Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law

Since the New York Court of Appeals banned nonrefundable retainers, numerous other courts have joined in prohibiting this widespread practice of lawyers charging a fee for services in advance and keeping the fee even if the services are not performed. This may reflect increased judicial recognition of the effect of egregious fee practices on the image of the bar and the role such practices play in the declining esteem in which the legal profession is held. Among the more provocative contributors to this ongoing debate, Professor Steven Lubet recently reviewed our work advocating the ban against nonrefundable retainers and posed a number of questions about the per se prohibition against them. In this Article, we respond to Professor Lubet\u27s questions as well as to those posed by other scholars. In Part I, we discuss the client discharge right, the cornerstone upon which the absolute ban on nonrefundable retainers rests, and respond to a series of arguments concerning its meaning, how it may be impaired, and whether it may be waived. In Part II, we show that legitimate purposes that may be served by nonrefundable retainers cannot avoid impairing the client discharge right, but that other fee arrangements that do not impair that right can easily be designed to serve some of those ends. In Part III, we extend an invitation to address the issues we have identified to all those who believe that a per se ban against nonrefundable retainers is unnecessary to prevent the abuses they generate. We have previously extended this invitation to devise a less inclusive rule that would in a practical and self-effectuating way prohibit the abuses while permitting the attainment of legitimate purposes. Unfortunately for the debate, however, none of the participants have accepted this invitation. We therefore think it bears repeating

Vortex flow hysteresis

An experimental study was conducted to quantify the hysteresis associated with various vortex flow transition points and to determine the effect of planform geometry. The transition points observed consisted of the appearance (or disappearance) of trailing edge vortex burst and the transition to (or from) flat plate or totally separated flows. Flow visualization with smoke injected into the vortices was used to identify the transitions on a series of semi-span models tested in a low speed tunnel. The planforms tested included simple deltas (55 deg to 80 deg sweep), cranked wings with varying tip panel sweep and dihedral, and a straked wing. High speed movies at 1000 frames per second were made of the vortex flow visualization in order to better understand the dynamics of vortex flow, burst and transition

Investigation of thermal fatigue in fiber composite materials

Graphite-epoxy laminates were thermally cycled to determine the effects of thermal cycles on tensile properties and thermal expansion coefficients of the laminates. Three 12-ply laminate configurations were subjected to up to 5,000 thermal cycles. The cumulative effect of the thermal cycles was determined by destructive inspection (electron micrographs and tensile tests) of samples after progressively larger numbers of cycles. After thermal cycling, the materials' tensile strengths, moduli, and thermal expansion coefficients were significantly lower than for the materials as fabricated. Most of the degradation of properties occurred after only a few cycles. The property degradation was attributed primarily to the progressive development of matrix cracks whose locations depended upon the layup orientation of the laminate

Space shuttle wing leading edge heating environment prediction derived from development flight data

An analytical program is in progress at Rockwell International to revise wing leading edge heating predictions in order to improve correlation with STS-1 to -5 flight radiometer data. This paper discusses the methods that have been used to improve agreement between prediction and flight and summarizes the aerodynamic correlations which, when updated, will be used to analyze future orbiter missions

Direction of movement effects under transformed visual/motor mappings

Performance in a discrete aiming task was compared under several transformed visual/motor mappings: rotations by 45, 90, 135, and 180 deg and reflections about the horizontal and the vertical midlines. Eight aiming targets were used, corresponding to eight directions of movement: up, down, right, left, up-right, down-left, up-left, and down-right. Direction of movements were characterized in terms of separable visual and motor components, and two kinds of direction of movement effects were considered. First, a direction of movement effect paralleling that seen in rapid aiming under the usual nontransformed mapping. Second, because rotations, but not reflections, are physically realizable 2-D transformations, a visual/motor control system which is sensitive to physical constraints should perform reflections, but not rotations, in a piecemeal fashion. Results supported the hypothesis that a motor factor having to do with complexity of limb movement accounts for differences in movement accuracy between right and left oblique directions. Direction of movement effects were more evident in reflections than in rotations, and were consistent with the hypothesis that the visual/motor-control system seeks a physically realizable 2-D rotation solution to reflections. Results also suggested that reversal of two orthogonal basis dimensions is far less difficult than reversing only one and leaving the other intact

Exploratory randomized controlled trial evaluating the impact of a waiting list control design

BACKGROUND Employing waiting list control designs in psychological and behavioral intervention research may artificially inflate intervention effect estimates. This exploratory randomized controlled trial tested this proposition in a study employing a brief intervention for problem drinkers, one domain of research in which waiting list control designs are used. METHODS All participants (N = 185) were provided with brief personalized feedback intervention materials after being randomly allocated either to be told that they were in the intervention condition and that this was the intervention or to be told that they were in the waiting list control condition and that they would receive access to the intervention in four weeks with this information provided in the meantime. RESULTS A total of 157 participants (85%) were followed-up after 4 weeks. Between-group differences were found in one of four outcomes (proportion within safe drinking guidelines). An interaction was identified between experimental manipulation and stage of change at study entry such that participant change was arrested among those more ready to change and told they were on the waiting list. CONCLUSIONS Trials with waiting list control conditions may overestimate treatment effects, though the extent of any such bias appears likely to vary between study populations. Arguably they should only be used where this threat to valid inference has been carefully assessed.During the conduct of this research, John Cunningham was supported as the Canada Research Chair on Brief Interventions for Addictive Behaviours. Kypros Kypri is supported by a National Health & Medical Research Council Senior Research Fellowship (APP1041867) and a Senior Brawn Fellowship from the University of Newcastle Jim McCambridge is supported by a Wellcome Trust Research Career Development fellowship in Basic Biomedical Science (WT086516MA)

The Impact of asking about interest in free nicotine patches on smoker's stated intent to change: real effect or artefact of question ordering?

INTRODUCTION Stage of change questions are often included on general population surveys to assess the proportion of current smokers intending to quit. The current study reported on a methodological experiment to establish whether participant's self-reported stage of change can be influenced by asking about interest in free nicotine patches immediately prior to asking about intent to change. METHODS As part of an ongoing random digit dialing survey, a randomized half of participants were asked if they would be interested in receiving nicotine patches to help them quit smoking prior to being asked whether they intended to quit smoking in the next 6 months and 30 days. RESULTS Participants who were first asked about interest in free nicotine patches were more likely to rate themselves as in preparation for change (asked first = 33%; not asked first = 19%), and less likely to rate themselves as in the precontemplation stage of change (asked first = 34%; not asked first = 47%), compared with participants who were not asked about their interest in free nicotine patches prior to being asked about their stage of change (P < .001). CONCLUSIONS There are several possible explanations of the results. It is possible that offers of free nicotine patches increases smokers intentions to quit, at least temporarily. Alternatively, smokers being asked about interest in free nicotine patches may expect that the researchers would like to hear about people intending to quit, and respond accordingly.This research is funded by the Canadian Institutes of Health Research (CIHR) grant #: MOP 111209

Eleutherodactylus chlorophenax

Number of Pages: 2Integrative BiologyGeological Science

Adjustment of the basin-scale circulation at 26 degrees N to variations in Gulf Stream, deep western boundary current and Ekman transports as observed by the Rapid array

The Rapid instrument array across the Atlantic Ocean along 26 degrees N provides unprecedented monitoring of the basin-scale circulation. A unique feature of the Rapid array is the combination of full-depth moorings with instruments measuring temperature, salinity, pressure time series at many depths with co-located bottom pressure measurements so that dynamic pressure can be measured from surface to bottom. Bottom pressure measurements show a zonally uniform rise (and fall) of bottom pressure of 0.015 dbar on a 5 to 10 day time scale, suggesting that the Atlantic basin is filling and draining on a short time scale. After removing the zonally uniform bottom pressure fluctuations, bottom pressure variations at 4000 m depth against the western boundary compensate instantaneously for baroclinic fluctuations in the strength and structure of the deep western boundary current so there is no basin-scale mass imbalance resulting from variations in the deep western boundary current. After removing the mass compensating bottom pressure, residual bottom pressure fluctuations at the western boundary just east of the Bahamas balance variations in Gulf Stream transport. Again the compensation appears to be especially confined close to the western boundary. Thus, fluctuations in either Gulf Stream or deep western boundary current transports are compensated in a depth independent (barotropic) manner very close to the continental slope off the Bahamas. In contrast, compensation for variations in wind-driven surface Ekman transport appears to involve fluctuations in both western basin and eastern basin bottom pressures, though the bottom pressure difference fluctuations appear to be a factor of 3 too large, perhaps due to an inability to resolve small bottom pressure fluctuations after removal of larger zonal average, baroclinic, and Gulf Stream pressure components. For 4 tall moorings where time series dynamic height (geostrophic pressure) profiles can be estimated from sea surface to ocean bottom and bottom pressure can be added, there is no general correlation between surface dynamic height and bottom pressure. Dynamic height on each mooring is strongly correlated with sea surface height from satellite observations and the variability in both dynamic height and satellite sea surface height decrease sharply as the western boundary is approached