Tech law GEEK


Should law students (or young lawyers) blog about work? Part 2

Pam Smith of The Recorder reports what happened to temporary - and now former - San Francisco prosecutor Jay Kuo once the judge in his case found out about his "juvenile, obnoxious and unprofessional" behavior via Kuo's livejournal blog.

The contents of the blog posts were not available online Wednesday, but according to Karnow's ruling, Kuo at various points called his opposing counsel "chicken" when she asked for a continuance, directly alluded to her with some posting titles obscene enough that the judge did not repeat them and mentioned a prior conviction that had not yet been deemed admissible at trial.


Kuo testified at a hearing this month that he typically restricted his blog postings to a small group of friends. He suggested a security problem at the Web site he used might have been responsible for a breach.

Secured or not, there have been several high profile cases of supposedly private emails, discussion groups, and IM conversations being distributed to a MUCH wider audience. It inevitably happens - people that have access to the information find it too juicy - and way too easy - not to just forward it along. Not much different from the usual grapevine, but faster, cheaper, and much harder to deny than a conversation in person. (Don't get me started on how some people miss "the good old days" where they could easily deny a conversation that actually happened)

There's even a case where a forensic expert was called in to find out where the leak was - and this was in a group of plaintiff's lawyers that had taken an oath of confidentiality!

"I can’t believe that someone had the—I don’t know what to call it—that someone was so unethical that they would print and photocopy e-mails to someone who is not a member of the group," he says. "We all signed an oath that we will not discuss the contents of the chat room."

John A. Weiss, a Tallahassee lawyer who defends attorney discipline cases, says that if the group determines who the culprit is, he or she might be prosecuted by the state bar under two rules. One prohibits lawyers from engaging in dishonest conduct, and the other stipulates attorneys should not engage in behavior that knowingly humiliates other attorneys.


But this all just reaffirms my standing policy to only post online what you expect the whole world to see. Of course, this is not a new topic for me, but as summer clerkships are about to begin for many students, I suppose a link to my previous post on the subject is in order. How this affects distance education is yet another problem, but I'll wait until after my finals to tackle that again.

Speaking of.. Good luck to the law students out there taking finals!

[UPDATE] Here's a useful tidbit from the folks at

11/27/05: In August 2005, the Professional Responsibility and Ethics Committee for the Los Angeles Bar Association issued Formal Opinion 514, holding that attorneys should avoid including any confidential or private information in a Listserv or other Internet posting that could be identified to a particular case or controversy.

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Blogging Legal Scholarship = Bloggership

The Berkman Center for Internet & Society at Harvard Law School will be presenting an interesting symposium this Friday, "the first scholarly conference on the impact of blogs on the legal academy."

Not near Harvard this weekend? No worries. The symposium will be webcast LIVE for FREE (thanks to Microsoft). Papers to be presented at the symposium are also available from a dedicated page at SSRN.

Speaking of... Daniel J. Solove of Concurring Opinions has updated his blawger census recently with more info on law professors who maintain or participate in blawgs. As the ranks of blawging profs grows, I'm sure Mr. Best @ OSU will stay busy updating his list of judicial opinions citing blogs.

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Opinions citing Blogs

Thanks to VC, I discovered this list at 3L Epiphany of case opinions that cite blogs. Ian Best, the 3L from Ohio State that maintains the blog, did a great job of providing the context in which each citation was made.

In at least a few cases, the references are no longer valid because the web addresses have already changed, e.g., started out using Google's Blogger with the address, but that site was later claimed by someone else. Should the opinions be updated to reflect the subsequent URL change? I have trouble with the concept of temporary (and mobile) authority, but a lot of valuable information is made available via blogs and other online resources that just aren't accessible in traditional media.

When and how does a blogger (or blawgger) know to make sure their permalink really stays permanent for a future court's reference? Should the court just append the material cited in its current form (say a timestamped pdf of the current URL being referenced) so it will stay with the record of the opinion itself? Whatever the solution, there should be some agreement soon, because the list that 3L Epiphany started will only continue to grow.

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What The Princeton Review has to say about Texas law schools

While many current and future law students are still trying to decipher the latest USNWR rankings, The Princeton Review maintains some interesting lists of its own. I happened to run across their site and notice that, although UHLC hasn't made a Top 10 list at TPR, some other Texas law schools have, including:

  • University of Texas at Austin ranks #10 for Toughest to Get Into
  • Southern Methodist University ranks #7 for Best Quality of Life
  • St. Mary's University ranks #5 for Most Competitive Students
  • Baylor University ranks #1 for Most Competitive Students and #9 for Candidates for Heritage Foundation Fellowships (Or, Students Lean to the Right)

Useful information for students seeking (or trying to avoid) some of those criteria in their chosen law school(s).

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USNWR 2007 Law School Rankings

At UHLC these days, it's hard not to know the 2007 USN&WR Law School rankings came out earlier this month. Unfortunately for us, our overall ranking dropped again to #70, although we still rank 2nd in Health Law overall, and 5th in Intellectual Property overall (a slight drop from last year's).

Based on the USN&WR ranking methodology, the lawyer/judge assessment seems to be a significant factor (accounting for 15%) in pulling down our overall score. As Bill Henderson comments on the Conglomerate, there can sometimes be a significant disconnect between the lawyer/judge assessments and peer assessments, with the latter more likely to reflect the current stratification of schools based on other indicators, such as LSATs and UGPAs. In that case, UHLC's peer assessment places it in the same neighborhood as other schools ranked from 43 to 60.

A sticking point for me, though, has always been the weight given to UGPAs where the quality of the undergraduate institution and course of study is not factored in. Should a B student from MIT be rejected in favor of an A student with a liberal arts degree? If you're at one of the top IP schools in the country, I say NO! Another issue is how the faculty/student ratio is calculated. Should distinguished adjunct professors (who may only be available to teach in the evenings) be discounted in favor of full-time professors with minimal practice experience? If you're at one of the top schools in the country, I say NO! And these are just a couple of examples of how the need to jockey for position in a flawed ranking system can negatively impact a law school's attempts to provide the best environment for its students and faculty.

I admit that when I was choosing which Texas law schools to apply to a few years ago, the USN&WR rankings factored into my final decision. Since then, I've also learned to appreciate some of the qualitative factors that make UHLC a great school - factors that the USN&WR rankings just don't reflect. I hope that future law students will be able to see past the latest numbers and realize what a great school in a great city can do for their future careers.

[UPDATE] For a bit of background on where UHLC has been in the rankings over the last 10 years, Dean Rapoport included the details in her recent article, EATING OUR CAKE AND HAVING IT, TOO: WHY REAL CHANGE IS SO DIFFICULT IN LAW SCHOOLS, 81 Ind. L.J. 359, 362 n.7 (2006):

According to our records, our 1994 U.S. News & World Report ranking was 49, our 1995 ranking was 42, our 1996 ranking was 46, our 1997 ranking was 49, our 1998 and 1999 rankings were 50, our 2000 ranking was 58, our 2001 ranking was 51, our 2002 ranking was 50, our 2003 ranking was 53, our 2004 ranking was 69, and our 2005 ranking was 59.

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Thanks to the Texas First Court of Appeals

For those of you who have been wondering why I've been so quiet (other than reporting on recent ABA meetings), I just recently completed my judicial internship with the Texas First Court of Appeals in Houston. Fellow interns and I were presented with beautiful certificates during a recognition ceremony at the courthouse today and I am eager to have mine framed for my office. The Justices, their briefing attorneys, and staff have been wonderful to work with this semester and Justice Taft, as Intern Coordinator, really knows how to make some admittedly intimidated students feel welcome and appreciated throughout their stay.

A note on judicial internships

This is my 3rd judicial internship, and I still have to say, whether it's in state or federal, district or appellate court, this is the kind of work experience that really helps pull your law school classes together and make sense. If you're a 1L or 2L, this gives you a taste of the post-graduation clerkship experience so you'll know whether or not it's a commitment you really want to make (after all, preparing and applying for judicial clerkships is no small feat). Also keep in mind that different courts have different requirements for their interns, so even if you're not at the very top of your class, you might still have the educational background or previous work experience that judges and their law clerks (or briefing attorneys) really value.

You might also find local organizations, like our local IP law association, HIPLA, and the ABA (through its Judicial Intern Opportunity Program) sponsor grants or fellowships for federal (and sometimes state) interns.

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8th ABA DR Section meeting wrap-up

I was fortunate to get to sit in on the class arbitration update yesterday, where we heard from Ballard Spahr Partner Alan Kaplinsky, UNLV Law Prof Jean Sternlight, and AAA General Counsel Eric Tuchmann on the latest developments in class arbitration proceedings. I finally had the opportunity to personally thank Mr. Kaplinsky and Prof. Sternlight for being such valuable resources while I was researching the impact of CAFA on class action and class arbitration waivers last year.

I also received an update from Jeffrey Aresty on his "reverse mentoring" program:

Basically, the idea is that most lawyers over the age of 40 are going to find the pace of technological change so fast that if they are interested in learning the technology to use it in their practice setting, new technology will replace what they've just learned just as fast. Up until now, this has not been a problem because today's 'legal complex' is still based on paper, places and people. Even with the internet, technology doesn't change the legal process as we know it. It is similar to e-filing in a court setting - all that e-filing does is expedite the filing process and your ability to receive information from the court about the docket - it doesn't change the fact that people still go to court for hearings, and it is paper based interactions that we are adjudicating.

Reverse mentoring is the opportunity young lawyers, law students, and people who are interested in technology and the law to work with lawyers and judges who have the caseloads, to help them adapt to the new technologies in their practice settings. So, for example, in my role as a practicing attorney, helping me adapt to using online tools for communications, collaboration, brainstorming, and so forth, gives a younger person the chance to 'mentor' me (reverse mentoring) and gain the benefit of working with me on my matters.

I think it's a great idea, but as with any mentoring relationship, the "reverse proteges" must be willing participants in the process. Overcoming the natural resistance to change may be easier said than done in a lot of cases and the change really needs to be initiated from the top-down to have a good chance of success. You also need to be prepared to run into even more resistance from support staff who feel threatened by the technological advances that may make a lot of their repetitive tasks obsolete.

For more information, Mr. Aresty also maintains a blog as President of the InternetBar.

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Day 2 at the ABA DR Spring Meeting

Today was the big day at the 8th ABA Section of Dispute Resolution's Spring meeting in Atlanta. After the final round of the Representation in Mediation Competition, the winners from Arizona State University, coached by Bruce Meyerson, were presented with their award during the luncheon. Congrats also to Coach Dennis Sharp's team from American University Washington College of Law for making it to the final round. My personal thanks to Robert Ackerman of Penn State University for presenting my award for the student writing competition -- and, even more importantly, pronouncing my name properly ;-). Congressman John Lewis delivered a powerful keynote address, as expected.

Afterwards, I caught "The Ultimate Midyear Arbitration Update" presented by Homer C. La Rue and Lisa S. Kohn, who also made soft copies of the presentation materials available here. Judith Kaleta then moderated a panel on negotiated rulemaking with Prof Philip Harter, Suzanne Orenstein, and Elena Gonzalez. They discussed the distinctions between consensus and collaboration in reg-neg and answered some interesting questions from the audience about their experiences with different government agencies in the rulemaking process.

The Georgia Aquarium was a bit more than a hop, skip, and a jump away from the Hyatt, but well worth the trip. There were some hands-on exhibits in addition to the whale sharks, beluga whales, seals, otters and other marine life visible through their enormous windows. As usual, the reception was really enjoyable and went by quicker than expected.

Tomorrow is just a half-day of sessions before the general meeting concludes. The final track includes an update on my favorite topic, the enforceability of class action/arbitration waivers. Should be a good one.

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Day 1 at the ABA DR Spring Meeting

Well, I had a lot more detail to report on from the opening of the ABA DR Section's Spring Meeting, but the blogging powers that be decided to wipe out my first draft of this post. Suffice it to say, I got to sit in on some interesting sessions today on ODR and eDiscovery, as well as the afternoon plenary session "When Mediators Manipulate." I was a bit bothered to see some neutrals willing to admit they might tell a "white lie" or more in the name of progress. Fortunately, not all the commercial mediators in attendance were willing to place outcome over process.

Tomorrow is the big day for the awards luncheon, where the winners of the student mediation competition and best paper of conference will be announced. Yours truly has also been eagerly awaiting presentation of the James B. Boskey writing competition award for my article on class action waivers in consumer ADR clauses. (Thanks to Kim at the registration booth for my special ribbon, too!)

Congressman John Lewis of Georgia's 5th Congressional District will deliver the keynote address. Should be interesting.

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My name is Nivine and I am an ABA meeting junkie

As if last week's ABA Section of Antitrust Law spring meeting in Washington were not enough excitement (here, here, and here), I'm in Atlanta this week for the ABA Section of Dispute Resolution's (DR) Spring meeting. I'm hoping to catch some sessions on online dispute resolution (ODR) and class arbitrations, a couple of my favorite topics in the area. The Section dinner later this week is going to be at the Georgia Aquarium, which I'm really eager to see (as have a million other visitors and counting). Since I had so much fun reporting back on the AT Spring meeting last week (on my AT liaison blog), I will continue to post reports on the DR Spring meeting here.

I didn't think Atlanta could impress me much after ~ a week in DC, but I must say my first day so far I have been very pleasantly surprised. The weather has been great and the DR staff & officers have been very helpful already. I thought it might be a bit inconvenient missing out on a room at the Hyatt (you gotta move quick to get some ABA room deals!), but I actually got a great deal in midtown at The Georgian Terrace. Not only does this gorgeous hotel have quite a bit of history behind it, its 1 bedroom suites are HUGE (I'm talking 850 - 1,000SF+ with a full kitchen, washer/dryer, living area, dinette, coat closet, 2 huge bedroom closets, 2 TVs, and some even have an additional den with a desk). They also have 2 and 3-bedroom suites that go up to 1,750SF. They're right across the street from Fox Theater and the Bellsouth building behind that has the Midtown Shops and North Avenue MARTA station inside and underneath. And what really makes this techlawgeek jump for joy? The hi-speed internet access is included FREE.

Once I got my room taken care of, I was able to head back to Peachtree Center (only 2 MARTA Rail stops away) to attend a reception where I got to meet some of the DR speakers, staff, council members, and committee leaders. There are more students attending this Spring meeting also because the national finals for the Representation in Mediation competition is in progress. (Good luck everyone!) It looks like the DR Section's meeting is already off to a great start...

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