Posts Tagged ‘bar examination’

Last July, in an entry titled Incentive Awards Ok, but Not Incentive Agreements, I commented on the Ninth Circuit Court of Appeals’ decision in Rodriguez v. West Publishing Corp.   In Rodriguez, the Ninth Circuit panel condemned the use incentive agreements in class actions.  The incentive agreements were engagement agreements between the law firm and the named class representatives that called for the attorneys to seek successively higher incentive payments to the class representatives in the event of class settlements or verdicts in successively higher dollar amounts.  As the court in Rodriguez  noted, incentive agreements are to be distinguished from incentive awards, which if reasonable in amount are widely accepted as compensation for the named plaintiff’s assistance with and risk assumed in prosecuting the case.  The incentive agreements at issue in Rodriguez had not been disclosed prior to preliminary approval of the settlement or notice to the class.  As noted in the July entry, the Ninth Circuit nonetheless upheld approval of the settlement as fair and reasonable, but remanded to the trial court for further proceedings regarding the requests by plaintiffs’ counsel for an award of attorney’s fees.

Earlier this month, the trial court entered a final order on attorney’s fees and costs requested by attorneys for the representative plaintiffs and objectors.  The court held that in light of the Ninth Circuit’s opinion, and under California law, one of the firms representing the plaintiffs, McGuire Woods, had forfeited any right to recover attorney’s fees because it had performed the legal services on behalf of different clients, the class and the class representatives, that had a conflict of interest.  As a result, the firm will receive no attorney’s fees at all, as compared to the $15 million that the firm had requested for its part in obtaining the $49 million settlement for the benefit of the class.  The court awarded approximately $1.5 million each in attorney’s fees to two additional firms that it concluded were not involved in the conflict of interest.

Ashby Jones of the WSJ Law Blog, has authored a comprehensive article discussing the recent trial court decision and the history of the case, entitled The Class Gets $49 Million, But the Lawyers Get Nothing.

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Sarah Waldeck, contributor to a great general interest law blog called Concurring Opinions, has posted a commentary discussing the recent decision to certify a class of out-of-state law graduates challenging Wisconsin’s “diploma privilege,” which allows in-state graduates to be admitted to practice without taking the bar examination.  Ms. Waldeck’s article raises questions about the social utility of a state requiring recent graduates to take the bar examination at all, sparking some thoughtful comments in response.

I don’t have a strong opinion about the benefits of requiring admittees to take the bar examination generally.  I supposed that if I’m really honest about it, my view is similar to my view on freshman initiation when I was a high school senior: I had to go through it, so you should too.  A requirement that every new admittee have passed at least one bar exam provides a minimal test of the analytical abilities and, perhaps more importantly, the level of commitment to preparation and study necessary to provide competent representation to the lawyer’s clients.  But surviving three years of law school demonstrates these skills to some extent too.

A more important question to me is whether there is any practical benefit to a state requiring applicants to take its own bar examination, when most of what gets tested is similar from state to state anyway and when the vagaries of a state’s unique laws and procedures are not likely to sink in without the repetition of practice anyway even when one has attended law school in that state.  Having taken and passed the ethics portion of the Washington state bar exam earlier this year, part of me is leaning toward the “I had to do it, you should too” attitude on that issue too.  But then again, like many commercial litigators with clients who do business nationwide, it is not feasible to restrict my practice to a single state, nor is it feasible to meet the general admission requirements of every state where one of my clients might get sued some day. 

See my earlier entry discussing Wisconsin class certification decision followed by loosely-related musings on mulitijurisdictional practice of law here.

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