the Zealous

Alex Batesmith and Jake Stevens, in a compelling piece of scholarship, In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’, Social & Legal Studies (2018), remind us how fortunate we are to be practicing law in a society that upholds the rule of law (citations omitted; emphasis added):

In the US, lawyers are ethically prohibited from contacting a party the lawyer knows is represented by counsel regarding a matter that is the subject of that representation. There’s a spirited and enlightening Redline query discussion underway about the practical application of this rule in the transactional context (one in which member jayparkhill commented: “This is super-interesting. It's always good to pull up the rules every once in a while rather that relying on what we think they say.”)

The rule is not without its detractors. Professor Leubsdorf insightfully questions why the consent of the represented party is insufficient to waive operation of the rule. The rule anoints the lawyer as the absolute arbiter of whether the client may contact the other side's lawyer, setting up an inherent conflict of interest:

In Lawyers as Upholders of Human Dignity, Georgetown Law Professor and legal ethics guru David Luban explains how advancing and maintaining human dignity is a fundamental cornerstone of our profession. Indeed, it is  “what makes the practice of law worthwhile.” 

Defining dignity as a “property of relationships between humans”, Prof. Luban articulates how the right to legal representation in criminal cases neatly encapsulates the notion of the law as a defender of human dignity. Prof. Luban starts with the premise that if human dignity is to mean anything at all, it must mean that every human has the right to have her story heard, particularly if the consequences at stake are moral condemnation, and loss of life or liberty, in the form of criminal sanction. “A procedural system that simply gagged a litigant and refused to even consider her version of the case would be, in effect, treating her story as if it did not exist, and treating her point of view as if it were literally beneath contempt.”

Selected excerpts from the most recent edition of Landslide, the ABA Intellectual Property Section’s flagship publication, and the articles and authors from which they are lifted:

[W]hen you start a business as an entrepreneur or inventor, it’s all about managing a relationship between risk and reward. There’s obviously a huge amount of risk and uncertainty in starting a company or developing a product. But the reward, the ability to get a patent …, is the reason why entrepreneurs and investors are willing to assume that risk. With a strong patent system, there’s greater certainty that a patent is going to issue and then that patent is going to kind of stand the test of time ….

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In his 2018 book, Bullshit Jobs: A Theory, David Graebe, anthropologist and an early founder of the Occupy Wall Street movement, recounts the rise in the last century of “bullshit jobs”: occupations that serve no socially useful function, and instead cause soul-crushing psychological suffering to those forced to take on such work. Graebe contends that as much as forty percent of all jobs in the world are bullshit, which he defines as:

a form of paid employment that is so completely pointless, unnecessary, or pernicious that even the employee cannot justify its existence even though, as part of the conditions of employment, the employee feels obliged to pretend that this is not the case.

Graeber catalogs five different species of bullshit jobs: flunkies, goons, duct tapers, box tickers, and taskmasters. He indicts all “corporate lawyers” as falling into the “goons” category.

Big companies have procurement departments that use supplier contracts that contain clauses like this (from an actual big company supplier agreement (presented as "non-negotiable") for the purchase of off-site services, and one that already imposes robust confidentiality obligations on the supplier):

Supplier will: (a) designate one employee to be in charge of Supplier’s information security program; (b) maintain adequate physical security of all premises in which BIGCO Information will be processed and/or stored including that physical media containing such records is stored in locked facilities, storage areas or containers; (c) implement reasonable precautions with respect to the employment of, and access given to, Supplier personnel and contractors, including background checks; screening; security clearances that assign specific access privileges to individuals; training and security awareness programs for personnel and contractors; monito

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I recently took a major personal and professional leap: I switched to Windows from Mac, after nearly 20 years of being a dedicated Apple fan-boy.

I have been a Mac-addict since 2002, when my then-new employer at the time allowed me to acquire whatever new computer I wanted. MacOS X had just been released, with much buzz and hoopla. I chose Mac as an act of defiance, a repudiation of what I perceived to be an oppressively conformist Windows environment. It was also a nod to my past; my first ever home computer was an Apple II+, purchased by my father when I was fourteen.

From this piece on how to network with other lawyers for purposes of referring matters that are outside your wheelhouse:

As a solo attorney you can’t be all things to all people. You are just one person and only can cover so many areas of law in your practice. What happens when a client comes to you with something outside your area of expertise?

The one thing that you don’t want to do is say, “Sorry, I don’t do that. Good luck in finding someone else.”

You want to keep the client, so you do your best to refer the case to someone else. But how do you find someone who can take care of your client’s needs? And how do you know if that lawyer is any good?
…

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We are pleased to announce the launch of Redline Beta, a top-to-bottom refresh and revitalization. Our principal aim with these improvements is to make it easier for members to discover and curate work product and expertise. New readability and design enhancements solidify Redline as a calm, civilized place of cogent discourse.
 
New features include:

At this time 23 years ago, OJ Simpson was on trial in Los Angeles Superior Court for the murders of Nicole Brown Simpson and Ron Goldman.

Simpson’s defense team, which would come to be known as the “dream team”, included F. Lee Bailey. Bailey conducted the cross-examination of Mark Furhman, a detective with the LAPD who had discovered a right-handed blood-covered glove at Simpson’s residence that matched a bloody glove found at the scene of the double-homicide. The blood from both gloves was identical, and DNA evidence from the left glove revealed a mix of Simpson’s blood and that of the two victims.

The theory of the defense was that Mark Fuhrman was a racist and had planted the glove at Simpson's residence in order to frame Simpson, or at least, to pump up the case against him.

M&A lawyers (of which I'm one): we are not above criticism.

M&A has been characterized as a bloodsport. In a strategic transaction, the stakes are high for all concerned: careers, reputations, and business and financial fortunes and are on the line. In addition to the high stakes, the one-off relationship between a typical seller and buyer in an M&A transaction may particularly lend itself to disputes. Opportunities and incentives to resolve disputes or even to be reasonable in deference to the greater relationship are often absent in M&A, with the calculus changing (and the incentives to cooperate often declining) after each successive step of a transaction, from signature through closing to the end of the survival period for indemnification rights.

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In the nineties, Saturday Night Live ran a series of skits centered around an unfrozen caveman lawyer, played by Phil Hartman. This was a typical episode:

Announcer:

One hundred thousand years ago, a caveman was out hunting on the frozen wastes when he slipped and fell into a crevasse. In 1988, he was discovered by some scientists and thawed out.

He then went to law school and became … Unfrozen Caveman Lawyer.

From a recent article written by copyright counsel at Google for the ABA's Landslide (IP Section Journal):

Not-in-Index URLs

Google has critically expanded notice and takedown in another important way: We accept notices for URLs that are not even in our index in the first place. That way, we can collect information even about pages and domains we have not yet crawled. We process these URLs as we do the others. Once one of these not-in-index URLs is approved for takedown, we prophylactically block it from appearing in our Search results, and we take all the additional deterrent measures listed above. We recently discovered that some bulk submitters make very heavy use of this feature. In one sample we found that around 82 percent of the URLs we approved were not in our index (and have therefore never appeared in any search results). How this discovery will influence the further evolution of our processes, only time will tell. It does suggest that the number of takedown notices we get is not a good proxy for the number of allegedly infringing links we serve.

In The Path of the Law, Oliver Wendell Holmes, Jr. (former Justice of the US Supreme Court) wrote:

When we study law we are not studying a mystery but a well-known profession. … The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is entrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

Contract drafting is an exercise in prediction.

This New York Times story of the death of an intellectual property practitioner at Silicon Valley's Wilson Sonsini Goodrich & Rosati is both harrowing and heart-breaking. "He had been working more than 60 hours a week for 20 years, ever since he started law school and worked his way into a partnership …", only to slowly but inexorably become an addict of various drugs, finally felled by a bacterial infection common among IV drug users. The last call on his phone he ever made was to call into a conference for a client, mere hours before he succumbed.