Monday, December 22, 2008

Doc Review

In the ABA Journal, an article about the life of the contract attorney (doc review):

I make $35 an hour for the first 40 hours and $52.50 for each hour thereafter. Averaging 60 hours per week, I make a pretty good living for reading e-mail. A contract attorney working those hours can earn $100,000 a year. But there are no new skills acquired and no career advancement. Still, small firms in the New York area offer starting salaries below $50,000. State clerkships pay in the lows 40s. So this is the only way for many attorneys to survive financially.

Contract positions often last less than a month. You register with staffing agencies; recruiters then place you in projects at major firms, accepting a generous portion of your check in exchange. The buzz around reviews is that a firm bills out an attorney at $180 an hour and pays the temp agency $60 per; the agency, in turn, pays the attorney $40. Ranking somewhere below paralegals and above the cleaning crew, thousands of contract attorneys are making ends meet in this subsection of the legal industry.

Today, like always, I read e-mails from the client’s computer network, then code each according to its relevance. Often the vast majority are in no way responsive to the discovery request. Substantive reviews or analyses of documents are discouraged—if not banned outright. The contract attorney’s role is clear: Review and “bucket” documents, bill the requisite number of hours, and otherwise fly under the radar.


Date Deductible

So this guy thinks he can deduct the amount he's been spending on dating this girl. As Prof. Honigsberg would ponder, "Good ideaaaaaa?!" Above the Law quips:

TaxProf Blog reports on the findings from the U.S. Tax Court:

Mr. Shih was romantically involved with Ms. Yang, and she moved into his home. There were discussions of a formal engagement, and their relationship was intimate. Mr. Shih testified at the trial and his testimony concerning his romantic relationship with Ms. Yang was evasive. Mr. Shih was called by respondent and testified on direct examination that Ms. Yang had performed services in his business in exchange for the payments made to her during 2005. On cross-examination, however, after admitting that his relationship with Ms. Yang was more than a professional one, Mr. Shih could not recall taking her out on dates or any intimacy in their relationship, even though their relationship existed only a few years ago.

It is obvious that Mr. Shih and Ms. Yang have conflicting interests in the outcome of this controversy and that their positions are diametrically opposed. Mr. Shih structured the payments to Ms. Yang so that they appeared to be wages. He issued a Form W-2, Wage and Tax Statement, and used the notation "salary" or "wages" on some of the checks used for payment. Ms. Yang, however, was forthright in her testimony and answered all questions whether or not they favored her position. On the other hand Mr. Shih professed to remember only those things that supported his position that the payments were income to Ms. Yang. We find his testimony to be evasive and untrue.

The facts show that Mr. Shih made payments totaling $10,500 to Ms. Yang with "detached and disinterested generosity" out of his affection for her at the time of payment. We accordingly hold that the $10,500 in payments made during 2005 was a gift and not reportable as income.

What did Shih expect the court to say? I mean, how many guys do you know that will give a girl $10,500, but can't remember if he had sex with her? In fact, how many people do you know that will give a girl a $10.50 movie ticket, but can't remember if he had sex with her?

There's no accounting for some people in this world!

Wednesday, December 03, 2008

Employers and Facebook

Without a doubt, social networking sites like Facebook and MySpace have made the toil of life as a law student a little more bearable. While professors prattle on and on about jurisdiction and due process and consideration (hopefully never in the same class!), law students find out where the next law school party is going to be, and click through pictures of other law students getting a little friendly at the last party. All good, right?


Those pictures of a good time had by all may become fodder for employers looking to vet applicants online. And, as Shari Claire Lewis observes, they may be perfectly within their rights to do so:

One issue prospective employers should consider is whether a company viewing an applicant's publicly available Facebook page or other postings is invading the applicant's privacy. Although not yet directly addressed by New York courts, it is likely an individual who posts "private" information on an unrestricted Web platform does not have a reasonable expectation of privacy.

In matters unrelated to Internet use, the New York Court of Appeals has determined that New York does not recognize a common law right of privacy.[FOOTNOTE 7] Moreover, in applying District of Columbia law, which does recognize such a right, the Court of Appeals nevertheless ruled that an individual does not have a right to privacy with respect to information the individual has disclosed to third parties. The case, Nader v. General Motors Corp.,[FOOTNOTE 8] arose in a very different context nearly 40 years ago, but the court's reasoning is relevant to social networking disclosures.

In Nader, the court rejected a claim of invasion of privacy based on allegations that General Motors, through its agents or employees, interviewed many individuals who knew the plaintiff, Ralph Nader, asking questions about him and casting aspersions on his character.

The court acknowledged that these inquiries "may have uncovered information of a personal nature," but concluded that it was "difficult to see how they may be said to have invaded the plaintiff's privacy" because information about Mr. Nader that was already known to others "could hardly be regarded as private to the plaintiff." The court reasoned that because Mr. Nader had previously revealed the information to others, he necessarily had assumed the risk that a friend or acquaintance in whom he had confided might breach the confidence.

Looked at in the context of these earlier decisions, it appears that New York employers who access publicly available information that an individual chooses to place on the Internet for anyone to see probably will not be found to invade that individual's privacy.[FOOTNOTE 9] However, there may be ramification to a company that obtains access to information that the individual has attempted to limit access to, by passwording it or designating it as private.

Consider, for example, a Facebook page designated as private and therefore requiring the poster provide individual permission before her private page may be read. No doubt a potential employer that correctly identifies itself and receives the prospective employee's permission to view the private page does not violate that individual's privacy. But what about the prospective employer that obtains permission covertly, such as through another employee or an alias? Equally, can a prospective employer require permission to access a private Facebook page as a condition of employment? Clearly, the latter circumstances are much more problematic.

Additionally, Facebook itself may have some interest in the sanctity of its resources and protecting the privacy of its users so that use of its service does not come to be seen as a potential liability. Facebook's terms of use state that, except for advertising programs such as Facebook Flyers and Facebook Marketplace, Facebook is available to users for "your personal, non-commercial use only."[FOOTNOTE 10]

A company that relies on Facebook for hiring or firing decisions arguably is using the site for commercial purposes. Whether that can lead to any claims by Facebook (or specific individuals) may be unlikely, and damages, if any, would appear to be highly speculative. Nevertheless, its public relations and marketing may require Facebook to take an aggressive stand.

Depending on the jurisdiction, there may be different answers to the question of whether or not employers may hack into private photos of job applicants. Of course, the smart thing to do is to be careful what pictures to put up. You may think your friends are just sharing something intimate, but in today's Internet, you never know whose eyes are looking.

So, if you're unsure whether or not a picture may not embarrass a friend, at the very least keep it in an album marked for your friends' eyes only. And, if you can, ask your friend if it's alright for you to post up the picture. Further, should a friend ask you to untag them or to delete a picture of them (or at least crop them out), listen and do what you can to abide by that; remember, what goes around, comes around.