Posted Oct 21, 2011 01:59 pm CDT
At My Shingle, Washington, D.C., solo Carolyn Elefant says that she knows where she stands when she’s competing with the Am Law 250 for corporate work. “I know that in most cases, what brings clients to my door to begin with is that I’m an affordable alternative to BigLaw,” Elefant writes. “Though I generally bill flat fees, I have an official hourly rate that is roughly 40 percent lower than a lawyer of comparable ability at a large firm.”
But she notes that she and other solos can’t really compete on price with virtual law firm Axiom Law (“best described as a type of high-end placement agency,” she writes) or Clearspire, both of which have a D.C. presence. Regarding Axiom, “At rates like $130/hour for regulatory compliance matters or $150 an hour for litigation, there’s simply no way that I—or any solos I know for that matter—can compete.”
At the bottom of her post, Elefant asks for “thought leaders and futurists who laud these new developments without offering any real analysis of what it all means for solos and small firms (the writing is pretty clearly on the wall for the impact to BigLaw)” whether solos will eventually be unable to compete with firms like these, or if her “concerns simply a product of paranoia.”
At Ride the Lightning, Sensei Enterprises president Sharon Nelson says she’d never accept a smartphone as a gift. “Spyware could always be loaded on the phone … since the giver would have had physical access,” Nelson writes. “No thanks, I’ll buy my own smartphones!”
Nelson thinks divorce lawyers advise their clients to do the same after reading a MacRumors forum posting (which may or may not be a hoax) picked up on my many bloggers and mainstream news sources. The details: The husband gave his wife an iPhone 4S as a gift, but without her knowledge loaded a Find My Friends app onto it. The app lets users who opt in to track each other, and the husband adjusted the settings on his wife’s gift iPhone to let him be able to see her location. He then tracked her to her suspected lover’s home with the app and wrote in the forum post that he was going to take his “beautiful treasure trove of [Find My Friends] screen shots” to a divorce lawyer.
But could this hypothetical husband get in legal trouble for something like this? At The Not-So Private Parts, Kashmir Hill noted that a New Jersey judge ruled that a wife who suspected her husband was cheating and installed a GPS tracker on his car had the right to do so because the car was jointly owned property. “However, the judge also said that it did not violate the cheating husband’s right to privacy because he was only being tracked on public streets where the car (and he) were in public view. The fact that a phone goes into a household, out of public view, may make this kind of tracking a bit more legally complicated.”
The U.S. Supreme Court granted cert this week to U.S. v. Alvarez. Xavier Alvarez, a California water district official, falsely said at a public meeting that he was a retired Marine who had received the Medal of Honor and pleaded guilty to a violation of the Stolen Valor Act. He appealed, and the San Francisco-based 9th Circuit Court of Appeals struck down the law.
At Simple Justice, New York City solo Scott Greenfield expresses concern that Alvarez could establish a legal principle allowing Congress to criminalize any lie.
“Once a lie, with no harm, becomes a crime, there’s no place to rationally stop the slide,” Greefield writes. “It’s not that this speech is particularly deserving of protection, or lacks the moral culpability that most of us would applaud as its utterer was locked in the stocks in the public square. It’s that making a lie without more a crime opens a door through which we would all likely pass. And the worst part is, who would be in the position of defining what constitutes a lie, or accusing another of lying? Let’s not go there until we have to, as the very thought of it boggles the mind.”
Constitutional Law Blog noted that last month, the 9th Circuit actually upheld a different provision of the Stolen Valor Act in U.S. v. Perelman. In this case, described in an earlier Constitutional Law Blog post, David Perelman served in Vietnam, accidentally shot himself in the leg 20 years after the war, claimed the wound was sustained while in Vietnam, and fraudulently obtained a Purple Heart and $180,000 in disability benefits.
The court here clarified that Alvarez’s conduct fell under 18 U.S. § 704(b), which “makes criminal the speech itself regardless of any defining context,” while Perelman’s fell under § 704(a) because Perelman actually wore the medal under false, and the court didn’t find the same First Amendment conflict with that subsection.
At Prawfsblawg, George Mason Unversity professor T.J. Chiang writes: “Most of the debate so far has focused on whether the First Amendment contains a categorical exclusion for false speech, and the primary analogy the Solicitor-General has tried to draw is to defamation. In my view, this is the wrong way to view the problem. The far better analogy is trademark law.” Chiang says defamation isn’t as close of an analogy as the old tort of “passing off”—in this case, Stolen Valor defendants are passing themselves off as having desirable characteristics that they don’t have.