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Louisville Law Examiner Serving the University of Louisville School of Law Community Volume 9, Number 5 Louisville, Kentucky, March, 1984 Jailhouse Reality Follows Drunk Driving Arrest By Tim Cocanougher Joe Bar head saunters to his car. A night of drinking and partying has put Joe in a wonderful mood. Undaunted by an obvious impairment of driving skills (it took him five minutes to remember how to turn the lights on), Joe finally gets his car started and heads for home. However, Joe's happy mood will be short-lived. A policeman notices Joe's erratic driving and after confirming his suspicions, detours Joe to the county jail where drunk drivers are slapped with the reality that they have broken the law. to refuse. However, he is also informed that if he refuses, the state will automatically pull his driver's license. Joe will then be placed in a holdover area until his paperwork is completed, which usually takes two or three hours. After this is completed and a judge is contacted, Joe may be released on his own recognizance or on bond. If the paperwork is completed before 5:30 a.m., Joe will be arraigned that morning, if not, his arraignment will be the following day. Circulation 5400 Officer Gary Gallenstein, a seven-year veteran with the Jefferson County Department of Corrections, outlined the basic procedure Joe would encounter when brought to jail. Once inside the jail, Joe would be strip-searched to ensure he was not carrying weapons or drugs. His personal belongings would be taken and he would then fill out a medical history questionnaire. After obtaining a release from jail, Joe's ordeal is only half over. He still must face prosecution which is usually financially painful. County prosecutor Richard Schulton explained the method employed by his office in dealing with drunk drivers. Schulton first noted that DWI cases are unlike any other criminal cases because the major piece of evidence (the breathalyzer test) is administered after the arrest. This is frequently a problem area because the policeman makes the arrest based on observation of the suspect. If the breathalyzer results do not confirm the policeman's suspicion, the suspect cannot be "unarrested." When this occurs, the prosecutor may seek a lower charge, such as reckless driving, but in no circumstances will the county attorney agree to drop the charges completely. Photo by Crystal Collins A drunk driving suspect tries to touch his nose in one of several tests to determine coordination and impaired driving ability. His next stop is the slap-print table where he is finger-printed and given an armband and an ID number. He is then taken to the property room and watches his property being itemized to verify its amount and existence. He is also photographed and this information is placed in the files of various law enforcement agencies, including the FBI. This procedure takes approximately 20 minutes. Within an hour after custody, the breathalyzer test is administered. Before taking the test, Joe is read his rights and is told he has the right Now, back to Joe where the arraignment stage awaits. Here, Joe will make his plea. If he pleads guily (600Jo-700Jo plead guilty) and it is his first offense, the fine will probably be $200. If Joe has FRCP Rule 11 Amended other drunk driving charges, his fine will be higher (up to $500) and he is likely to spend up to 15 days in jail as well. If the General Assembly comes up with a final version of a new drunk driving statute, these penalties are likely to be stiffer. See Related Story and Photos on page 7 If Joe pleads not guilty, he is entitled to a jury trial. However, a strong public disgust with drunk driving has changed the trend in jury convictions. A few years ago, juries very seldom convicted, but today most jury verdicts end in conviction. To keep the story short, Joe was a first-time offender and given a $200.00 fine with a warning that subsequent offenses would incur a harsher penalty. Joe's introduction to this system is not intended to convert him into a Southern Baptist who abstains from drinking liquor, demonstrates for the return of prohibition and hangs Jerry Falwell's picture on his wall. However, it should make him aware that drunk driving is no longer a minor offense. Stronger penalties and a growing public awareness of the dangers of drinking and driving suggest that when one has had "one too many" the intelligent decision is to find an alternative route home before getting behind the wheel. Changes Mean More Responsibility on Lawyers Photo by Judy Hoge By Marlin M. Volz Professor of Law, University of Louisville Effective August I, I983, major changes were made in Rules II, I6 and 26 of the Federal Rules of Civil Procedure, greatly enlarging the role of the judge in the control and management of litigation and increasing the personal responsibility of lawyers who sign pleadings, motions and other papers. Of the three major changes, Kentucky has adopted only one. On January I, I984, the Supreme Court of Kentucky amended Rule II so that it reads identically to revised Federal Rule II. However, in doing so, it did not include the language which the amendments to the Federal Rules added to Rule 7(c) directing that "All motions shall be signed in accordance with Rule II." The intent of that addition was to make explicit the applicability to motions of the standards activated by signing which amended Rule 11 imposes. However, it appears that the addition of such language is unnecessary to the achievement of the intended result since the same result is obtained by present Kentucky Rule 7 .02(2) when construed together with amended Rule II. It is my opinion that the signing requirements and sanctions of Rule 11, as amended, apply in Kentucky to motions and other papers as well as to pleadings, Applicability of Rule 11 to Motions and Other Papers Certainly as to the form of signing, i.e. "by at least one attorney of record in his individual name, whose address shall be stated'', Rule 7 .02(2) by the continued use of the word "signing", which was eliminated from Rule 7(b) by the Federal amendments, plainly borrows from Rule 11 such requirement and applies it to motions and other papers. Rule 7.02(2) provides: The Rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these Rules. (Emphasis supplied). It is to be noted that the only Rule pertaining to signing identified as such is Rule II.' Furthermore, the amended language of Rule II makes clear that its substantive provisions apply to motions and other papers as well as to pleadings. The new wording of the title of the Rule indicates as much. It had read, "Signing of Pleadings"; it now reads, "Signing of (Continued on Page 6) l Louisville Law Examiner, March, 1984 Louisville Law Examiner EDITORIAL BOARD Judy Hoge Editor-in-Chief Neil Ward Associate Editor Crystal Collins Associate Editor Photography Editor Tim Cocanougher Yolanda French . . John Schaaf Managing Editor Jon Hardy Brandeis Brief Editor Winnie McConnell Night Associate Editor STAFF Todd Hollenbach Mike Schafer David Taylor Joel D. Zakem ProfeiiOI' LAURENCE W. KNOWLES, Consultant Tbe Lontsvllle Law Eumhler is published six times during the academic . year in the interest of the University of Louisville School of Law community. ArticJes are invited from faculty members, students, and members of the bar who wislt to do freelance work. Any proposed article should be cleared with the Editor as to topic and length. Address all communications to Tbe Louisville Law Examiner, School of Law, University of Louisville, LoUisville, Kentucky 40292. Phone: 502-588-6398. · Fi/g Photo Dedication of New Wing. Will Include Symposiu01 By Judy Hoge Kentucky Supreme Court Justice . Charles Leibson will speak at the official dedication of the new wing of the Law School on Friday, April 13. University of Louisville President Dr. Donald C. Swain will also be present at the ceremony. A champagne reception in the Administration Building will follow. In honor of the occasion, the Law School will present a Dedication Symposium on Friday, April 13 and Saturday, April 14, entitled "Privacy and the Family in M-edical Decisions." According to Seminar Chairman Albert T. Quick, the topic stemmed from the school's desire to integrate two areas of special interest to the sch6ol: privacy, the cause espoused by Justice Brandeis; and family law, the subject of the Journal of Family Law published by the school. The symposium will focus on the right to privacy in the · area of medical treatment, and will deal specifically with refusal of life saving and non-life saving treatment by adults and minors. Formal presentations by well-known educators and practitioners will be followed by commentary from panelists, who will include Professors Steven R. Smith, Ralph Petrilli, and Robert L. Stenger. Audience interaction will be encouraged. Speakers at the Symposium will include Morris Abram, a New York attorney and past President of Brandeis University, who was Chairman of the first Presidential Commission for the Study of Ethical Problems in Medicine. The Commission dealt with principles of morality in shaping the development and application of medical technology . Presentations will also be made by George J. Annas, the Utley Professor of Health Law at Boston University Schools of Medicine and Public Health; James Childress, Professor of Medical Education at the University of Virginia; and Patricia A. King, Professor of Law at Georgetown University. Ms. King is also Senior Research Scholar at the Kennedy Institute of Ethics. The fee for .the symposium is $10. Twelve hours of CLE credit, and ten hours of CME (Category I AMA) credit will be given. For further information, call Susan Bourne at 588-7806. Photo by Crystal Collins East Wing of Law School: Then and Now Few of us remember when it wasn't here, and most of us can't imagine life without it. The move into the new East wing of the law school in January, 1982, culminated years of planning and construction, instigated by a report from the ABA accreditation committee which followed a visit to the school by an inspection team in 1976. As the existing structure was designed to accommodate 80 to 90 students, and enrollment was 510, a new structure for classrooms was· clearly necessary for compliance with minimum ABA space requirements. When Dean Harold Wren took office in 1976, he told the ABA that the new wing would be a top priority item, and predicted its completion during the 1980-82 biennium. In his "State of the Law School" address in October, 1979, Wren announced that construction would start on the six million dollar building project by Fall of 1980, with completion expected in roughly 18 months. The new wing was to be symmetrical with the Library wing when viewed from the oval, accessible to the handicapped, and contain numerous well-lighted classrooms of various sizes. The first step was the razing of the old Law School Annex whose rickety narrow stairs and cramped archaic lecture hall were familiar to generations of students. There followed a period of major inconveniences for faculty and students alike. Bulldozers, jackhammers, cranes and trucks brought noise, dust, drilling, vibration and confusion daily. Classes were shuttled from one location to another, but the fear that the whole school or individual classes would have to move to another building on campus was never realized. Despite a seven-week strike which brought construction to a standstill, the addition was completed on schedule and the wing was fully operational in time for the beginning of the Spring, 1982 semester. Boasting four large classrooms, seating from 60 to 140 students, and several smaller seminar rooms, the new wing was clean, shiny, and best of all, quiet. The ,addition also provided office space for student organizations such as Moot Court, the Student Bar Association, the Law Examiner and the Journal of Family Law, as well as forty faculty and staff offices, numerous study rooms and two student lounges, one with kitchen facilities. Photo by Crystal Collins By Winnie McConnell So you want to improve your grade point average in law school, and you need help from competent advisors? What better clues on excelling in law can be given than from three University of Louisville evening law students who are ranked number one academically in their respective classes? The three students, Jim Lesousky, fourth-year; Lisa Vogt, third-year; and Kathy Holder, second-year; agree that "organization" is the key element in their strategies for studying law. "Organization of my class notes with notes I make after reading cases is critical," said · Lesousky. "I believe the amount of organization I put forth in making outlines is an asset to helping me in grades." "Good study habits revolve around organization and how you allocate your time," said Ms. Vogt. "Self-discipline in making yourself study at designated times is also very important." Organization is also necessary when taking a final examination, according to Ms. Holder. "You have to think about the issues and organize your thoughts before you answer questions," said Ms. Holder. "Being well-prepared to recognize what's going on in the exam is crucial." Thorough preparation for law classes is vital in learning the legal concepts. All three students suggested that taking good class notes and briefing cases is advantageous. "It takes extra time to brief cases but I feel I learn more," said Ms. Vogt, adding that she briefs every case she reads because she prefers her own interpretation of the case. Lesousky also spends much of his time on weekends taking notes and briefing material for the following week's classes. "It takes me between three and four hours to write notes of each course's assignment," he said. On the other hand, Ms. Holder CLASS ACTION 1977 Darryl W. Durham has been elected Secretary of the Louisville Bar Association . He is with the firm of Barnett & Alagia. 1982 Mark Heal is with the firm of Williams & Paimore, specializing in worker's compensation defense for self-insured employers. Louisville Law Examiner, March, 1984 NIGHT and DAY Top Night Students Share Success Secrets doesn't brief cases but writes issues and other reminders of the law inside her textbook. "No one would ever want to use my books after I finish with them because they could never read the print," she said. As final examinations approach, the three students concentrate their efforts extensively on making outlines. ''Every semester I take off one week from work before final exams and literally bury myself in the law library working on my outlines," said Lesousky. "Some days I'll work from 12 to 20 hours bringing together issues and rules." Ms. Holder reviews her notes and outlines courses several weeks ahead of the reading days. "I am by nature a crammer," she said. "I take off from work one day per final and study from 7 a.m. right up to the hour of the exam. This works for me because I have a good short-term memory.'' Commercial outlines, such as Gilberts, Emmanuel's and the Nutshell series, are not widely used by anyone. of the trio. Ms. Vogt, who depends mainly on her own case briefs and class notes to make her outlines, said that no one should primarily rely on the commercial outlines because they cover only a narrow perspective of the law. While the three students exhibit "personal pride" in being among the top students in their law classes, they don't feel any extra pressures to retain their high academic standing when preparing for finals. "Inherent in attending law school is that extra tension," said Ms. Vogt. "But I don't feel any more burdened than if I · was ranked fifth." "If you do well you want to continue to do well no matter what your academic ranking is," said Ms. Holder. "Law school is like a basketball tournament. It comes down to how hard you work, how motivated you are and a heck of a lot of luck!" Photo by Judy Hoge Night students Lisa Vogt, Kathy Holder (standing), and Jim Lesousky are ranked number one in their respective classes. 1983 J. Keith Cartwright is working for a Madisonville firm, Moore, Morrow & Frymire. Terry D. Edwards is a Captain in the U.S. Air Force, stationed in Vandenberg Air Force Base in California. Michael W. Milby is Personnel Assistant with American Greetings, Corbin, Ky. Dennis Lyndell Pickett is with Stites & Harbison in their Lexington office. Hank Robinson is working for the CPA firm of Coopers & Lybrand in Louisville. Robert E. Thieman is with the Louisville firm of Ogden, Robertson & Marshall . Paul B. Whitty is working for Wyatt, Tarrant & Combs. Prof Accepts Provost Post 3 Professor Leslie W. Abramson is currently dividing his time between his teaching duties and his new job as Acting Assistant Provost to the recentlycreated Office of the University Provost. The Administration combined the duties of Vice-President for Academic Affairs and the Executive Vice-President to form the new office in July, 1983. Abramson said he will concentrate on tnree areas while at the Provost's Office: reviewing the by-laws of each unit of the University; representing his office on the Arts and Sciences' Dean review committee; and representing the Provost's Office on space and renovation matters. A search committee for a permanent Provost, co-chaired by Professor of Law Robert L. Stenger, plans to fill the position by July 1, 1984. However, Professor Abramson regards his position as temporary a,nd expects to return full-time to teaching in the Spring semester of 1985, following a sabbatical leave this fall. Abramson is currently teaching a seminar in Civil Procedure. He usually offers classes in Professional Responsibility (Ethics), Criminal Law and Procedure and Antitrust Law. Briefs New Library Hours The library is now open at 8:00 a.m. on Sundays. It will be open 24 hours a day from the beginning of reading days through the exam period. Anatomy For Lawyers A seminar on "The Back: Anatomical & Clinical Correlations," sponsored by the University of Louisville School of Law, will be held April 27 in the Auditorium of the Health Sciences Center on Belknap Campus. Registration is $70; 5 Vz hours of CLE credit will be given. 4 Louisville Law Examiner, March, 1984 BRANDEIS BRIEF: Sex Discri g Bonnie M. Brown is a Louisville attorney concentrating in domestic relations and health law. She holds an A.B. degree in Political Science from Washington Unive1sity where she wrote her thesis . on "The Women's Movement." She earned her J.D. in 1978 from the University of Louisville, where she was President of the Women's Law Caucus, and a member of the National Moot .Court Team. Ms. Brown Is the current President of River City Business and Professional Women. In addition, she is involved in the Women Lawyers Association, Louisville Rape Relief Center, and the Coalition Against Spouse Abuse. Ms. Brown has also lectured and published primarily in the area of domestic relations. There is currently pending before the United States Supreme Court a suit by Elizabeth A. Hishon, a former associate of the King and Spalding law firm, charging she was denied partner status because she was not judged by the same standards as male associates. The Atlanta firm, containing former United States Attorney General Griffin Bell as one of its leading partners, claimed that lawyers must be free from governmental pressures in choosing acceptable partners. The Law Examiner asked for the following analysis of the issues presented by this landmark case. Maureen Reagan recently observed, "(T)hey (the "old boys") moved the wall up three stories. Women can get in and start moving up, but at some point, you'll still hit that brick wall." 1 The "brick wall" for women lawyers appears to be at the partnership level. Women are entering and graduating from law schools in record numbers and apparently are finding few problems being hired as entry-level associates. However, women lawyers are not "making partner" at nearly the rate of male lawyers. 1 Elizabeth Anderson Hishon has raised some hard questions in her efforts to Photo by Judy Hoge change this situation. Her experiences at the prestigious Atlanta law firm of King & Spalding 3 seem to typify those of many women lawyers in her situation, making her case all the more important. She was one of the promising graduates in Columbia Law School's class of 1972. That year, she became an associate at King & Spalding upon the same express representation made to other promising law school graduates, namely that she would be considered for partnership on a fair, non-discriminatory basis after the usual five to six year period of employment as an associate. However, she alleges that because she was a woman, King & Spalding treated her less favorably than male associates. She was given less responsible work assignments which tended to involve smaller matters requiring her to work alone, without assistance from junior associates and without the opportunity to supervise their work. Unlike male associates who received better, more responsible work assignments and associate help, she was not given the opportunity to demonstrate that she was "partnership material". In 1979, she was passed over for partner. Her employment as an associate was then terminated under King & Spalding's "up-or-out policy". She is currently a partner in the smaller Atlanta firm of O'Callaghan, Saunders and Stumm.• Ms. Hishon has filed suit under Title VII of the Civil Rights Act of 1964, 42 U .S.C. §2000e et.seq., which prohibits employment discrimination on account of race, color, national origin, religion, or sex, by employers with 15 or more employees. She claims that King & Spalding engaged in sex discrimination when they denied her promotion to partnership. The case is pending in the United Srates Supreme Court. Sex Discrimination at King & Spalding, in the Legal Profession, and in Society at large There is little doubt that, based on her allegations, Ms. Hishon suffered sex discrimination at King & Spalding, and that sex discrimination actually exists in the legal profession. From Ms. Hishon's Columbia Law School class, only 3.8 percent (1 of 26) of the women graduates are partners in prestigious firms comparable to King & Spalding, while 20 percent of the male graduates are partners in such firms. Only 11.5 percent of the women, but 50 percent of the men, are partners in firms of any sort. 5 A 1982 National Law Journal Survey of 151 of the top 200 law firms showed that only 3.2 percent (297 out of 9,21 0) of the partners in those firms were women while 14 percent of the legal profession were women.6 The American Bar Association Journal profile of lawyer lifestyles revealed that male lawyers earned more than female lawyers in every age category. ' An American Bar Association Journal survey found that women lawyers work harder and are paid less than male lawyers. 8 Sex discrimination in the legal profession operates in much the same way as it does in society at large. An understanding of its operation and effect is essential to any meaningful discussion of its elimination, a goal in which Ms. Hishon is joined by many others. Sex discrimination is part and parcel of our entire culture, which has been described as "patriarchal. " 9 Disparate treatment of men and women in our society has been called "sexism." 10 Sexism is not confined to political, social, or economic institutions. It invades our attitudes, our language, our values, and the very way we view life. 11 Analysts of sexism have noted that "the personal is the. political." 12 This observation is a way of describing the all-pervasive nature of sexism in patriarchal culture. It means, for example, that the forces that cause a mother (or father!) to give a chemistry set only to a son and a doll only to a daughter are the same forces that operate twenty years later to cause an employer to pay the son more than the daughter for the same work. Though the forces operating are the same, the former act is legal, while the latter act is illegal. This identification of the personal as political, and the conceptual blending of the two, is important to an understanding of sexism in our society. However, it is disasterous to the application of legal remedies to eliminate sex discrimination in a constitutional democracy with limited government that respects distinctions between the public sphere and the private sphere. In this simple example, the line is easily drawn. Government can, and should, prohibit the latter act of sex discrimination (unequal pay), but cannot prohibit the former. However, the operation of sex discrimination at King & Spalding is a telling example of how difficult it can be to give proper perspective to the competing interests of eliminating sex discrimination and preserving civil liberties (i.e., privacy, freedom of association). Where is the line drawn? Which of the following alleged incidents and/or practices at King & Spalding should be illegal? 13 • Calling female associates "sugar" and "honey"; • Kissing female associates on the cheek; • Calling several women lawyers seated together at a firm meeting "The Kroger Price Patrol," referring to a T.V. ad campaign aimed at housewives; • Refusing to allow a woman to attend a firm outing where the men play golf all day and poker all night; • Making outcasts of women lawyers who do not socialize with the men at male sporting events after work; • Some male lawyers attempting to hold a wet T-shirt contest at a weekend outing featuring the female summer associates, but settling for a bathing-suit competition, during which some participants said they felt humiliated but didn't protest because they were candidates for year-round jobs; • Giving women associates, but not men associates, primarily low-status, dead-end assignments; • Making two women who were finally admitted to the firm as partners, work twice as hard as the men for the same recognition, giving rise to fear among the other women that the first two (being so outstanding) have set standards that will be difficult to meet. Ms. Hishon has chosen not to pursue any of these or other similar matters before the Supreme Court, but to limit the issue to denial of partnership. She has also chosen to concentrate on her civil rights action under Title VII and not to litigate any causes of action she may have for breach of contract or fraud, based upon King & Spalding's representation that she would be considered for partnership on a fair and non-discriminatory basis. 14 In so doing, she has squarely placed before the Supreme Court the hard question, emotionally but accurately stated in her Brief, as follows: Can King & Spalding, or any other law firm that has 15 or more employees, post a sign on the door of its partnership meetings that reads: KEEP OUT NO WOMEN, NO BLACKS, NO JEWS ADMITTED" Analysis of the Competing Interests - Asking the Hard Questions To answer this question, King & Louisville Law Examiner, March, 1984 5 min.ation in Law Firms Challenged Spalding argues that it is organized as a partnership under the laws of Georgia and that its partners have voluntarily associated to conduct business. It asserts "the right of law partners to choose those with whom they will share ownership, responsibility, duty, reputation ... , experience ... , position and influence ... , standing ... , tradition and prestige... for a lifetime of law practice.'' 16 King & Spalding further asserts that the invitation to become a partner is not cognizable under Title VII as an employment opportunity or as a term, condition or privilege of employ.ment. The election to partnership is not a promotion, but a change in status from employee to employer-owner. 17 The executive branch of government must not be permitted to intrude upon the decision of King & Spalding in admitting or denying partnership to any individual. 18 · The Eleventh Circuit agreed with King & Spalding that it was "clearly a voluntary association of lawyers for the purpose of practicing law as joint venturers," 19 that partners are owners, not employees of the partnership, that Title VII does not permit intervention into matters of voluntary association, and that Title VII does not reach "decisions dealing with the formation of partnerships.'' 20 If the Supreme Court should affirm and find for King & Spalding's position, what would that mean for the future of Title VII's mandate and the ability "to effectuate its purpose - to remedy acts of discrimination within the employment context"? 21 Would such a ruling be compatible with the philosophy expressed in Runyon v. McCrary/2 which held that private schools could not reject qualified black applicants for admission? In Runyon, the Court reasoned that belief in racial segregation was protected by the First Amendment, but that practice of it was not. "(W)hile invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment... it has never been afforded Constitutional protection. " 23 Runyon was decided under 42 U .S.C. §1981 rather than §2000e24 but the philosophy is applicable. Can it be said that admission to a private school is so different from admission to a private voluntary association for the conduct of business that the application of different legal principles is required? The Supreme Court, at least as of 1976, believed "prohibition of racial discrimination that interferes with the making and enforcement of contracts for private educational services furthers goals closely analogous to those served by §1981's elimination of racial discrimination in the making of private employment contracts. " 25 Does the Court still believe that? Should the law distinguish between race and sex discrimination? On the other hand, not all the hard questions are generated by King & Spalding's position. Ms. Hishon's position is worthy of analysis as well. She argues the "economic realities" of King & Spalding are that its partners are its employees, thus making promotion to partnership an employment opportunity she was denied in violation of Title VII. King & Spalding has been practicing law under that name since 1885. By virtue of its partnership agreement, King & Spalding, far from being a traditional common law partnership, ( 1) has a perpetual existence unaffected by the entry, resignation, or death of partners, (2) has central control and management by a committee electep and functioning in much the same way as a corporate board of directors, and (3) provides that upon withdrawal, a partner's ownership interest is limited to a refund of invested capital and his share of undistributed net earnings, excluding any interest in accounts receivable, inventory, etc. 26 Thus, Ms. Hishon contends, King & Spalding is more like a corporation than a partnership, and individual partners are more like employees of the partnership than owners. She further argues that, when King & Spalding promised to give her equal consideration for partnership, promotion to partnership became an "employment opportunity" or a "term, condition or privilege" of employment covered under Title VII's prohibition of sex discrimination in employment. Labels . of "employee" or "owner" should not be determinitive. 27 The Southern District of New York agreed with Ms. Hishon on these points under almost identical facts. The Court in Lucido v. Cravath, Swaine & Moore28 held that an Italian Catholic attorney stated a cause of action under Title VII by alleging he was denied promotion to partnership in the defendant law firm on account of his national origin, religion, or both. The Court dismissed the existence of any First Amendment interests of the partnership in privacy or freedom of association. 29 It went on to suggest that even if the First Amendment applied to the promotion of associate to partnership, Title VII nevertheless reached that part of the decision that might have taken into account race, color, religion, sex, or national origin. 30 In so holding, the Court avoided addressing a number of hard questions. It attempted to distinguish promoting an associate from hiring a non-associate as partner or firing a partner. Yet, if being a partner is indeed a term, condition or privilege of employment, what difference does it make if the employment opportunity is obtained from within or without the partnership? Is it less a violation of Title VII to deny partnership to an Italian Catholic or a woman who applies for an opening from another firm than one who applies from the same firm? And how can the decision to take on a partner be different from the decision to eliminate one? In addition, if Lucido had proved his case, 31 what would have been his remedy? Would he be entitled to practice with the firm that had rejected him? Would he be entitled to damages? How would they be measured? These same considerations are at stake in Hishon v. King & Spalding. How Far Did Congress Go? Moreover, the greater ramifications of ruling that sex discrimination may not legally be a part of the partnership decision have not yet been explored. Would the coverage of Title VII extend to lawyers who were not partners in a law firm, but only shared space? Would it apply to their decision to take on another attorney to share space in a vacant office? Consider how closely-held corporations might be affected. Many big businesses are owned by families, with the stock structured such that ownership remains in the family (rights of first refusal, etc.). Such businesses may also require, either through written or unwritten rules, that only one of the family member/shareholders can be a president or vice president. This practice would have the effect of preventing persons of different racial or ethnic backgrounds from being promoted to president or vice president where a stockholder refused to marry outside of his/her race or ethnic background. Are such decisions regarding who can be a stockholder / officer /family member different from the decision of who to take on as a partner? Are partnerowners like those of King & Spalding sufficiently different from corporate shareholders to exempt the latter from Title VII coverage? What if the decision were clearly made for the sole purpose of preventing persons from certain racial or ethnic minorities from becoming president of the corporation? What if the stockholders wanted to prevent their female family members from becoming president? Could they require pre-nuptial agreements whereby the fiance would waive her right to become president upon receiving shares in the business? Would such an agreement be void as against public policy by violating the intent of Title VII? These are some of the questions raised by Hishon v. King & Spalding. In the final analysis, we will be left with the task of eliminating sex discrimination in the legal profession and in society at large, regardless of how the Supreme Court rules. It will be a great achievement if we can tear down the stubborn "brick wall" that keeps women from advancing without destroying the fragile foundation of our Constitution. Footnotes 1 Address by Maureen Reagan, "The Gender Gap," Indiana University Southeast, New Albany, Indiana, February I2, 1984. Cited in In The River City, Newsletter of the River City Business and Professional Women, Louisville, Ky., March 1, I984, p.1. 2 Stewart, "Are Women Lawyers Discriminated Against at Large Law Firms?'-', The Wall Street Journal. 3 Brief of Petitioner, Hishon v. King & Spalding, 678 F2d 1022 (11th Cir. 1982). In the Supreme Court of the United States, Oct. term 1982. • Stewart, supra at p. 1. j /d. 6 Brief of Respondent, Hishon v. King & Spalding, In the Supreme Court of the United States, Oct. Term 1982, at 33-34. 7 Smith, "A Profile of Lawyer Life Styles," American Bar Association Journal, February 1984 at 50. 8Mitchell, Women's Estate, (1973), at 64-65. 10 1d. II 1d. 12 /d. at 68; "Redstockings Manifesto," Morgan, Sisterhood is Powerful, (1970), at 533-4,535; Hole and Leving, Rebirth of Feminism (1973), at 138-140. 13 Stewart, supra. It is not intended that King & Spalding be singled out for criticism. The literature suggests that the "old boys," "locker-room" mentality is hardly unusual in such firms. 14See Hishon v. King & Spalding, supra note 3, at 1029. " Brief of Petitioner, supra at 23. 16 Brief of Respondent, supra, at 12, quoting Sweatt v. Painter, 339 U.S. 629 at 634 (1950) 17 Brief of Respondent at 62-64. 18 Id. at 19-31. 19 Hishon v. King & Spalding, supra, note 14, at 1028. 20 Id. at 1030. 21 Id. at 1026. 22 427 U.S. 160 (1976) 23 Id. at 176, quoting Norwood v. Harrison, 413 U.S. 455 (1973). 24 42 U.S.C. §1981 (1982) is an exercise of legislative power under §2 of the 13th Amendment prohibiting slavery. The statute prohibits racial discrimination interfering with the making and enforcing of contracts. There is no similar statute for the prohibition of sex discrimination. If Hishon v. King & Spalding is decided in Ms. Hishon 's favor, it will only cover employment situations. If the Court rules that §2000e cannot reach the type of private discrimination that §1981 can, could blacks nonetheless be protected from refusal to admission of partnerships under §1981? 25 Runyon, supra, note 22, at 179. 26 Brief of Petitioner, supra at 27-40. 27 ld. at 41-46. 28 425 F. Supp 123 (S.D. N.Y. 1977). 29 But see Griswold v. Connecticut, 381 U.S. 479 (1965); NAACP v. Alabama, 357 U.S. 499 (1958),· See also Roe v. Wade, 410 U.S. i 13 (1973), affirming fundamental rights implicit in the concept of ordered liberty. 30 Lucido, supra note 28, at 129. 31Mr. Lucido had also proceeded on breach of contract theory. The case was eventually dismissed with prejudice in 1981. 6 Louisville Law Examiner, March, 1984 Rule Changes Put Added Responsibilities on Lawyers (Continued from Page 1) Pleadings, Motions, and Other Papers; Sanctions." Before, it was only a pleading which was to be signed by the attorney in his individual name with his address stated; now, Rule 11 extends this requirement to ''Every pleading, motion, and other papers." Before, the certificate constituted by signing applied only to those pleadings listed in Rule 7.01; now, the attorney certifies to the best of his knowledge, information, and belief "that he has read the pleading, motion, .or other paper." Before, Rule 11, as a sanction, provided for the striking of sham and false pleadings. Such language has been removed from the Ruie and those matters now are to be raised by a motion to strike pursuant to Rule 12.06. In some cases the improper pleading may also constitute a violation of Ruie 11 and joined therewith may be a motion for an appropriate sanction under that Rule, which in a proper case may include attorney's fees. Other Papers Some disagreement exists as to the scope of the meaning of the term "other papers." First, it is limited to documents which are signed by the attorney or the party. So signed, among others, are answers and ()bjections to written interrogatories (Rule 33.01), requests for the production of documents (Rule 34, Form 19), requests for admissions (Rule 36, Form 20), notices of appeal (Rule 73.03, Form 22). 2 Second, the document must be one filed or used in the particuiar litigation, other than an inhouse or private document not becoming part of the record in the case or shown to, or acted upon, by other counsel. To the extent that other papers are embraced within amended Rule 11, the additional matters certified to by the attorney under that Rule apply. With regard to discovery papers, the 1983 amendments to the Federal Rules add new Rule 26(g) entitled, "Signing of Discovery Requests, Responses, and Objections." 3 In a note to amended Rule 11 the Advisory Committee for the Federal Rules explains: Although the encompassing reference to "other papers" in new Rule 11 literally includes discovery papers, the certification requirement in that contest is governed by proposed new Rule 26(g). Discovery motions, however, fall within the ambit of Rule 11. Of course, a specific Rule prevails over a general and therefore as to discovery papers, other than motions, new Federal Rule 26(g) has precedence over Federal Rule 11. However, where a jurisdiction, such as Kentucky, has adopted amended Rule 11, but not Rule 26(g), the requirements and sanctions of Rule 11 apply to discovery papers which are signed by an attorney or party as the above note suggests. As to new Rule 26(g), the Advisory Committee elaborated in its notes to the Rule: If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels the amendments to Rule II, requires an attorney or unrepresented party to sign each discovery request, response, or objection. Motions relating to discovery are governed by Rule II . However, since a discovery request, response, or objection usually deals with more specific subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out more completely. The signature is a certification of the elements set forth in Rule 26(g). Reasonable Inquiry before Signing Amended Ruie I1 imposes higher standards of care and professionalism upon the attorney than the former Rule did. The new language requires the attorney, before signing a pleading, motion, or other paper, to make reasonable inquiry as to both the facts and the law. It reads: The signature of the attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. With regard to this new standard of professional responsibility in preparing and signing documents for litigation, the Advisory Committee for the Federal Rules, which proposed the new language, explained in a note to Rule II: The· rule is not intended to chill an attorney's enthusia.sm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Thus, what constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar. While amended Rule II does not prohibit an attorney from delegating to others, such as to associates or paralegals, aspects of the investigation of the facts and the law, he or she must be mindful that the responsibility for complying with the standards prescribed by Rule 11 rests upon the person signing the document. Sanctions Any appropriate sanction is now available against an offending attorney or his client, or both, including "an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." It must be stressed that such monetary penalty may be assessed against the attorney. Before amendment, a wilful violation was required and the only penalty against an attorney, apart from striking a sham or false pleading, was "appropriate disciplinary action ." Also, the former Rule did not specify who was to take the initiative in seeking such action. The amended Rule now provides: If a pleading, motion, or other paper is signed in violation (note that the world "wilful" has been omitted) of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both ... The Advisory Committee for the Federal Rules anticipates that the courts will become more active in enforcing the higher standards of Rule 11 upon attorneys. It explains in a note to the Rule: The new language is intended to reduce the reluctance of the courts to impose sanctions ... by emphasizing the responsibilities of the attorney and reenforcing those obligations by the imposition of sanctions. It adds: The detection and punishment of a violation of the signing requirement, encouraged by the amended rule, is part of the court's responsibility for securing the system's effective operation. It is contemplated that a proceeding to initiate sanctions, either upon a motion by the other party or upon the court's initiative, will be decided with a minimum use of discovery or of matters outside of the particular document. New Rule ll does not require an attorney (or party) to disclose privileged communications or work product in order to show substantial justification for signing the document. The court has discretion to impose sanctions on either the attorney, the party the signing attorney represents, or both of them. In this respect amended Rule II is similar to the sanction provision of Rule 37 .02(3) for non-compliance with a discovery order. As pertains to a proceeding initiated by the motion by the other party, the Advisory Committee recommends: A party seeking sanctions should give notice to the court and the offending party promptly upon discovering a basis for doing so. The time when sanctions are to be imposed rests in the discretion of the trial judge. However, it is anticipated that in the case of pleadings the sanctions issue under Rule II normally will be determined at the end- of the litigation, and in the case of motions at the time when the motion is decided or shortly thereafter. The procedure obviously must comport with due process requirements. The particular format to be followed should depend on the circumstances of the situation and the severity of the sanction under consideration. In many situations the judge's participation in the proceedings provides him with full knowledge of the relevant facts and little further inquiry will be necessary. In conclusion, Rule 11 now requires attorneys to heed the advice commonly given to clients of knowing what you are signing before you sign it. FOOTNOTES 1. The Advisory Committee for the Federal Rules in its note to amended Rule 11 states: Since its original promulgation, Rule 11 has provided for the striking of pleadings and the imposition of disciplinary sanctions to check abuses in the signing of pleadings. Its provisions have always applied to motions and other pleadings by virtue of incorporation by reference in Rule 7(b)(2). (Note: same as Kentucky Rule 7.02(2).) 2. Prof. Moore writes in Section 7.05 of Moore's Federal Practice: Embraced within the term "other papers" are affidavits, depositions, written notices, appearances, demands, offers and the like. 3. Rule 26(g) reads: Every request for discovery or response or objection thereto made by a party represented by an attorney shalf be signed by at least one attorney of record in his individual name, whose address shall be stated . . . The signature of the attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection and a party shalf not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. (Note: Much of the language is identical to that in amended Rule 11. Kentucky has not adopted Rule 26(g).) Louisville Law Examiner, March, 1984 7 Local Lawyer Sees Advertising As Wave of Future By Neil Ward "I've been advertising longer than anyone in the state and it's been good to me," Louisville attorney and U of L Law School graduate Richard Shapero said. "I've spent hundreds of thousands of dollars on television commercials. I've been willing to do what a lot of advertising attorneys are afraid to do and that's make a major commitment to advertising ." · Prevented from advertising for years, attorneys got the green light in 1977 when the U.S. Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350, ruled that attorneys had the right to advertise their services. While the debate as to whether attorney advertising is detrimental to the profession rages on even after the court decision, Shapero said the issue isn't worth debating. "Attorney advertising is here, so get used to it," Shapero said. "If you don't want to advertise, then don't." In fact, Shapero said attorneys have been advertising for decades. To build their practice, attorneys have gotten involved in politics, joined country clubs, wined and dined wealthy, influential individuals and a variety of other tactics calculated to get their names and faces in front of the paying public. "Instead of spending my money on country clubs and restaurants, I spend my money on the tube," Shapero said. However, as most business people will tell you, advertising is a complicated business and if you don't know what you're doing, you ' re just wasting your money. Shapero said he doesn't just advertise, he markets. Shapero decides what type of person he wants to reach with his advertising and then he designs a commercial to convey his message to the target audience. Then, using demographic studies that the television stations have compiled, Shapero runs his commercials during the time period when his target audience is most likely to be viewing the tube. To date, Shapero's commercials have tried to reach .people who need help in filing bankruptcy and people who are facing criminal charges. "I don't advertise help with divorce proceedings, because there's no urgency to a divorce. A lot of people split up for six months or a year and when it's convenient and affordable, they finally get around to filing for divorce," Shapero said. "But if your car is about to be repossessed, or your wages garnished because you're in such bad financial pERsoN~\...--------. \ N J u R 'l M~~E~E:E~~~e::ED HOSPITAL AND HOME VISITS FOR THE DISABLED •AUTOMOBILE ACCIDENTS •BODILY INJURIES (ALL TYPES) •DEATH CLAIMS •SOCIAL SECURITY DISABILITY •WORKERS' COMPENSATION •MEDICAL MALPRACTICE •DOG BITES •NURSING HOME INJURIES shape, or if you're . facing criminal charges, you're feeling the pressure to get an attorney's help," Shapero said. Richard Shapero said he tries to reach the 70 to 80 percent of the public that needs an attorney, but for various reasons doesn't get one. Shapero said people are indoctrinated to the idea that when you don't feel well you go see a doctor, but a large percentage of the public doesn't go see an attorney when they are having serious legal problems. Shapero said he never advertises price in his commercials, because that's not the purpose of his commercials. "Commericals should be telling people how attorneys can help them. Advertising hundred dollar divorces doesn't tell the public anything," he said. Shapero claims his ads are generating revenue for the entire legal · community in Louisville. He believes that for every call he gets as a result of his ~ commercials, seven· or eight other attorneys also get calls from people that have been motivated to get legal help because of Shapero's ads. In addition to producing his own legal commercials with the assistance of his advertising agent, Shapero has formed the Lawman, a lawyers' management and marketing service to help other attorneys successfully market their services through media advertising. Legislators Atte111pt to Work Out Differences; ~~--~------~-- Tougher Drunk Driving Law is Likely To Result By Mike Schafer When the 1984 Kentucky General Assembly adjourns, the Commonwealth is very likely to have a new drunk driving law which will amend KRS Chapter 189. The Senate and the House have passed the bill. So if differences in the bills passed by each chamber can be reconciled, the legislation will be sent to the Governor for her approval. This bill in- • T,vp· Lrr·ocor>~SENT ....L.I I L. IV I LAW Krt$ 1&5b5 1 You HAvr .BmJ,ARR£sT£D FoR OPERATING A MoroR VEH!C.LE WH!LE UNnER THE lNrLUENct OF TNro xrcA TING BEvERAGEs. Q You ARE REQUESTED To Sus•m To A CHEMICAL Trsr To DnmuNE YouR BLooD ALCOHOL Co~J:IENi WILL You TAK[ Tm Tm ? 3 lF You KtFUSE, You WILL Los£ YouR .DRIVERS LrwJs££oR Six (6) Mor-n11s. WILL You rvow lAKE. THE TEsT? eludes a $150 fee charged to convicted drunk drivers, in addition to fines and court costs and a mandatory 4 hours in jail for offenders with a .15 OJo blood alcohol level or higher. The House did not approve a mandatory jail sentence for first offenders. This was the primary reason for failure of the 1982 "slammer bill." If approved, those who operate motor vehicles on Kentucky highways while under the influence of alcohol or any other substance which "impairs" one's driving ability will be penalized. Preliminary breath tests may be administered in the field by law enforcement agencies to suspected offenders if such tests give an accurate reading of blood alcohol content. Films of the test are allowed to be made and used in court. Refusal to take a test cannot be used aginst the defendant in court. The test will create the following presumptions. An individual with a blood alcohol level of .05% or less is presumed not to be under the influence of intoxicating beverages. Between .050Jo and .10%, the blood alcohol level doesn't create a presumption either way, but may be used in conjunction with other evidence to determine guilt. A blood alchollevel of .10% or more gives the presumption that the defendant was under the influence of intoxicating beverages. If the defendant's blood alcohol level is less than .15% the prosecution may agree to amendment of the violation. Above .15 OJo, the prosecution is not allowed to agree to such amendments. The House and Senate have taken conflicting positions on whether, before sentencing, a violator should have a non-waivable presentence hearing. At such a hearing, the court would consider past driving record, alcohol or drug dependency and abuse status, and recommendations of the prosecution before sentencing the defendant. Following this hearing, with a showing Photo by Motorist arrested for drunk driving is given a Breathalyzer test to determine his blood alcohol level. of probable cause, the court could suspend the offender's driving license until final disposition of the case. This suspension may be reviewed after 14 days and in no circusmtance is to exceed 60 days. Penalties for first offenders will include a fine between $200 and $500, between two and 30 days in jail, or both. The offender's driving license may also be revoked for six months unless he or she enrolls in a drivers improvement program. After sentencing, the defendant may ask for two to 30 days in a community labor program in lieu of fine or imprisonment. If a death is caused by the defendant's intoxication, imprisonment is mandatory. For a second offense within a fiveyear period, an offender may receive a fine from $350 to $500 and imprison-ment from seven days to six months. In addition, the defendant may be sentenced to community labor for 10 days to 12 months and his or her driving license revoked for one year. Third and subsequent offenses within a five-year period will receive a fine from $500 to $1000 and imprisonment from 30 days to 12 months. The court may also order 10 days to 12 months of community labor. In addition to the above penalties, the court has the discretion to sentence any offender to an alcohol or substance abuse program. Any offender under 18 years of age will have his or her driver's license revoked until he or she reaches age 18, or as stated in the above provisions, whichever results in the longer period. 8 Louisville Law Examiner, March, 1984 U of L Students Provided with free Legal Services By Joel D. Zakem Since October, 1978, University of Louisville students have had the opportunity to receive free legal information. That date marked the establishment of the Student Legal Services' office at the University. Denise M. Clayton, the Director and sole staff member of the service, estimates that she speaks with approximately 15 students a week. In addition, she assists the Student Government Association (which funds the office), student publications, and other campus organizations with their legal problems. Within the past year, the office has also begun helping students with litigation. Though Clayton answers inquiries in many legal areas, the litigation is currently limited to two areas: uncontested divorce (if no children are involved) and small claims court. Clayton has headed Student Legal Services since its inception. A 1976 graduate of U of L Law School, she said that she · would be interested in seeing more people from the law school become involved with the service. "Right now, we have no formal connection with the law school," she said, altho1,1gh, in- ·the past, a faculty member had served on an advisory committee. She said she would welcome suggestions from the law school community, especially in the area of student involvement. "This would be a great opportunity for students," she said. "But I realize the program will have to be expanded first." One area in which expansion would be needed, according to Clayton, is in finances. A lack of funding has cut her hours from full time to three quarter time. She realizes that without the funds to pay students, attracting law students will be difficult. "But if there is interest," she said, "I'd be willing to go after more funding.'' As an alternative, she said she would look into the possibility of setting up a practicum where students may be able to receive some classroom credit in exchange for their work. "We need closer ties with the law school," she said. Clayton is also hoping for increased campus awareness of Student Legal Services and what they do. To aid in this, a 24-page Student Legal Services Handbook has been published. The book is available at several locations on campus. It was compiled by Clayton, with the assistance of several local attorneys, and contains information on some of the more common legal problems faced by students. The service also sponsors a monthly seminar at the Ecumenical Center. This takes place on the first Monday of each month, beginning at noon. The Student Legal Services Office is located in Room 12 of the Student Center; phone 588-5787. Pho10 by }u(~V Hoge Denise M. Clayton is Director of Student Legal Services, where U of L students can get free legal information. Louisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40292 Non-Profit Organization U.S. POSTAGE PAID Permit No. 769 Louisville, KY John M. Harlan Louis D. Brandeis (. - t;li/ - Louisville~ Law Examiner Volume9 Jailhouse Reality Follows Drunk Driving Arrest .. ............... page 1 Amended FRCP Rule 11 Explained ................ . page 1 Symposium to Honor Dedication of New Wing ................. page 2 ''Brandeis Brief'': Sex Discrimination in Law Firms .............. ... page 4 Local Attorney Extols Advertising .... ............. page 7 March, 1984 Number 5
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Title | Louisville Law Examiner 9.5, March 1984 |
Alternative Title | Law Student Publications |
Contributors | University of Louisville. School of Law |
Description | The Louisville Law Examiner (1975-1991) was the second of three official University of Louisville School of Law student publications. |
Searchable Text | Louisville Law Examiner Serving the University of Louisville School of Law Community Volume 9, Number 5 Louisville, Kentucky, March, 1984 Jailhouse Reality Follows Drunk Driving Arrest By Tim Cocanougher Joe Bar head saunters to his car. A night of drinking and partying has put Joe in a wonderful mood. Undaunted by an obvious impairment of driving skills (it took him five minutes to remember how to turn the lights on), Joe finally gets his car started and heads for home. However, Joe's happy mood will be short-lived. A policeman notices Joe's erratic driving and after confirming his suspicions, detours Joe to the county jail where drunk drivers are slapped with the reality that they have broken the law. to refuse. However, he is also informed that if he refuses, the state will automatically pull his driver's license. Joe will then be placed in a holdover area until his paperwork is completed, which usually takes two or three hours. After this is completed and a judge is contacted, Joe may be released on his own recognizance or on bond. If the paperwork is completed before 5:30 a.m., Joe will be arraigned that morning, if not, his arraignment will be the following day. Circulation 5400 Officer Gary Gallenstein, a seven-year veteran with the Jefferson County Department of Corrections, outlined the basic procedure Joe would encounter when brought to jail. Once inside the jail, Joe would be strip-searched to ensure he was not carrying weapons or drugs. His personal belongings would be taken and he would then fill out a medical history questionnaire. After obtaining a release from jail, Joe's ordeal is only half over. He still must face prosecution which is usually financially painful. County prosecutor Richard Schulton explained the method employed by his office in dealing with drunk drivers. Schulton first noted that DWI cases are unlike any other criminal cases because the major piece of evidence (the breathalyzer test) is administered after the arrest. This is frequently a problem area because the policeman makes the arrest based on observation of the suspect. If the breathalyzer results do not confirm the policeman's suspicion, the suspect cannot be "unarrested." When this occurs, the prosecutor may seek a lower charge, such as reckless driving, but in no circumstances will the county attorney agree to drop the charges completely. Photo by Crystal Collins A drunk driving suspect tries to touch his nose in one of several tests to determine coordination and impaired driving ability. His next stop is the slap-print table where he is finger-printed and given an armband and an ID number. He is then taken to the property room and watches his property being itemized to verify its amount and existence. He is also photographed and this information is placed in the files of various law enforcement agencies, including the FBI. This procedure takes approximately 20 minutes. Within an hour after custody, the breathalyzer test is administered. Before taking the test, Joe is read his rights and is told he has the right Now, back to Joe where the arraignment stage awaits. Here, Joe will make his plea. If he pleads guily (600Jo-700Jo plead guilty) and it is his first offense, the fine will probably be $200. If Joe has FRCP Rule 11 Amended other drunk driving charges, his fine will be higher (up to $500) and he is likely to spend up to 15 days in jail as well. If the General Assembly comes up with a final version of a new drunk driving statute, these penalties are likely to be stiffer. See Related Story and Photos on page 7 If Joe pleads not guilty, he is entitled to a jury trial. However, a strong public disgust with drunk driving has changed the trend in jury convictions. A few years ago, juries very seldom convicted, but today most jury verdicts end in conviction. To keep the story short, Joe was a first-time offender and given a $200.00 fine with a warning that subsequent offenses would incur a harsher penalty. Joe's introduction to this system is not intended to convert him into a Southern Baptist who abstains from drinking liquor, demonstrates for the return of prohibition and hangs Jerry Falwell's picture on his wall. However, it should make him aware that drunk driving is no longer a minor offense. Stronger penalties and a growing public awareness of the dangers of drinking and driving suggest that when one has had "one too many" the intelligent decision is to find an alternative route home before getting behind the wheel. Changes Mean More Responsibility on Lawyers Photo by Judy Hoge By Marlin M. Volz Professor of Law, University of Louisville Effective August I, I983, major changes were made in Rules II, I6 and 26 of the Federal Rules of Civil Procedure, greatly enlarging the role of the judge in the control and management of litigation and increasing the personal responsibility of lawyers who sign pleadings, motions and other papers. Of the three major changes, Kentucky has adopted only one. On January I, I984, the Supreme Court of Kentucky amended Rule II so that it reads identically to revised Federal Rule II. However, in doing so, it did not include the language which the amendments to the Federal Rules added to Rule 7(c) directing that "All motions shall be signed in accordance with Rule II." The intent of that addition was to make explicit the applicability to motions of the standards activated by signing which amended Rule 11 imposes. However, it appears that the addition of such language is unnecessary to the achievement of the intended result since the same result is obtained by present Kentucky Rule 7 .02(2) when construed together with amended Rule II. It is my opinion that the signing requirements and sanctions of Rule 11, as amended, apply in Kentucky to motions and other papers as well as to pleadings, Applicability of Rule 11 to Motions and Other Papers Certainly as to the form of signing, i.e. "by at least one attorney of record in his individual name, whose address shall be stated'', Rule 7 .02(2) by the continued use of the word "signing", which was eliminated from Rule 7(b) by the Federal amendments, plainly borrows from Rule 11 such requirement and applies it to motions and other papers. Rule 7.02(2) provides: The Rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these Rules. (Emphasis supplied). It is to be noted that the only Rule pertaining to signing identified as such is Rule II.' Furthermore, the amended language of Rule II makes clear that its substantive provisions apply to motions and other papers as well as to pleadings. The new wording of the title of the Rule indicates as much. It had read, "Signing of Pleadings"; it now reads, "Signing of (Continued on Page 6) l Louisville Law Examiner, March, 1984 Louisville Law Examiner EDITORIAL BOARD Judy Hoge Editor-in-Chief Neil Ward Associate Editor Crystal Collins Associate Editor Photography Editor Tim Cocanougher Yolanda French . . John Schaaf Managing Editor Jon Hardy Brandeis Brief Editor Winnie McConnell Night Associate Editor STAFF Todd Hollenbach Mike Schafer David Taylor Joel D. Zakem ProfeiiOI' LAURENCE W. KNOWLES, Consultant Tbe Lontsvllle Law Eumhler is published six times during the academic . year in the interest of the University of Louisville School of Law community. ArticJes are invited from faculty members, students, and members of the bar who wislt to do freelance work. Any proposed article should be cleared with the Editor as to topic and length. Address all communications to Tbe Louisville Law Examiner, School of Law, University of Louisville, LoUisville, Kentucky 40292. Phone: 502-588-6398. · Fi/g Photo Dedication of New Wing. Will Include Symposiu01 By Judy Hoge Kentucky Supreme Court Justice . Charles Leibson will speak at the official dedication of the new wing of the Law School on Friday, April 13. University of Louisville President Dr. Donald C. Swain will also be present at the ceremony. A champagne reception in the Administration Building will follow. In honor of the occasion, the Law School will present a Dedication Symposium on Friday, April 13 and Saturday, April 14, entitled "Privacy and the Family in M-edical Decisions." According to Seminar Chairman Albert T. Quick, the topic stemmed from the school's desire to integrate two areas of special interest to the sch6ol: privacy, the cause espoused by Justice Brandeis; and family law, the subject of the Journal of Family Law published by the school. The symposium will focus on the right to privacy in the · area of medical treatment, and will deal specifically with refusal of life saving and non-life saving treatment by adults and minors. Formal presentations by well-known educators and practitioners will be followed by commentary from panelists, who will include Professors Steven R. Smith, Ralph Petrilli, and Robert L. Stenger. Audience interaction will be encouraged. Speakers at the Symposium will include Morris Abram, a New York attorney and past President of Brandeis University, who was Chairman of the first Presidential Commission for the Study of Ethical Problems in Medicine. The Commission dealt with principles of morality in shaping the development and application of medical technology . Presentations will also be made by George J. Annas, the Utley Professor of Health Law at Boston University Schools of Medicine and Public Health; James Childress, Professor of Medical Education at the University of Virginia; and Patricia A. King, Professor of Law at Georgetown University. Ms. King is also Senior Research Scholar at the Kennedy Institute of Ethics. The fee for .the symposium is $10. Twelve hours of CLE credit, and ten hours of CME (Category I AMA) credit will be given. For further information, call Susan Bourne at 588-7806. Photo by Crystal Collins East Wing of Law School: Then and Now Few of us remember when it wasn't here, and most of us can't imagine life without it. The move into the new East wing of the law school in January, 1982, culminated years of planning and construction, instigated by a report from the ABA accreditation committee which followed a visit to the school by an inspection team in 1976. As the existing structure was designed to accommodate 80 to 90 students, and enrollment was 510, a new structure for classrooms was· clearly necessary for compliance with minimum ABA space requirements. When Dean Harold Wren took office in 1976, he told the ABA that the new wing would be a top priority item, and predicted its completion during the 1980-82 biennium. In his "State of the Law School" address in October, 1979, Wren announced that construction would start on the six million dollar building project by Fall of 1980, with completion expected in roughly 18 months. The new wing was to be symmetrical with the Library wing when viewed from the oval, accessible to the handicapped, and contain numerous well-lighted classrooms of various sizes. The first step was the razing of the old Law School Annex whose rickety narrow stairs and cramped archaic lecture hall were familiar to generations of students. There followed a period of major inconveniences for faculty and students alike. Bulldozers, jackhammers, cranes and trucks brought noise, dust, drilling, vibration and confusion daily. Classes were shuttled from one location to another, but the fear that the whole school or individual classes would have to move to another building on campus was never realized. Despite a seven-week strike which brought construction to a standstill, the addition was completed on schedule and the wing was fully operational in time for the beginning of the Spring, 1982 semester. Boasting four large classrooms, seating from 60 to 140 students, and several smaller seminar rooms, the new wing was clean, shiny, and best of all, quiet. The ,addition also provided office space for student organizations such as Moot Court, the Student Bar Association, the Law Examiner and the Journal of Family Law, as well as forty faculty and staff offices, numerous study rooms and two student lounges, one with kitchen facilities. Photo by Crystal Collins By Winnie McConnell So you want to improve your grade point average in law school, and you need help from competent advisors? What better clues on excelling in law can be given than from three University of Louisville evening law students who are ranked number one academically in their respective classes? The three students, Jim Lesousky, fourth-year; Lisa Vogt, third-year; and Kathy Holder, second-year; agree that "organization" is the key element in their strategies for studying law. "Organization of my class notes with notes I make after reading cases is critical," said · Lesousky. "I believe the amount of organization I put forth in making outlines is an asset to helping me in grades." "Good study habits revolve around organization and how you allocate your time," said Ms. Vogt. "Self-discipline in making yourself study at designated times is also very important." Organization is also necessary when taking a final examination, according to Ms. Holder. "You have to think about the issues and organize your thoughts before you answer questions," said Ms. Holder. "Being well-prepared to recognize what's going on in the exam is crucial." Thorough preparation for law classes is vital in learning the legal concepts. All three students suggested that taking good class notes and briefing cases is advantageous. "It takes extra time to brief cases but I feel I learn more," said Ms. Vogt, adding that she briefs every case she reads because she prefers her own interpretation of the case. Lesousky also spends much of his time on weekends taking notes and briefing material for the following week's classes. "It takes me between three and four hours to write notes of each course's assignment," he said. On the other hand, Ms. Holder CLASS ACTION 1977 Darryl W. Durham has been elected Secretary of the Louisville Bar Association . He is with the firm of Barnett & Alagia. 1982 Mark Heal is with the firm of Williams & Paimore, specializing in worker's compensation defense for self-insured employers. Louisville Law Examiner, March, 1984 NIGHT and DAY Top Night Students Share Success Secrets doesn't brief cases but writes issues and other reminders of the law inside her textbook. "No one would ever want to use my books after I finish with them because they could never read the print," she said. As final examinations approach, the three students concentrate their efforts extensively on making outlines. ''Every semester I take off one week from work before final exams and literally bury myself in the law library working on my outlines," said Lesousky. "Some days I'll work from 12 to 20 hours bringing together issues and rules." Ms. Holder reviews her notes and outlines courses several weeks ahead of the reading days. "I am by nature a crammer," she said. "I take off from work one day per final and study from 7 a.m. right up to the hour of the exam. This works for me because I have a good short-term memory.'' Commercial outlines, such as Gilberts, Emmanuel's and the Nutshell series, are not widely used by anyone. of the trio. Ms. Vogt, who depends mainly on her own case briefs and class notes to make her outlines, said that no one should primarily rely on the commercial outlines because they cover only a narrow perspective of the law. While the three students exhibit "personal pride" in being among the top students in their law classes, they don't feel any extra pressures to retain their high academic standing when preparing for finals. "Inherent in attending law school is that extra tension," said Ms. Vogt. "But I don't feel any more burdened than if I · was ranked fifth." "If you do well you want to continue to do well no matter what your academic ranking is," said Ms. Holder. "Law school is like a basketball tournament. It comes down to how hard you work, how motivated you are and a heck of a lot of luck!" Photo by Judy Hoge Night students Lisa Vogt, Kathy Holder (standing), and Jim Lesousky are ranked number one in their respective classes. 1983 J. Keith Cartwright is working for a Madisonville firm, Moore, Morrow & Frymire. Terry D. Edwards is a Captain in the U.S. Air Force, stationed in Vandenberg Air Force Base in California. Michael W. Milby is Personnel Assistant with American Greetings, Corbin, Ky. Dennis Lyndell Pickett is with Stites & Harbison in their Lexington office. Hank Robinson is working for the CPA firm of Coopers & Lybrand in Louisville. Robert E. Thieman is with the Louisville firm of Ogden, Robertson & Marshall . Paul B. Whitty is working for Wyatt, Tarrant & Combs. Prof Accepts Provost Post 3 Professor Leslie W. Abramson is currently dividing his time between his teaching duties and his new job as Acting Assistant Provost to the recentlycreated Office of the University Provost. The Administration combined the duties of Vice-President for Academic Affairs and the Executive Vice-President to form the new office in July, 1983. Abramson said he will concentrate on tnree areas while at the Provost's Office: reviewing the by-laws of each unit of the University; representing his office on the Arts and Sciences' Dean review committee; and representing the Provost's Office on space and renovation matters. A search committee for a permanent Provost, co-chaired by Professor of Law Robert L. Stenger, plans to fill the position by July 1, 1984. However, Professor Abramson regards his position as temporary a,nd expects to return full-time to teaching in the Spring semester of 1985, following a sabbatical leave this fall. Abramson is currently teaching a seminar in Civil Procedure. He usually offers classes in Professional Responsibility (Ethics), Criminal Law and Procedure and Antitrust Law. Briefs New Library Hours The library is now open at 8:00 a.m. on Sundays. It will be open 24 hours a day from the beginning of reading days through the exam period. Anatomy For Lawyers A seminar on "The Back: Anatomical & Clinical Correlations," sponsored by the University of Louisville School of Law, will be held April 27 in the Auditorium of the Health Sciences Center on Belknap Campus. Registration is $70; 5 Vz hours of CLE credit will be given. 4 Louisville Law Examiner, March, 1984 BRANDEIS BRIEF: Sex Discri g Bonnie M. Brown is a Louisville attorney concentrating in domestic relations and health law. She holds an A.B. degree in Political Science from Washington Unive1sity where she wrote her thesis . on "The Women's Movement." She earned her J.D. in 1978 from the University of Louisville, where she was President of the Women's Law Caucus, and a member of the National Moot .Court Team. Ms. Brown Is the current President of River City Business and Professional Women. In addition, she is involved in the Women Lawyers Association, Louisville Rape Relief Center, and the Coalition Against Spouse Abuse. Ms. Brown has also lectured and published primarily in the area of domestic relations. There is currently pending before the United States Supreme Court a suit by Elizabeth A. Hishon, a former associate of the King and Spalding law firm, charging she was denied partner status because she was not judged by the same standards as male associates. The Atlanta firm, containing former United States Attorney General Griffin Bell as one of its leading partners, claimed that lawyers must be free from governmental pressures in choosing acceptable partners. The Law Examiner asked for the following analysis of the issues presented by this landmark case. Maureen Reagan recently observed, "(T)hey (the "old boys") moved the wall up three stories. Women can get in and start moving up, but at some point, you'll still hit that brick wall." 1 The "brick wall" for women lawyers appears to be at the partnership level. Women are entering and graduating from law schools in record numbers and apparently are finding few problems being hired as entry-level associates. However, women lawyers are not "making partner" at nearly the rate of male lawyers. 1 Elizabeth Anderson Hishon has raised some hard questions in her efforts to Photo by Judy Hoge change this situation. Her experiences at the prestigious Atlanta law firm of King & Spalding 3 seem to typify those of many women lawyers in her situation, making her case all the more important. She was one of the promising graduates in Columbia Law School's class of 1972. That year, she became an associate at King & Spalding upon the same express representation made to other promising law school graduates, namely that she would be considered for partnership on a fair, non-discriminatory basis after the usual five to six year period of employment as an associate. However, she alleges that because she was a woman, King & Spalding treated her less favorably than male associates. She was given less responsible work assignments which tended to involve smaller matters requiring her to work alone, without assistance from junior associates and without the opportunity to supervise their work. Unlike male associates who received better, more responsible work assignments and associate help, she was not given the opportunity to demonstrate that she was "partnership material". In 1979, she was passed over for partner. Her employment as an associate was then terminated under King & Spalding's "up-or-out policy". She is currently a partner in the smaller Atlanta firm of O'Callaghan, Saunders and Stumm.• Ms. Hishon has filed suit under Title VII of the Civil Rights Act of 1964, 42 U .S.C. §2000e et.seq., which prohibits employment discrimination on account of race, color, national origin, religion, or sex, by employers with 15 or more employees. She claims that King & Spalding engaged in sex discrimination when they denied her promotion to partnership. The case is pending in the United Srates Supreme Court. Sex Discrimination at King & Spalding, in the Legal Profession, and in Society at large There is little doubt that, based on her allegations, Ms. Hishon suffered sex discrimination at King & Spalding, and that sex discrimination actually exists in the legal profession. From Ms. Hishon's Columbia Law School class, only 3.8 percent (1 of 26) of the women graduates are partners in prestigious firms comparable to King & Spalding, while 20 percent of the male graduates are partners in such firms. Only 11.5 percent of the women, but 50 percent of the men, are partners in firms of any sort. 5 A 1982 National Law Journal Survey of 151 of the top 200 law firms showed that only 3.2 percent (297 out of 9,21 0) of the partners in those firms were women while 14 percent of the legal profession were women.6 The American Bar Association Journal profile of lawyer lifestyles revealed that male lawyers earned more than female lawyers in every age category. ' An American Bar Association Journal survey found that women lawyers work harder and are paid less than male lawyers. 8 Sex discrimination in the legal profession operates in much the same way as it does in society at large. An understanding of its operation and effect is essential to any meaningful discussion of its elimination, a goal in which Ms. Hishon is joined by many others. Sex discrimination is part and parcel of our entire culture, which has been described as "patriarchal. " 9 Disparate treatment of men and women in our society has been called "sexism." 10 Sexism is not confined to political, social, or economic institutions. It invades our attitudes, our language, our values, and the very way we view life. 11 Analysts of sexism have noted that "the personal is the. political." 12 This observation is a way of describing the all-pervasive nature of sexism in patriarchal culture. It means, for example, that the forces that cause a mother (or father!) to give a chemistry set only to a son and a doll only to a daughter are the same forces that operate twenty years later to cause an employer to pay the son more than the daughter for the same work. Though the forces operating are the same, the former act is legal, while the latter act is illegal. This identification of the personal as political, and the conceptual blending of the two, is important to an understanding of sexism in our society. However, it is disasterous to the application of legal remedies to eliminate sex discrimination in a constitutional democracy with limited government that respects distinctions between the public sphere and the private sphere. In this simple example, the line is easily drawn. Government can, and should, prohibit the latter act of sex discrimination (unequal pay), but cannot prohibit the former. However, the operation of sex discrimination at King & Spalding is a telling example of how difficult it can be to give proper perspective to the competing interests of eliminating sex discrimination and preserving civil liberties (i.e., privacy, freedom of association). Where is the line drawn? Which of the following alleged incidents and/or practices at King & Spalding should be illegal? 13 • Calling female associates "sugar" and "honey"; • Kissing female associates on the cheek; • Calling several women lawyers seated together at a firm meeting "The Kroger Price Patrol," referring to a T.V. ad campaign aimed at housewives; • Refusing to allow a woman to attend a firm outing where the men play golf all day and poker all night; • Making outcasts of women lawyers who do not socialize with the men at male sporting events after work; • Some male lawyers attempting to hold a wet T-shirt contest at a weekend outing featuring the female summer associates, but settling for a bathing-suit competition, during which some participants said they felt humiliated but didn't protest because they were candidates for year-round jobs; • Giving women associates, but not men associates, primarily low-status, dead-end assignments; • Making two women who were finally admitted to the firm as partners, work twice as hard as the men for the same recognition, giving rise to fear among the other women that the first two (being so outstanding) have set standards that will be difficult to meet. Ms. Hishon has chosen not to pursue any of these or other similar matters before the Supreme Court, but to limit the issue to denial of partnership. She has also chosen to concentrate on her civil rights action under Title VII and not to litigate any causes of action she may have for breach of contract or fraud, based upon King & Spalding's representation that she would be considered for partnership on a fair and non-discriminatory basis. 14 In so doing, she has squarely placed before the Supreme Court the hard question, emotionally but accurately stated in her Brief, as follows: Can King & Spalding, or any other law firm that has 15 or more employees, post a sign on the door of its partnership meetings that reads: KEEP OUT NO WOMEN, NO BLACKS, NO JEWS ADMITTED" Analysis of the Competing Interests - Asking the Hard Questions To answer this question, King & Louisville Law Examiner, March, 1984 5 min.ation in Law Firms Challenged Spalding argues that it is organized as a partnership under the laws of Georgia and that its partners have voluntarily associated to conduct business. It asserts "the right of law partners to choose those with whom they will share ownership, responsibility, duty, reputation ... , experience ... , position and influence ... , standing ... , tradition and prestige... for a lifetime of law practice.'' 16 King & Spalding further asserts that the invitation to become a partner is not cognizable under Title VII as an employment opportunity or as a term, condition or privilege of employ.ment. The election to partnership is not a promotion, but a change in status from employee to employer-owner. 17 The executive branch of government must not be permitted to intrude upon the decision of King & Spalding in admitting or denying partnership to any individual. 18 · The Eleventh Circuit agreed with King & Spalding that it was "clearly a voluntary association of lawyers for the purpose of practicing law as joint venturers," 19 that partners are owners, not employees of the partnership, that Title VII does not permit intervention into matters of voluntary association, and that Title VII does not reach "decisions dealing with the formation of partnerships.'' 20 If the Supreme Court should affirm and find for King & Spalding's position, what would that mean for the future of Title VII's mandate and the ability "to effectuate its purpose - to remedy acts of discrimination within the employment context"? 21 Would such a ruling be compatible with the philosophy expressed in Runyon v. McCrary/2 which held that private schools could not reject qualified black applicants for admission? In Runyon, the Court reasoned that belief in racial segregation was protected by the First Amendment, but that practice of it was not. "(W)hile invidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment... it has never been afforded Constitutional protection. " 23 Runyon was decided under 42 U .S.C. §1981 rather than §2000e24 but the philosophy is applicable. Can it be said that admission to a private school is so different from admission to a private voluntary association for the conduct of business that the application of different legal principles is required? The Supreme Court, at least as of 1976, believed "prohibition of racial discrimination that interferes with the making and enforcement of contracts for private educational services furthers goals closely analogous to those served by §1981's elimination of racial discrimination in the making of private employment contracts. " 25 Does the Court still believe that? Should the law distinguish between race and sex discrimination? On the other hand, not all the hard questions are generated by King & Spalding's position. Ms. Hishon's position is worthy of analysis as well. She argues the "economic realities" of King & Spalding are that its partners are its employees, thus making promotion to partnership an employment opportunity she was denied in violation of Title VII. King & Spalding has been practicing law under that name since 1885. By virtue of its partnership agreement, King & Spalding, far from being a traditional common law partnership, ( 1) has a perpetual existence unaffected by the entry, resignation, or death of partners, (2) has central control and management by a committee electep and functioning in much the same way as a corporate board of directors, and (3) provides that upon withdrawal, a partner's ownership interest is limited to a refund of invested capital and his share of undistributed net earnings, excluding any interest in accounts receivable, inventory, etc. 26 Thus, Ms. Hishon contends, King & Spalding is more like a corporation than a partnership, and individual partners are more like employees of the partnership than owners. She further argues that, when King & Spalding promised to give her equal consideration for partnership, promotion to partnership became an "employment opportunity" or a "term, condition or privilege" of employment covered under Title VII's prohibition of sex discrimination in employment. Labels . of "employee" or "owner" should not be determinitive. 27 The Southern District of New York agreed with Ms. Hishon on these points under almost identical facts. The Court in Lucido v. Cravath, Swaine & Moore28 held that an Italian Catholic attorney stated a cause of action under Title VII by alleging he was denied promotion to partnership in the defendant law firm on account of his national origin, religion, or both. The Court dismissed the existence of any First Amendment interests of the partnership in privacy or freedom of association. 29 It went on to suggest that even if the First Amendment applied to the promotion of associate to partnership, Title VII nevertheless reached that part of the decision that might have taken into account race, color, religion, sex, or national origin. 30 In so holding, the Court avoided addressing a number of hard questions. It attempted to distinguish promoting an associate from hiring a non-associate as partner or firing a partner. Yet, if being a partner is indeed a term, condition or privilege of employment, what difference does it make if the employment opportunity is obtained from within or without the partnership? Is it less a violation of Title VII to deny partnership to an Italian Catholic or a woman who applies for an opening from another firm than one who applies from the same firm? And how can the decision to take on a partner be different from the decision to eliminate one? In addition, if Lucido had proved his case, 31 what would have been his remedy? Would he be entitled to practice with the firm that had rejected him? Would he be entitled to damages? How would they be measured? These same considerations are at stake in Hishon v. King & Spalding. How Far Did Congress Go? Moreover, the greater ramifications of ruling that sex discrimination may not legally be a part of the partnership decision have not yet been explored. Would the coverage of Title VII extend to lawyers who were not partners in a law firm, but only shared space? Would it apply to their decision to take on another attorney to share space in a vacant office? Consider how closely-held corporations might be affected. Many big businesses are owned by families, with the stock structured such that ownership remains in the family (rights of first refusal, etc.). Such businesses may also require, either through written or unwritten rules, that only one of the family member/shareholders can be a president or vice president. This practice would have the effect of preventing persons of different racial or ethnic backgrounds from being promoted to president or vice president where a stockholder refused to marry outside of his/her race or ethnic background. Are such decisions regarding who can be a stockholder / officer /family member different from the decision of who to take on as a partner? Are partnerowners like those of King & Spalding sufficiently different from corporate shareholders to exempt the latter from Title VII coverage? What if the decision were clearly made for the sole purpose of preventing persons from certain racial or ethnic minorities from becoming president of the corporation? What if the stockholders wanted to prevent their female family members from becoming president? Could they require pre-nuptial agreements whereby the fiance would waive her right to become president upon receiving shares in the business? Would such an agreement be void as against public policy by violating the intent of Title VII? These are some of the questions raised by Hishon v. King & Spalding. In the final analysis, we will be left with the task of eliminating sex discrimination in the legal profession and in society at large, regardless of how the Supreme Court rules. It will be a great achievement if we can tear down the stubborn "brick wall" that keeps women from advancing without destroying the fragile foundation of our Constitution. Footnotes 1 Address by Maureen Reagan, "The Gender Gap," Indiana University Southeast, New Albany, Indiana, February I2, 1984. Cited in In The River City, Newsletter of the River City Business and Professional Women, Louisville, Ky., March 1, I984, p.1. 2 Stewart, "Are Women Lawyers Discriminated Against at Large Law Firms?'-', The Wall Street Journal. 3 Brief of Petitioner, Hishon v. King & Spalding, 678 F2d 1022 (11th Cir. 1982). In the Supreme Court of the United States, Oct. term 1982. • Stewart, supra at p. 1. j /d. 6 Brief of Respondent, Hishon v. King & Spalding, In the Supreme Court of the United States, Oct. Term 1982, at 33-34. 7 Smith, "A Profile of Lawyer Life Styles," American Bar Association Journal, February 1984 at 50. 8Mitchell, Women's Estate, (1973), at 64-65. 10 1d. II 1d. 12 /d. at 68; "Redstockings Manifesto," Morgan, Sisterhood is Powerful, (1970), at 533-4,535; Hole and Leving, Rebirth of Feminism (1973), at 138-140. 13 Stewart, supra. It is not intended that King & Spalding be singled out for criticism. The literature suggests that the "old boys," "locker-room" mentality is hardly unusual in such firms. 14See Hishon v. King & Spalding, supra note 3, at 1029. " Brief of Petitioner, supra at 23. 16 Brief of Respondent, supra, at 12, quoting Sweatt v. Painter, 339 U.S. 629 at 634 (1950) 17 Brief of Respondent at 62-64. 18 Id. at 19-31. 19 Hishon v. King & Spalding, supra, note 14, at 1028. 20 Id. at 1030. 21 Id. at 1026. 22 427 U.S. 160 (1976) 23 Id. at 176, quoting Norwood v. Harrison, 413 U.S. 455 (1973). 24 42 U.S.C. §1981 (1982) is an exercise of legislative power under §2 of the 13th Amendment prohibiting slavery. The statute prohibits racial discrimination interfering with the making and enforcing of contracts. There is no similar statute for the prohibition of sex discrimination. If Hishon v. King & Spalding is decided in Ms. Hishon 's favor, it will only cover employment situations. If the Court rules that §2000e cannot reach the type of private discrimination that §1981 can, could blacks nonetheless be protected from refusal to admission of partnerships under §1981? 25 Runyon, supra, note 22, at 179. 26 Brief of Petitioner, supra at 27-40. 27 ld. at 41-46. 28 425 F. Supp 123 (S.D. N.Y. 1977). 29 But see Griswold v. Connecticut, 381 U.S. 479 (1965); NAACP v. Alabama, 357 U.S. 499 (1958),· See also Roe v. Wade, 410 U.S. i 13 (1973), affirming fundamental rights implicit in the concept of ordered liberty. 30 Lucido, supra note 28, at 129. 31Mr. Lucido had also proceeded on breach of contract theory. The case was eventually dismissed with prejudice in 1981. 6 Louisville Law Examiner, March, 1984 Rule Changes Put Added Responsibilities on Lawyers (Continued from Page 1) Pleadings, Motions, and Other Papers; Sanctions." Before, it was only a pleading which was to be signed by the attorney in his individual name with his address stated; now, Rule 11 extends this requirement to ''Every pleading, motion, and other papers." Before, the certificate constituted by signing applied only to those pleadings listed in Rule 7.01; now, the attorney certifies to the best of his knowledge, information, and belief "that he has read the pleading, motion, .or other paper." Before, Rule 11, as a sanction, provided for the striking of sham and false pleadings. Such language has been removed from the Ruie and those matters now are to be raised by a motion to strike pursuant to Rule 12.06. In some cases the improper pleading may also constitute a violation of Ruie 11 and joined therewith may be a motion for an appropriate sanction under that Rule, which in a proper case may include attorney's fees. Other Papers Some disagreement exists as to the scope of the meaning of the term "other papers." First, it is limited to documents which are signed by the attorney or the party. So signed, among others, are answers and ()bjections to written interrogatories (Rule 33.01), requests for the production of documents (Rule 34, Form 19), requests for admissions (Rule 36, Form 20), notices of appeal (Rule 73.03, Form 22). 2 Second, the document must be one filed or used in the particuiar litigation, other than an inhouse or private document not becoming part of the record in the case or shown to, or acted upon, by other counsel. To the extent that other papers are embraced within amended Rule 11, the additional matters certified to by the attorney under that Rule apply. With regard to discovery papers, the 1983 amendments to the Federal Rules add new Rule 26(g) entitled, "Signing of Discovery Requests, Responses, and Objections." 3 In a note to amended Rule 11 the Advisory Committee for the Federal Rules explains: Although the encompassing reference to "other papers" in new Rule 11 literally includes discovery papers, the certification requirement in that contest is governed by proposed new Rule 26(g). Discovery motions, however, fall within the ambit of Rule 11. Of course, a specific Rule prevails over a general and therefore as to discovery papers, other than motions, new Federal Rule 26(g) has precedence over Federal Rule 11. However, where a jurisdiction, such as Kentucky, has adopted amended Rule 11, but not Rule 26(g), the requirements and sanctions of Rule 11 apply to discovery papers which are signed by an attorney or party as the above note suggests. As to new Rule 26(g), the Advisory Committee elaborated in its notes to the Rule: If primary responsibility for conducting discovery is to continue to rest with the litigants, they must be obliged to act responsibly and avoid abuse. With this in mind, Rule 26(g), which parallels the amendments to Rule II, requires an attorney or unrepresented party to sign each discovery request, response, or objection. Motions relating to discovery are governed by Rule II . However, since a discovery request, response, or objection usually deals with more specific subject matter than motions or papers, the elements that must be certified in connection with the former are spelled out more completely. The signature is a certification of the elements set forth in Rule 26(g). Reasonable Inquiry before Signing Amended Ruie I1 imposes higher standards of care and professionalism upon the attorney than the former Rule did. The new language requires the attorney, before signing a pleading, motion, or other paper, to make reasonable inquiry as to both the facts and the law. It reads: The signature of the attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. With regard to this new standard of professional responsibility in preparing and signing documents for litigation, the Advisory Committee for the Federal Rules, which proposed the new language, explained in a note to Rule II: The· rule is not intended to chill an attorney's enthusia.sm or creativity in pursuing factual or legal theories. The court is expected to avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Thus, what constitutes a reasonable inquiry may depend on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar. While amended Rule II does not prohibit an attorney from delegating to others, such as to associates or paralegals, aspects of the investigation of the facts and the law, he or she must be mindful that the responsibility for complying with the standards prescribed by Rule 11 rests upon the person signing the document. Sanctions Any appropriate sanction is now available against an offending attorney or his client, or both, including "an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee." It must be stressed that such monetary penalty may be assessed against the attorney. Before amendment, a wilful violation was required and the only penalty against an attorney, apart from striking a sham or false pleading, was "appropriate disciplinary action ." Also, the former Rule did not specify who was to take the initiative in seeking such action. The amended Rule now provides: If a pleading, motion, or other paper is signed in violation (note that the world "wilful" has been omitted) of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both ... The Advisory Committee for the Federal Rules anticipates that the courts will become more active in enforcing the higher standards of Rule 11 upon attorneys. It explains in a note to the Rule: The new language is intended to reduce the reluctance of the courts to impose sanctions ... by emphasizing the responsibilities of the attorney and reenforcing those obligations by the imposition of sanctions. It adds: The detection and punishment of a violation of the signing requirement, encouraged by the amended rule, is part of the court's responsibility for securing the system's effective operation. It is contemplated that a proceeding to initiate sanctions, either upon a motion by the other party or upon the court's initiative, will be decided with a minimum use of discovery or of matters outside of the particular document. New Rule ll does not require an attorney (or party) to disclose privileged communications or work product in order to show substantial justification for signing the document. The court has discretion to impose sanctions on either the attorney, the party the signing attorney represents, or both of them. In this respect amended Rule II is similar to the sanction provision of Rule 37 .02(3) for non-compliance with a discovery order. As pertains to a proceeding initiated by the motion by the other party, the Advisory Committee recommends: A party seeking sanctions should give notice to the court and the offending party promptly upon discovering a basis for doing so. The time when sanctions are to be imposed rests in the discretion of the trial judge. However, it is anticipated that in the case of pleadings the sanctions issue under Rule II normally will be determined at the end- of the litigation, and in the case of motions at the time when the motion is decided or shortly thereafter. The procedure obviously must comport with due process requirements. The particular format to be followed should depend on the circumstances of the situation and the severity of the sanction under consideration. In many situations the judge's participation in the proceedings provides him with full knowledge of the relevant facts and little further inquiry will be necessary. In conclusion, Rule 11 now requires attorneys to heed the advice commonly given to clients of knowing what you are signing before you sign it. FOOTNOTES 1. The Advisory Committee for the Federal Rules in its note to amended Rule 11 states: Since its original promulgation, Rule 11 has provided for the striking of pleadings and the imposition of disciplinary sanctions to check abuses in the signing of pleadings. Its provisions have always applied to motions and other pleadings by virtue of incorporation by reference in Rule 7(b)(2). (Note: same as Kentucky Rule 7.02(2).) 2. Prof. Moore writes in Section 7.05 of Moore's Federal Practice: Embraced within the term "other papers" are affidavits, depositions, written notices, appearances, demands, offers and the like. 3. Rule 26(g) reads: Every request for discovery or response or objection thereto made by a party represented by an attorney shalf be signed by at least one attorney of record in his individual name, whose address shall be stated . . . The signature of the attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection and a party shalf not be obligated to take any action with respect to it until it is signed. If a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. (Note: Much of the language is identical to that in amended Rule 11. Kentucky has not adopted Rule 26(g).) Louisville Law Examiner, March, 1984 7 Local Lawyer Sees Advertising As Wave of Future By Neil Ward "I've been advertising longer than anyone in the state and it's been good to me," Louisville attorney and U of L Law School graduate Richard Shapero said. "I've spent hundreds of thousands of dollars on television commercials. I've been willing to do what a lot of advertising attorneys are afraid to do and that's make a major commitment to advertising ." · Prevented from advertising for years, attorneys got the green light in 1977 when the U.S. Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350, ruled that attorneys had the right to advertise their services. While the debate as to whether attorney advertising is detrimental to the profession rages on even after the court decision, Shapero said the issue isn't worth debating. "Attorney advertising is here, so get used to it," Shapero said. "If you don't want to advertise, then don't." In fact, Shapero said attorneys have been advertising for decades. To build their practice, attorneys have gotten involved in politics, joined country clubs, wined and dined wealthy, influential individuals and a variety of other tactics calculated to get their names and faces in front of the paying public. "Instead of spending my money on country clubs and restaurants, I spend my money on the tube," Shapero said. However, as most business people will tell you, advertising is a complicated business and if you don't know what you're doing, you ' re just wasting your money. Shapero said he doesn't just advertise, he markets. Shapero decides what type of person he wants to reach with his advertising and then he designs a commercial to convey his message to the target audience. Then, using demographic studies that the television stations have compiled, Shapero runs his commercials during the time period when his target audience is most likely to be viewing the tube. To date, Shapero's commercials have tried to reach .people who need help in filing bankruptcy and people who are facing criminal charges. "I don't advertise help with divorce proceedings, because there's no urgency to a divorce. A lot of people split up for six months or a year and when it's convenient and affordable, they finally get around to filing for divorce," Shapero said. "But if your car is about to be repossessed, or your wages garnished because you're in such bad financial pERsoN~\...--------. \ N J u R 'l M~~E~E:E~~~e::ED HOSPITAL AND HOME VISITS FOR THE DISABLED •AUTOMOBILE ACCIDENTS •BODILY INJURIES (ALL TYPES) •DEATH CLAIMS •SOCIAL SECURITY DISABILITY •WORKERS' COMPENSATION •MEDICAL MALPRACTICE •DOG BITES •NURSING HOME INJURIES shape, or if you're . facing criminal charges, you're feeling the pressure to get an attorney's help," Shapero said. Richard Shapero said he tries to reach the 70 to 80 percent of the public that needs an attorney, but for various reasons doesn't get one. Shapero said people are indoctrinated to the idea that when you don't feel well you go see a doctor, but a large percentage of the public doesn't go see an attorney when they are having serious legal problems. Shapero said he never advertises price in his commercials, because that's not the purpose of his commercials. "Commericals should be telling people how attorneys can help them. Advertising hundred dollar divorces doesn't tell the public anything," he said. Shapero claims his ads are generating revenue for the entire legal · community in Louisville. He believes that for every call he gets as a result of his ~ commercials, seven· or eight other attorneys also get calls from people that have been motivated to get legal help because of Shapero's ads. In addition to producing his own legal commercials with the assistance of his advertising agent, Shapero has formed the Lawman, a lawyers' management and marketing service to help other attorneys successfully market their services through media advertising. Legislators Atte111pt to Work Out Differences; ~~--~------~-- Tougher Drunk Driving Law is Likely To Result By Mike Schafer When the 1984 Kentucky General Assembly adjourns, the Commonwealth is very likely to have a new drunk driving law which will amend KRS Chapter 189. The Senate and the House have passed the bill. So if differences in the bills passed by each chamber can be reconciled, the legislation will be sent to the Governor for her approval. This bill in- • T,vp· Lrr·ocor>~SENT ....L.I I L. IV I LAW Krt$ 1&5b5 1 You HAvr .BmJ,ARR£sT£D FoR OPERATING A MoroR VEH!C.LE WH!LE UNnER THE lNrLUENct OF TNro xrcA TING BEvERAGEs. Q You ARE REQUESTED To Sus•m To A CHEMICAL Trsr To DnmuNE YouR BLooD ALCOHOL Co~J:IENi WILL You TAK[ Tm Tm ? 3 lF You KtFUSE, You WILL Los£ YouR .DRIVERS LrwJs££oR Six (6) Mor-n11s. WILL You rvow lAKE. THE TEsT? eludes a $150 fee charged to convicted drunk drivers, in addition to fines and court costs and a mandatory 4 hours in jail for offenders with a .15 OJo blood alcohol level or higher. The House did not approve a mandatory jail sentence for first offenders. This was the primary reason for failure of the 1982 "slammer bill." If approved, those who operate motor vehicles on Kentucky highways while under the influence of alcohol or any other substance which "impairs" one's driving ability will be penalized. Preliminary breath tests may be administered in the field by law enforcement agencies to suspected offenders if such tests give an accurate reading of blood alcohol content. Films of the test are allowed to be made and used in court. Refusal to take a test cannot be used aginst the defendant in court. The test will create the following presumptions. An individual with a blood alcohol level of .05% or less is presumed not to be under the influence of intoxicating beverages. Between .050Jo and .10%, the blood alcohol level doesn't create a presumption either way, but may be used in conjunction with other evidence to determine guilt. A blood alchollevel of .10% or more gives the presumption that the defendant was under the influence of intoxicating beverages. If the defendant's blood alcohol level is less than .15% the prosecution may agree to amendment of the violation. Above .15 OJo, the prosecution is not allowed to agree to such amendments. The House and Senate have taken conflicting positions on whether, before sentencing, a violator should have a non-waivable presentence hearing. At such a hearing, the court would consider past driving record, alcohol or drug dependency and abuse status, and recommendations of the prosecution before sentencing the defendant. Following this hearing, with a showing Photo by Motorist arrested for drunk driving is given a Breathalyzer test to determine his blood alcohol level. of probable cause, the court could suspend the offender's driving license until final disposition of the case. This suspension may be reviewed after 14 days and in no circusmtance is to exceed 60 days. Penalties for first offenders will include a fine between $200 and $500, between two and 30 days in jail, or both. The offender's driving license may also be revoked for six months unless he or she enrolls in a drivers improvement program. After sentencing, the defendant may ask for two to 30 days in a community labor program in lieu of fine or imprisonment. If a death is caused by the defendant's intoxication, imprisonment is mandatory. For a second offense within a fiveyear period, an offender may receive a fine from $350 to $500 and imprison-ment from seven days to six months. In addition, the defendant may be sentenced to community labor for 10 days to 12 months and his or her driving license revoked for one year. Third and subsequent offenses within a five-year period will receive a fine from $500 to $1000 and imprisonment from 30 days to 12 months. The court may also order 10 days to 12 months of community labor. In addition to the above penalties, the court has the discretion to sentence any offender to an alcohol or substance abuse program. Any offender under 18 years of age will have his or her driver's license revoked until he or she reaches age 18, or as stated in the above provisions, whichever results in the longer period. 8 Louisville Law Examiner, March, 1984 U of L Students Provided with free Legal Services By Joel D. Zakem Since October, 1978, University of Louisville students have had the opportunity to receive free legal information. That date marked the establishment of the Student Legal Services' office at the University. Denise M. Clayton, the Director and sole staff member of the service, estimates that she speaks with approximately 15 students a week. In addition, she assists the Student Government Association (which funds the office), student publications, and other campus organizations with their legal problems. Within the past year, the office has also begun helping students with litigation. Though Clayton answers inquiries in many legal areas, the litigation is currently limited to two areas: uncontested divorce (if no children are involved) and small claims court. Clayton has headed Student Legal Services since its inception. A 1976 graduate of U of L Law School, she said that she · would be interested in seeing more people from the law school become involved with the service. "Right now, we have no formal connection with the law school," she said, altho1,1gh, in- ·the past, a faculty member had served on an advisory committee. She said she would welcome suggestions from the law school community, especially in the area of student involvement. "This would be a great opportunity for students," she said. "But I realize the program will have to be expanded first." One area in which expansion would be needed, according to Clayton, is in finances. A lack of funding has cut her hours from full time to three quarter time. She realizes that without the funds to pay students, attracting law students will be difficult. "But if there is interest," she said, "I'd be willing to go after more funding.'' As an alternative, she said she would look into the possibility of setting up a practicum where students may be able to receive some classroom credit in exchange for their work. "We need closer ties with the law school," she said. Clayton is also hoping for increased campus awareness of Student Legal Services and what they do. To aid in this, a 24-page Student Legal Services Handbook has been published. The book is available at several locations on campus. It was compiled by Clayton, with the assistance of several local attorneys, and contains information on some of the more common legal problems faced by students. The service also sponsors a monthly seminar at the Ecumenical Center. This takes place on the first Monday of each month, beginning at noon. The Student Legal Services Office is located in Room 12 of the Student Center; phone 588-5787. Pho10 by }u(~V Hoge Denise M. Clayton is Director of Student Legal Services, where U of L students can get free legal information. Louisville Law Examiner School of Law University of Louisville Louisville, Kentucky 40292 Non-Profit Organization U.S. POSTAGE PAID Permit No. 769 Louisville, KY John M. Harlan Louis D. Brandeis (. - t;li/ - Louisville~ Law Examiner Volume9 Jailhouse Reality Follows Drunk Driving Arrest .. ............... page 1 Amended FRCP Rule 11 Explained ................ . page 1 Symposium to Honor Dedication of New Wing ................. page 2 ''Brandeis Brief'': Sex Discrimination in Law Firms .............. ... page 4 Local Attorney Extols Advertising .... ............. page 7 March, 1984 Number 5 |
Subject |
University of Louisville. School of law University of Louisville--Students University of Louisville--Alumni and alumnae University of Louisville--Faculty University of Louisville--Employees Law students Law & legal affairs Law and legislation--Kentucky Law and legislation--United States Law libraries Legal education Libraries |
Location Depicted |
Louisville (Ky.) Jefferson County (Ky.) |
Date Original | 1984-03 |
Object Type | Newspapers |
Source | Various-sized print newspapers published by students of the University of Louisville School of Law. The print edition may be found in the University of Louisville Law Library or the University of Louisville Archives and Records Center. |
Collection | Law Library Collection |
Collection Website | http://digital.library.louisville.edu/cdm/landingpage/collection/law |
Digital Publisher | Law Library of the Louis D. Brandeis School of Law, University of Louisville |
Format | application/pdf |
Ordering Information | The publications digitized in this collection are the property of the University of Louisville School of Law and are not to be republished for commercial profit. To inquire about reproductions, permissions, or for additional information, email lawlibrary@louisville.edu. |
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