the State Court Administrator are advancing easily accessible and understandable performance measures as a means to improve the delivery of services to the public. The efforts underway in the judicial branch, I'm happy to say, are in line with the recommendations of the State Bar's Judicial Crossroads Task Force, which, among other reforms, called for greater accountability through better data and transparency.  Obviously, like all reforms, it's possible to do this well or ill, and getting it right will take a lot of attention, including good faith participation and intelligent critique of members of the bar. On Friday I attended a meeting of the State Court Administrative Office's Trial Court Performance Measures Committee, chaired by Kent County circuit judge Paul Sullivan, and can attest that the efforts to get it right are serious, open-minded, and vigorous. Right after the meeting, I ran across a Wall Street Journal op-ed by Bill Gates that captures why good measurement and a commitment to follow the data is important and holds promise for making progress on problems that have resisted our best efforts for, well, centuries.  From his piece:

You can achieve incredible progress if you set a clear goal and find a measure that will drive progress toward that goal.

This may seem basic, but it is amazing how often it is not done and how hard it is to get right.

One of the greatest successes in terms of using measurement to drive global change has been an agreement signed in 2000 by the United Nations. The Millennium Development Goals, supported by 189 nations, set 2015 as a deadline for making specific percentage improvements across a set of crucial areas—such as health, education and basic income. Many people assumed the pact would be filed away and forgotten like so many U.N. and government pronouncements. The decades before had brought many well-meaning declarations to combat problems from nutrition to human rights, but most lacked a road map for measuring progress. However, the Millennium goals were backed by a broad consensus, were clear and concrete, and brought focus to the highest priorities.

This seems like basic good sense, but cynicism, inertia, fear, and self-interest often undermine efforts to gather data and act upon what the data reveal.  It's right to be concerned and careful about data and measurement. It's also right to be hopeful. Pay attention; be heard. The State Bar will help you do both. 

Zombie Invades Body of Judicial Selection Task Force Report

That is the best explanation I can come up with for the weird phenomenon of some editorial writers and op-ed commentators insisting that the report of Michigan's Judicial Selection Task Force recommends scrapping Michigan's system of voters electing judges. Apparently something supernatural is going on that causes the actual text of the "suite of reforms for the electoral process" recommended by the Task Force to vanish from the eyes of some readers and its real recommendations to be turned on their heads. The actual recommendations are grounded on the continuation of the electoral system. They are:

• full, open disclosure of campaign spending
• open, nonpartisan primaries
• a citizens' campaign oversight committee
• voter education guides
• a gubernatorial screening process for filling vacancies that is more transparent and includes nonlawyers, introducing greater accountability into the current system
• eliminating the constitutional age limit on serving as a judge

The Report acknowledges that many members of the Task Force favored a non-elective system of selecting judges, but that viewpoint did not prevail as a recommendation of the whole Task Force. Except for the zombie factor, I guess.

Full disclosure: I served as a member of the Task Force. I saw nothing supernatural occurring during the process of deliberations, just a broad spectrum of members searching for good, practical solutions to some serious problems. The State Bar of Michigan has a long history of advocacy on judicial selection issues, most recently as a proponent of fuller campaign finance disclosure, but has not yet addressed the substance of the Task Force's recommendations. So the point of this post is not to promote the Task Force's recommendations, but instead to point out that we can't have a productive debate about the flaws of the present system and whether and how to improve it until we exorcise this mischievous ghost that's playing havoc with the facts.

Add This to Your Working Vocabulary: Justice Index

Whether or not you agree with the measure proposed by the discussion in this archive of comment on Monday's U.S. Supreme Court decision, Turner v. Rogers, the idea of a "justice index" is compelling.  (Remember that Michiganders are now living in a metrics-driven policy land in which "dashboards" are supposed to be popping up all over the place.)  David Udell at Concurring Opinions reminds us:

Among the facts brightly if indirectly illuminated in Turner v. Rogers by the Supreme Court’s analysis of the relationship between the “right to counsel” and “alternative safeguards,” is that so little is known about the status of unrepresented persons in our state courts and about the assistance available to help them.  So little is known about what is necessary to assure “fundamental fairness” in our justice system.

The conclusion that we need better data if we are to improve our justice system is a fundamental underlying theme of the Judicial Crossroads Task Force report.  Here's what Udell says we need to know:

–the number of people unrepresented in civil proceedings, and the number unrepresented when the other side is represented or when the other side is an entity of government.
–the nature and scope of services available to people who are unrepresented and whether those services are effective.
–the number of people receiving criminal convictions (pleading “time served”) without having received the right to counsel due under Gideon.
–the numbers that would tell us other important things (such as whether people are receiving needed waivers of court fees or needed interpreters).

The whole Concurring Opinion "symposium" on Rogers v. Turner is worth paying attention to.

Changing Courts: Thinking Out of the Crate

The Judicial Crossroads Task Force Report on changes that will transform Michigan's courts points to the need for spreading new problem-solving techniques throughout the state, for better outcomes and savings.  Here's a new one, as described in a Free Press story: "Court Dog Offers Hope, Help to Veterans Facing Legal Trouble."

The Importance of Measurement; The Tyranny of Measurement

The public policy mantra of the moment is metrics -- measuring how we're doing in order to do better.  The State Bar of Michigan is on board (read our ringing endorsement of the need for more and better data and analysis to improve Michigan's court system in the Judicial Crossroads Task Force report). But we need to keep reminding ourselves to be very, very careful that what we're measuring is what really matters.  Jonah Lehrer in his Frontal Cortex blog makes the point, as usual, through an entertaining and thought-provoking illustration.  Read "Measurements That Mislead."

Governor Will Not Fill COA Vacancies, Will Support Bill to Reduce Judgeships

Governor Snyder's press secretary has confirmed that the Governor will not fill the two current vacancies in the Court of Appeals, and will support legislation to eliminate the seats.  "This decision to not fill these two posts reflects the governor's desire to match and align the number of judgeships with a significantly reduced caseload at the court." she said. The Governor's decision is consistent with the position of the Chief Justice, who has also called for judgeship reductions, based on attrition.  The State Court Administrative Office will be issuing its report on judicial needs in August.  According to a story in the Detroit News, the chief of staff and general counsel for the Supreme Court, Matthew Schneider, praised the Governor for taking a courageous and unprecedented step.  "Governor Snyder has taken a bold step to do what is good public policy," he said.