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February 2009 - Posts
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Today the ABA will consider a long overdue change to the Model Rules of Professional Conduct. Rule 1.10 now provides that if an attorney joins a law firm from another firm, his personal conflicts must be imputed to every attorney at the new firm, despite any attempt to "screen" him from cases with conflicts. Recommendation 109 would amend the rule to prevent disqualification when the lateral has been effectively screened. It recognizes the realities of the legal environment, and the ABA should adopt it.
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Of all the many aspects of civil litigation that attorneys can shape to their client's advantage, none determines case outcome more than the skill wielded when taking adverse depositions. Yet, no law school or law firm teaches the discipline of deposition cross-examination: the correct way to maximize the questioner's opportunities in every adverse deposition.
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Reflecting upon the financial crisis, I am struck by how popular discourse moves between the extremes of laissez-faire and government action. The basic point is that markets need rules. A lack of effective regulation has spawned four facilitators to financial scandal: dissemination of inaccurate information, abuse of regulatory gaps, exploitation of credulous consumers and the ability to use corporate size to privatize profits and socialize costs. Blocking them will be the key to avoiding future disasters.
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The current proposal on patent reform legislation contains a serious defect: It creates a post-grant review process to weed out bad patents in the U.S. Patent and Trademark Office rather than in the courts.
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The United States is one of only a handful of countries that taxes citizens who work abroad. The effect is that U.S. expatriots are getting undercut out of jobs overseas, particularly in low- or no-income tax jurisdictions where demand for Western-trained attorneys is extraordinarily high. The elimination of the expat tax would not only ensure that Americans are as competitive as they can be, but would also decrease the trade deficit and create jobs at home, necessary outcomes in these challenging times.
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In his first week in office, President Barack Obama exercised unilateral executive power to mandate significant changes in federal policy and practice. The executive orders and memoranda he signed fall squarely within the scope of tools presidents ordinarily use. However, Obama has inherited unprecedented control over federal agencies. Congress may be tempted to defer to Obama, but it should reject President Bush's approach to regulatory control, even if it trusts Obama to use executive authority prudently.
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