More on Duke football: An abject, on-the-record confession of athletic inferiority

Duke helmentIn response to this forum's discussion of Duke football, Mack Sperling has posted a fantastic article, The Law and Duke Football. Mr. Sperling departed from "the mainstream of the business litigation decisions that" he normally covers on his blog, North Carolina Business Litigation Report, in order to discuss the Louisville-Duke football controversy as "a contract case that's important to the jurisprudence of North Carolina." In so doing, he stresses "the quality of Duke University football" — or, more accurately, its utter absence.

Yet another reason for all Kentuckians to hate Duke

»  Cross-posted at Danzig U.S.A.  «

Christian LaettnerIn Danzig U.S.A. and elsewhere in the Commonwealth of Kentucky, we take college sports very seriously. Partisans of the University of Louisville and the University of Kentucky spare nothing in passionately supporting their teams — and in vigorously opposing their teams' rivals. If there is one opponent that unites the Cardinal Nation with Wildcat Country, it is Duke University's Blue Devils.

True to the traditional athletic preferences of Kentucky and North Carolina — two states where the cultivation of tobacco surely gives rise to their unusual predilection, unknown elsewhere in the South, for basketball over football — Louisville and UK partisans have historically trained their hatred at Duke's basketball program. But a recent decision by Judge Phillip J. Shepherd of the Franklin County (Ky.) Circuit Court gives people across the Bluegrass State reason to despise Duke football as well:

MoneyLaw: The art of winning an unfair academic game

Sid Bream

I will speak on June 14 at the University of Louisvlle's Weekend College event in Los Angeles. Faithful readers of The Cardinal Lawyer have access to the first version of my PowerPoint presentation, MoneyLaw: The art of winning an unfair academic game. The presentation summarizes many of the things I have articulated as the founder and a principal author of the MoneyLaw blog.

I look forward to seeing you all in Los Angeles.

Law's double helix

»  Reprinted from Jurisdynamics, MoneyLaw, and the June issue of the Louisville Bar Association's Bar Briefs  «



“Beauty is truth, truth beauty,” — that is all
Ye know on earth, and all ye need to know.


John Keats
Ode on a Grecian Urn (1819)



The concluding couplet in John Keats's Ode on a Grecian Urn (1819) — “Beauty is truth, truth beauty,” — that is all / Ye know on earth, and all ye need to know. — is arguably the most famous pair of lines in Keats's body of work, perhaps in all of English poetry in the Romantic tradition. The suggestion that truth and beauty might be one has proved so seductive that mathematicians and physicists often rely on unproven links between truth, beauty, and symmetry to frame their hypotheses.

FermatKeats may have stated the unity of truth and beauty in memorable literary terms, but mathematics may be the discipline that relies most heavily on it. Often enough, though not invariably, the unity of truth and beauty holds. What is beautiful is true, and what is true in turn is beautiful. Exceptions do arise — the computer-assisted proof of the four-color theorem and Andrew Wiles's proof of Fermat's last theorem are salient examples of mathematical proofs that look more like rambling narratives or even telephone directories than odes.

Nevertheless, philosophers, poets, and physicists wax rhapsodic in lauding the points in intellectual space where truth achieves what Bertrand Russell called "a beauty cold and austere." Edna St. Vincent Millay echoed this sentiment when she wrote, "Euclid alone has looked on Beauty bare." According to the physicist Hermann Weyl, the best scientific work has “always tried to unite the true with the beautiful.” But when he “had to choose one or the other,” Weyl “usually chose the beautiful.”

How firmly does Keats's unity — the unity of truth and beauty — hold in law?

A comparative analysis of Kentucky's public service rules

Pro bonoIn connection with Public Service Lawyering by the Rules, a CLE presentation I made on June 4, 2008, at the Louisville Legal Aid Society under the joint sponsorship of the Law School and the Louisville Bar Association, I am pleased to present this overview of Rules 6.1 through 6.4 of the Kentucky Rules of Professional Conduct. These are the provisions that deal with public service and with legal services pro bono publico. I compare Kentucky's rules with the corresponding provisions of the ABA's Model Rules of Professional Conduct (especially Rule 6.1) and the Indiana Rules of Professional Conduct.

Kentucky Rules of Professional ConductComparisons with the ABA's Model Rules of Professional Conduct, the Indiana Rules of Professional Conduct, and other sources of law

Rule 6.1 — Donated Legal Services

A lawyer is encouraged to voluntarily render public interest legal service. A lawyer is encouraged to accept and fulfill this responsibility to the public by rendering a minimum of fifty (50) hours of service per calendar year by providing professional services at no fee or a reduced fee to persons of limited means, and/or by financial support for organizations that provide legal service to persons of limited means. Donated legal services may be reported on the annual dues statement furnished by the Kentucky Bar Association. Lawyers rendering a minimum of fifty (50) hours of donated legal services shall receive a recognition award for such service from the Kentucky Bar Association.




Notes:

  1. Among the states' ethics rules, Kentucky's public service provisions closely track the 1993 version of the ABA's Model Rules. Indiana's provisions follow the 2002 revision.

  2. The penultimate sentence of KRPC 6.1 places Kentucky among the eleven states that provide for voluntary reporting of pro bono activities. Indiana is one of eight states that have rejected mandatory pro bono reporting; six other states do require the reporting of pro bono activities.
Indiana: A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by services in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

Model Rules: Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:

(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:

(1) persons of limited means or

(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and

(b) provide any additional services through:

(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;

(2) delivery of legal services at a substantially reduced fee to persons of limited means; or

(3) participation in activities for improving the law, the legal system or the legal profession.

In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.




Note: It is worth comparing MR 6.1's reference to "charitable, religious, civic, community, governmental and educational organizations" with the Internal Revenue Code's provisions dealing with organizations "operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes," 26 U.S.C. §§ 170(c), 501(c)(3), especially as those I.R.C. provisions were construed in Bob Jones Univ. v. United States, 461 U.S. 574 (1983).

New York City Bar: The Association of the Bar of the City of New York has adopted a "Statement of Pro Bono Principles" whose definition of "pro bono legal work" includes "legal services provided without fee or expectation of fee to . . . individuals, groups or organizations who have been harmed by a natural disaster or public emergency or who are providing assistance to persons harmed by a natural disaster or public emergency." See generally Jim Chen, Law Among the Ruins.

Comment to KRPC 6.1:

[1] The ABA House of Delegates has formally acknowledged "the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal services" without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation and the administration of justice. This Rule expresses that policy but is not intended to be enforced through disciplinary process.

[2] The rights and responsibilities of individuals and organizations in the United States are increasingly defined in legal terms. As a consequence, legal assistance in coping with the web of statutes, rules and regulations is imperative for persons of modest and limited means, as well as for the relatively well-to-do.

[3] The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the profession and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed, and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services.




Note: The comments to Indiana's version of Rule 6.1 are identical, even though the two states render Rule 6.1 in strikingly different language. Both Kentucky and Indiana appear to have derived their comments to Rule 6.1, at least in part, from Ethical Consideration 2-25 of the Model Code of Professional Responsibility. EC 2-25 is substantially similar to paragraph 3 of this comment.

Comment to Model Rule 6.1:

[1] Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The American Bar Association urges all lawyers to provide a minimum of 50 hours of pro bono services annually. States, however, may decide to choose a higher or lower number of hours of annual service (which may be expressed as a percentage of a lawyer's professional time) depending upon local needs and local conditions. It is recognized that in some years a lawyer may render greater or fewer hours than the annual standard specified, but during the course of his or her legal career, each lawyer should render on average per year, the number of hours set forth in this Rule. Services can be performed in civil matters or in criminal or quasi-criminal matters for which there is no government obligation to provide funds for legal representation, such as post-conviction death penalty appeal cases.

[2] Paragraphs (a)(1) and (2) recognize the critical need for legal services that exists among persons of limited means by providing that a substantial majority of the legal services rendered annually to the disadvantaged be furnished without fee or expectation of fee. Legal services under these paragraphs consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means. The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law.

[3] Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women's centers and food pantries that serve those of limited means. The term "governmental organizations" includes, but is not limited to, public protection programs and sections of governmental or public sector agencies.

[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory attorneys' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.

[5] While it is possible for a lawyer to fulfill the annual responsibility to perform pro bono services exclusively through activities described in paragraphs (a)(1) and (2), to the extent that any hours of service remained unfulfilled, the remaining commitment can be met in a variety of ways as set forth in paragraph (b). Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2). Accordingly, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).

[6] Paragraph (b)(1) includes the provision of certain types of legal services to those whose incomes and financial resources place them above limited means. It also permits the pro bono lawyer to accept a substantially reduced fee for services. Examples of the types of issues that may be addressed under this paragraph include First Amendment claims, Title VII claims and environmental protection claims. Additionally, a wide range of organizations may be represented, including social service, medical research, cultural and religious groups.

[7] Paragraph (b)(2) covers instances in which lawyers agree to and receive a modest fee for furnishing legal services to persons of limited means. Participation in judicare programs and acceptance of court appointments in which the fee is substantially below a lawyer's usual rate are encouraged under this section.

[8] Paragraph (b)(3) recognizes the value of lawyers engaging in activities that improve the law, the legal system or the legal profession. Serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.

[9] Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities.

[10] Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide those services. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible.

[11] Law firms should act reasonably to enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule.

[12] The responsibility set forth in this Rule is not intended to be enforced through disciplinary process.

Rule 6.2 — Accepting Appointments

A lawyer should not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.

Both the Model Rules and Indiana cast the first sentence of Rule 6.2 with the modal verb shall in place of should: "A lawyer shall not seek to avoid appointment . . . .

Rule 6.3 — Membership in Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization

(a) if participating in the decision would be incompatible with the lawyer's obligations to a client under Rule 1.7; or

(b) where the decision or action could have a material adverse effect on the representation of a client who will be served by lawyers provided by the organization whose interests are adverse to a client of the lawyer.

Model Rule 6.3 — Membership in a Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:

(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or

(b) where the decision or action could have a material adverse effect on the representation of a client who will be served by lawyers provided by of the organization whose interests are adverse to a client of the lawyer.

Rule 6.4 — Law Reform Activities Affecting Client Interests

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially affected by a decision in which the lawyer participates, the lawyer shall disqualify himself from the matter.

Comment: Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program when the lawyer knows a private client might be materially affected.

Model Rule 6.4 — Law Reform Activities Affecting Client Interests

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially affected benefited by a decision in which the lawyer participates, the lawyer shall disqualify himself from the matter shall disclose that fact but need not identify the client.

Comment: Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially affected benefited.

Kentucky has not adopted any form of Model Rule 6.5.

Model Rule 6.5 — Nonprofit And Court-Annexed Limited Legal Services Programs

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.




Note: According to its comments, Model Rule 6.5 is intended to cover programs "such as legal-advice hotlines, advice-only clinics or pro se counseling programs," where (in contrast with the circumstances covered by Model Rules 6.3 and 6.4) "a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation." "Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation."

Indiana Rule 6.6 authorizes a "voluntary attorney pro bono plan" in each of that state's fourteen judicial districts in order "to promote equal access to justice for all Indiana residents, regardless of economic status, by creating and promoting opportunities for attorneys to provide pro bono civil legal services to persons of limited means." This rule also creates a 21-member Indiana Pro Bono Commission, whose members are appointed by the Supreme Court of Indiana and the president of the Indiana Bar Foundation.

Neither Kentucky's Rules of Professional Conduct nor the Model Rules contain a similar provision.

Fidelity in translation

»  Reprinted from MoneyLaw, Madisonian.net, and the May 2008 issue of the Louisville Bar Association's Bar Briefs  «


FitzGerald's Rubaiyat
An illustration from Edward FitzGerald's translation of The Rubaiyat of Omar Khayyam, one of the most beautiful — and least faithful — translations of Persian poetry into the English language.

Law schools, no less than the lawyers they train, owe the profession an obligation to behave ethically. I interpret that ethical duty as one of translation. Legal educators should strive to translate their knowledge about law into real-world applications and outcomes.

Law is an applied discipline, not a pure science. There are divisions of the ideal university that ponder quantum chromodynamics, universal grammar, and number theory. And then there are divisions that design new devices, teach Spanish to otherwise monolingual Anglophones, and develop new encryption algorithms. Law schools emphatically belong to the latter category.

As in the health sciences, our greatest challenge lies in translating the work of law professors, as teachers and as scholars, into real-world results. Medical schools aspire to perfecting their programs for translational research. There is a legal equivalent of the medical profession's desire to deliver health care from bench to bedside. Law schools succeed to the extent that they train skilled social engineers. To me, “social engineering” carries no pejorative connotation. It is the conscious, purposeful, and ultimately noble project of avoiding, resolving, and mitigating disputes and of designing institutions to accomplish goals beyond the reach of individuals. Social engineering is the work of lawyers and allied professionals trained in law.

Let me translate this admittedly florid and abstract thesis into a set of blunt, pragmatic statements about legal education. Law schools have a single mission: we train people to become lawyers or to leverage their legal training into gainful employment in business, government, philanthropy, or education. Our students represent our ultimate product; their accomplishments, our greatest pride.

February 2008 Kentucky bar exam results

Kentucky seal

Among candidates who took the Kentucky bar examination in February 2008, University of Louisville graduates passed at an overall rate of 82 percent (23 of 28). First-time candidates from the University of Louisville passed at a rate of 87 percent (13 of 15). The candidate pool as a whole achieved a 68 percent pass rate for all candidates and 76 percent for first-time candidates.

Congratulations to the University of Louisville's newest members of the Kentucky bar.

Sherman Minton

Sherman MintonSherman Minton


»  Cross-posted at Jurisdynamics and Ratio Juris  «


Kurt Metzmeier, has continued his blog's series on Supreme Court Justices buried in and near Louisville. Installments 1 and 2 — focusing, respectively, on Justices John McKinley and Louis D. Brandeis — are now accompanied by Justice Sherman Minton: A Bridge Between Eras.

Eating crow over Cardinals basketball

A local lawyer, Justin Brown, was forced to eat crow when the Louisville Cardinals defeated his Tennessee Volunteers in the NCAA men's basketball tournament:


The quark and the jaguar

The Quark and the Jaguar

[H]istory shows clearly that humanity is moved forward not by people who stop every little while to gauge the ultimate success or failure of their [own] ventures, but by those who think deeply about what is right and then put all their energy into doing it.


A recent post on The Cardinal Lawyer discussed the literary canon of American legal education. Although I'm still collecting suggestions from faculty, staff, students, and friends of the Law School, I'd like to add a book to this reading list. Murray Gell-Mann's lyrical book, The Quark and the Jaguar, connects linguistics, art, medicine, quantum physics, superstring theory, evolution, artificial intelligence, and contemporary threats to biological and cultural diversity. The entire book represents a tour de force in complexity theory and how that discipline can inform a broad range of scientific inquiries.

The title of The Quark and the Jaguar comes from one of Gell-Mann's favorite poems: "The world of the quark has everything to do with a jaguar circling in the night." Arthur Sze, The Leaves of a Dream Are the Leaves of an Onion, River, River. To wit:

Quarks are elementary particles, building blocks of the atomic nucleus. . . . [T]he quark symbolizes the basic physical laws that govern the universe and all the matter in it. . . . The jaguar stands for the complexity of the world around us, especially as manifested in complex adaptive systems. Together, Arthur's images of the quark and the jaguar . . . convey perfectly the two aspects of nature that I call the simple and the complex: on the one hand, the underlying physical laws of matter and the universe and, on the other, the rich fabric of the world that we perceive directly and of which we are a part.

Proton splittingGell-Mann, along with George Zweig, predicted the existence of quarks. Gell-Mann alone holds the distinction of naming them quarks, after a passage from Finnegans Wake: "Three quarks for Muster Mark!" The former feat earned him the Nobel Prize in Physics. The latter connects him in a beautiful way with another discipline graced by Alfred Nobel's bequest: literature.

I say more about Gell-Mann and The Quark and the Jaguar at Jurisdynamics and MoneyLaw. As this post's opening quote suggests, Gell-Mann cares passionately not only about pure knowledge, but also about its application to real-world problems. That sentiment alone makes him worth reading by lawyers and law students. For the legal profession is an applied branch of the social sciences, one where beauty and truth emerge in the long, complex process by which simple rules interact, adapt, and evolve in an ever-changing environment. I'll close with this simple demonstration of the quark-based structure of neutrons and protons:


Quarks in action The action inside the nucleus of a deuterium atom containing a proton and a neutron, each with three quarks: An electron strikes a quark inside a proton, passing energy to the quark before the electron bounces back. The quark now has so much energy "stuffed" into it, it creates a cascade of new particles as it flies out of the proton. The result is two new, two-quark particles.