War to End No War: Judge awards partial fees for trying to “litigat[e] plaintiff to death”

atomic bombIt’s no secret that the litigation process can be expensive, long, frustrating, and imperfect — you get “rough” justice, at best.  Delay generally benefits defendants:  Even if a negative result may be inevitable, they can always root for injustice.  Imperfection favors the party most likely to lose, especially those virtually certain to lose — imperfection is a potential gift and a reward for causing chaos.  And, as the cost of litigation increases, the chances to manipulate the system for an unjust result are also enhanced in favor of the party with the deepest pockets.  These flaws have been known for centuries, not just now and in the United States.

From time to time, reformers have attempted to level the playing field, speed things up, and keep costs down.  Meanwhile, people who can afford lobbyists spend lots of money to knock it further out of level, even writing laws they don’t like out of existence when all else fails. Continue reading

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DIY Law: Legal forms patch the legal services gap, and usually work just fine

diyLegal forms have been around since there have been lawyers.  They save money, especially with hourly fees, and they help avoid common mistakes. Now, more than ever, potential clients are using forms they find online — cheap or free — when they cannot afford a lawyer or simply don’t want to spend money on one.  But some forms aren’t very good, aren’t current, or don’t fit your situation.  Sometimes it takes a lawyer’s skill and experience to spot issues that you won’t spot or your form won’t address.  Of course, it’s not as simple as saying that a lawyer should always do your work, even filling out a form:  Sometimes you’ll still make mistakes even if you use a lawyer, and sometimes the lawyer makes more problems than he or she solves.

Rather than reinvent the wheel every time a client needs a Will or a contract or a complaint, a good lawyer may consult published forms or his or her own firm files for examples of similar projects from the past — the more similar and recent the better.  Lawyers will suggest that every situation is different, but the common law is constructed on statutory (effectively a form) law and on precedents (which are templates for forms) — each new project needs to find its roots in the past and forms are a distillation of that past.  It may not be as simple as filling in some blanks — that’s where the customization and skill of the lawyer comes in.  Ten lawyers might see the same client about the same problem and come up with ten very different documents (or advice) to address the problem, but all or nearly all of them will start with some sort of form (or compilation of forms), even if they claim they are starting from scratch. Continue reading

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Border Crossing: Texas discourages legal assistance for immigrating minors

Here are two reactions in two different states to the recent flood of young immigrants fromillegal-immigrant-sign Central America who may be seeking asylum or other relief.  (After all the initial panic, the “flood” is apparently subsiding already.)  One state is touting the anti-competitive bar licensing rules to deny assistance to immigrants, but doing nothing to help them, while the other state is exhorting lawyers to help — consistent with their professional obligations.

In one instance, Texas is trying to discourage immigrants from getting assistance from unlicensed lawyers — but not offering any other source of assistance to find qualified, affordable, licensed lawyers.  (Note that Central American countries have a broader approach to meeting the need for affordable legal assistance, using notarios, which are cousins of our notaries and paralegals, who could also help in the US, if it weren’t for anti-competitive lawyer licensing laws.)  In these situations, bar organizations should mobilize lawyers, especially pro bono or free lawyers, to meet the need — that’s part of their duty in exchange for having a monopoly on practicing law.  Texas is apparently using its restrictions on competition not only to deny assistance to those in need of a lawyer, but apparently to turn away as many immigrants as possible, even if they otherwise might qualify for residence or asylum.

On the other hand, the governor of Maryland is encouraging lawyers in that state to mobilize to help these young immigrants there.  (Other states are doing the same.)  That is what lawyers’ professional obligations require, though these are among the nominal obligations that no bar organization actually enforces with ethics sanctions, for example. Continue reading

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Morally Bankrupt: Lawyer failed to discharge clients’ claim to recover illegal fees

bankruptcySometimes, even if you win the litigation battle, you may lose the war if your opponent suddenly has no money — or you can’t find his or her assets.  This is a particular problem when it comes to suing people who are “litigious,” meaning they litigate a lot, which would include, for example, lawyers.  Although it should normally not defeat your claim, so long as the lawyer has some assets, insurance, or a means to make money in the future, one tool that might be used to delay paying your claim would be for the lawyer to declare bankruptcy.  Bankruptcy stays, or stops, all other litigation at least until the bankruptcy court can decide what you can do.

Here’s a particularly absurd example, where a lawyer disbarred for stealing almost $1 million in client money tried to avoid paying it back by declaring bankruptcy.  Not surprisingly, the bankruptcy judge found a way to avoid letting the lawyer get away with that one, but it’s likely that lots of money and time were wasted anyway, with more shenanigans likely until the client gets the cash: Continue reading

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Carefree: Lawyers not excused from duty of care for sophisticated client

Many clients who lose a case, don’t like a negotiated result, or have a run-in with their carefreelawyer (or her bills) think that the lawyer may have committed malpractice.  Lawyers aren’t perfect and they are working in a legal system that’s far from perfect, too.  But not every loss is due to malpractice — actually, very few are.  There may be lots of mistakes made, but many of those do not count as malpractice unless the lawyer’s work was below the standard of care for lawyers in similar situations and the mistake caused the client damage.

Clients also assume that the legal system, including judges, court rules, and “the law” are all controlled by lawyers and prejudiced against clients.  That’s not generally true, but there are also plenty of hurdles and technicalities for this type of case.  Often the concern is that, if the case goes to a jury, they will rule in favor of the client and against the lawyer every time.  In the case below, a trial judge tried to save the firm from trial with some creative theories, but the appellate court sent the firm back for trial. Continue reading

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Border Wars: Even with local counsel, out of state lawyer’s fees not paid

pa nj ny signTo practice law, you need a license issued by a state or territory, including the District of Columbia.  To get the license, you have to be trained (usually in an ABA-approved law school, but not always), then you take a bar exam for several days, have your background checked (for criminal or other problems), and pay some money to the state.  After that, in most states, you renew the license annually by paying some more money and taking a few continuing education classes.  You can lose your license if you misbehave, but that’s very rare.

In theory, everyone with a law license is competent to practice any kind of law — specialization in the law exists to some extent, but it’s nothing like specialization by doctors.  Also in theory, anyone without the right license is incompetent and cannot practice law in that jurisdiction — doing so would be a crime in most states.  That applies even to lawyers who are licensed elsewhere, no matter how good and experienced they are.  The least experienced, most incompetent lawyer with a New York law license is, in theory, more competent than the most experienced, most intelligent lawyer from anywhere else, even a former judge, for example.

While the license is supposed to protect the public from incompetence, there’s really no guarantee it will serve that function.  (Even lawyers who have lost malpractice cases continue to practice — the bars rarely step in.  We won a malpractice case against a lawyer who went on to become a federal judge.)  The bars generally ignore most competence-related complaints, and those about fees for example, plus most sanctions are just slaps on the wrist unless the lawyer gets caught committing a crime, and has already been found guilty.  So what licenses really do is restrict competition and drive up the cost of lawyers, especially in some states where the bars take extra steps to make it difficult, or expensive, for out of state lawyers to visit or even take the state bar.  (While professional courtesy used to allow the occasional “pro hac vice” appearance out of state, many states now require one to pay a substantial fee and jump through various hoops before they will extend this courtesy.)

These rules about licensing are enforced most often, from what I’ve seen, against solo lawyers, not against large law firms.  Larger law firms, many of whom describe themselves as “national” firms, not tethered to a particular office or state, use lawyers from all over the country (even other countries) despite these rules.  They might have a lawyer on the matter who is admitted in the right state, but, if not, they may use a local counsel to cover for them — signing the pleadings and accompanying them to court.  According to the federal judge quoted below, they probably should not be paid at all.

Continue reading

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Justice Delayed: Bars support attempt to reward 23 year malpractice relief delay

cobweb booksHere’s a story highlighting the gall some lawyers exhibit when they get caught doing something wrong:  In this case, committing apparent malpractice.  The law firm fought the claims for years (after delaying the matter as long as possible to pursue the original defendants first), and they are still fighting over the incidentals, like fees and interest.  Now they are complaining that, thanks to the long delay and their aggressive defense, the legal fees and interest are now too much.

The function of fees, costs, and expenses tacked onto a court judgment are to make the party entitled to them whole — and they are partly to discourage the opponent from waging a war of attrition.  Normally, fees can be considerable (often inflated for fee-shifting, but subject to court adjustment) and interest adds up, but if you move the matter along and avoid wasting money on fees, these items are supposed to be incidental.  On the other hand, if you drag a case out for over 20 years, these incidentals can exceed the principal, which is apparently what happened here.

The underlying issues began in 1991, so they are at 23 years and counting for the clients looking to recover their $5 million, plus fees and interest.  Now the bar associations in Illinois are complaining that this will set a bad precedent.  Apparently they don’t see the irony or hypocrisy in having lawyers who committed malpractice, and delayed justice for 20+ years, should complain about the impact paying their tab would have. Continue reading

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Past Due: Lawyers advised not to offer discounts, write-offs, or free initial consultations to avoid problem clients

pastdueClients can learn a lot about where they stand with lawyers and law firms by hearing what they say about them behind their back, but most lawyers don’t put this sort of talk in writing where clients can see it.  Just as useful, and far easier to find, however, are the sales pitches and advice provided to lawyers by some of the vendors who seek to do business with these lawyers.  Depending on what they are selling, the vendors provide an insight into how the firm’s finances work — especially how the client can be exploited.

For example, the sales pitches for legal research databases (which normally cannot be passed on to the client because they are overhead) often suggest that the lawyer can pass the cost through to clients, and the vendors may even provide software to create “bills” or “invoices” that are not real — just show for the client’s benefit.

Another example, with far more money at stake these days, involves temps or contract lawyers (paid around $50 per hour on average) who the firm passes off as associates and even bills at full hourly rates that are far more profitable than associates or paralegals, even though the work they do is barely above non-billable clerical work.  The vendors who provide these billing machines always sell them as being even more profitable than real associates, but some bar organizations authorize the firms not to disclose what’s going on to their clients, unless they ask. Continue reading

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Survival Guide: Legal headhunter paints sad picture of law firm life

If you know any college or law school students, or anyone else, who’s thinking about shrunken headbecoming a lawyer, you should have them read the excerpts below from a piece by one former lawyer who now makes his living recruiting lawyers for large law firms.  Though he’s suggesting how to succeed in that world, through numerous dubious tactics, what he’s really doing is painting a sad, but seemingly accurate picture of life within the largest law firm, which depend on hourly billing by battalions of junior lawyers (and paralegals) to support the top of their pyramid.

The post is also instructive for clients to let them see where their money goes and what the troops billing them really think.  If you are sending legal work to a “biglaw” firm, as they like to call themselves, you might be surprised to see it from the perspective of the people whose names, or just initials, you see on all your bills.  By showing lawyers how to “survive” this headhunter has shown clients how they get their heads handed to them, with the bill.

Assuming it’s real, this article was apparently posted by the “managing director” of a legal headhunting firm in California who used to practice law.  He’s in an unusual conflict of interest:  He makes money by placing lawyers with law firms (and possibly in-house law departments), but he apparently bombed out of the same sort of law firm.  His message is apparently that, no matter how absurd and abusive the law firm environment may be, the junior lawyer needs to play the game by following this guy’s rules to succeed.  Success apparently consists of billing all that you can to survive in the firm, becoming a partner, and making more money than your peers from law school.  (Apparently he hasn’t seen what happens even to the most successful partners later on when they get pushed out.)  Very sad. Continue reading

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Charge It: Client’s objection to fees should freeze credit card charges and cash transfers

What can you do if your lawyer’s holding money or property that belongs to you (either you paid in advance or the lawyer collects money for you) but you want to object tocredit cards some or all of the fees and expenses the lawyer claims he or she is due?  In the ethics rules (and general law) of many jurisdictions, if the client makes an objection or complaint about the lawyer’s bills — fees or expenses — the lawyer cannot just take the money or property.  In essence, the client’s objection freezes the money in the lawyer’s trust account or puts any property or files on hold until the dispute is resolved.  (Usually key work product that the client still needs, e.g., if the lawyer was replaced by new counsel, the lawyer may have to turn a copy of the files, or the originals, over to the client or new counsel.)

First off, if clients feel they have an objection to fees or expenses sought by the lawyer, they should say so in writing and with as much specific detail as you can.  If you’re just making excuses that have no legal basis, the lawyer can try to talk you out of the objections — many of these disputes settle — but the lawyer isn’t supposed to be able to take disputed money and run with it.  The client can also instruct the lawyer, in writing, to turn files over to the client or replacement lawyer. Continue reading

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