Last summer, we wrote about the stinging benchslap that Judge Loretta Preska (S.D.N.Y.; pictured), the highly regarded Manhattan trial judge, administered to Cleary Gottlieb, the highly regarded Manhattan law firm. Judge Preska sanctioned the firm for what she viewed as the improper attempt by one partner to dissuade a witness from attending a deposition. At the time, Cleary announced its intent to appeal.

And appeal it has. Writes Anthony Lin, in the New York Law Journal:

It was a matter of honor that brought Cleary Gottlieb Steen & Hamilton to the 2nd U.S. Circuit Court of Appeals Wednesday morning. Several lawyers from the firm, led by managing partner Mark Walker, were present in the ceremonial courtroom of the Daniel Patrick Moynihan U.S. Courthouse.

A matter of honor. Will there be a duel? Guns all around, says SCOTUS.

Well, maybe not a literal duel. But Cleary's counsel, the distinguished Roy Reardon of Simpson Thacher, did mix it up with opposing counsel, Kevin Reed of Quinn Emanuel. As did the Second Circuit panel:

The 2nd Circuit judges asked [Reed] whether Kensington had been unreasonable in insisting that the deposition be held on Feb. 4 in Washington when a Paris deposition seemed a reasonable compromise.

"Everything would grind to a halt if lawyers couldn't accommodate each other," said Judge Miner.

"Everything would grind to a halt if everyone resorted to self-help as Cleary did here," Reed replied. He later added: "You don't go to the witness and say the sort of things [Cleary partner Jean-Pierre] Vignaud said, which can only have the effect of intimidating a witness and shaping his testimony."

So the alleged attempt by Cleary to dissuade a witness from attending a deposition arose out of a familiar dispute over depo location. Perhaps the parties should have taken a page from Judge James Nowlin's playbook, and taken it to midfield. Anyone up for a depo on a north Atlantic cruise ship?

Cleary Seeks Vindication in Appeal on Sanctions [New York Law Journal]

Earlier: Benchslap of the Day: Judge Preska Reprimands (Wait for It)... Cleary Gottlieb?

We didn't forget to do a post today about a career alternative for attorneys -- a job open to JDs who can't get or don't want to work as a law firm associate or contract attorney. Our latest featured gig: conflicts analyst.

What's a conflicts analyst? A tipster explains:

I worked in the Conflicts department at a large firm before and during law school. They hire people with JDs to review and resolve conflicts resulting from both general daily intake (partner in NYC wants to sue X and has no idea that partner in SF represents X) and from mergers (firm sued Y in 1999, but prospective new acquisition represents Y in all its patent work - is this a conflict? do we need waivers?).

What are the pluses and minuses of conflicts analyst work?

The hours are usually decent, depending on the firm and whether or not there are a lot of mergers going on. It depends on the firm, you may be treated with respect by the practicing attorneys, or you may be treated like annoying red tape between them and a big bonus.

If this potential path interests you, read more after the jump.

Apologies for the downtime. We were off being interviewed by CNN Headline News about the controversy surrounding Chief Judge Alex Kozinski of the Ninth Circuit. We'll post a link to the interview if and when it becomes available.

Speaking of Chief Judge Kozinski, here's the latest news:

The 9th Circuit judge, who posted sexually explicit material on his own site, according to a Los Angeles Times story yesterday, has just released this statement:

I have asked the Judicial Council of the Ninth Circuit to take steps pursuant to Rule 26, of the Rules Governing Judicial Conduct and Disability, and to initiate proceedings concerning the article that appeared in yesterday's Los Angeles Times. I will cooperate fully in any investigation.

Is it unusual for a judge to call for an investigation of himself? Sure. But it's a testament to Chief Judge Kozinski's integrity and forthrightness; he's not trying to hide anything underneath his robe. This is a smart move, a lesson in good crisis management.

Kozinski Calls for Investigation of Himself [WSJ Law Blog]
Judge wants panel to investigate his porn postings [Associated Press]

Judge Elizabeth Halverson has graced stomped through these pages many times before. But this is her first appearance of 2008. The LA Times recounts some Halverson highlights:

Her former bailiff said he was forced to heat and serve her lunch, check the temperature of her ice water, brush lint from her robe, help her put on her shoes, massage her neck and cover her with a blanket before her nap.

An assistant said Halverson, of the 8th Judicial District Court, made her answer questions -- under oath -- about courthouse gossip.

She's been stripped of her criminal cases. She has been suspended with pay. She has a hearing this month that may result in her being removed from the bench. But she's STILL running for reelection. We apologize to Halverson fans out there, but we will not be running a "Re-Elect Halverson" campaign, even if she does provide great blog fodder...

Halverson also referred to her husband as "Evil Ed," her former bailiff testified, and told Jordan to "pull out your gun and shoot him."

"I'll dispose of the body," Jordan quoted the judge as saying.

Halverson's newer staffers told commissioners she acted respectfully and professionally. But commissioners said that didn't excuse her treating Jordan and others in a "truly bizarre and inappropriate manner."

Two people are challenging the suspended judge in the August election. Halverson said she entered the race because community members encouraged her to hold onto her judgeship.

"Do I think the public will see the truth about me?" she said. "Yes, I do."

The truth is out there. I mean, seriously, how could she dispose of her husband's body? She is a LARGE woman, with an oxygen tank, who can't even get her own nap-time blanket. She was making a joke. Obviously.

Update: A commenter sent us to this bizarre kid-sploitation reelection video.

Judge Elizabeth Halverson courts trouble in Las Vegas [Los Angeles Times]

Some of you took the MPRE recently -- and we're gathering, from your comments, that you'd like a place to talk about it. Here is an open thread.

To be totally honest, we're not really sure how much there is to say about the MPRE. It's not a super-difficult test, and it hasn't exactly achieved the mythical status of the bar exam as a rite of passage for aspiring lawyers.

But perhaps you'll surprise us. Back in December, an open thread on MPRE results generated over 200 comments. So maybe there's more to say about the MPRE than one might think.

Multistate Professional Responsibility Examination (MPRE) [National Conference of Bar Examiners]

Earlier: MPRE Results Are Out: Open Thread

Pity the poor partners of McDermott Will & Emery. Sure, their firm is highly regarded and highly profitable. But when they head off to try cases in far-off places, they often get benchslapped silly.

You may recall the case of bankruptcy partner William Smith, who found himself in the deep-fat fryer after telling a judge she was "a few French Fries short of a Happy Meal." Although the judge was upset, in the end Smith got a slap on the wrist.

Things didn't end as happily for Terrence McMahon and Vera Elson, MWE partners based in Silicon Valley. Judge Richard P. Matsch -- the tough, well-regarded trial judge who presided over the Oklahoma City bombing case -- sanctioned McMahon and Elson for "cavalier and abusive" misconduct and a "what can I get away with?" attitude during trial. From the Denver Post:

A federal judge recently got so infuriated by the conduct of two highly regarded trial attorneys that he overturned a jury's $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars.

Ouch. So is that coming out of their partnership draws?

Or maybe the firm will find other ways to cut costs. Read more, after the jump.

Update: Please note that this post has been corrected since it was first published. The correction appears after the jump.

The men pictured above are not gay lov-ahs. But their relationship may be too close for comfort. On the left: Chief Justice Elliott E. Maynard, of West Virginia, and today's Judge of the Day. On the right: Don L. Blankenship, chief executive of Massey Energy. The setting: exotic Monaco.

From a piece by Adam Liptak in today's New York Times:

A justice of the West Virginia Supreme Court and a powerful coal-company executive met in Monte Carlo in the summer of 2006, sharing several meals even as the executive’s companies were appealing a $50 million jury verdict against them to the court.

A little more than a year later, the justice, Elliott E. Maynard, voted with the majority in a 3-to-2 decision in favor of the coal companies.

Insert West Virginia joke here.

Justice Maynard, who is now West Virginia’s chief justice, and Don L. Blankenship, the chief executive of Massey Energy, were “vacationing together,” according to a motion seeking Justice Maynard’s disqualification, which was filed on Monday.

A spokesman for Massey Energy disputed that characterization.

“Both Blankenship and Justice Maynard were separately vacationing in the Monte Carlo area,” said the spokesman, Jeff Gillenwater. “They were not vacationing together. They did meet occasionally for meals — lunches and dinners.”

And maybe on other occasions, too?

The motion included photographs showing the men together. The time stamps on the photographs, apparently taken by someone who had joined the men during their time together, indicated that they met on July 3, 4 and 5, 2006....

Ten of the photographs attached to the motion were filed under seal. They showed, the motion said, “two females apparently traveling with them as companions.” The men are single.

Motion Ties W. Virginia Justice to Coal Executive [New York Times]

Municipal court is not exactly the pinnacle of judicial office. But we think that Colleen Hartl, until recently a (rather attractive) municipal court judge in Washington state, is still a worthy Judge of the Day. From the AP:

A Federal Way [that's a WA city name] Municipal Court judge has resigned after hosting a holiday party at which she claimed to be having an affair with a public defender who routinely appeared in her court.

Judge Colleen Hartl quit Dec. 19, less than a week after telling her guests -- including five court employees -- that she had sex with public defender Sean Cecil and displaying a text message in which he complimented how she looked in "tight jeans," Michael Morgan, the court's presiding judge, said Wednesday.

So she's proud about how good her butt looks in tight jeans. What's so wrong with that?

Even after admitting the affair at the Friday night party, Hartl showed up for work the next Monday morning and presided over several cases handled by Cecil, Morgan said. At lunchtime that day, Morgan -- who attended the party but left before Hartl's admission -- was advised of the relationship by a court staff member who witnessed the statement. Morgan suggested that Hartl not sit on any cases that afternoon, and she resigned two days later.

Judge Hartl, we like your style.

Update: More here from Federal Way News.

Federal Way judge quits; talked of affair with lawyer [Seattle Post-Intelligencer]
Affair with lawyer linked to judge's resignation [Federal Way News]

This next story is not new; it was reported last year by CBS. But we have an update to bring you, via YouTube, which is why we're revisiting it.

For those of you who missed it, here's a quick recap:

[A] woman was referred to a lawyer to represent her in a car accident case. But what she experienced in the meetings with that 72-year-old attorney later led her to file a formal criminal complaint with the NYPD....

The 47-year old woman -- who has asked CBS 2 not to reveal her identity -- claims that during her initial visit to lawyer Allen Isaac, he asked her for oral sex as part of his fee for taking her personal injury case.

"He said I'm going to want oral sex from you. I'm going to want it twice before the case begins, then I'm going to want it every week after if I get you a very good result," she said.

Now that's what we call a "success fee."

More discussion, plus the recently uploaded YouTube clip, after the jump.

To our surprise, yesterday's open thread on the MPRE generated over 200 comments. Who knew that this topic would incite such interest?

Since you're all so interested in talking about the MPRE, here's more. A reader sent us a long but entertaining story about the test -- which you can read in full, after the jump.

(We realize this is old news, but we're declaring this Remedial Blogging Day at ATL. We have a few other slightly stale stories that we may write up later today, if it continues to be a slow news day.)

Judge Harold Baer (S.D.N.Y.) was once nominated as a hottie of the federal judiciary. Alas, he didn't win.

But in a competition for hotheadedness rather than hotness, Judge Baer might fare better. From a very interesting article by Anthony Lin in the New York Law Journal:

A Manhattan federal judge has delivered a lengthy manifesto against declining civility in the legal profession in the course of sanctioning law firm Dorsey & Whitney and two of its partners.

Southern District of New York Judge Harold Baer opened his 129-page decision with a discussion of how "naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result."

He ended it with his observation that "partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable hours is not only the alpha and omega of bonuses but that these hours -- or at least the ones that count -- often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession."

Usually when a federal judge tears you a new one, you just grin and bear it. Or maybe go out and buy some Preparation H.

But the lawyer who was the subject of Judge Baer's ire actually struck back. Read more, after the jump.

Congratulations to everyone who passed the MPRE. Results were made available online earlier this afternoon.

As for those of you who failed, we could subject you to some good-natured ribbing in these pages. But we will refrain.

Instead, we're delegating that task to the commenters, on this open thread. As one reader noted in an email, "people love comparing scores and condescending to, or commiserating with, those who failed."

The MPRE: Multistate Professional Responsibility Examination [official website]

Despite her attractiveness, Judge Cheryl Aleman is not our favorite Floridian judge. That honor would have to go to Judge Mary Barzee Flores (with Judge Ursula Ungaro a close second).

But Judge Aleman still sounds pretty delish. Tomorrow she goes on trial before the state’s judicial ethics commission. From the Daily Business Review:

In February, the JQC [Judicial Qualifications Commission] filed formal charges against Judge Aleman for incidents when she:

• Threatened to hold two assistant public defenders in contempt in a first-degree murder case for not filing a motion quickly enough.

• Held a contempt hearing for a defense attorney when she knew he was out of town, and then sentenced him to 60 days in jail for missing two hearings.

• Refused to release a man allegedly dying of AIDS from jail and then issued an order releasing him once a negative article was published about the incident.

• Served on cases involving a defense attorney with whom she had conflicts.

A little bit more, after the jump.

In our earlier post about the recusal motion filed by one Robert Seitz -- a Florida pro se litigant seeking recusal of Judge Mary Barzee Flores, claiming that he once received a pre-judicial BJ from Her Honor -- we noted that his claims were mere allegations.

We expressly disclaimed any independent knowledge of his claims. We were simply passing along allegations made in a publicly filed court document -- which, by the way, has circulated widely via email. (It was forwarded to us by maybe half a dozen different tipsters.)

Now we bring you Judge Barzee Flores's side of the story. From an omnibus order filed in the case, denying Seitz's motion to recuse:

You can read the full order, after the jump.

Earlier: Legal Ethics Question of the Day: If the Court Has Gone Down on You, Is Recusal Required?

We reiterate what we observed yesterday: "When it comes to generating ATL material, the University of Miami School of Law tops the rankings."

It appears that the undergraduate school at UM also sees its fair share of shenanigans. Check out this motion to recuse (PDF), which has been making the rounds by email. It involves one UM alumnus seeking the recusal of a former college classmate, now on the state bench.

Pro se plaintiff Robert Seitz asks Judge Mary Barzee Flores (at right), of Florida's Eleventh Judicial Circuit, to recuse herself from hearing his case. The grounds for recusal are, er, interesting. Here's what he alleges (alleges -- we've undertaken no independent investigation of his claims):

You can read the entire motion by clicking here (PDF).

Update: For Judge Barzee Flores's response to these allegations, in her ruling on the motion to recuse, click here.

Seitz v. Bareille: Motion to Recuse [PDF]

* Professor Eugene Volokh wonders: Does engaging in a three-way with a current client and the client's girlfriend count as having sex "with a current client" -- a practice forbidden by state bar rules? [Volokh Conspiracy]

* Professor Ann Bartow wonders: Why call it "law porn"? [Feminist Law Professors via Blawg Review]

* Paralegal of the Day? [TPM Muckraker]

* A way for that Cleary Gottlieb Glamour editor to earn some extra cash on the side? [City Room]

* "Law school grads: burnt by the job search process? A journalist wants to hear about it." [JD Underground]

Tomorrow is a very big day for almost 20 California lawyers. From Blogonaut:

A federal district court has ordered 14 California lawyers to explain why they should not be sanctioned for their “exceptional misconduct” on behalf of Qualcomm in a lawsuit that the San Diego wireless company lost. All of the lawyers subject to the order were from the Cupertino law firm of Day Casebeer Madrid & Batchelder or the Heller Ehrman law firm's offices in Menlo Park and San Diego, the San Diego Tribune is reporting.

Five additional lawyers have been drawn into the proceedings since the order was issued, so the fate of 19 attorneys rests on the outcome of an October 12, 2007, 9:30 a.m. hearing before U.S. Magistrate Barbara Major, the newspaper reports.

We previously wrote about the underlying discovery snafu over here.

Both Heller Ehrman and Day Casebeer have been the subject of gossip recently. Last month, Heller Ehrman was rumored to be carrying out staff layoffs in California (believed to affect up to 90 people). If you know anything about this, please email us.

Update: Oops, sorry, don't know how we missed this article from The Recorder, reporting on Heller axing 65 administrative staff positions nationwide. No attorneys were laid off.

As for Day Casebeer, rumor had it that they were rescinding offers to incoming associates. But it appears that this was inaccurate, as rumors sometimes are. When we contacted the firm, they had this comment:

We are delighted that eight new associates will join us this Fall and that two have already started work. It's a record class for us. Far from rescinding any offers, we remain very interested in resumes from others interested in joining our practice.

Especially if you're experienced in electronic data discovery.

Federal Court Brings Written Charges of “Exceptional Misconduct” Against 14 Lawyers [Blogonaut]
19 lawyers face sanction hearing [San Diego Union-Tribune]
Recovered Emails Bedevil Qualcomm in Court [Wall Street Journal]
Heller Says Slowdown Not Behind Layoffs [The Recorder via Law.com]

Earlier: Benchslap of the Day: The Qualcomm Debacle

Pro bono work is near and dear to your hearts. When we posted an open thread on the subject last month, it generated a slew of comments. Like this one:

I was actually told by the partner I worked for at my firm, in no uncertain words ... "If you have time to spend on matters that firm isn't collecting fees for, then you have time that I can be giving you more work that you should be collecting fees for." And that was my official talk on our "pro bono policy."

Well, who says that fee-earning work and pro bono work are mutually exclusive? From the Seattle Times:

Lawyers at Davis Wright Tremaine didn't charge a parent group for seven years of work on a U.S. Supreme Court case against Seattle Public Schools: They took the case pro bono.

But now that the firm is trying to collect $1.8 million in legal fees from the school district, several national legal experts say the term — technically, "pro bono publico," meaning "for the public good" — may no longer apply.

The firm's effort has put a local lens on a national debate: If attorneys get paid for pro bono work, is it still pro bono?

The full article, which lays out both sides of the argument, is quite interesting. You can check it out here.

Some argue that financially strapped school districts shouldn't have to shell out millions of dollars to line the pockets of law firms. But others argue that making them pay fees will discourage them from violating rights in the future (and that the law firms can donate the fees to charity). Thoughts?

Billing in "pro bono" cases is fodder for ethics debate [Seattle Times]

Earlier: Biglaw Perk Watch: Pro Bono Work

Just like Justice Anthony Kennedy, Bankruptcy Judge Paul J. Kilburg (S.D. Iowa) does his own internet research. This is a lesson that Peter Cannon, Esq., learned the hard way.

From TaxProf Blog:

Mr. Peter Cannon, a West Des Moines, Iowa attorney, represented Defendant John Petit in an adversary proceeding initiated by Trustee to uncover assets of the Theodore Burghoff bankruptcy estate....

After reading both briefs filed by Mr. Cannon, and concluding that both contained an extraordinary amount of research, the Court directed Mr. Cannon to certify the author or authors of the two briefs. On December 22, 2006, Mr. Cannon certified that while he had prepared both briefs, he had "relied heavily" on an article written by others. The article upon which Mr. Cannon relied is Why Professionals Must Be Interested in "Disinterestedness" Under the Bankruptcy Code, May 2005, ("the Article") by William H. Schrag and Mark C. Haut, two attorneys of the New York office of Morgan, Lewis & Bockius LLP. The Court located this article on the internet. Mr. Cannon fails to acknowledge or cite this article in either brief.

To be sure, our job involves heavy use of ctrl-C and ctrl-V. But what Mr. Cannon did -- "seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article" -- went a bit far.

You can find out how much Mr. Cannon charged his client for this plagiarism, and what happened to him next, over here (TaxProf Blog) and here (Volokh Conspiracy).

Judge Orders Attorney to Take Professional Responsibility Course [TaxProf Blog]
Attorney Sanctioned for Plagiarizing Article in His Brief [Volokh Conspiracy]
In re Burghoff [U.S. Bankruptcy Court for the Southern District of Iowa]

Judge Loretta K. Preska (S.D.N.Y.) has it all: a lifetime appointment to the federal bench, a rich husband, and killer shoes.

As well as, it appears, no patience for lawyers who play fast and loose with the rules. From the WSJ Law Blog:

Cleary Gottlieb conjures images of Ivy League bookishness and international savoir faire, not bare-knuckled litigation tactics. But last week a federal judge sanctioned the firm and found them to have acted in bad faith. “Civil litigation is not always civil,” began a ruling by Loretta Preska, a federal judge in Manhattan. Here’s the opinion (PDF).

The judge concluded that Cleary tried to dissuade a witness from attending a deposition, in part because of a concern the witness would testify adverse to the firm’s client. Preska ordered Cleary to pay the plaintiff’s attorneys fees and costs ─ an amount to be determined ─ and ruled that “the sanction is imposed as a formal reprimand and should be circulated to all attorneys at Cleary.”

And Cleary partner Jean-Pierre Vignaud was ordered to write "I will not interfere improperly with the discovery process," five hundred times, on a dry-erase board in a firm conference room.

Cleary Gottlieb -- which, by the way, picked fellow white-shoe law firm Simpson Thacher to represent it -- said in a statement that it intends to appeal.

Judge Sanctions Cleary: “Civil Litigation Is Not Always Civil” [WSJ Law Blog]
Kensington Intl., Ltd. v. Republic of Congo [WSJ Law Blog (PDF)]