Thursday, February 24, 2011

Joe Flom of Skadden Dies At 87

(thanks to

Joe Flom died Wednesday 23 February 2011. The American Lawyer presents his obituary here. Victor Li has written reflection on Flom here.
It might seem strange that a Harvard Law School graduate who ranked in the top 5 percent of his class and served as an editor of the Harvard Law Review would fail to land a job at any of New York's top law firms upon graduation.
But that's just what happened to Joseph Flom after he earned his law degree in 1948. And in most instances, it was the anti-Semitic mindset that prevailed at the city's leading firms that cost Flom the opportunities his academic achievements seemed to guarantee.
Shunned by the establishment, Flom instead joined a small firm then called Skadden, Arps and Slate, a four-lawyer shop that he helped transform into a legal powerhouse with 24 offices in 13 countries known as Skadden, Arps, Slate, Meagher and Flom.
Over the course of his six-decade career, Flom not only added his name to the firm's, but also--thanks to particular expertise in mergers and acquisitions--carved out a singular niche in the history of the legal industry.
Flom, like other imaginative legal entrepreneurs--eg. Russell Baker at Baker and McKenzie--was able to identify opportunities created by legislators that had definite unintended consequences. As Li writes,

"He was prescient in recognizing that change of control transactions would be a major area of legal practice," said Flom's celebrated rival and contemporary, Martin Lipton of Wachtell, Lipton, Rosen and Katz in a statement. "After honing his great skills on proxy fights, he graduated to tender offers and hostile takeover bids. He so dominated the field that in 1973 I wrote, 'The first question an arbitrageur asks is, Which side has Joe?'"
In the 1970s, Flom--seeing growth potential in work that others considered unsavory--began to establish himself as the preeminent takeover attorney
"[Flom] made the mergers and acquisitions practice a mainstream practice," Cravath, Swaine and Moore's Allen Finkelson told The American Lawyer Magazine in 1999. "Hostile takeovers were viewed by major law firms as something you didn't touch...We were all representing blue-chip America and viewed it as dirty business...[Now] there are thousands of lawyers making hundreds of millions of dollars because of the practice Joe made respectable."
There is a fascinating interview with Joe Flom at The Deal Magazine where he tells his history with Skadden, the firm, Marty Lipton, and his vast roster of clients.

As with Eli Wald, I have found the role of the "marginal" lawyer fascinating. It is where one sees true innovation and creative thinking. Let me be clear by what I mean by marginal. I refer to those who are displaced by virtue of characteristics over which they have no control--ethnicity, religion, parentage, gender and so forth. In the 1960s and 70s these were powerful weapons for excluding people from the professions. And to some extent still are. The displacement felt was often a spur to new ideas.

In a small way I owe debt of gratitude to Joe Flom because he was one of the first lawyers to engage with the new legal media. Joe would talk while others hung back. In so doing, I became an avid reader of American Lawyer, and those that followed both in the US and the UK. He made my job as a researcher of the legal profession much easier and more fun.

Wednesday, February 23, 2011

The Legal Services Act Has Unintended Consequences....

(thanks to New Yorker)

John scratches his head when the Legal Services Act 2007 unexpectedly introduces new kinds of "legal services providers" into the market.

"Gosh, what have we done?"

Monday, February 21, 2011

The Game

When a friend showed me this video, I was amazed. I love it. It's fresh, imaginative and seriously good. The Game jibes nicely with what Law Without Walls is trying to do. This is to take legal education away from the stodgy environment that it seems stuck in and that appears to have less relevance for the modern world.

The Dutch law firm, Houthoff Buruma, with games maker, Ranj Serious Games, have put together a game to be played by recruits to the firm (or anyone else for that matter--the game doesn't require legal knowledge). To quote Legal Current
The Game is a multimedia game specifically for law firm recruitment. The realistic, serious game is based on a fictive take-over deal of a Dutch family company by a Chinese state owned giant, and the players represent the Chinese company. Throughout, players are faced with video and text chats, film clips, emails, CNN new flashes, websites and more than 100 fictional documents to inform their counsel. 
The players get 90 minutes to persuade the shareholders to agree to sell. Each team of players must collaborate internally or else fail. Then they must present their results and justify their actions. It can be replayed withou the same result emerging.

Houthoff Buruma is aware that a stuffy brochure isn't the most effective recruiting tool anymore and that recognition of new forms of expression is essential to distinguish oneself. But there are other messages we can read from the video.

For me this is not so much that law firms need to grapple with new technologies and social media but for them to realize--which Houthoff Buruma does--that our modes of working, ie. separate spheres of work and leisure, have now collapsed into each other and actively embrace each other. These are not discrete moments in life. The combination of technology and interaction make them almost interdependent and inextricably linked.

Human resources departments, and maybe most law school faculty, haven't yet made this conceptual leap and like to consign activities to particular boxes appropriately labelled. If law firms, for example, continue to focus on billable hours as their key metric, they will continue to be entrapped by this mentality.

In fact, I would begin to argue that focussing mostly on the economics of work and organization creates hindrances to effective and imaginative approaches to labor. As long as economists see only capital, labor, and land, they miss the immaterial world which is now becoming predominant.

In order to counter the "economistic effect" we need more sociologists and anthropologists to study the world and tell us what is really happening. Because that's what this GAME is, a sociological experiment that tests ways of interacting across media, culture, and different expertises. This should have the potential to reshape law school and maybe therefore Law Without Walls is the conduit to this new era.


Tuesday, February 15, 2011

The Future of the Legal Services Board....

Neil Rose at Legal Futures discusses whether or not the Legal Services Board is needed or not, or at least in the future. He points out that it is on the list of schedule 7 of the Public Bodies Bill (the bonfire of the quangos). What he doesn't point out is that the bill is not sailing smoothly through parliamentary waters and schedule 7 may yet be breached and sink.

The UK coalition came into power promising to cut government waste--well, don't they all?--and compiled a list of "useless" quangos. Schedule 7 is a list of possibles. Besides the LSB it includes in the legal sector the Legal Services Commission which deals with legal aid and other access to justice issues, and the Civil Justice Council and the Criminal Cases Review Commission. (And in the spirit of disclosure the Arts and Humanities Research Council for which I review and decide on fundable research projects is also on the list.)

Of course as comes clear in Neil's article is that the Law Society and by extension, the Bar Council, would love to see the LSB disappear. Why? The LSB is finally holding the legal profession to account, something which has been needed for many years. Moreover, the professional associations haven't been able to regulate their own groups with any great success for the public or consumer interest.

The Legal Services Board may be new but in its short career it has managed to put diversity in the profession so clearly on the agenda that it can't be any longer ignored. It is the first of the regulatory groups to take a rational approach to regulation in the legal profession. Stephen Mayson's paper on reserved activities demonstrates that the legal profession isn't too adverse to taking advantage of historical accident.

The legal profession has shown itself to be dangerously complacent at times. It is too important to permit that to occur so we need institutions whose task it is to rattle a few cages.

Coda: Two other quangos for which government has no time are the UK Film Council, which in this its final year is reaping the benefits of a BAFTA and potential Oscar winner, The King's Speech, produced for less than £10m. The second is the Forestry Commission. The government came up with the truly daft idea of selling our woodlands to private developers who would somehow promise to keep them open for public use. Last time woodlands were sold the public were locked out. There's been such a public stink over this that the government is rethinking, ie. forgetting it.


Saturday, February 12, 2011

A Judge's Lot is Not a Happy One

(Madrid Civil Courts of Justice: thanks to e-architect)
To be read to the background of the Supremes "Baby Love", it seems judges' collective noses are getting bent out of shape by politicians lately. (I'm sorry for this but I could not resist.)

Lord Phillips, president of the UK Supreme Court, has been complaining that because he has to negotiate his budget with the Ministry of Justice the court's independence is being reduced. Actually along with every other institution in the UK, the Supreme Court is being asked to take its share. Lord Phillips doesn't like it. But as Head of Legal, Carl Gardner, pithily puts it: Tough luck. Lord Phillips must wake up to the fact that the court is a public institution like any other and is open to scrutiny and must be accountable. That does not diminish his or the court's independence.

Of course it's not just our own judges who kicking up a fuss. Thousands of judges and lawyers in France went on strike in objection to President Sarkozy's comments after a young girl was murdered following the release of a convicted murderer:
"When we let an individual like that out of prison without making sure that he will be followed by a parole officer, the judiciary is at fault," Mr Sarkozy said during a visit to Nantes, outraging judges upset by a lack of resources.
Sarkozy has a record of criticizing the judiciary for their perceived failures. But then every institution will have defects, even the French presidency. (To get a better idea of French judicial procedure try and see the excellent Spiral.) The judges are extremely annoyed that Sarkozy won't fund the system properly. For example:
When members of the judiciary in the town of Bobigny decided to join the strike on Tuesday, they pointed out that all seven of them 10,600 cases to deal with between them.

The British politicians they have been exercised by the European Court of Human Rights which has told the government that prisoners should be permitted to vote in elections. In a partiamentary vote--234 to 22--MPs declared the government should ignore the ECHR's ruling. The vote is non-binding.

Perhaps what was most galling was watching the previous Minister of Justice, Jack Straw, lead the revolt agains the government. This was the man responsible for introducing the Human Rights Act to the UK. This is also the man who supported regime change in Iraq and who is quite keen to lecture others on their failings.

The UK has effectively subscribed to the ECHR for 60 years now. And governments have followed its rulings despite their dislike. Now British politicians are arguing we should withdraw--that human rights have gone too far. But governments subscribe to international law and shouldn't be seen to abrogate it at will. (For a trenchant and compelling view of human rights see The Rights' Future.)

If the UK government doesn't comply, prisoners will sue for compensation. We could be looking at claims amounting to £100m.

In each of these instances justice and the rule of law are at the mercy of economy. Can we afford it? Do we want to pay for it? Is it worth it? Don't our politicians know best?

We're lucky in that we have stable institutions and although Lord Phillips might mutter darkly about his court's accountability, he will for all practical purposes continue as before relatively unfettered. Look elsewhere and the situation is less harmonious--Egypt for example. Justice is expensive but western societies have no excuses not to fund justice adequately. It's a public good that we all depend on and as the state grows ever more intrusive we need it more and more.

Thursday, February 03, 2011

Why Do We Want Legal Aid?

The financial crisis has put a tremendous burden on ordinary people as they tackle debt, housing foreclosures, and more. Finance has particularly difficult rules which makes it hard for anyone to deal with these problems. Expert help is usually needed, but it's not cheap.

This is where legal aid is supposed to step in and give assistance. Except on both sides of the Atlantic expenditures on legal aid are being reined in as part of government cutbacks. The result is a big rise in do-it-yourself representation (pro se or litigants in person), which is causing many problems for the justice system.

Two articles--one in the Guardian and another in the New York Times--speak to this issue and demonstrate to us the folly of cutting back legal aid/assistance to harshly.

Helen Grant, a 20 year veteran of legal aid practice, finds the combined effects of central government cuts, local government restrictions and falling charity contributions is forcing many lawyers to withdraw from publicly-funded practice. It leaves many people to fend on their own in a system which is not geared to help them. If these people decide to fight their own cases, the courts will be in an impossible position as they will have to offer some assistance while at the same time remaining impartial. We know the Citizens Advice Bureau in the Royal Courts of Justice is one of the busiest because it helps litigants in person.

Removing free advice in family, debt and housing will penalize the poor and most vulnerable. Ultimately, some other public service will have to step in at a later time to assist which will drive up costs more than if the matter had been dealt with at an earlier stage.

It's a sad legacy for a system that was introduced 60 years ago alongside free health services and education. Beveridge recommended in 1942 that government should "find ways of fighting the five 'Giant Evils' of 'Want, Disease, Ignorance, Squalor and Idleness'." We haven't yet eradicated them nor are we likely to.

Perhaps one answer will be the rise of self-help classes for people who find themselves under threat. Those whose homes are threatened with foreclosure are finding they must go to court as pro se defendants. Groups like the Fair Lending Center in New Mexico offer courses on how to handle foreclosure cases. The chances of success are slim but the odds are better than not turning up to court at all. Here homeowners are mainly trying to restructure loans because they are unemployed and are faced with intransigent banks and lenders.

Legal aid lawyers are overloaded and can't cope. So a combination of judicial activism and not for profit action is beginning to restore some balance to the system. Judges in New Mexico require conferences aimed at settlement but the strain on the courts is telling.

In some counties of New York state foreclosure cases take up almost half the civil caseload. Other states find similar demands mounting. Self-help is no panacea but it gives some hope to those under threat.

The question is the same in both countries: By cutting legal aid are we going to worsen the situation for the people affected by the cuts and are we going to create greater burdens for the rest of society as a result?

The answer is clear: YES.

Tuesday, February 01, 2011

Gone Lecturin'

(thanks to New Yorker)