Sokolove Success Blog – Our Perspective on Legal News that Matters

At the American Bar Association’s recent midyear meeting in Orlando, an important hearing was held of the ABA’s Ethics 20/20 Commission.  The commission was created last August and charged with reviewing lawyer ethics rules and regulation across the United States within the context of a global legal services marketplace.  If I may paraphrase, the commission was looking to possible reforms to the ethics rules that would allow the U.S. legal market to keep up with the rest of the world.

Much to my surprise and pleasure there was a great deal of debate at the first hearing about the subject of non-lawyer ownership of law firms.  It’s about time.

As we know, Rule 5.4 of the American Bar Association’s Model Rules of Professional Conduct prohibits non-lawyer ownership of law firms.  Simply put, a non-lawyer investor cannot take an equity position in a law firm. The rule was created to ensure that lawyers did not prioritize profits ahead of the best interests of their clients.  We want our lawyers to have a duty to their clients, not be slaves to shareholders.  That seems to make good sense.

However, there are consequences to Rule 5.4 and none more important than the fact that it can stifle growth and innovation in the profession.  But don’t take my word for it.

The February hearing of the 20/20 Commission included differing viewpoints on the subject from Lawrence J. Fox, who practices with Drinker Biddle in Philadelphia, and Richard Granat, who chairs the eLawyering Task Force of the ABA Section of Law Practice Management.  Here are their arguments summarized in brief from the hearing transcript.

Fox compared the idea of non-lawyer ownership to the kind of conflict of interest that existed at Arthur Andersen when it served as both auditor and consultant to Enron. He further argued that the debate over non-lawyer ownership was similar to the debate over multidisciplinary practice that occurred 10 years ago when the ABA proposed allowing lawyers to practice law within entities that included non-lawyers. (A rule that the ABA House of Delegates rejected).

In short, Fox’s argument is that relaxing restrictions on non-lawyer ownership is a bad idea because it could give rise to a conflict of interest. Furthermore, we considered doing it ten years ago and decided not to, so we should reach the same decision today.

Granat, who runs what he calls a “virtual law firm” in Maryland, said that the existing rules limiting non-lawyer ownership stymie innovation in the legal market and prevent firms from finding new ways to  deliver legal services, including online offerings.

In a nutshell, Granat’s argument is basically that our competitors are innovating, and there’s a huge unmet demand for legal services to be delivered in more innovative and efficient ways.  To do that requires capital.

I don’t want to put my thumb on the scale, but it seems to me that Granat makes the better point.  What do you think?

There’s something wrong about metal on metal.

Just ask the hip-transplant patients whose so-called metal-on-metal (MoM) artificial hips are causing some real problems.

In the last two weeks, The New York Times had three stories on the problems associated with these prosthetics in some patients, including severe tissue and bone damage.  You can check out the stories here, here and here.

Here’s a brief summary.  So-called MoM artificial hips have come under increasing scrutiny as the result of studies showing that the implants generate metallic debris as they wear causing serious health problems that often require replacement of the implant soon after it was inserted.  The problem is so acute, that many leading orthopedic surgeons have cut back on the use of these types of implants, or stopped using them altogether.

Then on March 9th, DePuy Orthopaedics, a division of Johnson and Johnson, warned that its ASR implant (which the company recently announced it was pulling from the market because of slow sales) in fact had a high early failure rate in some patients.

As if that’s not bad enough, on March 11, Science Daily reported that a new study found elevated levels of the metals cobalt and chromium in the offspring of patients with MoM hip implants.  The study concluded that there is a correlation between cobalt and chromium levels in the mother and those in her infant at the time of delivery.

So in a nutshell:  metal-on-metal is not a good thing.  The metal can grind away at itself causing early failure, and possibly even impacting unborn children if mothers had a MoM hip implanted.  What’s worse, there seems to be some evidence that manufacturers may have known about some of these risks and waited too long to report them, or to pull products from shelves.

We’ll continue to monitor these developments and if legal issues emerge, we’ll be prepared to help people who may have suffered as a result.

When I was in law school there was a story that got told about a guy who tried to cut his hedges by holding his running lawn mower above his head by the handle.  You can guess what happened next.  He loses his grip on the lawnmower and ends up trimming himself rather than the hedges.   The end result: the addition to the lawnmower’s warning label of a ‘do not hold the lawnmower above your head’ caution.   My take on the story, admittedly once I stopped laughing, was that there should have been no need to state something so obvious. All the label really needed to say was that the operation of the lawnmower required common sense.

Today, the nation’s court system faces a similar dilemma as it seeks to manage juries in the age of smart phones  and Twitter. These and other new technologies and applications have not only changed the speed with which we can communicate with the world. They have also made it possible to communicate from virtually any place, at any time – even from a jury room, where such activity is expressly forbidden. Yet somehow it would seem that the ease and prevalence of these new technologies have stripped jurors of common sense when it comes to complying with the rules of the courthouse.

Let’s start with the basics.  Perhaps you’re a “Law and Order” junkie, or a follower of another television courtroom drama.  Maybe you’ve served on a jury, or witnessed a jury trial.  If you have, you’ve likely heard a judge give the jury instructions admonishing them not to discuss the case with anyone and prohibiting jurors from conducting any outside research beyond the evidence presented within the four walls of the courthouse.

Those basic jury instructions are now being forced to catch up with modern technology.  According to BLT: The Blog of Legal Times, a committee of the Judicial Conference of the United States has endorsed a set of model jury instructions for district judges to help them deter jurors from using cell phones, computers or other electronic technologies during jury service.

The intent of the rule is clear, and it’s consistent with the long-standing rules for juries.  Jurors should decide the case before them on the merits, based on only the evidence as presented in the courtroom.

To ensure this, judges will sometimes order juries sequestered, to prevent them from being exposed to outside information. But what do you do when a juror can access a dictionary, an encyclopedia and a copy of every newspaper in the world, all at the push of a button on their cell phone?

Similarly, in the old days, jurors were limited in who they could talk to on the phone while sequestered.  But how do you limit who jurors can talk to, when the media they communicate with expands to include not only mobile phones but also gchat, Twitter, Facebook, Blackberry Messenger, and text messaging?

The answer is that we make the jury instructions very specific, and we trust jurors to do the right thing.  Here are the key points of the proposed model federal jury instructions:

(Courtesy of our friends at: BLT, The Blog of Legal Times)

Before Trial:

…you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case.

…many of you use cell phones, Blackberries, the internet and other tools of technology. …You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

At the Close of the Case:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

What do you think?  Important update, or needless revision?