f/k/a archives . . . real opinions & real haiku

My deliberations were short, however. Although both f/k/a and fka have / / / . .

been used to denote “formerly known as,” I am definitely keeping “f/k/a,”

it is the preferred and customary legal usage, and the

original form of this handy term (being born in an era

era that was far less addicted to acronyms)

it was first chosen by me precisely so that I would stop

changing the name of the website

it does not cause confusion between us and Australia’s

What cinched the retention of f/k/a, however, was my Googling of

of the term “fka”. Among the first few results was an organization

known as The Federation and Klingon Alliance . Sorry, but Walter

Olson is more likely to call his site ATLA : Arrest Them Lawyers

Association, than I am to share an acronmyn with the dudes at

“tinyredcheck” Donald at All Deliberate Speed and Mike at Crime & Federalism have

been pondering a much more important issue: how should your career

choice within the law relate to your professed philosophical, religious

or political beliefs about serving the “least of your brethren” or creating

a better society? This is a topic that deserves much more thought

and time than I can give to it today. I will say, however, (1) that far too

many members of our profession on the right and left — despite their

purported beliefs and willingness to readily condemn the actions of

others — seem to give no thought at all to the effects of their advocacy

and their labors; and (2) it is far harder to practice law ethically in a profit-

driven law practice, representing profit-driven clients, than in “public”

interest” practices; and I greatly admire private practice attorneys

who manage to do so.

Ethan Lieb at Prawfsblog asks whether a weblogger has ethical

duties related to posting about topics that he or she is treating in an

amicus brief. Also, John Steele at Legal Ethics Forum asks more

broadly about ethical obligations of lawyers who write amicus

briefs. You editor-provocateur left the following question at each

“What about an ethical responsibility to tell the client

that amicus briefs have almost no bang for the buck?

They are mostly ignored and very rarely have any impact?”

(see, e.g ., the recent remarks of Justices Ginsberg amd O’Connor)

Shouldn’t a lawyer make sure a client is fully aware of this reality, even

if the client initiates the idea of using an amicus brief? What else does

giving independent advice, free of self-interest, and putting the client’s

interests first, mean?

The American Antitrust Institute held a legislative briefing on

May 23, 2005, on the implications of the two pending telecom mega-

mergers, on future competition, with emphasis on the issues raised by

the digital revolution. There have been quite a bit of press coverage:

e.g., Washington Times/UPI , Telecom Merger Opposition Grows, May

24, 2005; National Journal , “Analyst Says Telecom Mergers Pose

Serious Threat to Competition”)

window view —

and one blooming lilac bush

leaving her place —

you’d give a friend

[May 26, 2005]

blowCandles

4 Comments

  1. David,
    Why do you assume that lawyers don’t tell clients that amicus briefs typically carry very little weight? Or that lawyers charge full freight for filing amicus briefs. I am aware of many attorneys who will cap fees for an amicus or adhere to a strict budget.
    Also, many times, I think that amicus briefs are driven by client demands and not those of their attorneys. For example, many clients (particularly trade associations) file amicus briefs not so much to ensure a specific result but to get “face time” on an important issue and give voice to members’ interests. The amicus thus gives the group another way to promote its members’ interests. That may be waste of the trade association’s money, given the chances of the amicus brief helping. And while a lawyer can certainly advise that an amicus won’t help, I don’t think that a lawyer is obligated to talk a client out of spending money on an amicus brief when the client believes it will help the organization’s cause. That’s a little too paternalistic in my view. Comment by Carolyn Elefant — May 26, 2005 @ 9:56 pm
  2. David,
    Why do you assume that lawyers don’t tell clients that amicus briefs typically carry very little weight? Or that lawyers charge full freight for filing amicus briefs. I am aware of many attorneys who will cap fees for an amicus or adhere to a strict budget.
    Also, many times, I think that amicus briefs are driven by client demands and not those of their attorneys. For example, many clients (particularly trade associations) file amicus briefs not so much to ensure a specific result but to get “face time” on an important issue and give voice to members’ interests. The amicus thus gives the group another way to promote its members’ interests. That may be waste of the trade association’s money, given the chances of the amicus brief helping. And while a lawyer can certainly advise that an amicus won’t help, I don’t think that a lawyer is obligated to talk a client out of spending money on an amicus brief when the client believes it will help the organization’s cause. That’s a little too paternalistic in my view. Comment by Carolyn Elefant — May 26, 2005 @ 9:56 pm
  3. Carolyn, you’re doing the assuming, not me. I’m just pointing out the duty to inform the client of reality: it is the rare amicus brief that makes a difference — I’m not saying no lawyers inform their clients, but I’m also pretty sure that some lawyers do not, and that some who don’t are the ones who broach the subject of filing an amicus with the client. Once the lawyer gives a full, frank disclosure, with good-faith estimate of impact, of the value of “face time” and “showing the flag,” etc., and of cost, it should certainly be up to the client to decide.
    Let’s also remember that amicus briefs impose “costs” on courts and the other parties. Perhaps we should be asking when it is frivolous to suggest that a court’s deliberations would be aided in any colorable way by a particular amicus brief. Comment by David Giacalone — May 26, 2005 @ 11:35 pm
  4. Carolyn, you’re doing the assuming, not me. I’m just pointing out the duty to inform the client of reality: it is the rare amicus brief that makes a difference — I’m not saying no lawyers inform their clients, but I’m also pretty sure that some lawyers do not, and that some who don’t are the ones who broach the subject of filing an amicus with the client. Once the lawyer gives a full, frank disclosure, with good-faith estimate of impact, of the value of “face time” and “showing the flag,” etc., and of cost, it should certainly be up to the client to decide.
    Let’s also remember that amicus briefs impose “costs” on courts and the other parties. Perhaps we should be asking when it is frivolous to suggest that a court’s deliberations would be aided in any colorable way by a particular amicus brief. Comment by David Giacalone — May 26, 2005 @ 11:35 pm

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