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On The Merits

Texas Lawyers Step Up

The flood of migrant children into Texas has presented numerous opportunities for volunteer attorneys to help assure that case filings and hearings are conducted fairly under the law. Non-profit organizations such as the Human Rights Initiative of North Texas and local branches of Catholic Charities have established programs to train lawyers unfamiliar with immigration law, while the Dallas Hispanic Bar Association and the Hispanic Bar Association of Houston are among the legal organizations serving as clearinghouses for attorneys willing to offer pro bono services.

The complicated immigration court process can take years, and statistics show that those who are represented by legal counsel are far more likely to successfully establish a case to stay in the country legally.

The Texas Lawbook reports that law firms such as Baker Botts, Greenberg Traurig, Norton Rose Fulbright, Holland & Knight, Littler Mendelson, Hunton & Williams, Jones Day, K&L Gates and Vinson & Elkins are holding CLE progams on immigration law to help prepare attorneys to represent migrant children and their families, while the corporate legal departments at AT&T and ExxonMobil are preparing some of their in-house lawyers to help out if needed.

The article includes a prediction from Texas Supreme Court Chief Justice Nathan Hecht that the wave of new cases likely to hit the state’s family court system will require hundreds, or even thousands, of volunteer lawyers in order to ensure that the cases are handled quickly and fairly under the law.

Chief Justice Hecht says that he and court officials are researching possible ways to pay for senior judges who can help handle the anticipated caseload jump, but the possible use of volunteer special masters is also being explored. “Most lawyers, especially corporate lawyers, are not familiar with these family law issues, but it is an easily knowable area of the law,” Chief Justice Hecht told Lawbook.

By putting aside politics and legislative proposals, and by facing the reality of the border crisis, it’s clear that many Texas attorneys are positioning themselves to assist migrants in navigating our country’s immigration laws. Kudos to them, their law firms, and the many social service agencies that are supporting this worthwhile effort.

Posted: 8/21/2014 1:28:02 PM by On the Merits Editor | with 0 comments

Mama, Don’t Let Your Babies Grow Up to Be Lawyers

Much ink has been spilled over whether the legal profession is a monopoly – including some by lawyers themselves – with critics maintaining that barriers to entry serve to insulate attorneys from market forces that other businesses deal with on a regular basis. But, as we all now know, all is not well with the legal profession of late.

Now, the most recent shoe to drop: The number of college graduates taking the Law School Admission Test, or LSAT, has dropped precipitously. The number of test-takers has fallen 9.1% since June of last year, and a whopping 33.9% from just four years ago. It’s been more than a decade since the numbers were this low.

The decline certainly can be traced to the fact that prospective lawyers-to-be follow the news and talk to their friends. They know that law school graduates in the past few years have encountered a dismal job market that one critic summed up succinctly: “Law school is too expensive relative to job outcomes.”

This has led to a good deal of soul-searching regarding the future of both lawyering and legal education. That’s a good thing because it never hurts to reassess an industry in a rapidly-changing world. Adapting to market conditions is essential to a free market, even if we’re talking about the legal profession.

Still, there always will be those who complain that there are too many lawyers and too many law schools. But maybe those critics can find some comfort in the fact that the legal profession – like all other professions – is subject to the vagaries of the marketplace after all.

Posted: 7/24/2014 1:11:16 PM by On the Merits Editor | with 0 comments

Sometimes You Have to Face(book) the Music

Confidentiality provisions in settlement agreements are pretty common, but they used to be a lot easier to abide by. Social media and the Internet now provide the means to breach a settlement with just one click of the mouse. 

That’s what happened in Florida to 69-year-old prep school headmaster Patrick Snay, who had sued his employer for age discrimination when his contract wasn’t renewed. The $80,000 settlement plus legal fees that Gulliver Schools agreed to pay were withdrawn after Snay’s college-age daughter issued a Facebook post bragging that her father had won just four days after the agreement was signed.

Her post read: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

The school’s lawyers argued that the daughter’s post was a breach of the confidentiality agreement, which barred Snay from disclosing the existence or terms of the settlement to anyone except his spouse, lawyers or professional advisers. Snay responded by asking the trial judge to enforce the settlement, contending he had to advise his daughter of the settlement because she had been “retaliated against” by Gulliver and “had quite a few psychological scars.” The court agreed with him.

But in a reversal, the Florida’s Third District Court of Appeal court threw out the settlement. “Snay violated the agreement by doing exactly what he had promised not to do,” the appeals court opinion stated. “His daughter then did precisely what the confidentiality agreement was designed to prevent.” 

Unfortunate for Snay, perhaps, but the Court is correct that he had a contractual obligation to take all necessary steps to prevent that from happening because he agreed to it and accepted the benefits of the agreement. He should have not disclosed this information to his daughter. 

Or at least taught her some manners.  

Posted: 4/2/2014 12:00:00 AM by On the Merits Editor | with 0 comments

Who You Calling “Fanciful”?

A recent U.S. Supreme Court decision expands whistle-blower protections to employees of private contractors, bolstering the anti-corruption principles of the 2002 Sarbanes-Oxley Act. The ruling was widely reported and noteworthy based on its potentially far-reaching implications.

But the 6-3 decision also highlighted an important reality of the court that often is forgotten: both the majority and the dissent were written by justices that are often assumed to always be on the same side. Justice Ruth Bader Ginsburg penned the opinion for the majority, while Justice Sonia Sotomayor wrote the dissenting opinion. Both are generally considered members of the Court’s more liberal wing. 

The case involved allegations by two former workers at Fidelity Investments, who were employed as subcontractors by units of privately held FMR LLC. The units provide investment advice and management services to publicly traded Fidelity mutual funds. Both alleged retaliation resulting from their complaints about the company’s alleged wrongdoing. 

Fidelity Investments argued that the workers couldn’t bring claims under Sarbanes-Oxley because they weren’t employees of a publicly traded company. A federal appeals court agreed, but the Supreme Court reversed that decision.

Justice Ginsburg said that providing whistle-blower protections to mutual fund investment advisers “is crucial to Sarbanes-Oxley’s endeavor to protect investors.” In her opinion, she noted that Congress passed the law to strengthen corporate governance after the accounting scandals at companies such as Enron Corp.

Justice Sotomayor, writing for the minority, which included Anthony Kennedy and Samuel Alito, called the decision “stunning.” She suggested it would extend whistle-blower protections to office cleaners, day laborers and even baby sitters who work for people employed at public companies.

Justice Ginsburg didn’t take that lying down, writing that the dissenters were “indulging in fanciful visions of whistle-blowing babysitters and the like.”

Does this mean that the two Justices will no longer vote together on big cases? Does it mean that there is something personal between the two? 

No, on both counts. This dynamic happens all the time. Supreme Court Justices are not shrinking violets, and good jurisprudence demands that the Justices express their views clearly and forcefully for the sake of both lawyers and the lower courts that must rely on and interpret these decisions. It’s part of the job. 

Posted: 3/31/2014 12:00:00 AM by On the Merits Editor | with 0 comments

Skirting the Clear Intent of the Law?

You hear a lot of complaints about “judicial activism,” but you don’t often hear judges being criticized for not being activist enough

But that’s exactly what happened when the Massachusetts Supreme Court recently reversed a lower court and dismissed charges against a defendant who was caught by transit police on a Boston trolley while using his cell phone to take an “upskirt” photo of an undercover officer.

Not surprisingly, the court’s ruling unleashed a furor, with one CNN analyst calling the ruling an “assault on a woman’s right to privacy.” But the case demonstrates that, sometimes, it’s a lot easier be a commentator on CNN than it is to be a judge. 

The justices reasoned that while such actions should be illegal, they actually were not prohibited by the Massachusetts law at issue. That statute, adopted to protect people from being photographed in dressing rooms and bathrooms, applies only when the victim is nude or partially nude. Written before cellphones existed, the court held the law did not apply to clothed people in public areas.

A female passenger on a public trolley “who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing,” the court said in its ruling.

Admirably, Massachusetts lawmakers quickly stepped in the following day and passed a revised statute that now clearly disallows such photography, imposing a possible fine of $5,000 and up to 2 ½ years in prison. And that’s how the three branches of government are supposed to work. The courts cannot convict someone of something the legislature has not made a crime, but it can suggest to the legislature that it fix a law that has become outdated. 

And lest you think the court was just unsympathetic or out-of-touch, consider this: The opinion was written by Justice Margot Botsford, a woman. 

Posted: 3/27/2014 2:02:57 PM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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