Conflict Avoidance: Clients pushing back against advance, blanket waivers of unknown conflicts

boxing ringLawyers are not supposed to represent a potential client unless they can devote their full attention, and loyalty, to that client.  Their personal and professional interest must be consistent with the client’s interest, otherwise they may have a “conflict” of interest.

Typical conflicts include situations where the lawyer has represented the opponent before or even currently, maybe even the same case — like if the lawyer used to work for the firm for the defendant, then gets hired by the opponent.  For a larger firm, with more lawyers and clients, maybe offices in many cities or countries, it can get complicated:  Firms are supposed to screen for conflicts, but names change, lawyers get lazy, and so on, so sometimes conflicts slip through.  With the right precautions, it might be possible to “screen” out the people with a conflict to avoid disqualification, but the risk is that the current lawyers might know confidential information from the old client that, under their obligation to the new client, they might be tempted to release, improperly.  So the problem with conflicts isn’t just the loyalty of the lawyer but the sanctity of privileged information. Continue reading

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Everybody Does It (Wrong): Thousands of wrongs don’t make a right

One thing that tends to cripple respect for the law and legal system is judges who fail to Wrong_Way_Go_Back_Signelevate themselves above the petty flaws that everyone can spot.  At its worst, this behavior tends to stoke popular dissatisfaction, undoing all efforts to earn respect, let alone demand it. Continue reading

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Sales Job: Reminding lawyers to appreciate their customers, er clients

customerserviceLawyers are professionals, or want special treatment as professionals, but at bottom most of them are just in the law business for the money.  Here is advice from someone who makes her living telling lawyers, especially contingent fee personal injury lawyers (the ones who run TV ads and so on), how to land more business.  (Note that she shows no recognition of the need for pro bono services — this is all about getting clients with money or valuable claims to pay a contingent fee.  Anyone else need not apply.) Continue reading

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Lucky Charms: Law firms add offshore offices for low cost, high profit document review

One of the largest law firms in the world is touting its new “back office” in Belfast, irish lotteryNorthern Ireland, joining a prior “back office” in the Philippines.  These operations seek to use ultra low cost personnel at local wages to do either non-billable work or, for special profit opportunities, to bill clients at markups of 500% and more.

Unfortunately, with the blessing of some bar authorities, this bit of magic is often accomplished without disclosing the full circumstances to clients, let alone getting informed consent.  Who knows who all those timekeepers are on your bill, especially when there are dozens of them and few firms provide bios for non-lawyers or the document reviewers?  More to the point, what are they actually doing, why, and is it really necessary?

While this is sold to clients as a benefit for them, that logic falls apart:  Yes, these people are cheaper, but what are they worth?  What they do requires minimal skill and training (hence, the outsourcing opportunity), but why is it even billable?  It is the billable hour fiction of document review that is generating the profit for “big law” — it’s actually the prime mover of the whole “big law” fiction.

The game is often to portray some sort of savings to the firm as a benefit to the client and a sign of the firm’s efficiency — but it’s not unless the fee is proportionally lower and the work as good and actually as necessary.  In the retail world, it’s Walmart that sells itself as offering lower prices by forcing down its costs (at the expense of suppliers) — does anyone pretend that Walmart also offers better or even equivalent quality?  This is more like Tiffany’s advertising its jewelry is somehow a better buy if it uses untrained labor from the Third World.  If Baker and other firms of this ilk are really saying that low cost is all that matters, they are just telling clients to go to the many other law firms where the ultimate fee is lower and the expertise as good or often better, pound for pound. Continue reading

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Women Trouble: Lawyer banned from representing female clients, without effect

wolf-howlLawyers are just, in one sense, business people whose business is law.  For historic or romantic reasons, lawyers and some others treat lawyers as being above business — they are “professionals” with special privileges and obligations (real or imagined).  Whether it’s just to limit competition or to protect the public from lawyers gone wild (real or imagined), there are special ethics rules, enforced by quasi-governmental, quasi-guild bar authorities.  Lawyers are supposed to be policed to protect the public, but this just doesn’t happen.  The bars are slow, often distracted, and usually years behind on serious problems.

Unfortunately, ethics enforcement doesn’t help with lawyers who are doing all sorts of bad or illegal things.  It’s not only slow, but very narrow in its scope and enforcement tends to focus on a few obvious problems plus attempts to abuse the ethics rules for ulterior motives, like retaliation against competitors or opponents. Continue reading

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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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