Legal Practice Guide 2: The Closure of Savannah, Agency, and Legal Formalism

We continue our series of incorporating practical legal advice into the Good News about American legal education.

Savannah Law School has decided to close.  From this, there are but a few inarguable conclusions:

• The Georgia Bar is about to get an influx of higher-end talent; and
• Thank GOD and PROFIT that Florida Coastal and Charleston School of Law have not yet been shuttered by the malicious calumnies of paid MBA program operatives.  Had either of those two oft-assaulted schools been forced to close by now, the entire southern Atlantic coast might be devoid of accredited legal education.  This way, there are two excellent options for students to attend instead.

Preamble aside, the article - via Barry Currier - provides an excellent and informative illustration of agency law and, perhaps, a fine example of stringent adherence to procedure over substance, a triumph for the technicality and legal formalism that wins us silver medals at the legal Olympics:

Barry Currier, managing director of the ABA Section of Legal Education and Admissions to the Bar, said Thursday morning that the dean had contacted the section, which accredits law schools. “We have not, however, been formally notified of closure and, to the best of my knowledge, the school has not yet made a formal public announcement,” Currier told the ABA Journal in an emailed statement.
...
“If, indeed, the school intends to close,” Currier said, “we assume that those first steps will happen soon.”

Does it really mean the school is closing simply because its chief executive picks up the phone, calls the primary accrediting agency and says "hey, we're probably gonna close up?"  NO!

It would be simple enough for Currier to be like, "they notified us of their intent,"  but that would violate the law of very specific agency.  Dealing with an incorporated body you simply can't take chances that executives aren't making crank calls about the school closing because the rich life in sleepy Savannah has left these gunners bored.

A hypothetical practical example: consider a no-brainer commercial litigation case where it's obvious that the defendant company is going under.  After receiving the summons, the CEO calls opposing counsel and explains that they're going to file Chapter 7 once the paperwork is in order and probably aren't going to appear because they don't have funds to pay a lawyer.  The case is called for a status conference in federal court before the time to answer has elapsed.  What, as Plaintiff's counsel, do you do?

Ignore the phone call - it's probably a sophisticated trap!  You have to hedge in this situation.  What you have to do is draft a detailed discovery plan and a master outline for taking the testimony of adverse witnesses.  Bill like fucking mad and tell the client it's still contested.  When the case is called, ask that the judge set a firm discovery schedule and trial date.  Make sure you leave room for the motion for summary judgment you're already drafting.

Your ass-covering could be avoided if and only if your opponent produces a notarized affidavit (subject to Rule 11 and perjury law) from a corporate representative appropriately designated pursuant to the federal rules, detailing the company's intention to file a bankruptcy petition by a date certain with a wax-sealed Board resolution attached.  Otherwise, it's gung-ho to judgment. 

A phone call?  How the fuck are you going to impeach someone with a phone call?  Kudos to Currier for demanding formal notice before any sort of non-contingent, non-weasel-word answer can be provided.  While obviously the ABA isn't litigating anything against Savannah except, maybe, a breach of dreams that's better explained by external villains, it's a good lesson for litigators to make assurance doubly sure before saying anything meaningful.