As part of my anniversary contemplations today, I have pondered whether to
take the slashes out of the name of this weblog — changing “f/k/a” to “fka.”
I have at times complained about a few other weblogs that use punctuation
marks and other non-alphabetic symbols in their names (this site, I am happy to
say, is now parentheses-free in its masthead).
My deliberations were short, however. Although both f/k/a and fka have / / / . .
been used to denote “formerly known as,” I am definitely keeping “f/k/a,”
because:
it is the preferred and customary legal usage, and the
original form of this handy term (being born in an era
era that was far less addicted to acronyms)
it was first chosen by me precisely so that I would stop
changing the name of the website
What cinched the retention of f/k/a, however, was my Googling of
of the term “fka”. Among the first few results was an organization
known as The Federation and Klingon Alliance. Sorry, but Walter
Olson is more likely to call his site ATLA: Arrest Them Lawyers
Association, than I am to share an acronmyn with the dudes at
FKA. (see this post)
potluck
“tinyredcheck” Donald at All Deliberate Speed and Mike at Crime & Federalism have
been pondering a much more important issue: how should your career
choice within the law relate to your professed philosophical, religious
or political beliefs about serving the “least of your brethren” or creating
a better society? This is a topic that deserves much more thought
and time than I can give to it today. I will say, however, (1) that far too
many members of our profession on the right and left — despite their
purported beliefs and willingness to readily condemn the actions of
others — seem to give no thought at all to the effects of their advocacy
and their labors; and (2) it is far harder to practice law ethically in a profit-
driven law practice, representing profit-driven clients, than in “public”
interest” practices; and I greatly admire private practice attorneys
who manage to do so.
Ethan Lieb at Prawfsblog asks whether a weblogger has ethical
duties related to posting about topics that he or she is treating in an
amicus brief. Also, John Steele at Legal Ethics Forum asks more
broadly about ethical obligations of lawyers who write amicus
briefs. You editor-provocateur left the following question at each
weblog:
“What about an ethical responsibility to tell the client
that amicus briefs have almost no bang for the buck?
They are mostly ignored and very rarely have any impact?”
(see, e.g., the recent remarks of Justices Ginsberg amd O’Connor)
Shouldn’t a lawyer make sure a client is fully aware of this reality, even
if the client initiates the idea of using an amicus brief? What else does
giving independent advice, free of self-interest, and putting the client’s
interests first, mean?
May 23, 2005, on the implications of the two pending telecom mega-
mergers,on future competition, with emphasis on the issues raised by
the digital revolution. There have been quite a bit of press coverage:
e.g., Washington Times/UPI, Telecom Merger Opposition Grows, May
24, 2005; National Journal, “Analyst Says Telecom Mergers Pose
Serious Threat to Competition”)
from dagosan
window view —
all grays
and one blooming lilac bush
leaving her place —
a hug
you’d give a friend
[May 26, 2005]
The 
David,
Why do you assume that lawyers don’t tell clients that amicus briefs typically carry very little weight? Or that lawyers charge full freight for filing amicus briefs. I am aware of many attorneys who will cap fees for an amicus or adhere to a strict budget.
Also, many times, I think that amicus briefs are driven by client demands and not those of their attorneys. For example, many clients (particularly trade associations) file amicus briefs not so much to ensure a specific result but to get “face time” on an important issue and give voice to members’ interests. The amicus thus gives the group another way to promote its members’ interests. That may be waste of the trade association’s money, given the chances of the amicus brief helping. And while a lawyer can certainly advise that an amicus won’t help, I don’t think that a lawyer is obligated to talk a client out of spending money on an amicus brief when the client believes it will help the organization’s cause. That’s a little too paternalistic in my view.
Comment by Carolyn Elefant — May 26, 2005 @ 9:56 pm
David,
Why do you assume that lawyers don’t tell clients that amicus briefs typically carry very little weight? Or that lawyers charge full freight for filing amicus briefs. I am aware of many attorneys who will cap fees for an amicus or adhere to a strict budget.
Also, many times, I think that amicus briefs are driven by client demands and not those of their attorneys. For example, many clients (particularly trade associations) file amicus briefs not so much to ensure a specific result but to get “face time” on an important issue and give voice to members’ interests. The amicus thus gives the group another way to promote its members’ interests. That may be waste of the trade association’s money, given the chances of the amicus brief helping. And while a lawyer can certainly advise that an amicus won’t help, I don’t think that a lawyer is obligated to talk a client out of spending money on an amicus brief when the client believes it will help the organization’s cause. That’s a little too paternalistic in my view.
Comment by Carolyn Elefant — May 26, 2005 @ 9:56 pm
Carolyn, you’re doing the assuming, not me. I’m just pointing out the duty to inform the client of reality: it is the rare amicus brief that makes a difference — I’m not saying no lawyers inform their clients, but I’m also pretty sure that some lawyers do not, and that some who don’t are the ones who broach the subject of filing an amicus with the client. Once the lawyer gives a full, frank disclosure, with good-faith estimate of impact, of the value of “face time” and “showing the flag,” etc., and of cost, it should certainly be up to the client to decide.
Let’s also remember that amicus briefs impose “costs” on courts and the other parties. Perhaps we should be asking when it is frivolous to suggest that a court’s deliberations would be aided in any colorable way by a particular amicus brief.
Comment by David Giacalone — May 26, 2005 @ 11:35 pm
Carolyn, you’re doing the assuming, not me. I’m just pointing out the duty to inform the client of reality: it is the rare amicus brief that makes a difference — I’m not saying no lawyers inform their clients, but I’m also pretty sure that some lawyers do not, and that some who don’t are the ones who broach the subject of filing an amicus with the client. Once the lawyer gives a full, frank disclosure, with good-faith estimate of impact, of the value of “face time” and “showing the flag,” etc., and of cost, it should certainly be up to the client to decide.
Let’s also remember that amicus briefs impose “costs” on courts and the other parties. Perhaps we should be asking when it is frivolous to suggest that a court’s deliberations would be aided in any colorable way by a particular amicus brief.
Comment by David Giacalone — May 26, 2005 @ 11:35 pm