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On The Merits

New York Attorney General Helps Those Who Can’t Help Themselves

Too often those who lack sufficient economic leverage must abide by the decisions of others even when the result is manifestly unjust.  But sometimes a lawyer is there to help.  New York’s Attorney General recently used the power of his office to help a couple of disparate groups affected by the arbitrary decisions of their respective employers.

In the span of two weeks, New York AG Eric Schneiderman convinced two sizeable companies to abandon a requirement that new employees sign non-compete agreements preventing them from going to work for competing businesses. While non-competes are not inherently illegal, the circumstances in each case raised eyebrows because of the overly drastic consequences involved.    

First was Jimmy John’s, the ubiquitous sandwich shop that you can see in nearly every commercial break during any live sporting event. Under the sample non-compete agreements sent to potential franchisees, Jimmy John’s prohibited entry-level sandwich makers who left the company from working anywhere within a two-mile radius of a Jimmy John’s location if the new employer derived more than 10 percent of its revenue from sandwiches. The AG called the non-competes unlawful since New York law only allows such agreements if a worker has unique skills or possesses trade secrets. Although Jimmy John’s brands itself as a “gourmet” sandwich shop, it’s pretty clear that there’s no unique skill or trade secret in making a sandwich for anyone who’s ever eaten one.  

Next in line was legal publisher Law360, which has employees nationwide. Under the Law360 non-compete agreements, entry-level reporters were barred from working for other legal publications for one year. The NY AG began to focus on the company after a story went viral about a reporter who was fired weeks after accepting a new job because Law360 notified her new employer about a non-compete agreement she had signed two years earlier. In addition to abandoning new non-compete agreements, Law360 also agreed to release anyone from such agreements that were signed in the past year.

While non-competes are important tools in today’s business world in the right circumstances, they have traditionally been used when carefully tailored to a legitimate threat to a company’s trade secrets or technological advantage.   How sandwiches are made or how reporters do their jobs is not exactly a lucrative mystery, and using this weapon against young and relatively powerless employees seems more like a punitive measure than a valid business interest.  Kudos to Attorney General Schneiderman for using his power and his office to protect these unfortunate victims.   

Posted: 7/14/2016 9:40:32 AM by On the Merits Editor | with 0 comments

Phishing for Lawyers

Email scams have been around nearly as long as email itself, whether it’s someone promising medical miracles in exchange for a “donation” or those inviting you to share in their million-dollar inheritance if only you can pay the “necessary” banking fees. But email scams aren’t reserved for the elderly or uneducated, and instead often target trained professionals, including attorneys.

The practice has become so prevalent that the State Bar of Texas maintains a regularly updated blog post detailing the latest attempts by online con artists to pluck money or otherwise victimize unwitting lawyers. While most of these scams prey on those who think they can make a quick buck, the latest scheme is somewhat different because the perpetrators are pretending to be regulatory officials inquiring about nonexistent disciplinary actions or false claims for bar dues.

The ABA Journal recently noted this latest twist in the seemingly never-ending parade of internet charlatans. According to the ABA’s Division of Bar Services, more than 50 lawyers in Alabama, California, Florida, Georgia and Nevada have received the phishing emails, which contain subject lines indicating pending disciplinary matters, unpaid bar dues or increases in bar dues. The ruse doesn’t stop with the emails, however, as the ABA reports that fake state bar websites also have been used to make the scam more believable.

Fortunately, there have been no reports of this particular phishing expedition reaching Texas lawyers, but there’s no guarantee it hasn’t already happened. Getting scammed online can be embarrassing, which leads many people, including lawyers, to decide against reporting what happened to the appropriate legal authorities. That lack of action may help protect victims from further embarrassment, but it only makes it easier for it to happen again to someone else.

If you receive a phishing email or have been victimized by one, it’s best to report it to your local police department and notify the FBI’s Internet Crime Complaint Center, where you can quickly file a complaint without much hassle. Remember, there are bad people on the internet. Let’s be careful out there.

Posted: 7/12/2016 12:17:42 PM by On the Merits Editor | with 0 comments

Helping Judges Get Their Due

The disparity between what federal judges are paid compared to private lawyers has caused numerous jurists to leave the bench recently in search of greener pastures as part of a troubling, ongoing trend. Famously, Congress has not approved a pay increase for those serving on the federal bench in nearly 25 years despite promising in the Ethics Reform Act of 1989 to regularly boost their salaries based on cost-of-living adjustments.

Thankfully, a group of determined lawyers and law firms has stepped up to help make sure the men and women who preside over our federal courts are able to get the pay they were promised and deserve. According to media reports, the law firms, which are located throughout the country, have helped current and retired judges and the families of deceased federal jurists collect more than $350 million in back pay during the past two years alone. The ability to seek back pay through the U.S. Court of Federal Claims gained significant traction in 2013 when former U.S. Attorney General Eric Holder told leaders in Congress that the Department of Justice would not pursue appeals if federal judges were awarded back pay in court.

Being able to retain qualified judges is directly tied to what they are paid versus what they might be able to make elsewhere, whether that means working in private practice or pursuing some other type of work. Recent history demonstrates the that simply being a federal judge and having a job for life with a relatively comfortable salary aren’t enough to ensure that those who are best suited to do the job will actually end up on the bench.

That is why it is so important that a small group of law firms was able to take up the cause on behalf of handful of judges and make sure they received what they were truly owed. Until Congress decides to make good on a promise it made the same year that Taylor Swift was born, then these firms represent our best chance at keeping experienced jurists on the federal bench.

Posted: 6/28/2016 7:27:14 AM by On the Merits Editor | with 0 comments

Can You Hear Me Now?

The public’s access to the U.S. Supreme Court has been a hot topic during the past few years, including the court’s relatively recent decision to abolish “line-standing” and its ongoing opposition to allowing cameras to broadcast or record oral arguments. One trusted and inexpensive avenue inside the nation’s highest court recently faced a perilous future after serving the public for more than 20 years.

The Oyez Project was founded in 1993 as a free repository of Supreme Court oral arguments dating back to the 1950s. Chicago-Kent College of Law Professor Jerry Goldman started the Oyez Project by reproducing Supreme Court audio files collected by the National Archives and hosting them for free online. The group’s website reportedly has more than 9 million visitors every year. Goldman’s recent decision to retire put the Oyez Project in jeopardy, but an agreement with Cornell University’s Legal Information Institute and the online legal publisher Justia promises to keep the recordings available to the public for many years to come.

Although listening to audio of a Supreme Court argument isn’t the same as being in the courtroom personally, it does provide a relatively simple, no-cost means for the public to hear how the country’s top court does its business, which is a good thing. As we’ve said on this blog many times before, the public’s confidence in our justice system is largely dependent on people being able to see (or hear) for themselves exactly how the system works.

Until we can turn on our TVs or personal computers and see Supreme Court arguments in real time, the Oyez Project represents the best available option.  We owe a debt of gratitude to both Cornell and Justia for helping keep the window to the court open for the rest of us.

Posted: 6/24/2016 3:23:27 PM by On the Merits Editor | with 0 comments

Judge Not Lest Ye Be Judged

Many people think that presidential candidate Donald Trump believes himself to be more a potential emperor than a candidate to head a co-equal branch of government in a constitutional democracy. Consider his string of comments about the ethnic heritage of a California federal judge who is presiding over a case filed against one of the self-proclaimed billionaire’s former real estate businesses, Trump University.

After telling a campaign rally crowd in San Diego that he would talk for two minutes about the case handled by Judge Gonzalo Curiel in the U.S. District Court for the Southern District of California, Trump went on a 12-minute tirade that included him calling the judge a “hater of Donald Trump” and referring to him as a “Mexican” even though the judge was born in Indiana. Trump also argued that the judge should recuse himself based on his prior rulings in the Trump University case; the fact that President Barack Obama appointed him to the bench; and Trump’s campaign promise to build a wall on the border between the U.S. and Mexico.

Fortunately, Judge Curiel has responded in a manner that we should expect of a federal judge: he’s said nothing to address Trump’s comments, presumably because of his responsibilities under the judicial code of conduct. And he has not recused himself, either, because there is absolutely no legal reason for him to do so. 

Federal judges are not in a position to defend themselves by making public comments on cases before them because doing so could create a situation where recusal would be appropriate. Fortunately, a whole host of lawyers, commentators, politicians (including those from Trump’s own party), and public officials are rushing to the judge’s defense. As they should: by all accounts, Judge Curiel is an outstanding public servant who literally put his own life in danger in order to make his country a safer place while serving as a federal prosecutor, and he’s doing exactly what a judge is supposed to do. Even Trump’s own lawyer says so.

So, what have we learned here? That one of the major party presidential nominees either doesn’t understand or doesn’t care about the legal system, while the judge he is publicly shaming certainly does. The public could use more public servants like Judge Curiel. And polls suggest that they know it

Posted: 6/8/2016 7:24:27 AM 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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