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

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Lawyer Management, Legal Commentary, Legal News Notes | Tagged , , , , , | Comments Off

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

Posted in All CGL, Civilian's Guide to Lawyers, Devil's Advocate, Ethics, Lawyer Management, Legal Commentary | Tagged , , , , , | Comments Off

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

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Legal Commentary, Legal News Notes | Tagged , , , , , , , , | Comments Off

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

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Firing a Lawyer, Hiring a lawyer, Lawyer Management, Legal Bill Reviews, Legal Commentary, Legal Fees, Legal Fees: Law & Management, Legal News Notes | Tagged , , , , , , , , , , , , , , | Comments Off

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

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Hiring a lawyer, Lawyer Management, Legal Bill Reviews, Legal Commentary, Legal Fees, Legal Fees: Law & Management, Legal News Notes | Tagged , , , , , , , , , | Comments Off

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

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, In-House Lawyer Notes, Lawyer Management, Legal Commentary, Legal News Notes, Trial Practice Checklists 2d | Tagged , , , , | Comments Off

Watching The Watchdog: State ethics committee member steals $3 million

dog tail chaseWe’ve noted before the frequency of problems with lawyers who deal with the elderly, or anyone who needs a guardian or has an estate that needs to be watched for them.  Older people often have substantial assets and may have trouble keeping an eye on them.  They are also targets for all sorts of schemes, including schemes run by lawyers they have known and trusted for decades.  We also see overbilling by these lawyers, whether it’s due to high rates or improper charges for unnecessary work or even non-legal services.

Here’s another example of how some lawyers can use their connections with the local or state bar to “vouch” for them, even as they are up to no good behind the scenes.  In this instance, a local lawyer was apparently bilking her own clients out of millions even as she took a position on a state ethics committee, by appointment of the state’s Supreme Court. Continue reading

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Firing a Lawyer, Hiring a lawyer, In-House Lawyer Notes, Lawyer Management, Legal Bill Reviews, Legal Commentary, Legal Fees, Legal Fees: Law & Management, Legal News Notes, Trial Practice Checklists 2d | Tagged , , , , , , , , | Comments Off

DIY Criminal Law: Georgia replacing prisoners’ lawyers with legal database

jail receiver

Mark Steinmetz

Picking on unpopular groups, like prisoners, is how some politicians woo votes.   Before every election there is a race to panic the public about non-existent criminal epidemics as an excuse to jack up the sentences, take away judicial discretion, lock people away for decades for trivial crimes (while ignoring thefts of millions or billions, or causing injuries to thousands of victims), punish children and the mentally ill as criminals, and so on — all while trotting out victims as props, then discarding them when the camera leaves.  Our criminal system is a political football — in shape and in practice — but one side is shackled, has no protective gear, doesn’t know the rules, and doesn’t get to appoint the referees.

Once you criminalize every imaginable “bad” activity, strip away as many legal defenses and procedural rights as you can, and jack up the sentences to several multiples of a life sentence, the real challenge isn’t to get support for “anti-crime” measures, but to find some angle that hasn’t already been exploited by some other politician.  Into this anti-criminal gap, the state of Georgia has injected a new idea, apparently predicated on the notion that anyone with access to a law book can do what a lawyer does:  Why fulfill constitutional obligations to provide legal assistance to criminal defendants, pre- and post-conviction, when you can just hand them the lawyers’ books and save the cost of having a licensed professional who understands them provide assistance?  Handing someone the tools of a lawyer is not a substitute for providing an experienced, competent lawyer: Continue reading

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Lawyer Management, Legal Commentary, Legal Fees, Legal News Notes, Trial Practice Checklists 2d | Tagged , , , , , , | Comments Off

Psychic-Client Privilege: Lawyer-psychic doubles as psychic-lawyer

palm signOne reason why so many clients complain about their legal fees is that, unlike mechanics, plumbers, and doctors, the value of legal services can often be hard to see — it’s ephemeral.  Even the best legal work can look like cutting and pasting of prior work coupled with hours of chit chat, all tied up with some legalistic jibber jabber.  People think that lawyers learn “the law” in law school, which includes a specific recipe for every possible legal question or problem, so they think the “answer” is obvious and lawyers are just conning them to make more money.

Even major corporations and insurance companies who deal with lawyers all the time can have a hard time seeing the value in many legal bills, too.  No two lawyers may cost the same for the same job — even the same lawyer doing more or less the same matter may cost more or less each time. Continue reading

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Lawyer Advertising, Lawyer Management, Legal Bill Reviews, Legal Commentary, Legal Fees, Legal Fees: Law & Management, Legal News Notes, Trial Practice Checklists 2d | Tagged , , , , | Comments Off

Chumming The Waters: Florida Bar fights $100 charge to support legal aid

In a cartoon by Bob Mankoff, of The New Yorker, three fish mankoff cartoonconsider whether the world is just:  The large fish thinks the world is just, the middle fish thinks there is some justice in the world, and the smallest fish thinks there is no justice in the world.  All three are right, but only two get eaten.

While we pretend to have a legal system of justice for all, equally available to all, that’s a fiction.  Instead of fixing the problems, some simply deny that problems exist, even to the point of rationalizing why injustice is just part of justice (blaming the victims or “life,” for example).  Another common tactic for injustice deniers is to demand that lawyers, judges, and others pretend that the system is perfect, by repressing objections or doubts, rather than striving to improve the system so it might actually be just.  Maintaining the fiction of justice — justice theater — only compounds the problem by demonstrating that the foundation is flawed, which anyone can see already, thereby undermining public as well as insider confidence that there is, ultimately, a consensus that justice must be done.

There are many problems with the system, but one of the largest, and potentially most remediable with some adjustments, is the impact of money on the system.  With enough money, you can effectively buy a favorable result simply by outlasting and outspending a poorer opponent.  While it is still controversial, the link between affording a lawyer and having any semblance of a reasonable chance in court is well-recognized, especially as a constitutional matter in criminal cases.  Those who try to sabotage such representation because they prefer the injustice of default and technicalities, passing it off as “justice,” are demonstrating their recognition that money (for lawyers) is one hallmark of justice. Continue reading

Posted in All CGL, Civilian's Guide to Lawyers, Client Tips, Devil's Advocate, Ethics, Hiring a lawyer, In-House Lawyer Notes, Lawyer Management, Legal Bill Reviews, Legal Commentary, Legal Fees, Legal Fees: Law & Management, Legal News Notes, Trial Practice Checklists 2d | Tagged , , , , , , , , | Comments Off