OTHERWISE: Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters

Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters by Alison Frankel (Reuters) – It’s always no…

Source: OTHERWISE: Lodestar rising? Calif. federal judges are opting for lodestar awards in megacases | Reuters

 

(Reuters) – It’s always notable when a federal judge presiding over a big class action slashes a fee request by millions of dollars – but I think there’s another story lurking beneath the dollar signs in an opinion issued Tuesday by U.S. District Judge Lucy Koh of San Jose.
Three plaintiffs’ firms that obtained nearly $170 million for artists and engineers whose job prospects suffered under an alleged no-poaching agreement among animation studios asked Judge Koh to award them $31.5 million for squeezing a $150 million settlement from Disney and Dreamworks. The judge instead granted them $13.8 million. She previously awarded $4.7 million in fees for a smaller classwide settlement, bringing the total fees for plaintiffs’ lawyers from Cohen Milstein Sellers & Toll, Hagens Berman Sobol Shapiro and Susman Godfrey to about $18.5 million.
Notably, Judge Koh’s award was based not on the recovery the firms won for class members but on their hourly billings. The firms wanted the judge to grant them 21 percent of the class recovery, which, they argued, is less than the 25 percent benchmark established by the U.S. Court of Appeals for the 9th Circuit. Judge Koh, however, applied the alternative lodestar approach.

OTHERWISE: Oregon Bar Dues Challenged on First Amendment Grounds

In Janus v. American Federation of State County and Municipal Employees  in a 5 -4 vote the United States Supreme Court struck an Illinoi…

Source: OTHERWISE: Oregon Bar Dues Challenged on First Amendment Grounds

 

In Janus v. American Federation of State County and Municipal Employees in a 5 -4 vote the United States Supreme Court struck an Illinois law requiring public employees represented by an AFSCME local to pay “agency fees” to the union for its representation which protected the interests of all bargaining unit members.  The majority rejected that argument – holding that union advocacy on matters such as state budgets was political speech which the objecting members could not be compelled to “subsidize”.

Now two Oregon lawyers are objecting to the fees charged by the Oregon State Bar to which they are obligated by statute to contribute.  In their complaint Diane Gruber and Mark Reynolds object to a statement by the State Bar denouncing “White nationalism”.  I would vote for that statement every day if it were offered before the voluntary New Jersey State Bar Association of which I have been an active member for thirty years.  But the Oregon State Bar is not a voluntary organization for lawyers who want to practice in the State.  So though Gruber and Reynolds may have ideological views I find abominable, they do seem to have grounds for their complaint relying on Janus. – gwc

Avvo Legal Services To Be Shut Down | LawSites

Below is the best account I’ve found of the decision to close the AVVO attorney referral business.  In half a dozen states private bar or state bar committees had ruled against the company’s business model.  They found that the “advertising fee” structure – which went up as the legal fee rose -constituted illegal fee sharing or referral fees to non-lawyers. In New Jersey the Supreme Court’s Advisory Committee on Professional Ethics (on which I serve) responded to an inquiry by the private New Jersey State Bar Association.  Although we found AVVO in violation we cleared Legal Zoom as a lawful referral system.   In contract to AVVO’s demise Legal Zoom – in the New York – New Jersey region at least – is advertising heavily. – gwc

Source: Avvo Legal Services To Be Shut Down | LawSites

 

Legal directory Avvo is shutting down its controversial Avvo Legal Services, a service that provides fixed-fee, limited-scope legal services through a network of attorneys.

Internet Brands, the company that acquired Avvo last January, has decided that the service does not align with its business and focus, according to a letter sent by B. Lynn Walsh, Internet Brands’ executive vice president and general counsel, to the North Carolina State Bar last month.

At Internet Brands, we are focused on our users, and making sure we provide them with accurate, and consumer-friendly information to help them navigate the difficult tasks of identifying and hiring lawyers. As part of our acquisition of Avvo, we have evaluated Avvo product offerings, and adjusted the Avvo product roadmap to align more comprehensively with our business and focus. Accordingly, we have decided to discontinue Avvo Legal Services. The discontinuation began this month, with completion expected by the end of July.

News of the shut-down was first reported last week on the Responsive Law blog, which also published the full text of the letter. Gabrielle Orum Hernández also had details at Legaltech News today.

The service had generated controversy within the legal profession. A spate of ethics opinions had concluded that lawyers may not participate in Avvo Legal Services. Within the last two years, eight states have issued such rulings: New YorkOhioPennsylvaniaSouth CarolinaNew JerseyUtahVirginia (pending Supreme Court approval), and Indiana.

Another state, North Carolina, drafted a proposed opinion approving participation in Avvo Legal Services, but the draft was sent back for further study.

Last month, as I reported here, the Illinois Attorney Registration and Disciplinary Commission published for comment its report that recommended loosening rules on attorneys’ participation in for-profit referral services such as Avvo Legal Services. Loosening the rules would help Illinois address the unmet legal needs of poor and moderate-income individuals in the state, the study said.

 Justice Kennedy – vassal to Lord Trump?

by George Conk

Shock and alarm followed the resignation of  Associate Justice Anthony Kennedy.   He created a vacancy that Donald Trump could fill before the fall mid-term elections that could bring a Democratic Senate majority.  Kennedy vaporized liberal illusions that he might hold out precisely to preserve the possibility that a moderate might succeed him after the November mid-term elections.

 As he left Kennedy again joined the 5-4 conservative majority this time in  Janus v. AFSCME eviscerating the finances of public employee unions, and  in Trump v Hawaii approved the President’s ban on travel from five Muslim majority countries, with North Korea and Venezuela thrown in to blunt the accusation of religiously motivated discrimination.
Suspicion soon began to mount when the retiring Associate Justice addressed his letter to”My dear President”.   Like a vassal seeking leave of his Lord Kennedy displayed a personal familiarity with the President who has waged a relentless attack on the justice system – courts, investigators, and prosecutors.   How could the Justice known as an apostle of civility  leave a clear path for a lawless vulgarian to replace him with an even more hardline justice than himself?

 

Source: OTHERWISE: Justice Kennedy – vassal to Lord Trump?

 

AVVO Ethics Bar Stands: New Jersey Supreme Court

Supreme Court Won’t Take Up Avvo Ethics Case

An opinion by New Jersey legal ethics authorities that deemed Avvo off-limits to lawyers in the state will not be reviewed by the state Supreme Court.

In an order dated June 1 and obtained by the Law Journal on Monday, the court denied a petition for certification by Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals.

The organization, called Responsive Law for short, had asked the court to review the June 2017 opinion, jointly issued by the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising and the Committee on the Unauthorized Practice of Law, which found that Avvo facilitates improper fee-splitting and may not be utilized by New Jersey lawyers.

Opposing the petition were the Attorney General’s Office, representing the committees, and the New Jersey State Bar Association.

Responsive Law executive director Tom Gordon said in a statement Monday that the court, “by summarily declining to review the decision … has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”

“According to the U.S. Supreme Court’s [North Carolina State Board of Dental Examiners v. Federal Trade Commision (2015)] decision, active supervision by a disinterested government agency is a prerequisite for antitrust immunity when policy decisions are made by market participants,” Gordon said. “The real losers here, though, are the people of New Jersey, who are being prevented from finding affordable lawyers online using the same tools they use to find doctors, babysitters, and mechanics.”

Now-former State Bar president Robert Hille, of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, filed a brief on behalf of the bar urging the court to pass on the case. The NJSBA issued a statement Monday from current president John E. Keefe Jr. of the Keefe Law Firm in Red Bank.

“The court’s decision to let stand the joint opinion is an important one that provides clarity for New Jersey lawyers and protects consumers,” Keefe said.

“The association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys,” he said, adding that the court’s denial of certification “has ensured that a client’s interests are paramount and that they are represented fairly and impartially by lawyers adhering to our long-established rules governing professional conduct and ethics.”

Representing the state was Deputy Attorney General Steven N. Flanzman. An email to an Attorney General’s Office’s spokesman didn’t get an immediate response Monday.

The June 21, 2017, opinion was issued in response to an NJSBA inquiry asking whether lawyers may “participate in certain online, non-lawyer, corporately owned services.” The inquiry named Avvo, LegalZoom and Rocket Lawyer specifically.

The shortcomings of LegalZoom and Rocket Lawyer could be fixed simply by registering with the state, the committees held. But they found ethical trouble with the very structure of Avvo’s “pay-for-service” programs. The opinion decreed that “New Jersey lawyers may not participate in the Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a nonlawyer in violation of Rule of Professional Conduct 5.4(a), and pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).”

According to the opinion, Avvo offers “Avvo Advisor”—through which customers buy 15-minute phone conversations with a lawyer for a $40 flat rate, of which Avvo keeps a $10 marketing fee—and “Avvo Legal Services,” which allows customers to pay flat fees to Avvo for legal services provided by affiliated lawyers, after which Avvo pays the lawyer but keeps a marketing fee.

“The participating lawyer receives the set price for the legal service provided, then pays a portion of that amount to Avvo,” the committees said. “The label Avvo assigns to this payment (“marketing fee”) does not determine the purpose of the fee. … Here, lawyers pay a portion of the legal fee earned to a nonlawyer; this is impermissible fee sharing.”

The opinion also held that marketing fees lawyers pay to Avvo are not for advertising but amount to an “impermissible referral fee” by the definition contained in RPCs 7.2(c) and 7.3(d), and Avvo’s practice of holding the lawyer’s fee until the service is provided violates an attorney’s requirement to maintain a registered trust account per Rule 1:28(a)-2.

 Believe the Autocrat – Greg Sargent – The Plum Line – WaPo

Believe the Autocrat  – The Plum Line – WaPo

Source: OTHERWISE: Believe the Autocrat – Greg Sargent – The Plum Line – WaPo

A year of Special Counsel Robert Mueller’s investigation has produced many indictments and a tsunami of leads.  The corruption is unapologetic and gross.
And now a full scale attack is underway on the Department of Justice and the FBI.  We are watching a slo-mo Saturday Night Massacre as prosecutors and investigators are called up on the Presidential carpet.  As the President declares : I hereby demand…” that those investigating him and his associates be themselves investigated.  ​The slo-mo judicial dismantling of the New Deal pales​ in comparison. [See Epic Systems – goodbye 8 hour day]
The above post by Greg Sargent relies on a recently published history of presidential control of the Department of Justice by my Fordham colleague Bruce Green and Rebecca Roiphe.  They write

This article addresses the question of presidential power principally from an historical perspective. It argues that the Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional or legislative mandate, but is rather based on an evolving understanding of prosecutorial independence and professional norms.

​We have a President whose ignorance of such norms is surpassed only by his contempt for them.​  And his political party has fallen in behind him with only meek dissent.
It is hard to conclude that there is anything more important to us as defenders of law’s integrity than the threat presented by Donald Trump.

How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

Source: OTHERWISE: How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

The furious tweets of Donald Trump that attorney client privilege is dead are repeated in the restrained language of his lawyers’ memorandum.

 As usual the best source of information is the primary source: the United States Department of Justice, whose memorandum (excerpted in the post above) explains how any documents protected by attorney client privilege will be handled.  In essence the process is to determine if documents seized  contain communications between attorney and client which relate to the representation. Confidentiality is protected – unless the communication is evidence of the attorney’s participation in a crime – in which case a judge’s review till be sought.  – gwc