Lawyers Behaving Badly

I could write my entire Professional Responsibility exam about this guy:

The New Jersey Disciplinary Review Board is recommending disbarment for a lawyer who manufactured fake billings for nonexistent clients, first at Fox Rothschild and then at Margolis Edelstein.

The board found that Kenneth Denti, 51, violated ethics rules against fraud by drawing a salary while pretending he had done $350,000 worth of work.

He also submitted phony expense accounts and had sex with a matrimonial client while she was trying to reconcile with her husband, creating a conflict of interest, the board added.

Don we now our tacky apparel

Of all the peculiar customs associated with Christmas, the wearing of hideous sweaters is surely the most bizarre–more disturbing even than carrying around a ribbon-festooned horse’s skull on the end of a stick.

As if Christmas sweaters aren’t inherently awful enough, the horror is compounded for me, because of an association from my time in legal practice. At one firm where I worked, there was a partner who sported a memorably bad Christmas sweater featuring two Scotch terriers, one white and one black, both wearing tartan doggie sweaters (making it a meta-sweater!) and tams. In my recollection, the dogs were also toasting with glasses of whisky; but that may be a false memory attributable to the fact that the partner herself was a drunk.

As Christmas sweaters go, this particular example wasn’t much worse than average. But the partner who wore it was, without question, the most repulsive and unpleasant person it has ever been my misfortune to work with. She was abrasive and abusive, utterly lacking in personal decency and personal hygiene. Did I mention that she was a drunk? One year, at the law firm retreat, she drank so much that she tumbled down a flight of stairs, in full view of the other lawyers. Nobody batted an eye. And of course, she got drunk at the firm holiday party, wearing that awful doggie Christmas sweater.

Hell hath no fury like a law firm associate scorned

Edward Harrington Heyburn left New Jersey law firm Levinson Axelrod in 2004, apparently on bad terms. More than five years later, it seems Heyburn still bears a grudge. In September of this year, he launched a website, “Levinson Axelrod Sucks“, where he has been trash-talking his former employers. The firm is now threatening to strike back with a lawsuit. Pass the popcorn.

Bush-connected law firm in Iraq oil imbroglio

BigLaw powerhouse Baker Botts (“as in former Secretary of State James Baker”¹) made its bones representing Texas oilmen. So it should come as no surprise that the firm has been dipping its toes in the Iraqi oil fields. The firm recently helped client Hunt Oil Company arrange a deal with the Kurdistan Regional Government for exploration rights in northern Iraq. But the Iraqi national government (such as it is) objects to this and similar deals, and even the Bush administration has questioned their legality.

¹Not to be confused with disgraced televangelist Jim Bakker.  The firm’s connection with Bertie Botts is shrouded in mystery.

Wal*Mart launches new market-based initiative to change law firm employment practices

Wal*Mart has written its outside legal counsel, complaining about recent pay hikes for law firm associates. The retail giant — which, coincidentally, labels its own wage-slaves “associates” — is unhappy that the firms have tried to pass along the cost in the form of higher billing rates. Wal*Mart — which, coincidentally, is currently the defendant in the largest-ever class action employment discrimination lawsuit — previously garnered praise for urging its legal counsel to increase gender and racial diversity among their attorneys.

The trouble with BigLaw diversity

Commenting on my earlier post about the “Better Legal Profession” project, Stanford Law Professor Michelle Dauber, a member of the project’s board, defends the mission of advocating for greater diversity in attorney hiring by BigLaw firms. Her response highlights the severe limits of the project’s scope and the fundamentally conservative nature of its ambition.

Michelle suggests that my critical assessment of the project makes “a fair point … only if you refuse to take the equity issues seriously or think … that if you throw in your lot with corporate power that you get what you get and if you get discrimination you shouldn’t be surprised” (emphasis added). The implication of the “only if” seems to be that, if you do take seriously the equity issues surrounding the underrepresentation of women, people of color, LBGT people, and other “others” within the ranks of BigLaw, then you ought to suspend criticism of what BigLaw lawyers actually do.

That is not a fair point at all. If you really take equity issues seriously, you can’t avoid confronting the fact that BigLaw — no matter how diverse its staff of attorneys, no matter how humane its attorney working conditions, and no matter how many heartwarming pro bono cases its diverse and not-overworked attorneys take on — is inextricably and centrally embedded in an institutionalized power relation that systematically reproduces inequity in the larger world beyond elite law schools and law firms.

Most glaringly, the “Better Legal Profession” project entirely ignores economic/class-based inequities. Even focusing on the identity-based inequities that are the project’s focal concern, it seems worth asking whether increased BigLaw attorney diversity is really such a significant goal. Even among law students, only a tiny fraction of women, people of color, and LBGT people attend the handful of elite institutions like Stanford from which BigLaw almost exclusively recruits. As for the rest of the world, how, exactly, does a more diverse BigLaw attorney workforce enhance equity for them?

Michelle believes that “there are social benefits attached to the racial and gender integration of the elite that obtain pretty much regardless of what the specific work in the elite is that is being performed (waterboarding and the defense of it excepted — sorry Condi)”. But, she doesn’t indicate what those benefits might be, nor point to any evidence of increased elite diversity actually yielding substantial benefit for those not within the elite ranks themselves. And why draw the line at “waterboarding and the defense of it”? Is that practice — horrendous as it is — really more harmful to the individuals subjected to it, or really more deleterious to social equity, than some of the everyday practices of the clients BigLaw attorneys serve (e.g. tobacco companies that push their products on communities of color and developing nations; drug companies that refuse to make life-saving medications available at affordable cost; employers who bust labor unions, engage in discriminatory employment practices, or impose inhumane working conditions; oil companies that pollute the earth; financial institutions that profit from predatory credit and lending practices; etc.)? Is there any evidence that BigLaw firms with greater attorney diversity are less likely to facilitate or defend such destructive and inequitable practices by their clients? (The example of the Bush administration — admirably diverse in terms of race and gender — does not inspire confidence, and not just because of the waterboarding.)

My point is not that expanding opportunities for traditionally-excluded groups in privileged occupations is an unworthy goal. As long as there is such a thing as BigLaw, it is (or should be) obviously desirable that admission not be limited to straight white men. The trouble with BigLaw attorney diversity, like the trouble with “diversity” more generally, is that it clouds the issue of power by obscuring the fundamental problem of class inequality. From this perspective, “diversity” truly does amount (as Walter Benn Michaels suggests) to little more than “the left’s way of doing neoliberalism” and “contribution to enhancing market efficiency.” (It is instructive, in this regard, that the “Better Legal Profession” project describes its mission as “seek[ing] market-based workplace reforms in large private law firms.” Hardly a clarion call of progressive, let alone radical, change.)

The “Better Legal Profession” project is a nice thing, as far as it goes. It just doesn’t go very far, and hardly merits all the fanfare it has received. Law students, particularly bright, energetic, and ambitious law students at places like Stanford, ought to be capable of setting and pursuing a more ambitious agenda than just making sure others like them get a fair shake in the job market. Where is the law student initiative asking why BigLaw is hegemonic in the first place and trying to conceive of ways to challenge that hegemony? Now that would be something to get excited about.

Rearranging deckchairs on the Titanic

A group of Stanford Law School students are issuing report cards to law firms based on the gender, racial, and sexual diversity among their attorneys. So students from elite law schools will know at which firms woman, people of color, and LBGT people have the best opportunities to make bucketloads of money working on behalf of corporate power.

Best law firm name ever

Forget “Sioux, Grabbit & Runne”, “Dewey, Cheatum & Howe”, and their kindred spoofs. Payne & Fears is the real deal.

Take this agreement, or shove it

The 9th Circuit U.S. Court of Appeals has lambasted mega-law firm O’Melveney & Myers (whose website boasts, “We are a values-driven law firm, guided by the principles of excellence, leadership, and citizenship”) over an unconscionable arbitration clause it imposed on employees. Having spent the past year litigating against OMM in a case over their client’s unconscionable employment practices, I must confess to deriving more than a little schadenfreude from this decision.

Silly law firm office policies

Toni Bowers at TechRepublic writes:

Liz Ryan, in her column for BusinessWeek, keeps a list of the best and worst corporate policies that she has encountered while being a consultant. This month, she added referral bonus programs to her list of Best Corporate Policies and anti-moonlighting policies to her list of Worst Corporate Policies.

We’ve all seen some bad policies in action — like ultra-strict dress codes — and some policies, like non-competes, that could be construed as bad. I’ve encountered policies so obscure and random that they read like some of those old state laws that have been on the books for decades.

Absurd (if not exactly “bad”) office policies were something of a hallmark of the law firm where I began my career. When I started, the firm had a non-specific “casual dress” standard. Then they hired a new female associate with a penchant for Capri pants. For reasons I still cannot fathom, this upset some of the partners and the office manager. So, the partners cobbled together a formal policy detailing what was and was not acceptable attire. One rule: pant cuffs could be no more than 3 inches from the ground. The day the policy was issued, one of the (male) associates circulated an email: “FOR SALE: One pair of Capri pants. Cuffs 4 inches from ground. Hardly worn.”

At the same firm, “binder clips” were kept in a locked supply closet. Lawyers had to request them from the office manager, who doled them out one at a time, only after she was satisfied that a document really warranted a binder clip rather than a regular paper clip or staple. Associates used to horde the binder clips from incoming documents, and trade them rather like cigarettes in prison or jeans in the former Soviet Union. Even today, I still keep a supply cached away out of habit.