Mark Dubois ()
Many folks ask me how I manage to come up with subjects to write about. My response is I wish I had more time, because I could do this full time. In fact, there’s really too much to cover every few weeks in just 750 words. Here’s some of what has come in since my last column:
The Citizens’ Ethics Advisory Board recently adopted a recommended decision on whether UConn football coach Randy Edsall violated the state code of ethics when he negotiated the hiring of his son to a $95,000 contract as an assistant coach. I got a call from the press for some commentary (I guess a lawyer ethics guy was next best to finding a state ethics guy) but demurred because I wanted to study the case before I shot my mouth off.
Analysis hinged on whether Edsall the junior donned the mantle (and assumed the responsibilities) of a state employee when he received the letter appointing him to the job, or if he became an employee on his official “start date.” There was a week or so between the two dates, and that’s the period in which he negotiated the contract — something clearly prohibited by state employees, but fairly common for prospective hires at colleges and universities. Board lawyers argued that no one would think he could engage in other prohibited activities such as taking gratuities during the lacuna, so why would it be OK to violate the self-dealing and nepotism rules? If you’re going to focus on the spirit of the law instead of the letter, it was a clever (and winning) argument. The code of ethics, it was determined, had been violated, and the younger Edsall’s term of employment was limited to one year.
A secondary issue was whether Edsall could properly supervise the football program when his own son was part of the pool of employees answering to him and competing for advancement. The commission lawyers recounted an encyclopedic history of other coaches’ sons following their dads into the “family business,” apparently without harm. When I taught legal research and writing, that was exactly what I stressed was necessary for lawyers to do if they were going to be effective in their writing and argument—add context and history to otherwise technical legal analysis. Interestingly, although what Edsall did was apparently not unusual, opposing lawyers argued that didn’t make it right. Another winner.
A different topic that has, as it does every few years, bubbled to the surface was allowing nonlawyers to invest in law firms. Apparently, in England and Australia, where this is allowed, more firms are going this way. Though there was one hiccup with a big firm which squandered its initial offering proceeds on ill-considered expansion early on, many others are now finding this to be a sensible way to finance law practices.
As expected, stateside commentators, especially in the ABA, predict that this will never happen this side of the Atlantic, even though it is already allowed in Washington, D.C. They argue that duties to stockholders and clients are so at odds that lawyers should never venture into the conflict maze. The idea is that when push comes to shove, lawyers will always choose stockholders over the clients. Others, writing about the phenomenon of nonlaw firm corporations “going private” to evade public scrutiny of sketchy management practices, suggest that public stock ownership promotes honesty and law-abiding conduct. I understand that where nonlawyer ownership is allowed, the idea is lawyers will more likely follow the law when they have to explain their conduct to lay stockholders in public fora than their own partners in closed firm meetings. I think they’re right. If I have time, I may send in a proposal to repeal some or all of Rule 5.4 this fall.
Finally, I just saw a report that a firm doing IP work is now using AI-equipped computers to conduct patent reviews. I believe there are already programs that review corporate contracts for mergers and acquisitions, looking for provisions that might be triggered by change of ownership. This is going to become more common in other areas, which does not bode well for young associates who used to be saddled with this boring—though lucrative—work. Unfortunately for them, I don’t think this tide can be reversed. The programs that these firms are using are readily available to their clients, who will just bring this work in-house. Firms are either going to either have to be able to do this work cost-effectively or lose it. What they’re going to have these overpriced first- to third-years do is anyone’s guess.
No, there’s no shortage of interesting stuff happening in law and law firms. No shortage at all.