Legal Commentary

lawyer miscellany (and Miss Savage, too)

By David A. Giacalone

Just a few lawyer quickies, before the main attraction below (two more photos of Wendy Savage, Esq. you won’t find in the Beautiful Lawyers Calendar):

• He Said/She Sad: At first impression, the headline and article made me think an injustice had been done to the divorcing wife of Long Island matrimonial lawyer Alan K. Hirschhorn, and a fiduciary obligation breached: “Attorney Husband Who Misled Wife About [Separation Agreement] Change Gets Benefit of Original Agreement“  (New York Law Journal/Law.com, Oct. 30, 2008).  At his estranged wife’s request, the husband had struck through a cohabitation clause in their signed separation agreement, although he knew the modification would not be valid without a more formal procedure.  His wife had been unrepresented. Hirschhorn had in fact continued paying maintenance $1000 a week after her boyfriend moved into her condo, out of love and respect for their daughter.)

However, the 23-page opinion in A.K.H. v. B.H (N.Y. Supreme Court for Nassau County, Index #200306/07, October 28, 2008) convinced me that the Justice Jeffrey S. Brown ruled correctly — and that I should have remembered from my law practice to hear at least three sides of a domestic law controversy before coming to a conclusion. There are far too many facts and reasons to detail here.  Primarily, Judge Brown found the husband’s testimony on many key issues to be far more credible than the wife’s.  There was no basis for an equitable estoppell, because “The court finds that she did not suffer any damages and did not rely to her detriment due to the elimination of the cohabitation clause.”  And:

“The issue of whether the plaintiff breached a fiduciary duty is not before this Court because defendant failed to plead a counterclaim to dismiss the complaint on the basis of overreaching. . . . Her testimony reveals that she, in fact, wants a divorce but also wants continued maintenance.”

• Click on that little desk calendar to see Elie Mystal’s hard-to-follow advice for lawyers who would like to avoid being fired. See “How to get fired from Sullivan & Cromwell (Part 1)” (Above the Law, Oct. 30, 2008)

• As Michael B. told us in a comment this afternoon, and according to the Associated Press, “Missouri’s sex offender/Halloween law is again enforceable”  Ky3.com, Oct. 30, 2008): “The U.S. Court of Appeals for the Eighth Circuit issued a one-sentence stay on Thursday, sought by Gov. Matt Blunt and Nixon.”  This means that, despite the injunction issued on Oct. 28th by the Federal District Court against two vague provisions in the law, registered sex offenders must remain inside their homes from 5 to 10:30 p.m. Friday unless they need to work or have a medical emergency, and may not participate in Halloween activities. See our prior post in “more scary Halloween laws against sex offenders.”

• In the recent Washington Post article “Rethinking Legal Fees for Lean Times” (October 20, 2008), we’re told that “The economic crisis is giving the prosecution a boost in the case of Fixed Fees v. Billable Hours.”  It’s great that clients are putting more pressure on lawyers to reduce fees and be more efficient.  I think it’s pretty clear, as we’ve been saying for years, that most clients want more certainty, but expect fixed fees to be lower than hourly fees, not — as the Value Pricing folks assert — premium fees that let the lawyers make more profits while making higher profits. As Susan Hackett, general counsel of the Association of Corporate Counsel notes, with the economic crisis, “There’s going to be a heck of a lot of directives for folks at the firms to lower their costs.”

As Carolyn Elefant has stressed often, “it’s not the pricing mechanisms that make legal fees unreasonable…it’s how we lawyers use them.”  Whatever the mechanism, clients deserve the benefits of competition and efficiency — and that includes price competition.  I like the reaction, in the WaPo article, of D.C. solo Joel P. Bennett, to the suggestion that hourly billing means “that outside firms are spending unnecessary amounts of time on their matters.”  Bennett says: “An honest lawyer works efficiently and does not charge clients for inefficient use of time.”

No, we can’t match the weblog traffic numbers of the most popular law professors (via Ambrogi at LegalBlogWatch). Glenn Reynolds at InstaPundit had almost 90 million visitors over the last twelve months, with 13 million visiting Hugh Hewitt, and 10 million stopping at the The Volokh Conspiracy.

But, our crafty old Prof. Yabut has discovered what brings more than enough eyes to f/k/a — images or discussion of the now famous Boston corporate-finance lawyer, Wendy Savage.  (for more see this post and the links therein)

.. .. Wendy from Myre Designs

Wendy at Newport, Summer 2008 . . ..

Many thanks to Wendy Savage for sharing these photos with the f/k/a Gang and the readers of f/k/a. (Hey, you are still coming here for the one-breath poetry and breathless punditry, aren’t you?)

turning ’round
just missing a pretty woman…
willow tree

virtue beyond virtue
beauty beyond beauty…
just a poppy!

lovely –
the sky after a lark
has sung

lovely–
in the leftover snow
both handprints

it’s so pretty!
so pretty!
the poison mushroom

… by Kobayashi Issa, translated by David G. Lanoue

Full post as published by f/k/a . . . on October 30, 2008 (boomark / email).