Legal Profession Commons^™

Looking Down The Road Less Traveled: Challenges To Persuading The Legal Profession To Define Problems More Humanistically, Nancy A. Welsh

Faculty Scholarship

This essay will focus on three factors that may help to explain why it seems to be so difficult for many lawyers to escape the confines of a narrow, legalistic framing of issues-or more poetically, why they may be predisposed against looking down "the road less traveled by." These factors should be taken into account as challenges to the widespread adoption of innovative, more humanistic approaches to lawyering. First, the essay will turn to research regarding the psyches and psychological needs of the people who choose to attend law school and become lawyers. Second, the essay will consider what is …

Reflections Of A Community Lawyer, Luz E. Herrera

Faculty Scholarship

In May 2002, I opened a law office in one of the most underserved communities in Los Angeles County. Many questioned the sanity of such a career path when evaluating my financial stability and the personal toll that such a career path can exact. Given that I graduated from some of the best universities in the country, my friends, family, and strangers were even more perplexed at my choice. I cannot say that my decision to build a law practice in Compton, California, has been easy. However, time and time again, I found myself rejecting more secure and prestigious job …

Challenges And Guidance For Lawyering In A Global Society, Susan Saab Fortney

Faculty Scholarship

This foreword provides an overview of some key aspects of law practice that have changed over the last thirty years. Advancements in technology that allow communication and interaction across borders have facilitated lawyers in globalizing their practice locality. Consequently, new issues regarding comparative ethics have arisen. This foreword suggests that ethics rules have not kept pace with the changing landscape of law practice and uses current standards for advanced waivers, rules relating to contracts with represented and unrepresented persons, and the proper use of ethics rules in civil litigation to illustrate this point. This foreword raises concern over the erosion …

The Billable Hours Derby: Empirical Data On The Problems And Pressure Points, Susan Saab Fortney

Faculty Scholarship

This article considers the consequences of law firm use of the hourly billing method and the recent increase in billable hour requirements. Part I of this article describes the rationale and methodology of an empirical study conducted in 2005 that explored attorney work-life issues and employer efforts to assist attorneys in dealing with work-life conflicts. Part II summarizes select study findings related to billable hours requirements and pressure. Part III concludes by considering what forces and players will change the current course of conduct in which law firm leaders treat increases in billable hours expectations as a necessary evil.

Review Essay: A Prescription For Perilous Times, Neil S. Siegel

Faculty Scholarship

It seldom happens that a scholar makes a lasting contribution both to legal history and to the most pressing constitutional issues of the day in the same work. It is more rare that an academic does so in a book accessible to a general audience. Perilous Times accomplishes that feat. For these reasons, and for another as well, the book should be regarded as a triumph.

Law Firm General Counsel As Sherpa: Challenges Facing The In-Firm Lawyer's Lawyer, Susan Saab Fortney

Faculty Scholarship

This article addresses the increasing trend in law firms appointing general counsel. Part I of this article provides an overview of the frequency of law firms employing the services of general counsel and the different roles general counsel may assume in law firms. Part II outlines the duties of general counsel in advising the firm on matters related to firm structure. Part III observes that general counsel may play an important role in helping law firms choose the most appropriate method to compensate its lawyers to achieve the desired results. Part IV stresses the importance of the preventative measures general …

Hélène Cixous's The Perjured City: Nonprosecution Alternatives To Collective Violence, Susan Ayres

Faculty Scholarship

In instances of collective violence — apartheid in South Africa, mass killings in Rwanda, and other crimes against humanity such as slavery — what response provides justice? How can justice be achieved under such a system? Legal justice through prosecution would be unjust. This opens the possibility of nonprosecution alternatives involving forgiveness. Hélène Cixous’s play about forgiveness as an alternative to criminal prosecution, The Perjured City: Or, the Awakening of the Furies, was written in response to an actual case of failed justice in France, known as the Bad Blood Scandal. The play provides a model of forgiveness and a …

Chicken Little Lives: The Anticipated And Actual Effect Of Sarbanes-Oxley On Corporate Lawyers' Conduct, Susan Saab Fortney

Faculty Scholarship

This article addresses the controversy surrounding the Sarbanes-Oxley Act of 2002, which was seen by many lawyers as threatening the relationship between lawyers and their corporate clients. Part I of this article introduces the topic by providing a brief history of the increased government regulation and enforcement actions that forced lawyers to reexamine their role in representing their clients, beginning with the case of SEC v. National Student Marketing Corp. Part II reviews the organized bar's reaction to Sarbanes-Oxley. Part III focuses on law firms' response to the legislation. Part IV considers the views of individual corporate and securities lawyers …

Legal Malpractice Insurance: Surviving The Perfect Storm, Susan Saab Fortney

Faculty Scholarship

This article serves as a practical guide to legal malpractice insurance. Part I introduces the topic of legal malpractice insurance with a brief overview of the changes that occurred in market conditions in 2000 and the subsequent effect on insurance premiums and coverage. Part II outlines the different types of insurance coverage that are available to legal professionals by describing common policy terms, exclusions, and conditions that affect coverage. Part III describes changes in law firms that may affect coverage. Part IV provides legal professionals with useful advice to consider when choosing an insurance policy. Part V reveals important factors …

I Don't Have Time To Be Ethical: Addressing The Effects Of Billable Hour Pressure, Susan Saab Fortney

Faculty Scholarship

This article discusses the unintended consequences of the billable hour derby and suggests changes to address the deleterious effects of increasing billable hour requirements. A brief introduction identifies law firms’ recent tendency to increase the billable hour requirements to fund the heightened salaries of associates. This article analyzes the results from an empirical study focused on the effects of billable hour expectations and firm cultures. Part I generally reviews the study findings. Part II discusses the work and report of the ABA Commission, while Part III indentifies those issues and approaches that the ABA and firm managers should explore. Recognizing …

High Drama And Hindsight: The Llp Shield Post-Anderson, Susan Saab Fortney

Faculty Scholarship

This article explores several disadvantages associated with limited liability partnerships (LLPs) in the wake of the Anderson-Enron debacle. The article explains how conversion to LLP from a traditional partnership may undercut the incentive for partners to devote time and resources to monitoring and risk management activities. Additionally, the article notes that conflicts may arise regarding the payment of debts when a firm, without sufficient malpractice insurance, converts to an LLP. The article delves into the exodus problem caused by the lack of partners’ commitment to the firm. The article also describes the tension between partners over malpractice insurance decisions that …

Perspectives Of A New Executive Director, William H. Henning

Faculty Scholarship

Article Extract:

It goes without saying that a national economy cannot function efficiently without a core set of commercial laws to provide a stable base. Can you imagine the added costs of doing business if common transactions were governed by truly idiosyncratic laws in the various states? We had just such a situation in secured-finance law before the widespread adoption of Article 9 of the Uniform Commercial Code. Creditors seeking to use personal property as security faced a bewildering array of devices-pledge, chattel mortgage, conditional sale, assignment of accounts receivable, trust receipt, equipment trust, factor's lien, etc. Some of the …

Fortifying A Law Firm's Ethical Infrastructure: Avoiding Legal Malpractice Claims Based On Conflicts Of Interest, Susan Saab Fortney, Jett Hanna

Faculty Scholarship

This article addresses the prevailing problem of malpractice claims based on conflicts of interest. Part I of this article introduces the topic by underscoring the seriousness of all conflicts of interest and recommending preventative action. Part II describes measures that law firms can take to detect and manage conflicts and analyzes the effect of the firm’s ability to avoid conflicts claims on a firm’s ethical infrastructure. Part III focuses on some of the most common conflicts situations that result in malpractice claims and sanctions. The discussion includes selected conflicts cases that illustrate problems and patterns. Part IV concludes by urging …

Challenging A Tradition Of Exclusion: The History Of An Unheard Story At Harvard Law School, Luz E. Herrera

Faculty Scholarship

In a series of lectures at Harvard University, Professors Lani Guinier and Gerald Torres posited that people of color are the "miner's canary" in American society. Guinier and Torres argue that pursuing color blindness policies is dangerous because it ignores racial differences that affect every aspect of our society. According to Guinier and Torres, like the miner's canary that uses a call of distress to warn the miner of the hazardous atmosphere in the mine, the critiques people of color offer our institutions are warning signals to alert us to the presence of more systemic problems. Instead of relegating the …

Ethics Counsel's Role In Combating The "Ostrich" Tendency, Susan Saab Fortney

Faculty Scholarship

This article focuses on ethics problems related to hourly billing by analyzing the results of a survey of 1000 randomly selected associates in Texas firms who (1) had been licensed for ten or fewer years as of June 1999, and (2) worked in private law firms with more than ten attorneys (the Associate Survey). This article addresses the need for firm managers to clarify how and what their attorneys should bill. The article reports the results from the Associate Survey relating to billing guidance and ethics systems. From the empirical data, the article identifies a need for supervising attorneys to …

An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements - Part Two, Susan Saab Fortney

Faculty Scholarship

This article considers billing practices, the effects of hourly billing pressure, and firm culture as reflected in a survey of associates in Texas law firms. Part I of this article reports the empirical information from the survey. This information includes insight into the toll an increase in billable hour requirements has taken on legal practitioners and the consequent affect on the legal field. Part II discusses what the data means and how it might be used to improve the outlook for attracting and retaining good associates.

An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements - Part One, Susan Saab Fortney

Faculty Scholarship

This article considers billing practices, the effects of hourly billing pressure, and firm culture as reflected in a survey of associates in Texas law firms. Part I of this article reports the empirical information from the survey. This information includes insight into the toll an increase in billable hour requirements has taken on legal practitioners and the consequent affect on the legal field. Part II discusses what the data means and how it might be used to improve the outlook for attracting and retaining good associates.

Soul For Sale: An Empirical Study Of Associate Satisfaction, Law Firm Culture, And The Effects Of Billable Hour Requirements, Susan Saab Fortney

Faculty Scholarship

This article analyzes the results of an empirical study to illustrate the effect of billable hour requirements on associate satisfaction and law firm culture. Part I briefly describes the survey design and the general profile of the survey respondents. Part II discusses current billing practices and pressures analyzing the study results related to billing expectations and guidance as well as firm culture and work alternatives. Using findings from the study, Part III considers the detrimental micro and macro effects of increasing billable hour expectations. Part IV proposes various steps and measures that can be taken to address the negative consequences …

Insurance Issues Related To Lateral Hire Musical Chairs, Susan Saab Fortney

Faculty Scholarship

This article addresses the various insurance issues relating to lawyer mobility. Part I of this article introduces the topic by noting the heightened rate of lawyers making lateral moves and how insurance coverage has responded to an increasingly mobile legal labor force. Part II provides a brief historical perspective on insurer reaction to lateral hire claims. Part III analyzes specific policy provisions related to lateral hires for both the prior firm and the new firm. Part IV discusses how a firm and a lateral lawyer should study and address risks before consummating the move. Part V examines the problems related …

Professional Responsibility And Liability Issues Related To Limited Liability Law Partnerships, Susan Saab Fortney

Faculty Scholarship

This article surveys the professional responsibility and liability issues related to attorneys practicing in limited liability law firms. Part I of this article provides background information regarding the development of the limited liability partnership (LLP) and its popularity among legal professionals. Part II tackles the 1996 ethics opinion on LLPs rendered by the American Bar Association Standing Committee on Ethics and Professional Responsibility. This article criticizes the ABA opinion by examining the conclusions and reasoning articulated in the opinion, indentifying disciplinary rules that the opinion did not address, and considering the possible effects of the opinion. Part III focuses on …

Seeking Shelter In The Minefield Of Unintended Consequences - The Traps Of Limited Liability Law Firms, Susan Saab Fortney

Faculty Scholarship

This article addresses the overlooked negative consequences of law firms transitioning from a traditional partnership to a limited liability partnership or company. Part I of this article introduces the topic by providing a brief history of the development of LLCs and LLPs and noting the lack of attention given to the detrimental consequences of such firm structures. Part II reviews the forces behind the limited liability movement and the emergence of limited liability law firms. Part III surveys the statutory approaches to limiting vicarious liability in LLCs and LLPs. Part IV then examines possible internal consequences of attorneys’ practicing as …

Are Law Firm Partners Islands Unto Themselves? An Empirical Study Of Law Firm Peer Review And Culture, Susan Saab Fortney

Faculty Scholarship

This article examines how attitude and law firm culture affect peer review and principal accountability by using empirical data obtained from a survey of Texas law firms. Part I briefly describes the research design and the general profiles of respondents of the survey. Part II discusses the peer review measures used by the firms surveyed for this article. Part III analyzes attitudes about peer review. Part IV focuses on the obstacles to peer review. Part V considers the connection between firm culture and the implementation of peer review measures. Finally, the conclusion explains how firm managers can reshape attitudes to …

Am I My Partner's Keeper? Peer Review In Law Firms, Susan Saab Fortney

Faculty Scholarship

This article explores the concept of peer review in the practice of law. The article begins with an introduction to law partners’ liability exposure for the acts or omissions of their law partners. The article explains how this exposure has traditionally been approached as vicarious liability and how the government is attempting to transform these issues into direct liability by using failure to monitor claims. Part I briefly reviews perspectives on the emergence, growth, and structure of law firms, then uses a matrix to show how firm culture and organizational structure affect internal and external controls on attorney conduct. Part …

Attorneys' Malpractice Policies: Regulatory Exclusions And Public Policy, Susan Saab Fortney

Faculty Scholarship

The courts have yet to decide the issue of the enforceability of provisions in legal malpractice insurance policies that specifically exclude from coverage claims made by government regulators such as the FDIC. The question has reached the courts with respect to such exclusionary provisions in directors' and officers' liability insurance policies, and here the courts are split. The author discusses the current case law and the statutory developments.