BigLaw Clients Push Back

The BigLaw business model continues stumble, according to The Wall Street Journal in What’s a First-Year Lawyer Worth?:

Law firms often treat the first two years of an attorney’s career as a sort of apprenticeship, albeit a well-paid one: the yearly salaries at many of the nation’s largest law firms start at $160,000. Traditionally, law firms have recouped costs of young attorneys by giving them simple jobs—research, proofreading or culling important documents from boxes of paperwork—and passing the costs along to clients in the form of hours billed at $200 or $300 a pop.

But many companies are now refusing to pay those kinds of bills. According to a September survey for The Wall Street Journal by the Association of Corporate Counsel, a bar association for in-house lawyers, more than 20% of the 366 in-house legal departments that responded are refusing to pay for the work of first- or second-year attorneys, in at least some matters. Almost half of the companies, which have annual revenues ranging from $25 million or less to more than $4 billion, said they put those policies in place during the past two years, and the trend appears to be growing.

Increasingly, companies send their simple jobs to contract lawyers, independent contractors who are far less expensive than young associates.

Why I Like Google+ More than Facebook

A brief story about a recent interview with Vic Gundotra, Google’s Senior Vice President of Social Business, reported that Google is “continuing to work on how Google+ shares information to the world. Google’s social lead seems to be less inclined [than Facebook] to create tools that automatically push data public than Facebook does. ‘There’s a reason every thought in your head does not come out of your mouth,’ Gundotra said, adding that there’s a value in curation.” (Emphasis added)

IMDb Sued for Age Disclosure

An unidentified actress has sued Amazon because IMDb, the motion picture industry database owned by Amazon, revealed the actress’s birth date, showing that she is over 40 years old.  The actress–“a Texas resident of Asian descent”–created the profile without her birth date in IMDb Pro, a service created for industry professionals.  According to the lawsuit she filed in federal court in Seattle IMDb used other personal information she provided “to uncover her date of birth” and add it to her profile, “revealing to the public that Plaintiff is many years older than she looks.” Amazon says it obtained the actress’s age from her agent.  The actress denies this assertion.

The article doesn’t specify the specific claim the lawsuit asserts.  The facts don’t support a claim for public disclosure of private facts–her age would likely be considered newsworthy. It appears her claim is that IMDb violated its terms of service by using her personal information for purposes she did not authorize, but the article doesn’t point to any specific TOS provision that addresses the site’s use of personal information.

Forget What I Said About Mens Rea

It has long been a principle of criminal law that criminal liability requires mens rea, “guilt mind” or intent to commit a wrongful act. That’s what we teach in Introduction to Law.  The insanity defense is premised on the defendant’s lack of mens rea, his inability to understand the consequences of his actions or that his act was wrong.  It is Criminal Law 101.

Except the United States Congress did not get the memo.  The Wall Street Journal reported recently (As Federal Crime List Grows, Threshold of Guilt Declines) that “Congress has repeatedly crafted laws that weaken or disregard the notion of criminal intent.”  The article relates the following tale:

When the police came to Wade Martin’s home in Sitka, Alaska, in 2003, he says he had no idea why. Under an exemption to the Marine Mammal Protection Act, coastal Native Alaskans such as Mr. Martin are allowed to trap and hunt species that others can’t. That included the 10 sea otters he had recently sold for $50 apiece.  Mr. Martin, 50 years old, readily admitted making the sale. “Then, they told me the buyer wasn’t a native,” he recalls.

The law requires that animals sold to non-Native Alaskans be converted into handicrafts. He knew the law, Mr. Martin said, and he had thought the buyer was Native Alaskan.

He pleaded guilty in 2008. The government didn’t have to prove he knew his conduct was illegal, his lawyer told him. They merely had to show he had made the sale.

In other words the law imposed strict liability:  commit the act the statute defines as criminal (the actus reus for those who remember back to our discussion of criminal law four weeks ago) and you are guilty.

This is not a crazy idea in theory.  I was taught “ignorance of the law is no excuse.” The Journal notes “that principle made sense when there were fewer criminal laws, like murder, and most people could be expected to know them.  But according to University of Virginia law professor Anne  Coughlin, when “legislators ‘criminalize everything under the sun, it’s unrealistic to expect citizens to be fully informed about the penal code.'” With reduced intent requirements “suddenly it opens a whole lot of people to being potential violators.”

The problem is the intersection between proliferating federal criminal statutes–“there are an estimated 4,500 crimes in federal statutes, plus thousands more embedded in federal regulations, many of which have been added to the penal code since the 1970s”–and lesser mens req requirements: “more than 40% of nonviolent offenses created or amended during two recent Congresses—the 109th and the 111th, the latter of which ran through last year—had ‘weak’ mens rea requirements at best.”

Perhaps the moral is don’t leave home without the United States Code and the Code of Federal Regulations.

You, Starring in Your Own Commercial

Why Facebook is After Your Kids in today’s NY Times reports that Facebook is lobbying to change the Children’s Online Privacy Protection Ace (COPPA), the 1998 law that bars websites from obtaining personal information for children 12 or younger without parental consent.  Facebook wants more freedom to accept younger users–and there are already 7.5 million Facebook users under 13.  The Times states:

We don’t really know yet how joining Facebook at a tender age affects kids socially and emotionally. There’s the fun and freedom of Facebook, and then there’s the Consumer Reports finding that the site exposed a million teenagers to bullying and harassment last year. What is clear is that Facebook thinks it needs access to kids’ lives in order to continue to dominate its industry. The younger the child, the greater the opportunity to build brand loyalty that might transcend the next social-media trend. And crucially, signing up kids early can accustom them to “sharing” with the big audiences that are at their small fingertips.

The article quotes Mark Zuckerberg about the benefits of “frictionless” sharing on Facebook:

“We help you share information, and when you do that, you’re more engaged on the site, and then there are ads on the side of the page. The more you’re sharing, the more — the model all just works out.” 

The younger the age at which you become accustomed to Facebook’s view of your relationship to your personal information–you exist and share in order to generate advertisements tailored precisely to your demonstrated interests–the deeper Facebook’s hold on the details of your life.

Facebook + Halloween + Privacy Invasion = Creepy

Go to Take This Lollipop, allow it to use your Facebook information, and then watch a horror movie featuring you.  I learned about the site from both the New York Times and the daily news email from the International Association of Privacy Professionals and I don’t believe the site will do anything nefarious with your Facebook info.  Even without that concern the site is decidedly creepy.

Bunny is in the Eye of the Beholder

On the way home I stopped at the market for groceries.  While looking over packaged cookies a toddler and his mother stopped next to me.  The boy pointed at the lion on a box of animal crackers.  “Bunny” he said.  His mom looked at the box and said “no, that’s a lion.”  The boy picked the box from the shelf, looked up at me, and said “bunny.”  I bent over to look closely at the box.  “Bunny” I agreed.  His mom gently removed the box from his grip and returned it to the shelf. He grabbed a larger box of animal crackers decorated with the same lion, polar bear, gorilla, and elephant and looked me directly in the eyes.  “Bunny” he said.  I nodded my head and replied “bunny.” His om replaced this box while he grabbed another, looked at me, and said “bunny.” Mom–who was probably 30 but had a strikingly young face–explained “we see lots of bunnies on the walk over here.”  The boy, meanwhile, was pointing at all of the Animal Cracker graphics, calling each “bunny,” and taking boxes from the shelves as rapidly as his mom could replace them. We soon parted, the toddler accepting his mom’s decision not to buy a box of Animal Crackers.

Don’t Cry for Raj

The federal court in New York yesterday sentenced billionaire Raj Rajaratnam, founder of Galleon hedge fund, to 11 years in prison for insider trading. The 11-year sentence, while far less than the 24 years and 5 months sought by the prosecution, is the longest ever in an insider trading case in the U.S.  This sentence is well-deserved, a sentiment that may appall my criminal-defense attorney son and former colleagues at the Prisoners’ Rights Project, but it is Rajaratnam’s naked dishonesty and greed, his fundamental corruption, that are appalling.  Arguing for a lesser sentence one of his lawyers cited Rajaratnam’s charitable work, saying  “Raj Rajaratnam has attempted to make the world a better place. If there is a ledger in one’s life, he should have some credit to draw upon in that ledger now that things have gone bad.”

Now that things have gone bad?  This is not an appropriate situation to use the passive voice.  Things did not go bad, like a bottle of milk left too long in the hot sun. Rajaratnam had education and wealth and affirmatively chose to be a criminal.  He earned the shame and crushed reputation that are now his legacy.

My Semi-Annual Safety Reminder

From today’s BU Today: Student Cyclist Struck by Car, Hospitalized with head injury after Comm Ave accident.

An 18-year-old BU student was rushed to Brigham and Women’s Hospital with a head injury early Wednesday evening after being struck by a car while riding her bike on Comm Ave at Buick Street. Witnesses said the victim was in the bike lane when she was hit; she was thrown onto the hood of the car, and her head smashed the windshield.

You have the use of just one head in this life.  A helmet wouldn’t have prevented the accident but likely would have reduced the severity of the victim’s injuries.

You have the use of only one head in your lifetime.  Be smart.  Wear a helmet.