Alabama House approves setting experience requirements for judges – [Editorial]
The Birmingham News
February 23, 2009
THE ISSUE: Once again, the Alabama House of Representatives has passed a bill to set minimum requirements for judges. Now, the Senate needs to act.
Members of Alabama's House of Representatives clearly see the need to require a certain level of legal experience for those who would sit in judgment in our state courts.
Last year, the House passed the judicial qualification bill 98-0. This year, it got even more House support, winning this past Tuesday on a 99-0 vote. Now, all that's needed is to get it through the Senate. Fortunately, success seems more likely this year than last, when senators' infighting doomed all but a handful of bills.
In the case of setting these new qualifications for judges, Senate action would be a good thing. There's no good reason to say no to this legislation.
If passed, the bill would require anyone sitting on a state appeals court - the Supreme Court and the lower Court of Civil Appeals and Court of Criminal Appeals - to have been licensed as a lawyer for at least 10 years. It also would require circuit judges to have at least five years of experience as a licensed lawyer and district judges to have at least three years of experience.
Would this guarantee perfect judges? Of course not. Some of the characteristics of good judges have nothing to do with years of experience. Some lawyers won't be particularly qualified for a particular court after decades of experience, either because of the type of law they practice or because of their temperament. By the same token, some lawyers with very little experience become fine judges. Chief Justice Sue Bell Cobb comes to mind; she was barely out of law school when she began her long career as a judge.
Still, it's hard to imagine a scenario where a few years' worth of experience wouldn't make a lawyer with good judicial attributes an even better judge. While most of us understand the qualities that make for a good lawyer may not be exactly the same as the qualities that make a good judge, it just makes sense for those sitting on the bench to have at least some background in actually practicing law.
Small wonder that at least 30 states set at least some requirements for the legal experience of judges - some more restrictive than is proposed for Alabama, some less so. The list includes every state in the Southeast except Tennessee and North Carolina. Yes, even Mississippi requires judges have at least five years of experience as a licensed lawyer.
The theory is simple: Those with some practice under their belts are going to be better prepared to rule on the law and make sound decisions affecting the lives of citizens. They need the right foundation.
"It will provide the public with confidence that those seeking judicial office have the requisite experience to do the job," said the bill's sponsor, state Rep. Paul DeMarco, R-Homewood.
Alabama's House of Representatives gets it. Let's hope the Senate gets it, too.
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What's a good idea? – [Editorial]
February 22, 2009
Surely, there's some solution to the state's judicial campaigns.
Ultimately, a good idea is only as good as its chances of becoming reality. The idea that Alabama should find a way to appoint, rather than elect, its appellate judges is a good one. But only "good" until it runs smack into the political reality that state voters would never agree to such a change.
The issue arises because of an interesting debate in Birmingham last week between Tommy Wells, president of the American Bar Association, and 11th U.S. Circuit Court of Appeals Judge Bill Pryor. (Yes, that's the same Bill Pryor who was once Alabama's attorney general, and a pretty good one.)
According to The Birmingham News, Wells told the Birmingham chapter of The Federalist Society that partisan and expensive judicial races - such as those in Alabama - threaten the independence of the judiciary.
Pryor argued that having appellate judges appointed by a commission would be no better because the lawyers who in other states serve on such commissions often have their own agendas and interests in mind.
One irony here is that Pryor himself, as a federal judge, was not elected. He, like all federal judges, was appointed for life by the president, subject to confirmation by the U.S. Senate. If the appointment method works at the federal level (maybe it does, maybe it doesn't), why wouldn't it work at the state level?
Actually, it could work if governors appointed appellate judges, and, like their federal counterparts, they had to be confirmed by one or both legislative branches.
Alas, in Alabama partisan rivalries are so intense that the voters would never approve such a system. Nor, for that matter, would they approve giving up the right to elect appellate and other judges. In this state, political scientists have noted, the voters, when given a choice, will always opt to fill public office by election, not by appointment.
So even if what Wells claims is true, the chances of this "good idea" becoming public policy are zero or close to it.
But does this mean nothing can be done about runaway judicial races in Alabama? In 2008, for example, the spending in one state Supreme Court race reached $5.3 million. It's naive to think that those donors didn't expect to get something in return for their money.
Limiting campaign spending for such offices might seem wise, but it would run smack up against the First Amendment rights of donors to put their money where their mouths are. (That complaint is already raised when it comes to federal campaign-finance laws.)
Where we're left
Where does that leave us? Must we choose between two flawed approaches? Not necessarily. One option is the so-called Missouri plan, by which judicial offices are filled by appointment and then sent to voters for a second verdict later.
But for any such plan to succeed, Alabama's two major political parties and the interests they are often aligned with - labor and trial lawyers on one side, business interests on the other - would have to agree on something. And if they can't even agree a problem exists, it's unlikely they would agree on some solution.
The ABA's Wells is right: Alabama's judicial races are out of control. But Judge Pryor is right, too: No system is perfect. Even so, nothing prevents those concerned with the issue from sitting down and starting with those two different, but not necessarily contradictory, positions. Who knows - they might come up with something.
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Judges’ thin resumes - A bill to require some relevant background deserves passage – [Editorial]
The Huntsville Times
February 20, 2009
If the current session of the Legislature is like those of past years, a lot of bills will be discussed and considered - but most won't make it into law. Sometimes that's good. Sometimes it isn't.
Case in point: The Alabama House of Representatives on Wednesday approved on a 99-0 vote a bill that would require judges to have certain minimum experience before they could become judges.
The bill, sponsored by State Rep. Paul DeMarco, R-Homewood, appears identical to one DeMarco sponsored unsuccessfully last year. It deserved passage then, and it deserves passage now.
Under the proposal, a person who wished to become an appellate judge - that is, to serve on the state Supreme Court or the courts of Civil or Criminal Appeals - would have to be licensed to practice law for 10 years.
To serve as a circuit judge, five years' experience would be required. For a district judgeship, the minimum would be three years.
At the moment, any licensed lawyer (even if licensed for only one day) can serve in any judgeship, subject to the will of the voters. Some 32 states have stricter rules than Alabama.
It's not as if DeMarco's proposal is especially draconian. It doesn't spell out specific legal experience. It requires only a law license. Alabama, like other states, has people with law licenses who really don't practice law. While the bill doesn't go as far as it might, it's a start.
Even though the main argument is that judges ought to have some background relevant to the job, there are other considerations. One is the high salaries awarded to appellate judges.
The chief justice of the Supreme Court, for example, earns $196,000 a year, and judges on the other two appellate courts are paid $174,000 annually. These pay scales are significantly above the amounts earned for comparable posts in other states. (The average wage earner in Alabama makes about $35,000 a year.)
During the past few years, every judicial candidate - Republican or Democrat - who has visited The Times' editorial board has agreed with the need for a law spelling out sufficient legal experience. Those candidates include some judges and justices who, under such a law, wouldn't qualify if they were running today for the first time.
One would be hard-pressed to conjure up a reason in defense of the status quo. Sitting judges, after all, wouldn't be affected, only non-judges who run for judgeships in the future.
If the Senate can put aside its usual obstructionist tendencies, DeMarco's bill deserves a spot near the top of the agenda - and a solid Senate vote to pass it into law. The credibility of the entire judicial branch of government is at stake.
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Who’ll pay for a 7th judge? Lawmakers wary of cost of adding a new circuit judge
By BOB LOWRY, The Huntsville Times
February 20, 2009
MONTGOMERY - Because of the state's budget problems, Madison County lawmakers said Thursday they're leery of supporting a bill that would add a new circuit judge for the county.
They want assurances that the Alabama Judicial System will pick up the tab for the judgeship after the Madison County Commission pays for the first year.
In a Feb. 10 address to a joint session of the Alabama Legislature, Chief Justice Sue Bell Cobb specifically mentioned the need for a seventh circuit judge in Madison County. In her speech, Cobb endorsed the legislation as part of the judiciary's legislative agenda. She noted that Madison County, which has the highest caseload per judge in the state, will continue to grow because of BRAC.
But the Legislature is waiting to see in detail exactly how much money Alabama will receive from the federal stimulus package before writing the 2009-10 budgets.
Bills to add a judge for Madison County were introduced in the 2008 session in the House and Senate, but both died in committee.
Rep. Laura Hall, D-Huntsville, has reintroduced the bill this year, but she said Thursday she wants to see how the budget process develops before moving the bill out of the Madison County Local Legislation Committee. That committee is scheduled to meet March 4.
One of the bill's co-sponsors, Rep. Butch Taylor, D-New Hope, said Thursday he's now undecided on his support for the bill because of the uncertainty over funding.
"That's probably where everybody stands," he said. "It's a great idea for the commission to come in and say they'll pay it for one year and we can get rid of a lot of workload.
"But at the same time, we come back the year after that and have to add a salary and benefit. The question is where does that money come from, especially in the economic situation we're in now."
Hall said she agreed with Taylor that the chief justice would have to make sure the money would be in the Alabama Judicial System's budget for the second year.
Sen. Arthur Orr, R-Decatur, who represents part of Madison County, and Rep. Mac McCutcheon, R-Capshaw, said they support the bill.
The average annual workload for circuit judges in Alabama is about 1,200 cases, but the average caseload for Madison County circuit judges is more than 2,500 cases, according to the state bar. Madison County has not received a new circuit judge since 1974, and the number of cases filed in the past 10 years has more than doubled to nearly 10,000.
Forty-two active judges and 26 retired judges have been helping Madison County judges in dealing with the case overload, according to Cobb.
"We're having to run in part-time judges just to keep the docket going," McCutcheon said. "We're trying to see if we can move the bill along and trying to get some kind of agreement from the chief justice to be supportive."
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We need another judgeship – now – [Op-ed]
John Ehinger, The Huntsville Times
February 22, 2009
It seems to be one of those paradoxes of life during a recession. And it is devoid of an easy solution.
Madison County needs an additional circuit judge. That would make seven in all. It needs the judge because the six judges it has now are overwhelmed by the number of cases they must deal with.
How overwhelmed? Well, statewide each circuit judge must handle about 1,200 cases a year. That would be more than three a day if you counted weekends and holidays, which you probably shouldn't.
In Madison County, the per-judge caseload is 2,500 a year, more than twice the state average, again counting weekends, which, again, you probably shouldn't.
In fact, the number of cases in circuit court here has doubled in 10 years, but the county hasn't added a new judgeship in 35 years.
The problem is widely recognized. Even Alabama Chief Justice Sue Bell Cobb has mentioned the need for a seventh Madison County circuit judge.
So does anyone disagree? Does anyone argue that Madison County doesn't need a new circuit judge? No, but there's not the end of the story.
The problem, not surprisingly, is money. The state judicial system doesn't know how it will fare in the 2009-2010 budget year. One reason it doesn't know is that state officials are still trying to figure out the exact effect here of the economic-stimulus package passed by Congress and signed by President Obama.
Thus, the Administrative Office of the Courts doesn't have the money for the additional judge in its budget request.
At present, the general "understanding" is that the cost of adding a judge - said to be hundreds of thousands of dollars, including salary, benefits and the tab for running the court - would be paid by the county the first year and then be picked up by the state judiciary system in subsequent years.
But local legislators are wary of passing a bill to add a judge unless they have some assurance the county won't be stuck with the bill permanently.
So everyone's in a wait-and-see pattern.
I happen to think it's not in the interest of justice for sitting judges to be overworked. Circuit courts generally don't fool around with minor cases. They handle serious crimes and major lawsuits. Dealing with perhaps 10 such cases every actual working day is an invitation to burnout.
There's the possibility of unpleasant outcomes. When criminal cases are continued for an unreasonable amount of time a defendant can make a case that they were denied a speedy trial. A person charged with a serious crime will try anything. I would, too.
At the moment, the caseload is being dealt with by retired judges who have been asked to help out. But that's not a long-term solution.
Communities cannot function properly unless they have court systems that meet the need. This community should not be punished because of its population growth or because of its generally effective law-enforcement agencies. (Madison County already is authorized for another district judge, but the money has not been forthcoming.)
The Legislature should authorized the seventh circuit judgeship, and the Administrative Office of the Courts should find the money. It's as simple as that.
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Study finds strong relationship between campaign contributions and decisions by state Supreme Court judges elected in partisan contests
Marcia Coyle, National Law Journal
February 20, 2009
WASHINGTON — Is justice for sale? There is a strong relationship between campaign contributions and decisions by state Supreme Court judges in states that elect those judges, a recent study finds.
Although they caution that their sample is small, political scientists Chris Bonneau of the University of Pittsburgh and Damon Cann of Utah State University concluded that campaign contributions appear to affect the outcome of cases in states where judges are elected in partisan contests — Michigan and Texas in the study — but not where they are elected on a nonpartisan ballot — Nevada.
The "take-home point" of the study, Cann said, is not that competitive elections per se should be eliminated because of these contributions. But, he said, "We do need to spend time thinking about the format of the election in order to minimize the possibility of improper activities, whether consciously or unconsciously, between judges and campaign contributors, whether from parties or attorneys."
The study analyzed the relationship between attorney campaign contributions and voting outcomes in the three state courts of last resort during their 2005 terms. The three states — Nevada, Michigan and Texas — have the advantage of being diverse on a number of critical dimensions, including region, the size of the court, the length of the term of office and the method of selecting and retaining judges (partisan versus nonpartisan), according to the authors.
Attorneys are one of the largest groups of contributors, accounting for 21% of the contributions to candidates in 2005-2006, the authors said. This was second only to the contributions made by businesses.
The authors acknowledge there are many factors that determine a judge's vote: the facts of the case and ideology, to name two. But do campaign contributions influence judges, after these (and other relevant) variables are controlled?
"We control for the ideology of the judge in terms of his or her propensity to make a liberal versus conservative decision in the case at hand and find that contributions have an effect," said Cann. "We also used a kind of more sophisticated statistical procedure sorting out whether liberal attorneys just give to liberal judges to affect the composition of the court so they don't need a quid quo pro."
Dollars were more likely to cause the decision than the ideological propensity of the judge, he added. "Dollars made a difference, whether a liberal was contributing to a liberal or a liberal [was] contributing to a conservative.
"The strength of this paper, relative to most other work in this area, is that most other work doesn't account for that very problem," he said. "We think both statistically and theoretically we're able to suggest the contributions do have a real effect."
For example, the study looked at the probability of a liberal decision for a judge with an ideology score of 47 (the mean in the sample) in a case in which the state was not a party to the case on either the liberal or conservative sides. When no contributions are made by either side (or the contributions are of equal size), the probability of a liberal decision is approximately 0.43. However, a campaign contribution differential of even just $2,000 shifts the predicted probability to a virtually certain win for the side offering the contribution.
"Perhaps even more surprising than our finding that these judges appear to favor campaign contributors is the finding that these judges appear to offer such favoritism for such small sums of money," the study states.
Does that mean that if one attorney does not contribute to a justice, the other attorney simply needs to contribute the "paltry sum" of $2,000 to secure a judge's vote?
"We think not," said the authors. "However, in an environment where numerous attorneys and law firms are making contributions, judges notice those who are contributing relatively large sums of money. Our results show that when liberal attorneys contribute more money to a judge, the likelihood of a liberal decision increases; the same is true for conservative contributions. Further, the contribution advantage does not have to be that high for the likelihood of victory to increase significantly."
In the nonpartisan state of Nevada, state Supreme Court races have become increasingly costly in recent years and signs of "new-style" judicial campaigns (such as negative campaigning and television advertising) are beginning to appear, according to the authors. The National Institute for Money in State Politics reports that attorneys contribute more to Nevada judicial candidates than do any other industry (e.g. casinos, real estate, home builders, etc.). About 35% of the cases decided by the Supreme Court of
Nevada involved at least one attorney who contributed to the campaign of at least one of the judges deciding the case, establishing the possibility of quid pro quo exchanges between attorneys and judges.
But Bonneau and Cann found no correlation between contributions and decisions.
"Many cases are heard in three-judge panels on that court," said Cann. "If you give money to one of the judges, you don't even know if that judge is going to hear your case, which is another aspect of institutional design that might mitigate the impact of campaign contributions to judges."
Cann noted that the U.S. Supreme Court will hear arguments in March in a case involving a West Virginia Supreme Court justice's refusal to recuse himself from a case in which one of the parties was a major, although indirect, contributor to his campaign.
"Obviously at issue in that case is contributions from one of the parties to the case, but the principle is similar in terms of whether one might expect to see this kind of quid-quo-pro action," he said. "In general, parties to the case, unless they're already in the pipeline with litigation on its way up to Supreme Court, generally don't know whether they will be parties.
"The attorneys who make contributions in our study, you can make a reasonably safe bet, if you are of a certain profile, that some time in the next six to eight years you will make an argument in the state Supreme Court so you have a stronger incentive to contribute and hopefully receive some favorable treatment in return."
Cann said he and Bonneau hope to examine a large number of states, at least 10, in the next part of their study.
"We don't think every judicial decision is for sale for every judge in every case. We're trying to figure out what the conditions are for where the influence of money can surface and hopefully make courts work better."
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Single Mom Facing Foreclosure
By Diana Lucio, WKRG-TV (Mobile)
February 18 2009
President Obama's multi billion dollar mortgage plan has some people holding out hope.
Elizabeth Taylor is facing foreclosure while in the middle of a divorce. Now a single mother of four, Taylor is fighting to keep her house on one income.
She's been getting legal advice from the Alabama State Bar Foreclosure Task Force, but she says she hope's Obama's mortgage plan will help her find a permanent solution.
"I'm trying to go through the way that I will have a smaller interest rate you know because sometimes when you refinance your mortgage payments start over, they begin over. So I think it's going to help families like me a lot, "said Taylor.
The Alabama State Bar has set up a hotline where you can get free legal advice at 866-456-4995. The Federal Government also has a program called Hope for Homeowners dealing with an adjustable rate mortgage. You can contact them at 909-895-4074.
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House votes to require experience for judges
The Associated Press
February 17, 2009
MONTGOMERY, Ala. (AP) — The Alabama House passed a bill Tuesday that would require appellate court judges in Alabama to have at least 10 years experience as attorneys.
The bill by Rep. Paul DeMarco, R-Homewood, would require that circuit court judges have at least five years experience and that district judges have worked three years as an attorney.
The bill passed the House 99-0 Tuesday and now goes to the Senate for debate.
The bill would require that candidates for judicial positions in the 2010 elections have the required experience. Current judges would be exempt from the requirements.
"We feel this would further enhance the quality of the judiciary and it insures that we have the best and brightest on the bench," said Birmingham attorney Mark White, president of the Alabama State Bar Association, which endorsed the bill.
White said attorneys are required to have five years experience before they can represent clients in capital murder cases.
"The lawyer has to have more experience than the judge," White said.
DeMarco said he feels requiring judges to have experience as lawyers will give the public more confidence in the judiciary. He said 32 other states currently require judges to have at least some experience as attorneys.
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Case May Alter Judge Elections Across Country
ADAM LIPTAK, The New York Times
February 15, 2008
MATEWAN, W.Va. — Don L. Blankenship, the chief executive of the nation’s fourth-biggest coal mining company, is not shy about putting his money where his mouth is when it comes to West Virginia politics.
In 2004, he spent $3 million on tough advertisements attacking a justice of the State Supreme Court who was seeking re-election. Some of the advertisements said the justice had agreed to free a sex offender.
“I thought we would beat him more easily than we did,” Mr. Blankenship said, reflecting on how hard it was to persuade voters.
Brent D. Benjamin won that election and went on to join the 3-to-2 majority that threw out a $50 million jury verdict against Mr. Blankenship’s company, Massey Energy.
The question of whether Justice Benjamin should have disqualified himself is now before the United States Supreme Court.
The case, one of the most important of the term, has the potential to change the way judicial elections are conducted and the way cases are heard in the 39 states that elect at least some of their judges. In many states, campaigns for court seats these days rival in both expense and venom what goes on in, say, a governor’s race. Yet it is commonplace in American courtrooms for judges to hear cases involving lawyers and litigants who have contributed to or spent money to support their campaigns.
Mr. Blankenship, a large man with small eyes that betray nothing, does not often sit for interviews. When ABC News tried to ask him questions last year about pictures showing him in Monte Carlo with yet another State Supreme Court justice, he shoved a cameraman and suggested that someone was “liable to get shot” if the journalists persisted.
But Mr. Blankenship seemed eager to tell his side of things over a barbecue chicken lunch in a restaurant here and in the warren of trailers that serve as his office just over the Kentucky line. It is just foolishness, he said, to think that he had spent millions of dollars to gain an advantage in a particular case.
“I’ve been around West Virginia long enough to know that politicians don’t stay bought, particularly ones that are going to be in office for 12 years,” he said, referring to the terms of State Supreme Court justices. “So I would never go out and spend money to try to gain favor with a politician. Eliminating a bad politician makes sense. Electing somebody hoping he’s going to be in your favor doesn’t make any sense at all.”
“Massey always has cases,” he added. Indeed, the company is a frequent plaintiff, and it has attracted lawsuits over environmental, workplace safety and labor issues.
“If someone wanted to accuse me of something,” Mr. Blankenship continued, “they would accuse me of trying to elect Benjamin to rule in our favor in hundreds of cases, not one case.”
But that is precisely what some people here, including a retired member of the State Supreme Court, say happened. “We have one justice who was bought by Don Blankenship,” Justice Larry V. Starcher said of Justice Benjamin in 2006, while the two men were colleagues on the court. “It makes me want to puke.”
When the United States Supreme Court agreed to hear the case in November, much of the legal establishment cheered. Here was an opportunity, bar associations and law professors said, to draw a line separating big money from judicial decision making.
But briefs from Massey and its supporters suggest that the case, Caperton v. A. T. Massey Coal, No. 08-22, which will be argued on March 3, is more complicated than it first appears.
Mr. Blankenship was, for starters, not a party to the state court fraud case that gave rise to the $50 million verdict. He is not an especially large shareholder of Massey, and he does not stand to win or lose very much — about $175,000, by Massey’s estimates — from its outcome.
On the other hand, Massey has paid Mr. Blankenship handsomely over the years — $23.7 million in salary, bonus, options and other compensation in 2007, by some estimates — and it is hard to disentangle his interests from those of the company.
His direct contribution to the Benjamin campaign was only $1,000, although that is the maximum allowed by law, and he spent most of the $3 million, paid from his own pocket, on television advertisements aimed at defeating the incumbent justice, Warren R. McGraw.
Mr. Blankenship said he was surprised they were not even more effective. “When you’ve got to choose between a guy who released a pedophile and a coal executive, it’s a tossup,” he said.
Mr. Blankenship, who has long been an active participant in the state’s political life, said he had no social or other relationship with Justice Benjamin, who has voted against Massey at least five times.
“Brent Benjamin, rightfully or wrongfully, thinks I had nothing to do with his election,” Mr. Blankenship said.
Justice Benjamin, now the court’s chief justice, declined to be interviewed for this article. In rulings discussing whether he should have disqualified himself from the case, he said he could be fair and impartial.
In a memorandum on Jan. 30, though, Chief Justice Benjamin did temporarily disqualify himself from all Massey cases, saying “it would be personally and judicially disrespectful to the United States Supreme Court and its justices for me to proceed.”
Lawyers for Massey suggest that the case is a Trojan horse whose real intent is to do away with judicial elections because any spending in such elections is suspect. “Any impartiality concerns raised by campaign spending are inherent in the state’s decision to hold judicial elections,” James Bopp Jr. wrote in a brief supporting Massey for the James Madison Center for Free Speech.
The briefs on Massey’s side add that states should be allowed to run their legal systems as they see fit. It would be impossible, they say, to fashion a sensible rule to determine when contributions or independent expenditures should require recusal under the federal Constitution’s due process clause. The other side says it has no problem with elections or financial support. But in rare cases involving especially large amounts from the people involved, they say, judges should be required to disqualify themselves.
Mr. Blankenship’s advertisements, which said Justice McGraw had released a pedophile, were rough and arguably misleading. They concerned a youth who had been sexually abused from the age of 7 by two adult family members and a teacher before going on, at the age of 14, to abuse a younger half-brother. The youth was released on probation soon after he turned 18.
“I’m just a West Virginia country lawyer running for office,” Justice McGraw said. Of the advertisements, he said: “They say our court set a child molester loose in our schools. It’s absolutely untrue. I’m embarrassed to go out in public. They’ve absolutely destroyed me.”
Mr. Blankenship cheerfully conceded that his real objection was to Justice McGraw’s rulings against corporate defendants. “Being the street fighter that I am,” he said, he had instructed his aides to find a decision that would enrage the public.
When they returned with an unsigned opinion in the sex abuse case, which Justice McGraw had joined, Mr. Blankenship said he knew he had hit pay dirt. “That killed him,” Mr. Blankenship said of Justice McGraw, smiling.
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76% of Young Lawyers Glad They’re Attorneys, Study Finds
By Edward A. Adams, ABAJournal.com
February 14, 2009
Contrary to all the media reports about lawyer dissatisfaction, a new study of 4,160 individuals who became lawyers in 2000 has found that 76 percent report they are either extremely or moderately satisfied with their decision to become an attorney.
That surprising result is part of the second phase of the American Bar Foundation’s After the J.D. study, presented at the ABA Midyear Meeting in Boston this afternoon.
The $1.8 million study is tracking the careers of lawyers over the course of 12 years. The attorneys were first interviewed in 2002, two years after they began practicing. The latest set of data comes from interviews conducted in 2007.
The high satisfaction rating “is a startling number,” said panelist Kay H. Hodge, a partner in Boston’s Stoneman, Chandler & Miller and a former president of the Massachusetts Bar Association.
“I think to some extent, the [legal] profession is its own worst enemy,” she said. “We don’t walk with the pride we must to encourage young people to become lawyers.”
Among the study’s major findings was that, as lawyers move deeper into their careers, fewer and fewer work in private practice. It also found that women continue to have difficulty becoming equity partners in law firms and are still not paid as much as are men.
Between their second and seventh year of practice, 58 percent of the lawyers changed jobs, the study found. “It’s like musical chairs,” said Professor Joyce Sterling of University of Denver Strum College of Law. Sterling is one of the academics conducting the study.
Almost every size of law firm employed fewer of the lawyers in 2007 than they did in 2002. Firms with 251 or more lawyers – what the study calls “mega firms” – saw the biggest drop, from 18 percent to 9 percent. Only solo practice attracted more of the attorneys, increasing from 5 percent to 9 percent during the five years.
“The thing that surprised us most,” said Sterling, was the increase in the number of lawyers working in business. The number serving as in-house counsel jumped from 4 percent in 2002 to 11 percent in 2007, while the number working as non-lawyers for corporations increased from 4 percent to almost 8 percent.
The study found a “stunning disparity” in the ability of men and women to make partner at firms of all sizes, according to Ronit Dinovitzer, an American Bar Foundation faculty fellow and assistant professor of sociology at the University of Toronto.
In firms of two to 20 lawyers, just 19 percent of female respondents had been made equity partners, while 30 percent of the men had. In firms of 51 to 100 lawyers, the gap was even wider, with 6 percent of women now equity partners, and 22 percent of men.
At the mega firms, the path to equity partner tends to be longer than seven years, so the study asked how many of the lawyers working there had been named non-equity partners. It found 10.5 percent of the men had, but just 8 percent of the women.
Women continue to earn less than do men, but the pay gap has narrowed, the study found. Two years after starting practice, women employed full-time earned an average of 83 percent of what men did. Seven years out, they now earn 92 percent of what men earn.
But Dinovitzer cautioned that much of that narrowing is because more men than women moved to jobs in the lower-paying public sector. In private practice, women earn 78 percent of what men do, the second phase of the study found.
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Government cracking down on unpaid student loans
Lynne Marek, National Law Journal
February 13, 2009
CHICAGO — The United States is filing a slew of civil lawsuits this month in federal court in Chicago against people who received government student loans, as long ago as the 1980s, and have failed to repay the funds.
The U.S. Department of Justice contracts with private law firms to bring the cases and has recently renewed a contract that could lead to the filing of as many as 20 new cases per week for the first few months of this year. The government notified the clerk of the U.S. District Court for the Northern District of Illinois at the beginning of the year that those cases may be flowing in for the next few months, said Randall Samborn, a spokesman for the U.S. Attorney's Office for the Northern District of Illinois.
"The government pursues recovery of money it's owed," Samborn said. "Unfortunately, student loan defaults are a voluminous source of litigation."
The collections firm in Chicago that's handling the cases is Teller, Levit & Silvertrust, which has eight attorneys. The lawsuits have been filed by attorney Margaret Keen, who the firm's Web site says specializes in student loan and post-judgment collection. She referred questions to Harold Stotland, another lawyer at the firm who said he was unaware of an increase, though he acknowledged that his firm entered a new contract with the government for the program in the past six months to a year.
In one lawsuit filed on Feb. 12, the complaint states that the defendant owes $5,141 in principal and $4,741 in interest on a guaranteed student loan that is accruing $1.13 per day. U.S. v. Alonso, No. 09-887. While the lawsuits are signed by U.S. Attorney Patrick Fitzgerald, who is in Chicago, the program is run out of the main Justice Department in Washington, Samborn said.
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Law profs, former judges, attorneys urge major reforms for high court
Marcia Coyle, National Law Journal
February 10, 2009
WASHINGTON — A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.
The group sent the proposals in draft legislative form and noted that all of its members do not support all of the proposals, but are "unanimous" that it is time for Congress to reconsider the law applicable to the Supreme Court, "a subject it appears not to have seriously considered for at least 70 years."
The proposals grew out conversations among the group's members over a period of years, said professor Paul Carrington of Duke Law School.
Although the members are not unanimous on all four proposals, Carrington added, "All of them have one background thought — the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, `You're part of an enterprise that we have some power over.' "
In its letter to the public officials, the group notes that Congress has given "scant attention" to the role and structure of the third branch since the "Court-packing" proposal of 1937.
"With rare exception, it has wisely entrusted the law governing that Branch to the Judicial Conference of the United States that it established in 1922," the letter states. "But given its inherent limitations, the Conference has been unable to consider issues arising from the work of the Supreme Court. From time to time, the other branches of the federal government need to reconsider how the judicial branch has evolved, and adapt it to changed circumstances."
The four proposals would do the following:
First, regular biennial appointments of new justices selected by the president and Senate in order to assure timely rotation within the membership of the court. If an appointment results in more than nine justices, the nine who are junior in time of service would sit to decide each appeal certified for decision on the merits. The proposal also would create senior justices. This proposal was signed by 30 of the 33 members — the greatest support.
"Our proposal is not a term limit but a system of rotation to assure some regularity of change in the composition of the court," the proposal explains. "If necessary to meet the constitutional objection, the allocation and assignment of duties when there are more than nine active justices could be left for the Justices themselves to resolve by a rule of court."
Second, the proposal states that it would be the duty of the chief justice to advise a justice who can no longer perform his or her duties to retire and report that to the Judicial Conference of the United States. The Judicial Conference then would be required to advise the chief judges of the federal circuits of the report. If a majority of those judges find substantial evidence of disability, they must report that finding to the House Judiciary Committee.
Third, this proposal would limit the term of a chief justice to seven years, subject to automatic extension until the president is authorized to appoint a new justice or until resolution of any pending impeachment proceeding over which the chief justice is needed to preside.
"Over time, the powers and responsibilities of that office have been extended into numerous other political, administrative, and non-judicial roles calling for a measure of special accountability for the justice holding office as Chief," the group explains.
Fourth, under this proposal, a body of experienced appellate judges would have the power to designate a substantial number of cases that the high court would then be required to decide on their merits. The justices could add to that number. This proposal was signed by 19 members of the group — the least amount of support among the four proposals.
"This would be intended to correct the steady shrinkage of the docket and engage the Supreme Court's attention on matters selected by persons suitably independent of the Justices and their personal or professional concerns," the proposal states. "It would also correct a visible tendency of the justices to place greater reliance on their staffs, a practice increasingly replicated at all levels of the judicial system."
Veteran Supreme Court litigator Alan Morrison of American University Washington College of Law said, "I very much support the regularization of appointments and the proposal on the inability to perform. I think the notion about the certiorari process is worthwhile. I'm in favor of those issues being discussed."
Both Morrison and Carrington said some of these ideas have been the subject of recommendations for a number of years by prominent advisory committees.
"It's not a subject that has a constituency," said Carrington. "Judges pretty much like things the way they are, although in private, some will say they'd sign on to all four of the proposals."
Carrington said the "easiest" proposal to endorse and adopt is the one on disability of a justice. "It's hard to make an argument against calling attention to the fact that some justice is totally disabled. What's the answer to that?"
The most "complicated" proposal in some ways, he suggested, involves the chief justice. "Somewhere along the way the chief justice has acquired more and more political and administrative responsibilities," he said. "There's a pretty good argument that the job ought to be accountable to someone."
Carrington said he hopes one of the congressional committees would hold a hearing on the proposals.
"Given the history of it, nothing may happen, but, gosh darn it, they do need to think about it," he added. "I think all four proposals are reasonable and not reckless."
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Legal Aid in demand and in a bind - The recession spurs a need for legal help for the poor, just as money gets tighter
Sarah Ovaska, The News & Observer (Charlotte, N.C.)
February 10, 2009
RALEIGH - Legal Aid of North Carolina and other groups that provide legal help for the poor are bracing themselves for an expected onslaught of requests as more North Carolinians find themselves unemployed, evicted and struggling to make ends meet.
The uptick in need comes as donations and grant money, already fleeting, are shrinking as the recession deepens.
"We're seeing more unemployment insurance appeals, foreclosures, efforts by creditors to collect," said Victor Boone, the senior managing attorney of Raleigh's Legal Aid office. "We simply can't help all of them."
The lack of affordable legal help for the poor has long been described as a near-crisis in North Carolina and elsewhere, with providers having to turn away people with solid cases because there isn't enough money to take the complaint to court.
Although lawyers are guaranteed for the poor in criminal matters, that doesn't apply to civil legal issues that often have life-altering effects: foreclosure proceedings, adoptions, child custody issues, domestic violence and workplace discrimination.
Legal Aid of North Carolina, with 23 offices statewide and a staff of 250, took dramatic steps to make its $18 million budget this year, said George Hausen, the executive director of the statewide nonprofit. Twenty part-time positions for lawyers answering a toll-free number to assess cases and offer legal advice were cut. To avoid layoffs, staff members agreed to a freeze on contributions to their 401(k) plans, a savings of $550,000, Hausen said.
The Raleigh Legal Aid office also found it received $29,000 less from United Way of the Triangle this year, an amount that equals a paralegal's salary. And there's still the possibility that Legal Aid offices across the state may have to shut down for a day or two each month in an attempt to stay in the black.
"I'm dying from a thousand cuts," Hausen said.
Next year may be worse, he added.
This year, people in need are having a tougher time reaching lawyers.
One woman Boone spoke with recently said she ran up a high cell phone bill trying to get through on the group's line to get legal advice, he said.
"It wasn't because nobody wanted to speak with her. She just couldn't get through because there were so many people calling," Boone said. "We're aware of it; we just don't know how to deal with it."
Who provides money?
Legal Aid of North Carolina gets most of its money from the federal government, through the Legal Services Corp., but leaders of the statewide nonprofit don't know what next year's grant from this source will be. Legal Aid groups also haven't heard what they'll get from the state. They'd like an increase, but this may be unlikely given that Gov. Beverly Perdue has already called for deep budget cuts; legal aid officials are now hoping to maintain money levels from the state.
Hausen said he doesn't expect major cuts from the state this year, but he is already worried about 2010, which will likely bring further declines as fallout from the nation's recession is more fully realized.
Another significant source of Legal Aid money comes from the interest on lawyers' trust accounts that is collected by the N.C. State Bar. In October 2007, the N.C. Supreme Court ruled that interest from these trust accounts, which hold money from real estate transactions and other short-term deposits attorneys oversee for their clients, must go to the State Bar and be distributed to nonprofits or projects that provide legal help to the poor.
Legal Aid of North Carolina received the bulk of the $4.1 million distributed this year, but the Bar chose not to increase the amount it gave away in order to shore up some reserves, said Evelyn Pursley of the N.C. State Bar. Pursley runs the Bar's program that keeps track of the collected funds.
North Carolina is in better shape than some other states, where interest money collected from lawyers' trust accounts has dropped as much as 50 percent as interest rates have tumbled, Pursley said. That's because North Carolina's program was made mandatory just a year ago, meaning there was an influx of new money coming in last year, and the State Bar negotiated rates that haven't dropped as dramatically as in other states.
But Pursley said banks are calling her to renegotiate the rates, which may lead to the drop seen in other states.
"I'm hopeful that some of our larger banks will hang in with us," Pursley said.
A grateful client
Felice Streeter knows the frustration of trying to find affordable legal help. The Cary woman called several lawyers to help her son, Ricky Streeter, a Special Forces soldier who returned from Iraq in November, and his wife, Courtney. In order to move to Germany, where Ricky Streeter is stationed, the couple needed a judge to sign a custody order for Courtney Streeter's 8-year-old daughter from a previous marriage.
Felice Streeter took the lead in trying to find legal help for the couple. One lawyer she called asked for a $2,000 advance to draft a custody order, even though the custody had been amicably agreed upon years ago between Courtney and her ex-husband.
"Other places wouldn't even tell you what they'd charge you without you coming in and paying a $250 consulting fee," Streeter said. "They're a young family, and they don't have a lot of money."
The family got the help they needed from a lawyer at Legal Aid last week, paving the way for the family to be together in their new home in Germany.
Felice Streeter said she now wants to return the favor and wants to see whether she can help Legal Aid by volunteering to answer phones.
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Calif. budget crisis hits lawyers
Pamela A. MacLean, National Law Journal
February 10, 2009
California's continuing $42 billion budget crisis has hit hundreds of private appellate lawyers who handle indigent criminal appeals in the state.
On Feb. 6, state Controller John Chiang began withholding an estimated $5 million in monthly claims submitted from court-appointed appellate counsel for compensation. The Controllers Office will delay payment by at least 30 days on lawyers' pay claims sent to the Controller by the Administrative Office of the Courts after Jan. 29, according a spokesman for the AOC. It is not known exactly how many lawyers will be getting IOUs but there are 800 attorneys handling criminal appeals through various state projects around California and payment claims come in at a rate of four to six per day, the AOC reports.
As of mid-February the payment delays had no effect on lawyers who provide contract services for trial courts in dependency, delinquency or other cases, but that could change if there is no state budget approved by March 1, according to the AOC.
California faces a $42 billion budget shortfall over the next two years and Republican Governor Arnold Schwarzenegger called the Democrat-controlled Legislature into special session three months ago to resolve the crisis, but to no avail.
Meanwhile, revenues are so depleted from job losses, property tax loses from foreclosures and the general economic slowdown that the controller delayed $1.9 billion in tax refunds to Californians, and the governor ordered state workers in the executive branch to take two days of unpaid leave every month, a 10% pay cut.
The staff for the state's judiciary, one of the largest in the nation, has not been hit by the furloughs because judiciary employees are in an independent branch of government, outside the control of the governor.
Private appellate counsel affected by the pay delays are constitutionally mandated to continue representing their clients until a court approves a request to withdraw, according to the AOC.
The problem is that the lack of payment makes it difficult to attract new attorneys to participate in the indigent defense programs, according to a court spokesman.
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Half of Bay State lawyers expect to make less this year
Sheri Qualters, National Law Journal
February 11, 2009
BOSTON — Nearly 79% of Massachusetts Bar Association members who responded to an online survey believe the economic downturn will affect the entire legal profession, and about 49% expect to earn less this year than last year. The results are based on the bar association's 13-question survey e-mailed to all of its members in December.
Also according to the results, about 51% expect the downturn to last until 2010, while roughly 18% anticipate the tough times to extend into 2011. The bar association reported that most survey respondents have been practicing law for more than two decades and earn between $100,000 and $200,000. Just over one-half of the respondents work for a firm with fewer than 25 lawyers, while about 30% are solo practitioners.
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Push for judicial pay hikes falters
Amanda Bronstad, The National Law Journal
February 02, 2009
After years of aggressively lobbying for raises in their salaries, chief justices and court administrators in five states are backing off as unprecedented budget cuts have forced judges to accept pay freezes.
Chief justices and court administrators in Connecticut, Florida, Minnesota, Ohio and Rhode Island, most of whom had sought jumps in salaries for state judges in the past, have accepted pay freezes in recent weeks as worsening economic problems unfold in their states.
In some cases, judges have spoken out against lobbying for pay increases during a major financial crisis. Judges in other states, such as Hawaii, New York, Pennsylvania and Washington, have resisted proposed freezes, although in varying degrees.
The freezes come as raises for general jurisdiction judges have dwindled to an average of 1.9% during the first six months of 2008 from 5.2% in 2006, according to the National Center for State Courts. By law, half of all states have constitutional provisions that prohibit reducing judicial salaries.
But many fear that freezing judicial pay, on top of dwindling raises, could reduce the competitiveness of the bench and negatively affect the quality of those who are retained or recruited to serve as judges.
Static salaries, combined with inflation, mean "inevitably you're going to see the deterioration in the quality of person who will want to apply to become a judge," said John Greaney, director of the Macaronis Institute of Trial Advocacy at Suffolk University Law School, who in November retired from the Massachusetts Supreme Judicial Court.
Judges backing down
In Minnesota, where trial judges regularly have received annual raises, Chief Justice Eric J. Magnuson agreed to freeze judicial salaries for the upcoming biennium period.
In an e-mailed statement, Magnuson said: "Given the deteriorating economy, the judges decided that if by forgoing any raises over the next two years they could save some jobs for court staff, it was the right thing to do."
Judges originally had planned to seek a 3% annual raise that would have been effective on Jan. 1, 2010, said John Kostouros, spokesman for Minnesota's State Court Administrator's Office.
Last month, Judge Barbara M. Quinn, the chief court administrator in Connecticut, told a state salary commission that she would not seek judicial raises this year. Connecticut's judges last received a raise in 2007.
"I want to be clear that I am not here today seeking an increase in judges' compensation," she said in testimony to the commission. "We are fully aware of the budget crisis that the state of Connecticut faces, and the judicial branch is preparing for the possibility of a significant reduction in its budget. In this climate, I would never come before you seeking a pay raise for judges."
In Ohio, where judges have regularly received annual raises of up to 3.5%, legislators have frozen salaries. In the past year, Chief Justice Thomas J. Moyer has argued for more substantial increases, given that judges in Ohio are underpaid when compared to other states, said Chris Davey, a spokesman for the Supreme Court of Ohio.
"This is something that has been a priority for our chief justice for a long time," Davey said. "But we have to operate within the confines of our current economic reality, as well. We recognize that."
Florida's 990 judges are not lobbying for pay increases as the state finishes its fourth round of budget cuts, said Lisa Goodner, the state courts administrator in Florida.
Judges recently sought significant boosts in their salaries, which start at $137,000. But the state has reduced its budget by $8 billion in the past two years, Goodner said.
"Our overall budget has been reduced so significantly that we've not been in a position to lobby for pay increases," she said.
And in Rhode Island, where judges received a 3% annual raise for the past two years, no state employees, including judges, are getting raises for the year ending June 30.
"Everyone has recognized that the state is in a financial bind, and there seems to be a recognition that all state employees are going to have to experience some kind of sacrifice," said Craig N. Berke, spokesman for the Rhode Island Administrative Office of State Courts.
Ambivalence over freezes
Judges in some states are more hesitant to accept freezes.
Last month, a commission in Washington state proposed freezing salaries of several state officials, including judges, for the next two years. Judges, who have received pay hikes every two years, had asked for a 2% increase effective on Sept. 1, 2010. Eliminating a cost of living increase "makes it more difficult to attract quality lawyers to the bench," said Chief Justice Gerry Alexander. Still, he recognized the challenges in arguing his case this year.
"I was very subdued in the way I presented it, because we wanted to be sensitive to the financial plight of the state," Alexander said.
In December, Hawaii Governor Linda Lingle said she would introduce legislation that would freeze judicial salaries, even though a commission two years ago recommended raises of up to 10%.
Marsha Kitagawa, spokeswoman for the Hawaii State Judiciary, said the courts had not taken a position on the governor's proposal.
Pennsylvania judges received a 2.8% cost of living adjustment on Jan. 1, but the governor and some legislators are pressuring state officials, including judges, to give back those raises. James Koval, a spokesman for the Administrative Office of Pennsylvania Courts, said that no judges so far have done so.
In a farewell speech last November, New York Chief Judge Judith S. Kaye, who retired at age 70, continued to argue for salary increases in the midst of the state's budget crisis. Judges in New York have not received a raise in more than a decade — a fact she called "heartbreaking, frustrating and demoralizing beyond description." Last year, Kaye filed one of several lawsuits seeking to force legislators to grant a judicial raise.
The court's proposed budget for this year includes a retroactive pay raise to 2005.
"It's going to be a tough struggle," admitted Bernice Leber, president of the New York State Bar Association and a partner in the New York office of Arent Fox, given that New York is facing a budget deficit. "That doesn't mean you don't try."
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Lembke bills target state bar and 'red light' camera tickets
St. Louis Post-Dispatch
Out of almost 89,000 votes cast last November, state Sen. Jim Lembke won his post by only 70 votes. But despite his narrow win, the Mehlville Republican isn't playing it cautious in Jefferson City.
He's sponsoring at least two bills this session that already are touching off fireworks. One would bar communities from using "red light" cameras to ticket violators. The other would allow Missouri lawyers to opt out of the current requirement that they be members of the state bar association.
The latter proposal isn't surprising, given Lembke's background. During his six years in the state House, he took repeated aim at the state's lawyers and judiciary system. Lembke was among the leaders of a failed effort last year to revamp the Missouri Court Plan, the state's "non-partisan" system of selecting slates of judicial nominees for the governor.
Lembke maintains that the plan is really partisan and gives too much clout to the bar, which selects three of the seven members on the judicial selection commission. Lembke now supports a new compromise proposal that would keep the bar's members, but drop from the commission the chief justice of the state Supreme Court.
Lembke's bill to make it voluntary for lawyers to join the bar appears to target, in part, the annual fee of just over $300 that lawyers pay to the association. He said his bill wouldn't affect the state mandate that lawyers must pass the Missouri Bar exam before practicing in the state.
Missouri Bar Association executive director Keith A. Birkes said the association had yet to take a position on any of this session's legislation, including Lembke's latest proposals. But speaking in general, Birkes said, "The regulation of the practice of law in Missouri is a matter that has always been handled by the judicial branch of government."
Lembke isn't backing away from that issue, but adds that it's not his primary focus this session. It's those red-light cameras, which have been attracting the attention of the public and the press for months.
"Quite frankly, I've received e-mails across the state on this one, and they're 90 percent against the cameras," Lembke said.
Lembke added that he got involved in the red-light debate at the behest of a local group, Missourians Against Red Light Cameras, and one of its co-founders, area lawyer Ed Martin.
Martin is a former chief of staff to just-departed Gov. Matt Blunt and a former president of the St. Louis Federalist Society, a group for politically conservative lawyers. In both jobs, Martin also has been a critic of the Missouri Court Plan.
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Women Lawyers Are Happier Outside of BigLaw, Survey Says
By Rachel M. Zahorsky, ABAJournal.com
February 4, 2009
Former large-firm female attorneys are finding career satisfaction and happiness in the law—in second careers as in-house counsel, government attorneys and solo practitioners.
The leaky pipeline in the progression of women lawyers from law firm neophytes to equity partners is a common BigLaw problem. However, most women who leave their firms are relocating within the profession, and those who find contentment are in positions that give them control over their work and schedules, according to NALP data and a recent Philadelphia Bar Association survey.
“Flexibility, control and predictability are the most important qualities that women seek,” wrote Phyllis Horn Epstein, a partner at the Philadelphia-based firm Epstein, Shapiro & Epstein, in a report (PDF) of the survey’s findings. Those three factors trumped monetary compensation and accounted for small-firm lawyers and solos being among the most satisfied of all the respondents.
Judges and academics also reported happiness with the predictability of their schedules. And one surveyed attorney said flex schedules available to federal government attorneys were enormously helpful to raising children and caring for elderly parents—tasks often taken on by women.
While Epstein doubts the number of women reaching the highest levels of partnership within BigLaw will drastically increase in the near future, she predicts women’s participation within small firms and other occupations will continue grow as they leave large firms and seek to redefine the meaning of a successful career.