Nancy Rapoport's Blogspot

Sad news about Fred Zacharias

2009-11-11T11:48:00.004-06:00

I read on Brian Leiter's blog this morning that Fred Zacharias had passed away (see here). I had the opportunity to visit with Fred a number of times at conferences and, like a lot of folks who study professional responsibility, really enjoyed his scholarship. He had a keen mind and was quite generous of spirit in helping others with their work. Once again, untimely passings are a reminder of how important it is to tell people while they're alive how much they mean.

To Fred's friends and family, please know that my thoughts are with you at this most difficult of times.

Happy birthday, Marine Corps!

2009-11-09T20:07:00.011-06:00

10 November 1775-10 November 2009 (so far). I'm so proud of the Marines I know, from Joe Reynolds, Racehorse Haynes, and Harold Hyman, all the way to John Ames, David Polyansky and the three Van Niels (my hubby, my bro-in-law, and my father-in-law). I'm also proud of the Marines I haven't even met yet. What an amazing organization! Some of the best lessons on leadership and character come from the Marine Corps.

Semper fi, and happy 234th birthday, Marines!

Click here for a YouTube video of the Silent Drill Team. Click here for another Marine Corps video. Click here for this year's birthday message. For the Marine Corps Hymn, click here and here.

Why Sara Bryan and the Kelly Cardenas studio both ROCK!

2009-11-07T22:27:00.002-06:00

See this YouTube video (here). My hair guru can beat up anyone else's.

More on John O'Quinn

2009-10-31T09:00:00.003-06:00

His New York Times obituary (here). As I read various comments to posts about John's death, I'm struck by two things: first, how many people actually did appreciate his work, and second, how many people wrote anonymously nasty comments about him.

People either liked John or hated him. I think that very few people really knew him. They were reacting to what they read about him or what they heard from third parties.

Some take-aways: I think that John would have felt gratified to have known how many people did think highly of him, and I think that he would have liked to have known that he was important enough to have made the NYT's obituary page.

For anonymous posters who make gratuitous comments about people they don't know, you need to remember that every human is someone's son or daughter. If you're a pundit, a poster, a blogger, you may want to say something nasty about someone--and sometimes, that nastiness is well-earned. But every time you write something for public consumption, at least think about the fact that the person is human before you post it. If you still want to post it, go ahead. (I've read enough horrifying things about myself online to be inured to it by now.)

Oscar Wilde once said, "A gentleman is one who never hurts anyone's feelings unintentionally." Think before you post.

And John, I'm sorry that more people didn't tell you that they appreciated you while you were alive.

One of the many reasons I like Tim Zinnecker

2009-10-30T12:10:00.002-06:00

See his most recent post over at The Faculty Lounge (here). Good job, Tim!

John O'Quinn killed in car accident

2009-10-29T10:58:00.002-06:00

I'm still in shock after hearing that John O'Quinn was killed in a car crash today (see here). I got to know him fairly well from my time at the University of Houston Law Center, and it's fair to say that he was a complicated man. Clearly talented as a litigator, obviously generous in several ways, he was still tormented by ethics complaints and personal issues.

I know that he reached out to me after my mother died, and he reached out to me and to the school after the Law Center (to which he gave a significant amount of money) was inundated with more than 14 feet of water after Tropical Storm Allison.

He had a hunger to be appreciated and valued, and I think he had the problem that most very rich people do: not knowing who one's true friends really are. That must be extremely difficult, and I'm sure that it's lonely.

He does leave behind some true friends (as well as several people who will be more than morbidly curious about his estate). Although we spoke from time to time after I left Houston, we lost touch over the past year or so. I'm sorry for the way he died, and I'm sorry for the personal demons that kept his intelligence and talents from staying in the forefront. I liked him, most of all for the charity that he did behind the scenes that never had his name visible and for the real love that he had for the strategy of trying cases. (Yes, yes--his name is on several buildings, but he wrote a lot of checks that never had his name attached to the donations.)

Like many plaintiffs' lawyers, I think that one of the things that drove him was the desire to be a hero for his client. Whether that drive took him beyond the rules, I don't know. There are certainly allegations that he crossed the ethical line in a variety of ways in several cases, but as far as I know, although he was brought before the disciplinary committee more than once, I don't think he was found to have violated the rules. But I could be wrong about this issue. I don't think I'm wrong about his drive to be a hero.

Most people who are happy in their jobs don't do it for the money. They do it for the chance to use their talents to the best of their ability. If the money comes (and it did, in John's case), that's great. But I've never seen money make someone happy. I've seen money give someone peace of mind and security--not happiness. The ability to use your talents is much more likely to contribute to happiness.

Rest in peace, John. My thoughts go out to all of those who truly cared for you.

You've got to love this kind of contract drafting!

2009-10-29T10:43:00.001-06:00

See today's front-page story in the Wall Street Journal (here).

Don't miss Jon Macey's marvelous op-ed in today's WSJ today

2009-10-24T09:36:00.001-06:00

See here. He's right, as usual.

I don't think garden-variety caps on executive compensation are the way to go--but I don't care if there's a rush to the exits, either.

2009-10-23T14:14:00.011-06:00

Joe Nocera's column in this morning's New York Times (here) once again gets it right: it's not about the caps, it's about the boards of directors deciding about compensation packages in the first place. If shareholders are unhappy with who's getting paid what, the fix is with getting rid of the folks believing the hype about who has to get paid the gargantuan bucks.

Look, I'm a firm believer in capitalism. I don't believe that the free market system works perfectly--obviously, we don't have anything near perfect information--but I have no problem with people making money, even scads of money. But boards of directors who let people get scads of money for failing abysmally, year after year, just aren't doing their jobs. Rewards aren't aligned with risks, and that's why so many boneheaded risks are being taken. It's all upside and no downside, because the risks are being paid for with other people's money.

Want the C-level officers to take more reasonable risks? Then create incentives for them to have more skin in the game? (Of course, that's what stock options were supposed to be about, but those options didn't quite work out the way we hoped.)

Boards are being told by compensation gurus that the best people won't work for less than huge salaries, all of which have to be earned up-front, or close to it, or these best folks will bolt for better jobs. Fine. Let them bolt. Heck, hold those doors open for them so that they won't bruise themselves during their dash for better, more lucrative work.

In a wonderful case, reported by WSJ Blog's Peg Brickley here, Bankruptcy Judge Jeff Bohm said "no mas" to ludicrous requests for compensation:

Oblivious to recent congressional and public criticism over executives of publicly-held corporations who are paid monumental salaries and bonuses despite running their companies into the ground, two investment banking firms now come into this Court requesting that they be employed under similarly outrageous terms. They do so because two committees in this Chapter 11 case have filed applications to employ these investment banking firms to perform valuation services even though two other independent firms have already performed similar valuations. These investment bankers, who wish to have their fees and expenses paid out of the debtor's estate, have sworn under oath that they will render services only if they immediately receive a nonrefundable fee aggregating $1.0 million. This Court declines the opportunity to endorse such arrogance. The purse is too perverse.

In observing that the two investment banking firms' proposed compensation was significantly higher than the compensation that an already-retained firm was charging in the same case, the bankruptcy judge also pointed out that

one other investment banking firm--i.e. Parkman Whaling--has already been retained to provide similar valuation services in the case at bar without demanding such a high premium; Parkman Whaling has received $75,000.00 per month, which is substantially lower than the fees demanded by Houlihan Lokey and Tudor Pickering. It is entirely legitimate to ask why Houlihan Lokey and Tudor Pickering are unwilling to work under the same or similar terms as Parkman Whaling. Neither Houlihan Lokey nor Tudor Pickering adduced sufficient testimony at the July 15, 2009 hearing to convince this Court that they should be treated so differently--indeed, so much more favorably--than Parkman Whaling. Stated differently, Parkman Whaling is as capable and competent an organization as Houlihan Lokey and Tudor Pickering, and to approve the far more exorbitant terms demanded by Houlihan Lokey and Tudor Pickering would suggest that these two firms somehow provide services that are superior in quality than those provided by Parkman Whaling. There is nothing in the record to suggest that this is true.

The court then highlighted its shock at the tone-deafness of some of the specific compensation requests:

Nevertheless, the Court feels compelled to discuss the initial provision in the proposed terms requiring a daily witness fee of $25,000.00 because the very fact that Tudor Pickering made such an audacious request underscores how oblivious the investment banking community--or, at least this one investment banking firm--is to the extremely hard economic times in which the country in general, and this Debtor in particular, find themselves. This Court believes that a discussion of the $25,000.00 daily witness fee request is appropriate to telegraph to the business bankruptcy bar and the investment banking community how unseemly this request really is.

One of the best parts of the case is the footnote immediately following this part of the court's opinion:

For example, the men and women of our nation's armed forces, who risk their lives to preserve and protect the abundant freedoms of this country, earn an annual salary that barely exceeds Tudor Pickering's proposed $25,000.00-per-day appearance fee. See United States Army Public Website, Benefits--Total Compensation, http://www.goarmy.com/benefits/total_compensation.jsp (listing the average annual salary for a military police sergeant as $26,967.00). Moreover, there are numerous other occupations whose members are in daily physical danger and who provide absolutely necessary services for our society but yet are paid an annual salary approximating the requested daily fee of the Tudor Pickering witness. For example, a nursing-aide at a public hospital, can expect to earn less annually than what Tudor Pickering is requesting for each day it appears for a hearing. See United States Department of Labor, Bureau of Labor Statistics Website, Occupational Employment and Wages, May 2008, Nursing Aides, Orderlies, and Attendants, http://www.bls. gov/oes/current/oes311012.htm (listing the average annual salary for a nursing-aid as $24,620.00). Finally, public school teachers who are educating future generations can expect to earn barely more in one year than Tudor Pickering seeks to be paid for each day that it appears for a hearing. The per annum salaries of the military personnel, nursing-aides, and public school teachers, compared with the requested daily fee of $25,000.00, speaks volumes about the level of hubris among some members of the investment banking community.

(Citation omitted.) In concluding its opinion, the court refused to fall for the adage that the requested compensation had to be paid or the case would lose the opportunity to get the best and brightest minds:

The exorbitant fees requested by Houlihan Lokey and Tudor Pickering are similar to the "appearance fees" which certain of the world's top athletes--for example, Tiger Woods--are able to command. However, unlike Tiger Woods, whose presence does guarantee a financial benefit at any event where he appears, neither of these two investment banking firms introduced any testimony or exhibits guaranteeing some benefit to the estate in this case. They expect to be paid an appearance fee for simply showing up--not only do they not guarantee success; they do not even guarantee they will work a minimum number of hours in order to try to achieve success. This Court will therefore not approve the payment of their requested "appearance fees." Tudor Pickering is not Tiger Woods. Nor is Houlihan Lokey.
In In re Mirant Corp., 354 B.R. 113 (Bankr. N.D. Tex. 2006), the Honorable D. Michael Lynn made some very telling comments about the integrity of the process with respect to financial advisors demanding guaranteed compensation under [sec] 328:
The court erred seriously in entering orders which left it so little discretion in assessing the work of the financial advisors. Though the court was given to understand Debtors and the Committees could not obtain competent financial advisors without assurance that there would be substantial "success" bonuses, whether or not each advisor could show it had earned such a fee, the court has since learned that some financial advisors, at least, will accept more conventional arrangements in terms of compensation. In the future, the court hopes and expects that parties in large chapter 11 cases in this and other districts will seek out financial advisors that are willing to have their work judged on a basis similar to the rules applied to other professionals.
In re Mirant, 354 B.R. at 128 (emphasis added). In effect, Judge Lynn has recommended that parties in large Chapter 11 cases should call the bluff of investment bankers who make Shermanesque statements that they will only provide services pursuant to a huge, guaranteed fee approved under [sec.] 328. Judge Lynn is urging parties to respond to these investment bankers by telling them that if they will not work under the more conventional arrangements pursuant to [sec.] 330, or at least pursuant to reasonable fee arrangements under [sec.] 328, then the parties will find one or more of their competitors who will. Implicit in Judge Lynn's remarks is that if the parties themselves give in to these investment bankers, then the bankruptcy courts themselves must call the bluff of these financial advisors and challenge them to accept reasonable fee arrangements.This Court shares Judge Lynn's concerns about the integrity of the process and also accepts his remarks and advice. Given the state of the record in this case, this Court will not approve the proposed enormous fees for Houlihan Lokey or Tudor Pickering, but rather chooses to call their bluff. Every other key professional in this case--including the investment banking firm of Parkman Whaling--has agreed to reasonable fee arrangements that are governed by, among other orders, the Procedure for Professionals Order, the Cash Collateral Order, and the Budget. Given the state of the record, there is no good reason why Houlihan Lokey and Tudor Pickering should be exempt from these same reasonable compensation arrangements. This Court does not want to make the error (about which Judge Lynn cautions in Mirant) of approving the Applications and later learning that some other financial advisors would have accepted much more reasonable compensation arrangements, which include agreeing to oversight by this Court. Indeed, given that Parkman Whaling, an investment banking firm every bit as competent and qualified as Houlihan Lokey and Tudor Pickering, was willing to work for a reasonable fee, this Court's approval of the compensation schemes proposed by Houlihan Lokey and Tudor Pickering would not only be an error; it would be a gross error.

(Footnotes and citations omitted). Judge Bohm added that "Judge Lynn's willingness to concede his mistake [in Mirant] in order to educate others and improve the bankruptcy system underscores his own high integrity and brilliance."

My point? A judge in Houston, Texas understands the difference between good compensation for good work and unreasonable compensation for very little work. And he's not the only judge with, well, judgment. I'd expect boards of directors to be able to distinguish gold from dross as well. If they can't, then let's vote them out and vote in others who can distinguish the two, and who have the courage to do so.

I couldn't be happier.

2009-10-22T07:55:00.002-06:00

While enjoying my morning coffee, I read that two of the Yale Law women who were woefully abused by anonymous posts at AutoAdmit a few years ago settled their lawsuits against the posters (see the ABA Journal story here). Those anonymous posters weren't trotting out any of the usual excuses for hiding behind pseudonyms: fear of retaliation, fear of losing their jobs, etc. They were cowards and bullies, pure and simple. And now, at least one of them has been named--and publicly shamed.

Good.

See? It is possible to rethink executive compensation without having the government do it.

2009-10-21T11:50:00.003-06:00

Take a look at this article in today's New York Times (here).

5th Circuit orders acquittal of Enron's Yeager

2009-10-21T11:47:00.001-06:00

See Mary Flood's Houston Chronicle article here.

Stupid Facebook mistakes, part n

2009-10-16T13:55:00.001-06:00

Hat tip to my buddy Seymour for pointing me to this one. See here.

R.I.P., Judge William Wayne Justice

2009-10-16T11:33:00.001-06:00

His NYTimes obit here.

Some of the reasons that I love Boyd School of Law (UNLV)

2009-10-13T14:38:00.003-06:00

Check out the video on our admissions webpage (here).

Latest Enron news: USSC to hear Skilling appeal

2009-10-13T10:13:00.003-06:00

See WSJ story here and WSJ Blog post here.

Hat tip to Brad Wendel for another great post on morality

2009-10-12T17:14:00.004-06:00

Over at Legal Ethics Forum: see here.

BTW, where did Prof. Wendel get his undergraduate degree? Oh, yes: RICE UNIVERSITY.

Happy Rice Day, all you Owls out there....

What exactly DO law professors do all day?

2009-10-12T17:08:00.002-06:00

Well, I know what one of us is doing. I'm working on an article studying what happens on appeal when lawyers are sanctioned for bad behavior in bankruptcy courts. (If you have any particular ideas on this topic, please pass 'em along....)

And, thanks to John Steele over at Legal Ethics Forum, I found this interesting case (here).

So far, what I've found out is that judges, when writing opinions sanctioning lawyers, are exceptionally clear about what behavior has irked them so. These sanctions opinions have some of the crispest language I've ever read--sad tales, all, and you can just about hear the anger and clenched teeth that the judges have while writing the opinions.

Oh, and one other thing some law profs do. We blog.

Op-eds and columns in the WSJ and the NYT

2009-10-10T09:26:00.002-06:00

As I get older (which, darnit, I appear to do with some regularity), I find myself looking forward to reading certain columnists: among others, Gretchen Morgenson, Joe Nocera (check out today's wonderful column, here), Floyd Norris, and Thomas Sowell (yes, Tom Sowell--so much for you tagging me as a liberal).

I've noticed, though, that I tend to read the NYT for its business news and the WSJ for its op-eds. It used to be the other way around. I'm not saying that I ignore the WSJ's business news--far from it--or that I never agree w/the NYT's op-eds.

Perhaps I'm just contrarian, and now that the Democrats are back in power, I like hearing what the other side has to say. But perhaps I fear groupthink on either side of the political spectrum. We've all seen what happens when a majority congratulates itself on its correct-thinking tendencies, without having some "loyal opposition" challenging whatever notions are popular.

My guess is that most of the country is solidly moderate, as I am. But who knows? I'll be watching the 2010 elections, knowing full well that, whatever happens, both sides will be reading the entrails for prophecies about what it all means.

Best moment in PR class today

2009-10-08T13:56:00.002-06:00

I was talking about bar applications today and the fact that I waited until after I passed the California bar to bring my dog-bite case to a lawyer, so that I didn't have to amend my bar application to add that I was a plaintiff in, well, a dog-bite case.

One of my students raised her hand and asked, "Wasn't that unethical to wait until afterwards to file suit, just to avoid amending your bar application?"

My first thought was that the statute of limitations had barely begun to run on the case (I was bitten in January; took the bar in February) so I was well within my rights to wait. But she caused me to think about the bigger picture. I answered her: "Yes. You're right. I should have gone ahead and updated my application and gone ahead with the suit."

Good for the student for calling me on this one. I like the fact that she was comfortable enough in the class to ask.

Plug for a Boyd law student's band

2009-10-08T13:53:00.003-06:00

Am prepping for class right now, listening to Awakenings, an album by the band Cherry Hill. Seth Floyd, one of the musicians in the band, is also a student at Boyd. I'm really enjoying the album, and now I can add Seth to the list of lawyer-musicians I know, including Glenn Reynolds.

Some nice news about a new ambassador

2009-10-08T13:46:00.003-06:00

See here. Hat tip to my buddy Seymour for pointing this out to me. Now we need to figure out how to fix "don't ask, don't tell" and marriage prohibitions.

Value-maximizing during a jobs crisis, or rankings-management?

2009-10-06T11:15:00.005-06:00

As I read about George Washington Law School's decision to take fewer evening students this year (see here) in response to a drop in the USNWR rankings, I see GW's decision as one more step in the tail of rankings wagging the dog of legal education (see my prior posts here). As a strategy matter, I get GW's decision: the rankings feed directly into law firms' decisions about how deep into a school's class to interview on campus, and the rankings also feed directly into the buzz surrounding submissions of professors' articles to law reviews. So a law school's decision to ignore the rankings would have serious negative consequences in several areas.

And yet, how far are we going to let the rankings dictate law schools' admissions, curricular, and placement policies? USNWR is just a news magazine, after all. Its rankings exist far more to sell advertising and its rankings themselves than for its stated objective of providing useful consumer information. (Useful consumer information would concentrate more on what goes on during a student's law school education than on the inputs of LSAT and undergraduate GPA, and it wouldn't rely on surveys with relatively small numbers of participants to judge "quality.")

Until the more elite schools figure out how to deal with USNWR and its pressures on turf that used to be the province of reasoned faculty decisions about how to choose and educate law students, the rest of legal education is going to be hard-pressed to buck the trend.

If non-lawyers can push for writing in "plain language," why can't lawyers?

2009-10-06T09:07:00.003-06:00

I woke up this morning to this delightful article (here) in the Wall Street Journal. Now there's a woman after my own heart! If she can argue for forms and announcements written in plain language (and she does -- persuasively), then we should continue her crusade. Brava, Ms. Maher!

Attention, law students: another good reason to pay attention in your legal writing course

2009-09-23T08:13:00.003-06:00

See here. Hat tip to my buddy Scott Unger.