Non-Lawyer Ownership: Nonstarter or Start of a Global Shift? - Wall Street Journal (blog)

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Like a zombie that just won?t stay dead, the question of whether non-lawyers should be able to own a piece of American law firms has once again risen. The changes under?consecration, which the WSJ looked at?here, are far more?incremental?than the tectonic shift that has?occurred?in the U.K., where?grocery?stores can offer legal services.

Vocal squads who oppose such plans say opening up law firm ownership will erode professional ethics. Here?s just a snippet of the criticisms that Robert Weber, IBM?s general counsel aired in an interview with Law Blog earlier this year:

Lawyers have a separate set of rules that are used as a defense of the profession policing itself. Once we get to the point that we start behaving like any other business, then I would take the position that we are forfeiting our right to self-regulation.

Backers say expanding ownership could help smaller law firms compete with the big boys, and that it could help make legal services more accessible to consumers. They also say that U.S. firms could find themselves at a competitive disadvantage if more overseas lawyers are allowed to form such businesses.

One difference across the Atlantic: the changes come not from within the British legal community but from government efforts to spur competition in the legal marketplace via the 2007 Legal Services Act, which also imposed an external regulatory scheme on lawyers (here the industry is ?self-regulated). ?Just last week ?U.K. officials approved the first three licenses for ?alternative business structures? where lawyers can team up with other businesses to deliver legal services. The reforms have been dubbed ?Tesco law,” after the ubiquitous British supermarket chain, and one of the three ABS licenses indeed went to a seven-million-member organization called the Co-operative Group that provides not just insurance and banking services, but also — groceries.

In the U.S., the American Bar Association has gone through a couple of rounds on this issue over the decades, pondering whether to allow the provision of legal services via lawyer/non-lawyer combinations. Each time the proposals have been squashed.

This time around, the ABA is considering whether to amend its model rules (used by most state bars as a guide) to allow non-lawyers who work at law firms to own a piece of the action.?To calm the fears of those who see such a plan as the end of professional ethics, an ABA working group has added extra bumpers: ?a 25% cap on the financial/voting interest that non-lawyers could hold, and such partners would have to pass a suitability test and agree to comply with lawyers ethical codes.

That?s even more restrictive than what is now allowed in the District of Columbia, the only U.S. jurisdiction that permits lawyers to share profits with non-lawyers. Members of an ABA ethics commission have not yet decided whether to bring the proposed revision to a vote by the House of Delegates, the group?s policy-making body.

Some law professors and consumer legal advocates applaud the plan — as does the National Federation of Paralegal Associations –?or think it should go even farther. From a letter in support by Thomas D. Morgan,? a professor at the George Washington University Law School:

The critical distinction made in Model Rule 5.4 is that it is lawful for lawyers to employ non-lawyers but not to become their partner if any of the services would traditionally be viewed as practicing law. That is surely a distinction without a difference unless one presumes that lawyers are somehow better people and always deserve to be in control. It is not lawyer bashing to say that no such irrefutable presumption is appropriate. . .

I believe the time has come to put the fact of the rejection of multidisciplinary practice behind us. Multi-service practice is not just of interest only to corporate clients. Social service agencies that want to provide legal services as part of a package of services to the poor have an equal stake in changing the present rules, and as your report notes, most of the applicants for multidisciplinary recognition in the United Kingdom have been relatively small entities.

But state bar associations in New Jersey, Illinois and Arizona aren?t convinced, the U.S. Chamber of Commerce?s Institute for Legal Reform takes a dim view, and a raft of general counsel have also written it to oppose the proposed draft.

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Mich. lawyer's firing over anti-gay remarks upheld - Wall Street Journal

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AppId is over the quota

LANSING, Mich. — A state hearing officer has upheld the 2010 firing of an assistant attorney general who was accused of harassing the gay student government president at the University of Michigan.

William Hutchens of the Michigan Civil Service Commission says Andrew Shirvell was justly dismissed. He says the attorney engaged in "hate speech" on a blog and "physical and mental harassment."

Shirvell was fired by then-Attorney General Mike Cox in November 2010. He appealed, saying his conduct toward Christopher Armstrong was protected by the First Amendment. But the hearing officer says Shirvell's actions, even in his off hours, put his office in a bad light and could have discouraged people from working there.

Hutchens' decision is dated March 21. Shirvell's lawyer says the decision will be appealed.

—Copyright 2012 Associated Press

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Lawyer: Pollock 'absolutely not guilty' - Atlanta Journal Constitution (blog)

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6:30 pm March 27, 2012, by Ken Sugiura

The attorney for Georgia Tech assistant men’s tennis coach Conor Pollock asserted his client’s innocence Tuesday. Pollock was arrested Saturday on charges of rape and possession of cocaine and marijuana.

“He is absolutely not guilty,” J. Tom Morgan said. “That’s not defense lawyer [talk]. This kid is absolutely not guilty.”

Pollock was arrested after a 23-year-old woman told Atlanta police investigators that Pollock raped her early Saturday. According to information gathered by police, Pollock approached the woman and a friend outside a Buckhead bar and invited them to his apartment.

According to a police report, “The victim advised police that she remembers being at the apartment and then waking up to the suspect raping her.”

Morgan acknowledged that the two met at the bar and returned to Pollock’s Buckhead apartment, but said that Pollock did not rape the woman.

“We all make decisions we regret later, but that doesn’t mean those decisions were criminal acts,” he said.

Morgan said he filed a bond motion Tuesday to have a bond set for Pollock, who remains in Fulton County jail. It is his hope that all three charges will be dropped, beginning with the rape charge.

Pollock, hired by Tech last August, has been placed on administrative leave.

Ken Sugiura, Georgia Tech blog

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Lawyers' New Party Loyalty Oath: A Sign of Weakness - Wall Street Journal (blog)

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By Stanley Lubman

The Chinese Communist Party (CCP) continues to tighten its grasp on the legal profession with Ministry of Justice (MOJ) announcing that every new Chinese lawyer must now swear an oath of allegiance to the party. The oath is yet another ominous step in a continuing campaign in recent years to restrain lawyers from representing clients seen as challenging Party rule. It should be interpreted as an expression of anxiety rather than a sign of strength.

Associated Press

The oath’s dominant themes are clearly stated at the outset:

“I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a legal worker under socialism with Chinese characteristics; to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law.” (This is a slightly altered version of a translation provided by human rights researcher Joshua Rosenzweig; the original Chinese is available as a pdf here.)

Formerly, newly admitted lawyers had to swear before local lawyers’ associations to protect the law, the Constitution and clients’ rights, and to follow lawyers’ professional ethics. That oath was not very different from those required by various American states, in which newly admitted lawyers swear to support the constitutions of the U.S. and the state in which they are being admitted and to behave ethically.

The new oath contains similar principles after the portion quoted above, obligating the lawyers “to practice on behalf of the people; to be diligent, professional honest and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice.” It closes, however, with a promise “to diligently strive for the cause of socialism with Chinese characteristics.”

The new Chinese oath places heavy emphasis on the CCP and its policies (“socialism” is mentioned three times, and “Chinese characteristics” twice). It is consistent with the slogan of the “three supremes” that President Hu Jintao proclaimed in 2007 as the policy that should dominate the application of law, namely giving priority to “the Party’s cause, the people’s interest, and the Constitution and laws.” Since then, obedience to the CCP has been given precedence over the “the people” and the Constitution, and since 2008 the MOJ has promoted the creation of more Party cells within law firms. As Elizabeth Lynch, a close observer of Chinese legal policies has noted, an MOJ opinion in 2010 on lawyers’ activities “candidly states the role that the Party will play in leading the legal profession.”

But why underline Party supremacy now, given the consistency and aggressiveness of Party policy since 2007?

Another long-time expert on Chinese law, Professor Donald Clarke, has suggested that what the oath really shows is “the complete bankruptcy of the imaginative faculties of those in charge of keeping society in line.” Clarke is dubious that the oath will make a difference to outspoken lawyers who have been undeterred from speaking their minds despite earlier oaths and policies.

A few Chinese lawyers have already publicly criticized the new oath. Mo Shaoping, a prominent human rights lawyer, has been quoted as saying that the oath is “inappropriate….As a lawyer you should only pay attention to the law and be faithful to your client.”

Certainly the oath adds no new element to existing policies, but it might be a sign that the MOJ and its superiors feel that the threat of more support for increasing legality has grown among lawyers and rights-conscious ordinary citizens. In other words, it may signal policy-makers’ intensified apprehension about growing pressure for strengthening the rule of law in China.

That policy makers may be acting more out of a sense of weakness than of strength was manifested last year when government authorities, apparently fearing the growth of an Arab-style protest movement, suspended or revoked some lawyers’ licenses and detained others to prevent them from taking sensitive cases, such as those involving dissidents or government critics.

The new oath may also be intended to reinforce support for the change in leadership that will soon occur, particularly as speculation spreads about a breakdown in party unity tied to the recent purging of populist Chongqing party chief Bo Xilai.

Regardless of the motive for requiring the new oath, it could inhibit lawyers from representing clients whom Party-state officials could regard as threats to social stability or to Party dominance: Suppose a powerful state-owned enterprise is involved in a civil suit against a foreign-controlled joint venture or wholly foreign owned enterprise, and fiercely alleges that the defendant is trying to destroy the Chinese enterprise and thereby cause damage to the Chinese economy. Might lawyers think twice about taking on the foreign client for fear of being accused of threatening “socialism with Chinese characteristics?”

The reach and impact of the oath have yet to be ascertained. It applies to new lawyers and those who are re-applying for their licenses; the MOJ’s announcement does not mention its applicability to current lawyers when they make their mandatory yearly re-registration.

Symbolic or not, behind the oath are policies that bode ill for the future of the rule of law.

Stanley Lubman, a long-time specialist on Chinese law, is a Distinguished Lecturer in Residence at the University of California, Berkeley, School of Law and is the author of “Bird in a Cage: Legal Reform in China After Mao,” (Stanford University Press, 1999).

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John Payton, top civil rights lawyer, dies at 65 - Wall Street Journal

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NEW YORK — Civil rights lawyer John Payton, who defended the University of Michigan's affirmative action policy before the Supreme Court and led the NAACP Legal Defense and Educational Fund, has died. He was 65.

Payton died Thursday at Johns Hopkins University Hospital in Baltimore after a brief illness, said Lee Daniels, spokesman for the New York-based NAACP fund.

President Barack Obama said in a prepared statement that he and first lady Michelle Obama were saddened to learn that their "dear friend" had died.

He was a "true champion of equality," Obama said. "The legal community has lost a legend, and while we mourn John's passing, we will never forget his courage and fierce opposition to discrimination in all its forms."

After graduating from Pomona College in California, Payton went to Harvard Law School and joined the Washington firm of Wilmer Cutler Pickering Hale & Dorr in 1978.

He argued affirmative action cases before the Supreme Court, including 2003's Gratz vs. Bollinger, which involved the admissions policies at the University of Michigan.

The court ruled 6-3 against the university in Gratz, but in a companion case, Grutter vs. Bollinger, the court ruled 5-4 that the law school's race-conscious admissions policy did not amount to a quota system.

Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights, said Payton's work on Gratz and Grutter showed his long-range strategic thinking.

"He really sat back and said, 'What is it that the court needs to understand about racial diversity in America?'" Arnwine said. 'What are the consequences of a non-diverse society?'"

Payton left private practice in the early 1990s to become corporation counsel for the District of Columbia. In 1994 he joined his wife, Gay McDougall, in South Africa, where McDougall was a member of the commission running the country's first democratic elections.

He returned to Wilmer Hale, then became director-counsel and president of the legal defense and educational fund in 2008.

While at the fund in 2010, Payton argued Lewis vs. City of Chicago, in which the Supreme Court unanimously concluded that a group of African-American would-be firefighters had filed a timely charge of race discrimination.

The National Law Journal named Payton to its list of the decade's most influential lawyers in 2010.

Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, said in a statement that Payton "was a warrior for justice and equality."

"He was arguably a 21st-century Thurgood Marshall," Henderson said. "The highest compliment I could pay him as an advocate is that he could run with the foxes and he could run with the hounds."

Survivors include his wife, also a notable civil rights attorney.

—Copyright 2012 Associated Press

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