PLP Distinguished Senior Fellow Ben W. Heineman, Jr., argues that a company’s Chief Compliance Officer (CCO) should not be completely independent from the General Counsel. In the most recent edition of Corporate Counsel Heineman advocates a structure in which the CCO reports to the General Counsel “and deals primarily with the process of compliance across all substantive subject-matter areas.” Heineman asserts that “compliance is a core GC job” and separating the two can lead to bureaucratic waste, confusion, and potential turf-wars. Heineman concludes that “independence won’t guarantee ethical behavior” but “good culture will.”
Harvard International Law Journal
Mayer Brown Senior Counsel and PLP Advisory Board member Stephen Gates argues that corporations doing business in “troubled jurisdictions and conflict zones” need to engage in “creative lawyering.” In a new article in the Harvard International Law Journal Gates maintains that this type of lawyering “goes beyond knowledge of the applicable law to include understanding local culture and customs, understanding the company’s strategy and risk tolerances, being mindful of corporate reputation, gathering relevant prior experience, and being willing to act as the conscience of the company.”
Whistleblower Protections an “Uneven Patchwork” at Home and Abroad, with In-House Lawyers Often “in a Particularly Difficult Position”
International Bar Association
Journalist Nicola Laver examines the complexity of whistleblower laws and protections, the impact of the Wikileaks controversy upon whistleblowing, and the vulnerability of some lawyer-whistleblowers when principles of privilege and disclosure conflict (especially for in-house lawyers who are often “in a particularly difficult position”).
Both CNBC and the New York Times recently published separate analyses whether obtaining a law degree is worth the price. CNBC reports that even the ABA “is now making the case to persuade college students not to go to law school,” warning that endowment losses, declining state support and fundraising difficulties “have hit law schools hard.” The Times reports that attending law school can be a “catastrophic investment” for many, particularly since graduates are now facing “the grimmest job market in decades.”
International Business Times
Along with Yale and Northwestern, Columbia is now offering a three year “fast track” joint JD/MBA, starting in Fall 2011. While these programs do save time, they tend to save less in terms of money, with some charging regular law school tuition the first year, 150 percent of regular business school tuition in the second year, and 150 percent of regular law school tuition in the third year.
National Law Journal
George Washington University was the first American university to offer an LLM in national security law (launched in 2008), and now Georgetown is offering a similar degree in the nation’s capital. According to the National Law Journal, however, Georgetown’s LLM is “geared more toward U.S. students than international ones [and] likely will appeal to different types of people: those already working within the national security arena who want a broader view of the topic or wish to move forward in their careers; practicing lawyers hoping to transition into academia; students interested in a doctorate in law; and recent graduates who wish to develop an area of expertise before starting their law careers.”
Foreign law firms in China may not practice Chinese law and are limited to just two offices, among other restrictions. As a result, the Sino Global Legal Alliance (SGLA) was created in 2007 to provide foreign firms with access to Chinese firms and clients in a number of cities across China. The Chinese government permits the existence of the alliance, but firms must have separate client engagement letters, negotiate separate fee arrangements and cannot share profits or require exclusivity. While the alliance “has matured and expanded” since its inception in 2007, “tangible results are not immediately apparent,” according to the American Lawyer’s Chris Johnson.
New Legal Review
According to consultants at Fronterion, corporations in 2011 will increasingly engage with legal services outsourcing (LSO), law firms will implement LSO programs at firm-wide levels, LSOs will expand from offshore to domestic shores, new markets for LSOs will emerge while the variety of LSO services will increase, and ethics concerns will impact how vendors interact with clients—among many other developments in this rapidly changing area.
As the world’s 10th most significant economy, Canada is becoming increasingly important in the global legal marketplace. Canadian firm Ogilvy Renault LLP, for example, will join the international Norton Rose Group in June 2011, becoming the first Canadian law firm to truly “go global.” Meanwhile, U.S.-based Baker & McKenzie grew its Toronto office nearly 50% in the last five years, and may double its size again in the next five years. Jim Holloway, Managing Partner of Baker & McKenzie's Toronto office, argues that “Canada deserves to be on the A list as an attractive and even necessary place for global law firms.”
Foreign-related cases in Chinese courts spiked 15 percent in 2010, rising to 13,191. Almost half of the civil and commercial disputes involved the United States, Japan, South Korea, Germany or the United Kingdom. M foreign litigants appear to be engaging the Chinese courts, which are considering cases in public and publishing verdicts online. To help process the increasing number of cases, China is reportedly exploring proposals for international judicial cooperation and facilitating arbitration and mediation.
“City law firms” in Britain are “keen to reflect an emerging global elite that is far less Anglo Saxon dominated than in the past,” according to the Guardian’s Alex Aldridge. And at first blush they appear to be making progress, with lawyers from “black and ethnic minority (BME) backgrounds” comprising 9.2 percent of the City legal profession—compared with 7.9 percent BME in the overall population. But Aldrich notes that this figure includes an “over-representation of lawyers from Asian and Chinese backgrounds” and an “under-representation of black lawyers,” concluding that “things are less United Colors of Benetton than they seem.”
In the United States, Microsoft’s Brad Smith asserts that “diversity has been moving forward at a pace that more closely resembles a glacier than a racecar,” with women accounting for less than 20 percent and minorities only about 6 percent of the partners in America’s large law firms. In order to address some of these disparities, Smith and other members of the Leadership Council for Legal Diversity (LCLD) are encouraging more diverse students to apply to law schools and providing increased support and opportunities for diverse students once they enroll.
For Amber Farrelly Elliot, mastering sign language proved more useful in her legal career than she ever imagined. Even though Elliott has practiced for less than two years, she is receiving numerous court assignments for a variety of misdemeanor cases involving the deaf and hard-of-hearing. Elliott is familiar not only with sign language but also deaf culture, and this has been crucial in defending some of her clients. She has persuaded officials “to dismiss a number of cases, for example, by explaining that shoulder-tapping behavior perceived by some as an assault is simply how the deaf and hard-of-hearing seek to gain someone's attention.”
Public Interest Lawyering
National Law Journal
In what the National Law Journal calls a “perfect storm,” legal aid programs funded by Interest on Lawyer Trust Accounts (IOLTA) have experienced significant cuts in private, local, and state funding. At the same time, interest rates on these accounts are at record lows. The Florida Bar Foundation reports that rates on their dwindling reserve fund “are lower than envisioned in the worst-case scenario.” Legal aid programs have instituted furloughs, reduced staff, closed offices, and offered limited representation in response. Meanwhile, demand for free legal services continues to grow overall, with the Legal Aid Society in New York reporting increased requests for assistance with health care, housing, and domestic violence matters.
Attorney Regulation & Ethics
National Law Journal
Aspiring lawyer Amanda Perdue answered a question on her Indiana bar application indicating that she had received mental health treatment since the age of 16. Indiana’s Board of Bar Examiners then asked for further information about her mental health history. She objected and is now lead plaintiff for a class of similarly situated bar applicants who are suing the Board. The plaintiffs argue that the Board’s mental health inquires are too broad and that its focus should instead be “whether someone has the current character and fitness to practice law.” The U.S. District Judge presiding over the case recently blocked the Board’s discovery requests seeking additional mental health information from the plaintiffs.
New York Times
Many California lawyers are reportedly rejecting loan modification cases as a result of a new law that allows attorneys performing such work to be paid only after the matters are resolved. Although the law was designed to “eliminate swindles in which modification firms made promises about what their lawyers could do, charged hefty fees and then disappeared,” the regulation has arguably created a disincentive for other lawyers because it often takes months to resolve loan modification cases.
Innovation & New Models
In this audio podcast, the ABA hosts a panel discussion with academics, practitioners and consultants regarding the implications of Thompson Reuters’ recent acquisition of one of India’s largest legal outsourcing firms, Pangea3.
New York Times
The New York Times reports that in Holland young professionals have a “growing appetite” for shorter, more flexible workweeks, creating “implications for everything from gender identity to rush-hour traffic.” The Times highlights the case of law partner Remco Vermaire, whose firm allows nearly half of its lawyers to work part-time. Vermaire states that “working four days a week is now the rule rather than the exception,” and the Times comments that this “Dutch culture of part-time work provides an advance peek at the challenges—and potential solutions—that other nations will face … in an era of a rapidly changing workforce.”
Law Firms & Practice Management
The Careerist’s Vivia Chen predicts eight things each that will—and will not—happen in 2011. Among what will occur: there will be “more chest-beating about changing the legal profession,” partnership structures will become “more byzantine,” and corporate clients will demand that more women and minorities are staffed on their deals and cases. Among what will not happen: the billable hour will not meet its demise, “efficiency and competency won’t determine compensation,” and the pay gap between men and women will not close.
While business has improved (however modestly) over the past year—and while junior associates have been responsible for more work —bonuses have not increased accordingly, contributing to the lowest associate job satisfaction in recent years. As one associate told the Wall Street Journal, “You’re working your rear end off every year … You can convince yourself that it’s worth it only if there’s some payback.”