Getting To Know You: Your first step with a new client may be your last

Lawyers dealing with all sorts of clients — sophisticated or not so sophisticated — need to astaire-bowstart the potential relationship off right.  “Playing lawyer” with a nervous or demanding client can backfire.  Being a know it all or, conversely, claiming to know nothing without spending some (billable) time can both backfire.  Usually just by listening and limiting your tendency to play lawyer at the first meeting you can establish rapport with the client and come up with a plan for your next steps — by lawyer and client.  But you’re also setting up a relationship and the client’s probably not looking to you for psycho-therapy (or shouldn’t be).

Here’s some advice from a bankruptcy lawyer on how she deals with potential new clients.  Some of the advice is good, some not so good in my experience.  Sometimes it’s more important to say no to a potential client than focusing just on getting the client to say yes to you. Continue reading

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Born That Way: Taking US citizenship for granted and taking it away for nothing

14th Amendment 1Not all politicians are lawyers, but many are.  Lawyers do have more training than most people in the history, structure, content, and process of making and enforcing law, which is helpful since they are supposed to make and enforce the laws and should, along with judges, have some clue what they are doing.  Of course, the fact that they dropped out of law to run for office doesn’t bode well — many politicians weren’t good students or lawyers.

You don’t need to be a lawyer to be a politician (or in some places a judge for that matter) and it’s often refreshing when you’ve got at least a few wildcards in the executive or legislature to avoid a common problem in dealing with lawyers:  The lawyers’ “know it all” attitude toward business, government, education, health care, economics, or any subject.  (Too often “know it all” is “know little or nothing in reality.”)  Lawyers seem to be screened for this going into law school and it’s really drilled into them both in law school and practice — just ask any client who’s been forced to endure their lawyer’s not so free advice on how to run their business.

Some of our best, and worst, Presidents have not been lawyers, from Washington and Madison to Teddy Roosevelt and Hoover, Truman and Lyndon Johnson, Carter and Reagan, and both Bushes.  Usually you shouldn’t have to worry about a President’s legal skill — they’re at the top of the largest pyramid of legal professionals in the history of the world.  They do have to mediate the endless debates among ambitious lawyers with their own agendas. Continue reading

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Puffing Professionals: Law firm immune for false statements to client

JudgeHere’s an example of how the legal system, through gatekeeping judges, seems to protect its own — lawyers.  There are many hurdles, some unique to lawyers, protecting lawyers from the consequences of their alleged mistakes by prematurely tossing claims that are valid on their face.

In this instance, a federal judge dismissed a legal malpractice claim as a matter of law by labeling the firm’s allegedly intentional misrepresentations to a client as “puffery,” as though no client can ever rely on a firm’s statements of fact about its resume, including claims of experience.  Puffery is the label on excuses for routine advertising scams — like something is “new” or “the best”, but lawyer advertising has special limits to begin with — lawyers with ethical duties puffing to clients who are unsophisticated, but looking for someone to trust, is still a problem.  Can you bank “puff” its interest rates or your balance?  Do you see any disclaimers on law firm websites warning clients that the statements made about lawyer credentials and competence are not reliable?  Can a lawyer disclosing your secrets get off by claiming the assurances of confidentiality you received were just advertising patter?

This special treatment for lawyers upends the lawyer’s professional duties when speaking with a client:  Lawyers are fiduciaries — you’re supposed to be able to rely on everything they tell you as the truth.  And, if the lawyer is free to treat a potential client like just another huckster’s sucker, then the system’s definitely not following its own ethical rules.  Lawyer’s aren’t supposed to be on the same professional plane as used car sales staff.

An odd twist in this particular case is that the federal judge in question was himself on the losing side of a legal malpractice case before he became a judge.  (One of his problems was his virtual lack of trial experience, ironically — yeah there are federal judges screened by the ABA and Congress with little or no trial experience — resume puffing?)  You have to wonder whether the judge advised the parties of his personal malpractice history before he ruled. Continue reading

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Prix Fixe: Setting standard legal fees is illegal price fixing

prix fixe menuWhile there are other stories about the acceptance of the billable hour as a de facto standard for legal billing, this is one of the more entertaining I have seen.  This is the story of how the US Supreme Court enforced basic business laws against lawyers, contrary to the lawyers’ argument that they were something better than plain old tradespeople.

Unfortunately, the story’s got some basic errors.  For example, one hero of this story, Lew Goldfarb, was and probably still is a lawyer — he worked at an Alexandria, Virginia law firm and, the last and only time I ever spoke with him, he was in-house counsel at Chrysler, as I recall.  This story makes it seem like he and his wife were just some random, idealistic Virginia home buyers trying to save a few bucks.  Actually, from what I’ve seen, this was just another orchestrated struggle against hypocritical, ensconced local and state legal authorities, including bar organizations.

The Supreme Court’s decision in Goldfarb v. Virginia Bar enforced Sherman Act Section 1 antitrust laws against lawyers and bar organizations who had been illegally setting, and enforcing through ethics rules, fixed prices for common legal services, like divorces, real estate title searches, routine criminal defense, and so on.  To do otherwise was to risk ethics sanctions, but even more ungentlemanly, to stoop to mere commerce.  Lawyers were thought (by lawyers) to be professionals immune from the laws of business or trade because they were special, even though their downfall in this instance was triggered by a calculated attempt to jack up fees to make some dough, er, remuneration.  Very few civilians were probably that impressed or easily fooled — although those were the days of Atticus Finch and Perry Mason, two of the most highly regarded lawyers of all time, though sadly each fictional.

The roots of hourly billing actually go way back to the concept of quantum meruit payment for services based on some measure of their quantity (not actual value or results), in the absence of a contract specifying some other measure.  In quantum meruit, value of services can be set based on the time expended using common rates — and “common” rates is a backdoor for price fixing, too.  For over a century, the factors for finding a reasonable fee have included reasonable, customary (price fixing at work) rates times hours necessarily expended.  And nothing in the Goldbarb case bans flat fees, percentage fees, or whatever — they just cannot be set by joint action or agreement — quote whatever you want on your own. Continue reading

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Just Say No: Sometimes it’s not worth hiring a lawyer for your legal problem

small claims courtHere’s some online advice by a lawyer suggesting when you should not hire a lawyer.  Often lawyers feel compelled, by their financial interest but also by ethics rules pushing them to genuflect to the bar.  Unlike most of these self-serving posts — which strain to turn everything into a paying gig — this one seems to be on the right track by looking at cost-effectiveness in favor of turning something down now and then.  This tendency to oversell the profession up front often leads to recriminations later on, like the all too common situation of the poor result coupled with a fee that’s many times the original value and outcome of the project.

Even if you don’t hire the lawyer, you can still try self-help if you’re prepared for the technicalities and waste of time you’ll encounter dealing with a legal system maintained by lawyers and courts for the apparent purpose of punishing the general public.  If you’ve got a recurring situation — like the occasional unpaid invoice — you can hire a lawyer the first time, take notes, and do some or all the work yourself next time.  (In many courts, a corporation can’t represent itself, so you’d have to get a lawyer even to do this except in a small claims court, for example.) Continue reading

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Trying Times: Fake your trial experience to attract clients

kidsThe general public and nearly all clients — even major clients with in-house counsel and lots of client-side litigation experience — assume that lawyers who claim to be litigators or trial lawyers must have substantial trial experience and go to trial regularly.  In reality, most litigation lawyers have little or no actual trial experience, except perhaps for a piece of a rare large case (as part of a platoon of inexperienced lawyers) or a bigger piece of a small case (like a pro bono case taken on just for the experience).  Most cases settle and more are decided on motions than by trial.

The assumption that litigation lawyers must try cases isn’t just a minor mistake:  Without trial experience, lawyers make many mistakes and waste lots of time (and money) because they don’t know what’s going to be necessary or useful and they are afraid of going to trial and humiliating themselves, so they drag the expensive discovery and motions out way too long and then collapse right before the trial by effectively abandoning the client.  This happens all the time, but usually it’s too late for the client to do anything but refuse to use the lawyer the next time and maybe object to the last few legal bills.  Of course, the lawyers aren’t honest about what’s going on:  They blame opponents, judges, the mysteries of the law, and usually the client, too. Continue reading

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F That: Judge issues 8 day jail sentence for client’s frustrated hallway comment

Courts are at the foundation of our democratic system, so criticizing a court and speaking no-cursing_designyour mind about courts, and judges, should be at the core of our First Amendment rights.  As the most rational of our democratic institutions — able to express the law and its reasons — courts must be willing to accept criticism and respond civilly, even if the criticism is coarse or illogical.  Instead, the model for most real judges these days seems to be Judge Judy (the TV-star ranting judge) rather than Justice Stephen Breyer, for example (an objective of rants by Supreme Court colleagues).

And, for our fundamental rights to speak and petition to mean anything, any limits on free speech and “petitioning” the government, must either be non-existent or created for some equal or even more important reason. Continue reading

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Disabled Lawyering: Lawyer impersonates colleague to double dip veterans’ fees

VeteransAffairsJust when you think you’ve heard all the ways a rogue lawyer might find to overcharge a client, along comes a story like this one.  It seems a lawyer used a friend’s identity to illegally double bill disabled veterans for services both as a “guardian” and as their lawyer.  While this one was caught, you have to wonder how many variations on this theme — with or without the veterans — are still going on.

This is a variation on a common problem: lawyers who are appointed guardians or trustees for someone, e.g., to manage affairs for a minor, a deceased person’s estate, or for someone who’s disabled by dementia.  In many areas, there are bankruptcy courts or special state courts or officials, including probate courts, who are supposed to keep an eye on these things, but all too often the overseer is just another member of the local club, not a functioning watchdog. Continue reading

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Pyramid Scheme: Contract lawyers treated like slaves for lawyer profit

There’s a new layer at the bottom of the billable hours pyramid.  The top is still occupied bentpyramid1smallby partners, followed by non-partner lawyers, and then by the fairly recent paralegal and other quasi-clerical layers.  But, in the last few years, the pyramid has been jacked up by an even newer, more profitable bottom layer at many firms:  The contract lawyer.

The old portrayal of lawyers, like you could see on Perry Mason, for example, consisted of a solo practitioner, or maybe a few lawyers (almost always male), supported by secretaries (almost always female) and maybe other staff, like Paul Drake, Perry’s private investigator.

The reality wasn’t far off the TV version.  There were some law firms with a dozen or so lawyers, but, as I recall, the first law firm with over 100 lawyers wasn’t until the 1960s, maybe later.

In those days, law school wasn’t all that competitive — you usually picked the closest school — except for maybe a little competition to enter the Ivy League schools.  Junior lawyers could often skip law school and study law under a practicing lawyer, then take the bar exam to get a license.

One reason that law firms were smaller in the good old days was because the law was also “smaller.”  Most cases were simpler and moved faster, with shorter pre-trial and trial, if any, and far less paper, fewer depositions, fewer and shorter motions, and so on.  Lawyers were often paid flat fees set by the lawyer in advance or after the matter, based on rough estimates of value or mandatory bar fee schedules to prevent competition (now illegal).  Litigation, fueled by billable hours, discovery, and massive piles of paper  got wound up in the late 1970s and roared into the 1980s, perhaps beginning to subside a little lately.  The invention of the “xerox” machine had as much to do with this as real, legal necessity.  The velocity of written court opinions filling library shelves — back when the law was on paper — was much slower, making legal research easier and cheaper, too.

Continue reading

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Fire the Client: Law firm accused of malpractice knocks out estate administrator

trust-fund-piggy-bank-200A common complaint we hear about lawyers arises in the administration of wills, estates, and trusts.  Often the problem is that the lawyer double dips by serving both as the lawyer billing the estate for legal work (needed or otherwise) and as an executor or trustee to manage the estate (including the lawyer’s own fees), supposedly to follow the intentions of the client who set it up (with the lawyer’s guidance, typically) for the intended beneficiaries.

Sometimes the problem is beneficiaries or non-beneficiaries squabbling or stealing, but often the lawyers get greedy and try to overcharge or even divert the money.  (Some lawyers rationalize this by thinking that their years of service to the original client gives them a moral right to get paid more than the lazy, lucky beneficiaries.)

This sort of problem is so common that there are longstanding ethics rules, statutes, and special courts or state agencies to watch out for the public interest, though many fail.  They often fail because they are co-opted by the lawyers they are supposed to police.  Instead of public watchdogs, you get oversight by cronies. Continue reading

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