Bill or Else: Managing partner threatens to fire late billers, the day before Thanksgiving

countdown clockLawyers who bill by the hour need to keep track of their hours, which means writing them down (or entering them, including details of what was done), so the firm can issue timely bills to clients, usually monthly.  As you’d expect, some lawyers might procrastinate, especially around a big holiday — like Thanksgiving.  Procrastination costs the firm money, and sometimes leads to problems getting paid.

Another problem is that lawyers (and others, including paralegals) may also feel pressure — with or without official word from the firm — to bill as much time as possible, sometimes even more than they actually worked.  As you’ll see from the following incident, a partner’s over the top threats to encourage timely posting of billed time may also have the effect of sending a subliminal message to bill more, as well. Continue reading

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Sticks and Stones: State court sanctions lawyer for comments about agency judge

sticks stonesIn the name of avoiding criticism by lawyers that might undermine respect for the legal system, lawyers sometimes lose normal First Amendment rights to comment about legal issues, including judges, because they may be subject to ethical sanctions for making negative comments.  In other words, even though judges are public officials normally fair game — at the very core of First Amendment rights — lawyers, who are the citizens most familiar with judges and with the legal system in general, may face ethics sanctions for speaking out.

By this standard, constitutional scholars and political pundits commenting about Supreme Court decisions could be sanctioned, too.  Indeed, there are examples of intemperate Supreme Court dissents in which some of our justices might be sanctioned, if they still had licenses.

The theory apparently is that having robust criticism by those most intimately aware of problems will cause the public to doubt, whereas foreclosing criticism will breed respect (through ignorance of reality).  This is the same sort of logic that supports the approach to governance in Russia, China, and elsewhere, for example, to criticism of the government and its leaders.

For the rest of us, criticizing government entities and officials is fair game because, right or wrong, everyone is entitled to challenge the government.  With the power of judges, prosecutors, legislators, agencies, and government-paid employees behind them, government actors have a decidedly unfair advantage, especially those who are willing to lie or are not smart enough to know better.  As has all too often become obvious with the passage of time, “facts” that were labeled as untrue by government actors at one time, especially those labeled as untrue simply because the speaker was labeled as a crank, have a nasty habit of being revealed as true later on.  If the NAACP’s lawyers had published similar comments in the 1950s, or even recently, would a court be so quick to demand objective proof? — be careful what you wish for if you demand proof of such accusations.

This reflexive government self-protection also becomes laughable when government actors try to employ the usual government denial machine (including law enforcement tools) to deny objective facts, like scientific facts.  The world wasn’t flat, the earth wasn’t the center of the universe, and the globe will continue to warm.  And there have been incompetent, corrupt, and otherwise deficient judges and other legal officials. Continue reading

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Flattening Justice: State commission set to level civil justice system

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Flat Earth Society Image

Local, state, and federal courts are supported by taxpayers and, in some part, by various charges made by the court to file lawsuits, for example.  In return, the courts are supposed to provide a civilized way to resolve disputes between two or more people (including corporations) or between citizens and the government, for example.  (We’re talking about civil disputes, not criminal law enforcement, which is government versus citizens, or anyone breaking the criminal law.)  Civil courts are supposed to be open to all, equally, and to treat everyone as equal to reach the correct result considering only the true facts and relevant law, applied properly.

Civil courts are supposed to provide a neutral, fair, and transparent means to resolve all manner of disputes — a level playing field where everyone, rich or poor, literate or not, has an equal opportunity to be heard and to receive a just result.  Unfortunately, since the inception of civil justice, it has been a struggle to make this a level playing field:  All too often the system can be corrupted, directly or indirectly, especially by various forms of bias and prejudice, as well as the impact of complications in the law, and ultimately the tendency of “justice” to be proportional to financial resources and political and social “power.”

In another demonstration of how money and the lack of it tend to contort the justice system, people with money are opting out of the government’s civil justice system in favor of private arbitration.  Perversely, those who dictate terms now even impose private arbitration on consumers, for example, as a means to abuse justice in favor of using the high cost of arbitration (and the willingness of some courts and legislators to abdicate justice in favor of private enterprise) to avoid legal accountability altogether. Continue reading

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As The Bar Turns: California Bar fires director, director sues Bar

A few weeks ago, the California Bar took the extreme step of firing its executive director — cal bar logowho is usually the top employee and “CEO” of a bar organization.  Usually the executive director reports to a bar’s board, which is typically all or nearly all lawyers with good bar connections.  (There might be a token representative of the public or two on some boards.)

In response, this bar official sued the Bar, claiming he was fired as retaliation for identifying problems with the Bar and thereby stepping on the toes of influential lawyers controlling the Bar.  Some of the allegations included fiddling by Bar officials with their expense accounts — this should be pro bono service, with minimal reimbursement of easily-defined expenses. Continue reading

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Do As They Say: Bar officials flunk basic spreadsheet skills

mbe imageOne of the functions performed by the state bar organizations in the US is to administer the process of licensing new lawyers.  This has anti-competitive implications because many bars also act as the trade association for lawyers — fewer newer lawyers means less competition — and all bars are run by and heavily staffed by lawyers as well.  This potential conflict of interest should cause regular oversight to insure that the bars are not abusing this extraordinary authority, which is delegated by state government to them.  (Of course, most of the key state government positions, judicial, executive and legislative, are also filled by lawyers.  You don’t typically see that sort of inbreeding with licensed hairdressers or even accountants.)

Here’s a sad situation for some newly minted lawyers in Nebraska.  They took the bar exam — usually a two plus day ordeal in which one day is devoted to a test on local state law, the part the state bar or similar entity usually controls most closely, and a second day devoted to a standardized, multiple choice test (the MBE or Multi-state exam) which all lawyers in all states take the same day and which is about more general law principles.  That latter part is administered by the same people who bring you the SAT — not heavily controlled by lawyers, but with lawyers undoubtedly involved. Continue reading

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Unethical Clients: Professional coach advises lawyers to avoid strip clubs

Like most lawyers, I run into people who, upon learning that I’m a lawyer, assume all sortslife coach of things about what I must do for a living, how I think, what’s wrong with me, and so on.  These have a remarkable overlap from person to person, with the themes coming from TV (dramas and news), popular myths and stereotypes, and lawyer jokes.  Depending on how they feel about lawyers in general, the next step is they either ask you a legal question that’s on their mind or in the news or they never talk to you again.

Many lawyers engage in this sort of stereotyping of other lawyers as well, usually based on what sort of practice you have (type of law, in-house, law firm, big or small) and where you went to law school.  Civilians always assume that lawyers will have lots in common to talk about, but that’s rarely true.  Whether it’s professional jealousy or just bad manners, lawyers usually don’t socialize all that well unless (1) one of them is a potential source of business for the other or (2) they like to talk shop and don’t care if anyone else is paying attention. Continue reading

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Debt to Society: Prosecutors lending official letterhead to debt collectors

debt collectorPeople call or email me all the time with situations they think involve unethical or incompetent behavior by lawyers.  Malpractice and unethical conduct are two different things and they are handled very differently — one by the courts (or maybe arbitration) the other by the state or local bar — though they often overlap.

Almost all of these complaints have some validity, moral if not legal.  The situations are usually sympathetic and sometimes outrageous, often the fees are high and the results unexpectedly bad.  But actually getting relief from the courts or bar organizations isn’t likely for practical or technical reasons.  Sometimes I’m pleasantly surprised by how the system treats these people, but usually the result is unjust though consistent with what we’ve come to expect from our Justice System. Continue reading

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Ceiling, No Floor: Lawyer agreement sets cap, but not floor, on reasonable fee

Even though lawyers are supposed to know how to write a reasonable contract, it’s tarp beachsurprising how many lawyers and law firms don’t have a reasonable contract with their own clients.  I’ve always thought it was a bad sign that the very first task most lawyers should be performing for a new client — establishing a reasonable professional engagement — was so poorly handled.  Many times this is just a shortcut for lazy lawyers, but sometimes it’s part of the lawyer’s game:  They don’t want the client to wonder how much the lawyer’s going to cost and what could go wrong, which are things that a good engagement discussion and agreement would highlight.  Want to see a potential lawyer squirm?  Ask them for an estimate of their fees and expenses.

It’s shocking how many lawyers never bother to “get it in writing” with their own clients.  And bar authorities could require all engagements to be in writing, but they do not — except for contingent fee deals, for example.  Ideally, a client might need a separate lawyer just to advise him about whether the deal with the new lawyer is reasonable and to watch out for any tricks or traps.  (Sometimes you can flush out the real problems up front just by asking for an estimate and suggesting the use of my firm’s “client-friendly” fee agreement at DevilsAdvocate.com.) Continue reading

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Transactional Immunity: Maryland immunizes lawyers designating themselves as estate reps

tom clancy coverLawyers can make really, really bad personal representatives, executors, or trustees to babysit and distribute your money and stuff once you’re gone.  You might think that someone with a law license would be a logical choice to protect your interests when you’re gone, but unless your intention is to spend all your money on legal fees and leave your loved ones (or business partners or whatever) out in the cold, you may be very surprised — except you’ll probably be long gone with no way to fix the mess you made.

It’s especially bad if the same lawyer you trust to draft your paperwork appoints him- or herself to be in control once you’re out of the picture.  That’s a basic conflict of interest that won’t play out until it’s too late for you to even realize it — but the lawyer should know better.  This is ethically thin ice, of course, but it’s rarely treated as such and there are tricky drafting games that can be played to skirt the rules anyway.  There have been notorious cases in which family and friends who were the intended beneficiaries have lost out to lawyers (and sometimes others, including banks, accountants, or others who prey on these things) who drained the assets with fees, expenses, and even inside deals for themselves. Continue reading

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Tag, You’re Not It: Notice by regular mail isn’t notice

usps_priority_mailThe law confuses the general public and invites distrust, including assumptions that it relies on arbitrary technicalities to facilitate manipulation in favor of the connected, powerful, or wealthy.  People expect the law to use common sense and reach “right” conclusions.  They also expect that the relevant “facts” and applicable “law” are obvious and indisputable, and that there is one correct result or a finite solution.  Unfortunately, human judges and juries, as well as lawyers trained to fiddle with the law and facts, all conspire to produce the infinite variety of anecdotes of injustice that fuel the popular confusion and distrust.

Here’s a tiny example of how even a basic idea — that employers need to give employees notice of important rights and deadlines — can get mighty complicated and trigger lots of slow, expensive legal proceedings.  There doesn’t seem to be any question that the employee was actually told what she needed to know — but how she was notified has become the technicality that might grant her more benefits than the law literally would otherwise allow. Continue reading

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