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f/k/a archives . . . real opinions & real haiku

February 28, 2009

we’re all-archive now

Filed under: viewpoint — David Giacalone @ 11:59 pm

digital age
aging digits pause
at the keyboard


Notice: After almost 6 years, 2500 postings, and a million visits,  f/k/a has stopped publishing new posts (and accepting new Comments) as of March 1, 2009.  The content is all still here in our archives, of course, so please browse to find unique and wide-ranging punditry, much of which deals with the foibles of lawyers and the rights of their clients, plus thousands of quality haiku by a couple dozen fine poets.  See our About page, to learn about f/k/a‘s history, philosophy, honors, etc., and our Prof. Yabut’s Favorites Page for the closest thing we have to a Greatest Hits List.  (We may occasionally, but erratically, add a follow-up blurb to an old posting when a topic is in the news.)

By the way, we went out this week the way we came in at this “ethicalEsq” weblog: writing about excessive legal fees and the lack of adequate lawyer discipline.  See our ALF (American Legal Fees) Series; and our essay this morning, “Understanding and Reducing Legal Fees.”

….. david giacalone – Editor/Proprietor

Broken Link Warning:  Due to an involuntary webserver change in the Spring of 2009, some of our links to internal f/k/a material no longer work.  We regret this inconvenience.  However, all of our content still exists, and you should be able to locate the desired post by doing using our SideBar Search box or doing a Google Search of f/k/a [put a space and then your search terms after our URL in the Google search box].

All-Archive: This is the last new post that will appear at this web address.  As of March 1, 2009, f/k/a will be in “archival status,” with all of our content (dating back to May 2003) remaining available here as archives.

  • Clicking Client Rights & Legal Ethics here or in the SideBar will bring you to our portal for legal ethics commentary and resources (including extensive discussion of lawyer fees).  See “Our Resources” and “Categories” in the Sidebar for more topics.
  • Go to the Honored Guest Poet Index for links to the individual archive of each of our two-dozen top-notch haiku poets.  We’ve collected annotated links to our haiku-related materials and outside websites at the Haiku Resources Page.
  • No one was willing to go through 2,472 posts to try to choose f/k/a‘s Greatest Hits, but Prof. Yabut’s Favorites Page makes a good substitute.

As I type right now, there are fewer than 12 minutes until my self-imposed midnight shutdown deadline.  So, you’re in luck: There’s no time for a long-winded farewell apologia, nor even an attempt to answer Darren Rowse’s recent question: “If your blog died today, what would it be remembered for?”  Sad to say, however, the f/k/a Gang — your Editor and his various alter egos — have apparently learned little since we tried to quit this weblog in October 2003.  Our sentiments then ring just as true today.  Because we still haven’t learned how to pace ourselves, we’re going cold turkey on intense daily blogging, to free up time and energy for creating a more joyful, satisfying and meaningful journey.

A parting note:  It’s been great to be able to opine on subjects as diverse as the Graying of the Bar, the meaning of “goomba,” and the importance of pink flamingos and Wendy Savage, while cultivating my artistic side, and bringing the joys of genuine haiku to a wider audience.  Many thanks to all who have made f/k/a their regular stop for one-breath poetry and/or breathless punditry, and to the generous and talented poets who let me share their haiku.  If I find a new online project or job, I’ll get the word out to my blawging and haijin friends.

One year ago today, I took this picture at the end of the block where the f/k/a Gang lives.  We hope to see a lot more of the Mohawk River from now on.

ides of March
floodwaters where
the snowman stood

… by David Giacalone

fireworks finale!
her eyes return
to the fireflies

… by David Giacalone – Simply Haiku, Autumn 2007, vol 5 no 3 –

afterwords: If you’re missing our photography, check out “suns along the Mohawk,” which features my photos from along the Mohawk River and around the Schenectady Stockade.

just getting to know you

Filed under: Haiku or Senryu,q.s. quickies,viewpoint — David Giacalone @ 11:16 pm

We wouldn’t be the f/k/a Gang, if we weren’t frantically scampering to meet a self-imposed deadline on a Saturday night.  It’s a good thing we can re-use the same words written the first time we closed down this weblog, in October 2003, with only minor changes:

Doing ethicalEsq f/k/a has been a very rewarding experience, whether the correspondents agreed with me or not.  Until I started a web journal, [my f/k/a Gang of alter egos] thought the internet might be used to sustain established friendships and relationships (mostly with email), but couldn’t possibly create new ones of any significant value.  Well, I was wrong.

Comments and e-correspondence sparked by this website have put me in touch with some very good [talented and interesting] human beings, who can scarcely be blamed for being lawyers [or haiku poets].   Although they’re a lot busier than I am, I hope to continue to connect with them across cyberspace.

At the end of this posting, I’ve listed (alphabetically fairly randomly) a number of the web-log related folks who have become more than just pixelated names to me, due to the quality and/or quantity of their communications, insights, inspiration, or assistance.

sweet grapes
the conversation passes
between friends

… by Hilary Tann – The Heron’s Nest VIII:1

Far more often than I could have imagined 6 years ago, this weblog has sparked real conversations — the kind that nurture real friendships.   Before I list the names of people across the blogisphere who have been the most generous to me and this weblog, I want to share some haiku and senryu about conversations.  (more…)

a few farewell haiga

Filed under: Haiga or Haibun — David Giacalone @ 11:55 am

.. ..

last day
for ice fishing
buckets half-full

– photo by dagosan (Feb. 24, 2009, Mohawk River, Schenectady, Riverside Park)

How does one say goodbye to a weblog and its readers after almost six years and 2500 posts?  I’m not sure, but happily won’t have to decide until the next and final posting here at f/k/a later today.   For now, I put up one last sunset photo from the end of my block, and then sorted through my previously-published haiga (pictures with a linked haiku or senryu), and found some that match my mood(s).  My brother, Buffalo lawyer Arthur J. Giacalone took each of the haiga photos in today’s post, except for the first and last one.

comes too soon

. . .

curtain time:
the stage crew as silent
as the props

… from Simply Haiku Journal, Modern Haiga, Vol. 5 no. 1 (Spring 2007)
– at The Gates, NYC (2004) – click to see the original haiga: “curtain time:” – “snow melt


probably not our last slippery slope

Filed under: q.s. quickies — David Giacalone @ 4:15 am

reprise:ethicalEsq’s first slippery slope” (posted Dec. 23, 2003)

giacalone giacalone & giacalone, Christmas 1950 (photo by Mama G.)

moving day
dust bunnies and shadows
left behind

…. by dagosan

Understanding and Reducing Attorney Fees

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 4:00 am

Consumers of legal services won’t find much information online or at their public library to help them keep their costs down when they hire a lawyer.  Some websites or firms might hawk their own services or materials as being a great value, or as an option far cheaper than using a lawyer, but almost no one — including bar associations and consumer groups — has compiled general tips on how to make legal services less expensive when you turn from prospective consumer to client.   Therefore, when I heard a couple months ago that the legal reform group HALT published a free, online Citizen Legal Guide titled “Understanding Attorney Fees So You Can Keep Legal Costs Down” (November, 2008; 8-pp. pdf. version), I was quite pleased.  Unfortunately, once I read it, my reaction to HALT’s Fee Guide was like f/k/a‘s fictional Prof. Yabut:  “Yeah, but . . . “.

HALT has been working for over 30 years to achieve “Simple, Affordable, Accountable Justice for All.”  f/k/a and our self-help-law sister weblog SHLEP have quoted and linked to HALT, its studies, Report Cards, and guides scores of times, beginning on our very first day of blogging in 2003.  To my surprise, however, I was disappointed by HALT’s Understanding Attorney Fees [“UAF“]. It correctly advises consumers that:

“If you find yourself with a legal question, you should explore all of the options available to you and become educated about your legal question. You may actually find that you do not need to hire an attorney. . . . However, if your legal matter is complex, substantial money is at stake, you’re charged with a crime, or you’re simply uncomfortable handling legal matters on your own, you’ll probably need to hire a lawyer.”

However, for those who do need to hire a lawyer, there is simply too much left unsaid in Understanding Attorney Fees about how to keep your legal fees down.  The HALT Guide does note that “As a legal consumer, your best defense against paying more than you should is to educate yourself about legal fees before signing on the dotted line.”  And, it promises to explain “the most common billing arrangements used by lawyers, some new billing arrangements lawyers are using and specific ways you can lower your legal costs.”

Nonetheless, for our money, HALT’s Understanding Attorney Fees:

  • Offers very little help for controlling or lowering fees that are based on an hourly rate for the lawyer’s time — not when the client is entering into an hourly billing agreement, while the services are being provided, nor when presented with a periodic or final bill.
  • Takes a real dive on contingency fees, completely ignoring HALT’s own position on such fees from a decade ago, as presented in its Injured Consumer’s Legal Bill of Rights (The Legal Reformer, December 1997; issue no longer online).  At that time, HALT insisted that p/i lawyers should be charging clients a lower percentage in less-risky cases, rather than using the same standard contingency fee for virtually all clients (i.e, one third or 40%).  Lawyers were also required to provide the client with key information and estimates relating to risk prior to entering a fee agreement, with the information included in the signed agreement.  Frankly, the contingency fee section in the UAF Guide sounds like it was ghost-written by the plaintiff’s personal injury bar.  It doesn’t even mention the word “negotiate.”
  • Seems to offer a blanket endorsement of “alternative” billing methods, with very little help on how to shop for such fees, and no warning that some lawyers offering alternative fee arrangements in fact intend to extract higher fees than possible when billing by the hour (e.g., so-called Value Pricing).

. .   We hope consumers will read HALT’s “Understanding Attorney Fees,” but we believe the HALT staff has left too much out of its Guide. There’s no way the f/k/a Gang can create a comprehensive new draft or supplement to HALT’s publication (especially since we are moth-balling this site tomorrow).  We will, however, summarize portions of HALT’s UAF Guide, suggest some tips for keeping fees down, and point to a few other helpful sources.

Consumers shopping for legal services need to remember that every kind of pricing arrangement can be exploited or misused to result in excessive fees or inadequate services.  For example, hourly billing might result in a lawyer doing too much, but fixed fees can lead to lawyers doing too little, and contingency fees can make you pay far more than is warranted by the risk the lawyer is taking of not being paid or by the amount of work that will be required of the lawyer.  See, e.g., our posts “other thoughtful voices on the lawyer billing debate;” and “the reality of alternate billing.”  Clients need to insist on more information and lawyers need to act in ways that create trust and give full value.

First, two quick points:

  • Unbundling can Save You a Bundle: With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks. If you think you’re willing and able to play a large role in your own legal affairs, but know you want or need a lawyer to help perform “discrete tasks” and serve as advisor and coach, look into Unbundling. (see our prior post; and this posting from SHLEP for an introduction); the excerpts from M. Sue Talia‘s book Unbundling Your Divorce can help you determine if they are good candidate. Find State unbundling rules here.
  • Do-It-Yourself/Pro Se: For information relating to do-it-yourself resources, see shlep: the Self Help Law ExPress [which was started by f/k/a‘s Editor], where you will find information on locating self-help materials, thinking about whether representing yourself makes sense for you, a Topic Index, and much more.

In “Understanding Attorney Fees,” HALT reminds consumers that “The type of arrangement you enter into can have a huge impact on the amount of fees you’ll pay, so it’s important to understand how each works and the incentives lawyers have for using them.”  It explains that:


February 26, 2009

rivers, sunset, metaphors galore

Filed under: Haiku or Senryu,Schenectady Synecdoche — David Giacalone @ 9:07 pm

February thaw
a new patch of orange
on the river

… by dagosan

Catching another sunset or two in photos before we “archivize” this weblog on Saturday seemed like a good idea, as the afternoon waned today. [click “more” below to see some of the photographs]  Naturally, I managed to dawdle so long at this keyboard that I only caught the last few moments before the sun dipped behind nearby hills.  My timing was a metaphor of sorts for much that has happened (and not) lately in my life.  Of course, the sunset itself was a too-obvious symbol (along with the promised sunrise after a long dark night) for the ending of an important era in my life. (more…)

crushed by clocks? insulted by intervals? [ALF#4]

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 12:10 pm

.. They’re peeved over time-based pay . .

note: this is #4 in our final week’s ALF Series on American Legal Fees; click for #1; #2; #3 . . and see our valedictory fee essay, “Understanding and Reducing Legal Fees“.

It’s my last week of posting, so I’m going to indulge myself and discuss a pet peeve or two of mine involving the rhetoric of lawyers and consultants who dislike (and often scapegoat) the billable hour.  Rather than sticking with logic, reason, or economics, they often employ hyperbole, overkill, psycho-babble, Straw Men and class warfare (not to mention ridicule).  As discussed below, they even insist that being paid by the hour demeans a lawyer.  Please.

Thus, as mentioned last week, Ron Baker’s acolyte and echo Christopher Marston recently insisted that “there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

Of course, I’m not an excrement expert (and Mr. Baker has accused me of ranting and raving and being “someone who lacks a rudimentary understanding of basic economics.”), but the not-buying-time cliche is just a silly Straw Man.  The client who pays by the hour, like anyone who employs a lawyer to do legal services, “wants” the lawyer to apply his or her legal knowledge, expertise and experience to the client’s problem or project.  Hourly billing is simply one way to compute compensation in a situation where the buyer does not employ the service provider exclusively (and the amount and type of services needed may not be reasonably discernible in advance).  As Prof. Jeffrey Lipshaw recently wrote:

“The real question is whether, overall, the total price approximated by billable hours is an acceptable surrogate for the value to the client. . . . [M]y intuition as a former buyer and seller is that the overall acceptability of the surrogate is indeed revealed by the overwhelming instance of its use in the market.”

Similarly, Steven Matthews pointed out at last year, in “The Economist: Killable Hour” (September 1st, 2008):

“Neither party seems to care that much about the billing model. Cost certainty? yes. Getting value? yes. Those are worth fighting for, but method of billing? If clients or firms were demanding changes, wouldn’t we have seen it by now?

“The push-pull between clients & firms when negotiating price (and understanding costs, for firms…) is going to exist in either scenario, and frequently depends on the situation. Think: area of practice, work volumes, the substance & length of client-firm relationship, average time for matter execution, and so on. But rather than describing this balance to readers, the sensational prevails – pitting one billing model against the other in a full-on death match! I suppose it’s not sexy to say ‘different clients & matters may require different billing models’. A shame, really.”

At times billing by the hour is a reasonably good measure of the value of those services, and at times it may not be.  More price competition is needed for hourly rates, and abuses need to be eliminated, along with excessive quotas imposed on lawyers by their firms.  But, hourly billing is clearly not an inherently irrational, exploitative or unethical method for calculating price.  By painting hourly billing as the benighted source of all evil, proponents of alternative pricing methods hurt their credibility — especially, when they fail to acknowledge there are incentives inherent in every pricing method that could lead to unreasonably high (or low) fees. (see e.g., ALF#1; and our post “broadening the hourly billing debate“)

.. Mauled by Marxism! Demeaned by Da Man! Ronald J. Baker (see prior post), the guru of “value pricing” and ceaseless crusader against hourly billing, isn’t content with his price sensitivity charts and promises of higher fees in his quest to convert lawyers and accountants from the Almighty Hour.  Ron motivates poor downtrodden professionals with his brand of class-based snobbery.  He urges them to rise up to capture their true (higher) value by labeling hourly billing as Marxism, and contrasting his superior “knowlege workers” with mere “cattle,” “union workers,” “blue collar occupations,” and those who “work with their hands” rather than their heads, and are stuck laboring by the hour (see, e.g., here and there).

Meanwhile, the usually level-headed and clear-minded Bruce MacEwen of Adam Smith Esq, recently evaluated the billable hour (in “The NYT‘s Obit for the Billable Hour“, January 31, 2009).  Included in Bruce’s “Con the billable hour” list is this factor:

It’s dehumanizing, reducing talented and highly educated professionals to fungible units as factors of production.


February 25, 2009

all that great haikai

Filed under: Haiga or Haibun,Haiku or Senryu — David Giacalone @ 10:53 am

In this last week of new posting at f/k/a, how can I possibly put together a piece that pays adequate homage to the vast body of haikai — haiku, senryu and related poetic-literary genres — that our Honored Guest Poets have allowed me to share with you?  In two words: I can’t.

Beginning in late November 2003, with a little feature located in our Sidebar called “haikuesque,” this weblog has brought you “one-breath poetry” by some of the finest English-language haiku poets alive (plus hundreds of translations of the work of 19th Century Japanese Haiku Master, Kobayashi Issa, by David G. Lanoue).  In total, 27 well-known and respected haijin have generously let me share their poetry with you, in my role as Haiku Missionary, bringing the joys of “real haiku” to lawyers and other folk not familiar with the genre. [The post “Yes, Lawyers and haiku” explains why haiku seems like a perfect art form for lawyers and others in our too-busy society.]  Little did I know that rubbing elbows with some of the best haiku poets would inspire me to work hard at the craft myself, and would also result in my making some of my very closest friends.

Other than repeating here my heartfelt, immense gratitude to each of our Honored Guests, there really is no sufficient way to express my thanks or sum up their contribution to the success of this weblog.  As suggested here, I have neither the time nor inclination to select my “favorite” haiku by each poet.  Happily, their haikai will remain at this site for as long as Weblogs at Harvard Law School exists.  So, I hope readers of f/k/a will use our search function or go often to our Honored Guest Poets Index page, and click on links to each poet’s f/k/a archive.   Then, sample their wares, and let them seduce you with the charms of haiku.

In alphabetical order, and with haiku-like pith, the f/k/a Gang says: “many thanks for all that great haikai; best wishes, and ‘auf Wiedersehen’ ” to our Haiku Family: Roberta Beary, Randy Brooks; Yu Chang; Tom Clausen; Devar Dahl; Alice Frampton; Barry George; Lee Gurga;  Carolyn Hall; Gary Hotham; Jim Kacian; David G. Lanoue; Rebecca Lilly; Peggy Willis Lyles; Paul Miller; Ed Markowski; Matt Morden; Pamela Miller Ness; W.F. “Dr. Bill” Owen; Tom Painting; Andrew Riutta; John Stevenson; George Swede; Hilary Tann; Michael Dylan Welch; and Billie Wilson.

alone at sunset
i pick a pair
of faded daylilies

the morning rush—
the whiteness of last night’s snow

….. by David Giacalone – Legal Studies Forum (Vol. XXXII, No. 1. 2008)

Instead of further farewell fanfare regarding our Honored Guest Poets, I’m going to do what I would have done in the normal course of events this week:  Present more haikai selected as among the very best of their genre for inclusion in “white lies: Red Moon Anthology 2008” (see our prior post for details). (more…)

February 24, 2009

don’t forget those Minimum Fee Schedules [ALF #3]

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 10:17 pm

.. Click for the video of ALF’s “Risky Business” spoof ..  .. [or, Heidi’s R-rated version]

note: this is #3 in our final week’s ALF Series on American Legal Fees; click for #1 and #2; and #4

While I was in law school, bar association Minimum Fee Schedules went from being commonplace, apple-pie, “old-time rock-n-roll” in the legal profession, to being Risky Business in violation of antitrust law.  The fee schedules were lists of recommended minimum prices for common legal services.   Through disciplinary actions and ethics opinions, bar associations made it clear that a pattern of charging less than the minimum fee constituted misconduct.  See, for example, this NY Bar ethics opinion from 1964; a 1961 Colorado Bar opinion; and the Virginia Bar opinion discussed by the Supreme Court at Fn 1. in Goldfarb.  The president of the New York Bar Association had himself requested the 1964 opinion concerning departures from the minimum fee schedule, and his so-called ethics committee agreed with him that:

“[T]o let it be known, by whatever means, that a lawyer will customarily charge for his services less than the recommended fees set forth In a duly adopted schedule is not in accordance with Canon 12 and is unethical as a form of solicitation and advertising.”

At the end of my 2L year, the Supreme Court’s decision in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), closed the book on those quaint little non-compete clauses, holding that the Fairfax County Bar Association’s minimum fee schedule was price-fixing in violation of §1 of the Sherman Act.  Until then, bar groups had gone around saying they could do whatever they wanted regarding fees, because there was a blanket “learned profession” exemption to the antitrust laws, and that they also had State Action immunity for conduct permitted by state courts in overseeing the legal profession.  However, as the case Goldfarb syllabus explains.

“The schedule and its enforcement mechanism constitute price-fixing, since the record shows that the schedule, rather than being purely advisory, operated as a fixed, rigid price floor. The fee schedule was enforced through the prospect of professional discipline by the State Bar, by reason of attorneys’ desire to comply with announced professional norms, and by the assurance that other lawyers would not compete by underbidding. . . .

“. . . It is not enough that the anticompetitive conduct is ‘prompted’ by state action; to be exempt, such conduct must be compelled by direction of the State acting as a sovereign. Here the State Bar, by providing that deviation from the minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and hence cannot claim it is beyond the Sherman Act’s reach.”

While in law school, we discussed the fee schedules a little bit in my Professional Responsibility class in 1974 (where my famous Harvard Law professor believed lawyers should not be allowed to advertise), and much more in my antitrust classes. [Thereafter, for more than a decade at the Federal Trade Commission, my law practice was focused on the anticompetitive practices of learned professions like medicine and law.]

I’m bringing up this topic now, before we close shop here at f/k/a, because I’m afraid far too many members of the legal profession (and virtually all of the public) have forgotten this chapter of lawyer history and lessons to be drawn from it and its aftermath.   A lot of lawyers reading this weblog have suggested the f/k/a Gang is far too suspicious of bar associations and lawyers when it comes to fees and competition.  But, I want the “don’t be such a cynic” crowd to remember the Minimum Fee Schedules and what they say about our profession.  For me, history (including rather recent history at that) clearly shows:

  • lawyers almost always feel underpaid and entitled to higher fees
  • lawyers hate competition, especially price competition and related advertising, and will use peer pressure and ploys like an appeal to the “dignity of the profession” to stifle rivalry
  • lawyers will exploit any pricing mechanism (turning it into a racket) — and will always find new ways to increase fees when one method of billing becomes disfavored


foxes guarding the golden eggs [ALF #2]

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 2:13 pm

– note: this is #2 in our ALF series on American Legal Fees; click for #1 and #3 and #4

.. .. ALF-Esq & Prof. Yabut discuss self-regulation .. ..

ALF: But, Yabut, why can’t the Melmac Bar & Grill sponsor the Feline Protection League?  You know how important cats are to us.

Yabut:  For snacks and meals, you mean.

ALF: Our motto remains: “we always serve you first.”

The f/k/a Gang has been writing about the lax, self-regulated lawyer discipline system since we started this weblog in the Spring of 2003. [See Should Lawyers Control Lawyer Discipline?, June 22, 2003, and links on our Lawyer Disciplinary System Page.]  Sleepy Bar watchdogs often seem to be enabling their lupine kin rather than protecting the sheep. Like the legal reform group HALT, we believe our nation should:

“Replace the failed system of self-regulation — lawyers policing lawyers — with disciplinary panels on which non-lawyers have a majority voice.” [see our post HALT Suggests a “Better Way to Discipline Lawyers” (June 25, 2003)]

For more, see HALT’s 29-page (pdf) paper “Consumers of Legal Services: Unprotected and Underserved,” which notes: “The system of attorney self-regulation is an abject failure and lawyers’ so-called ‘Rules of Professional Responsibility’ do not require attorneys to provide even the most basic consumer information to prospective clients.”  HALT urges the broader consumer advocacy community to join their efforts to help achieve “Simple, Affordable, Accountable Justice for All.”

Foxes in the Chicken Coop:   We’ve spent 6 years complaining about bar associations that act like mercantile guilds, by protecting lawyers from competition rather than clients from greedy lawyers. There is, in fact, no better reason to junk the self-regulatory system utilized by the legal profession than its utter failure to take its ban on unreasonable fees seriously.  In most jurisdictions, the rule against excessive fees has devolved in practice into merely a ban on outright felonious, fraudulent, or otherwise dishonest billing practices (e.g., billing for phantom hours, charging more than one hourly-fee client for a particular interval of time, keeping unearned retainers), rather than telling a lawyer “You’ve charged this client far more than your services of worth.”  As demonstrated by their reactions to opinions expressed at this weblog, many lawyers have convinced themselves that any fee a mentally-competent client agrees to is by definition “fair” and they should be able to charge whatever the market will bear.

Except for judicial review in million-dollar cases, the monitoring of excessive fees by the legal profession has been basically delegated to Lawyer-Client Fee Dispute programs.  When HALT reviewed such programs state-by-state in 2007, and issued Fee Dispute Report Cards, it found:

“The most pervasive complaint about lawyers is that their fees are too high for the work done. But in evaluating the programs established to settle these disputes between clients and lawyers, our Report Card found a system plagued by an appalling pattern of biased procedures, insufficient resources and little enforcement.” And,

“By allowing lawyers to refuse participation in the fee arbitration process, hiding information from the public about the system, placing roadblocks in front of consumers wishing to resolve a fee dispute, stacking arbitration panels with attorneys and refusing to assist clients in recouping their money, fee arbitration programs across the country are routinely failing to provide a much-needed service to American legal consumers. Until there is meaningful reform, the legal profession has only itself to blame for the widespread public belief that lawyer fees are out of control and going unregulated.”

If self-regulation isn’t to blame, how else can we explain:

  • So Little Guidance from the Bar or Bar Counsel on How to Avoid Hourly-Billing Excesses and Abuse: You have to look pretty hard to find actual, practical discussion from bar associations or official bar sources on how lawyers and firms can properly use hourly billing.  (One exception, which itself could use some amplification, is the 1996 Statement of Principles from the ABA Task Force on Lawyer Business Ethics).  As a result, far too many lawyers seem to have forgotten that:

—  Hours Expended x Hourly Rate is meant to be the maximum fee that a lawyer can charge under an hourly billing agreement.  The figure is not automatic or set in stone but,  as the ABA Statement of Billing Principles says: “The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement” — e.g., making appropriate reductions for time that is not used in an efficient, cost-effective manner.

— Having multiple partners and associates billing their full hourly rates for attending a meeting or court session where they have virtually no active role is unacceptable.  In addition, as the ABA Statement of Billing Principles says, “If the primary purpose of participation in a meeting or project by a less experienced lawyer in a law firm is to train such lawyer, then the lawyer’s time should not be billed to the client.”

— Excessive time spent reviewing and rewriting the work of other lawyers suggests that the original work was not adequately done and should not be billed at regular rates, if at all.

update: See our valedictory post “understanding and reducing legal fees” (Feb. 28, 2009)


February 23, 2009

nostalgic about Blawg Review

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 9:36 am

.. Ed & Edison in Schenectady (Jan. 2009)  .. ..

What a strange coincidence: Just as I was announcing that this would be the last week of production for f/k/a, my friend “Ed Post” was putting together this week’s version of Blawg Review#200!! — which opens with a link to Darren Rowse’s ProBlogger post, “If your blog died today . . . what would it be remembered for?“.  Happily, the 200th milestone for Blawg Review is not its last edition.  As its anonymous Editor puts it:

“Not to worry; we’ve come to praise Blawg Review, not to bury it. This moot funeral is not a morbid affair, but a celebration of everything good about Blawg Review.”

Like every issue of Blawg Review, this week’s puts the spotlight on the best material posted during the prior week at law-related weblogs.  As part of the 200th-edition celebration, Ed has structured this issue around an apt Traveling Wilburys metaphor — a musical group composed of rock-n-roll superstars whose collaboration magically “was greater than the sum of its parts.”

One of my favorite poems posted here at f/k/a is this senryu by lawyer-poet Barry George:

his quiet funeral—
a man who did
most of the talking

………………. by barry george

The faux funeral of “Ed Post” and his Blawg Review inspired dagosan to pen a new version this morning:

his noisy wake —
the man who let others
do most of the talking

…. by dagosan

Blawg Review, which is to say Ed and many of his hosts, has always been bery-bery good to this weblog — from giving us the Blawg Review “Creative Law Blog Award” in 2005 [see “thanks a lot (for all this pressure),” Dec. 27, 2005], to including f/k/a in Ed’s “Simply the Best” Top Ten Blawg lists [see our post, October 5, 2007], letting us host Blawg Review #52 (April 11, 2006), and mentioning our work often in the weekly Review.   Behind the scenes, Ed has also often acted as our long-distance proofreader extraordinaire (saving the Gang from many embarrassments), and as cheerleader and moral support when stress and fatigue and Weltschmerz made me want to throw in the towel.

Ed’s two stops in Schenectady to visit this cranky blawger — memorialized here and there — were testaments to the ability of the blawgiverse to create and nurture more than virtual friendships.

So, congratulations, Ed, for creating an enduring, high-quality blog carnival.  And, heartfelt thanks for all you’ve done to create and celebrate the blawger community, and done for this little weblog and its humbled Editor.

bookie’s funeral
the undertaker pays
his debt

…. by ed markowski

As usual, Ed has also reminded me that I have a lot work to do this week — crafting an auto-obituary and apologia for this weblog.   Because we tried to close down this little project once before, after only 19 weeks in busines, I guess the second (and last) time should go a little more smoothly.  See “exitedEsq: going dormant (gonna miss ya)” (October 11, 2003)  Re-reading that post, I see there were a lot of lessons I never learned and a lot of mistakes repeated since our premature death notice.

On the other hand, we got such nice obits from other bloggers (back before Denise had even coined the word “blawg”), it’s a wonder we ever started back up.  Living up to our death press was quite daunting.  See, e.g., this humble-making post by law-blog supertar Ernie Svenson, a/k/a Ernie the Attorney, “Requiem for a Heavyweight – ethicalEsq? is shutting down” (Oct. 12, 2003).   Actually, the blog-obituaries were so generous, it’s a wonder I haven’t sought even more long before now.

update: And, it’s happening again — nice words inspired by our leaving town. See Scott Greenfield’s “Phoenix Rising” (Feb. 24, 2009).

Wait, I’m supposed to be concentrating on lawyer fees this week.   I am so easy to distract.

Let’s close with a few topical poems written by lawyer-poets:

funeral dirge –
we bury the one
who could carry a tune

…. by David Giacalone – Frogpond, Vol. 31:2 (Spring/Summer 2008)
repub. “white lies: Red Moon Anthology 2008

after the funeral
the seeds she ordered
in today’s mail

funeral over
the deadbolt
slides into place

his death notice. . .
the get-well card
still in my briefcase

… by Roberta Beary
“funeral over” – from the haibun “Stranger Danger” – Frogpond XXVIII:2 (2005)
“after” – Shiki Haikusphere 10th Anniversary Anthology (2007)
“his death notice” – New Resonance 2

February 22, 2009

other thoughtful voices on the lawyer billing debate [ALF #1]

Filed under: lawyer news or ethics — David Giacalone @ 3:31 pm

We’re going to permanently stop production at this weblog on March 1, 2009.  As Your Editor and his alter egos wind down the blawg formerly known as ethicalEsq, the f/k/a Gang is going to do what we’ve done since the spring of 2003:  Focus our punditry on American Legal Fees [ALF], with our primary concern being not the welfare of lawyers but the interests of the client — especially, the “average,” unsophisticated or inexperienced buyer of lawyer services, who is often priced out of the marketplace or left with crushing debt after an encounter with a lawyer. [see our Fees Page for links to six years of posting on the topic; update: click for ALF #2 ; #3; and #4; plus our farewell fee opus “Understanding and Reducing Attorney Fees” (Feb. 28, 2009)]

In our last-days ALF Series, we’re going to try to be slightly less cynical than the cranky, mischievous, but goodhearted tv character Gordon Shumway, a/k/a ALF (the Alien Life Form, who was created by Paul Fusco).  We will, however, keep in mind this interchange with his earthly landlord and friend, Willie Tanner:

Willie: Some people are so blinded by the thirst for money, that it causes them to lose their values, and do things they shouldn’t do.

ALF:  Well, that explains Ghostbusters II.

We think it also explains much of what is wrong with American Legal Fees and the relationship between lawyers and clients.

…. While bemoaning too-high fees and too-low morale in the legal profession, ethicalEsq, Prof. Yabut and I have been saying for years just how silly it is to scapegoat hourly billing as the primary cause of either client or lawyer discontent.  Most of the things wrong with hourly billing are related to its abuse or to obscenely high hourly quotas imposed on lawyers by firms.  We’ve pointed out, therefore, that nothing much will change if lawyers switch billing methods but insist on making just as much money.  We’ve argued that each fee mechanism comes with its own anti-client incentives, noting that lawyers have found ways to manipulate every kind of billing scheme to produce fees that clients rightly consider to be excessive.  [E.g., see our 2005 “chronomentrophobia” posting; and “broadening the hourly-billing debate,” Aug. 18, 2007, which includes excerpts from many prior posts; and see our 4-part essay on contingency fees.]

In response, we’ve gotten virtually no support among the profession, but plenty of ridicule and distortion from those who would like to kill hourly billing — often in order to make even more money.  We’ve wondered when legal ethics experts and others with no financial stake would address this vital topic.   Thanks to a chance stop at the Legal Ethics Forum this week, I finally discovered a few other thoughtful folks who are unwilling to join the hourly-billing lynch mob and blindly embrace all forms of alternative billing as problem-free solutions.  It was no surprise at all, given our experience, that one of them was a Canadian law professor.

After seeing a much-emailed article in the New York Times about the waning billable hour, U. Calgary legal ethics professor Alice Woolley wrote “Demise of the billable hour again?” (Feb. 2, 2009).  In that post, she points to the kinds of issues we’ve been talking about at length.  Using larger words than our Prof. Yabut, Prof. Woolley says (emphasis added):

“I wonder about the fixation with the billable hour as a measure of lawyer’s value.  While it has its obvious drawbacks, all billing methods are susceptible to the extraction of rents given the imperfections in the market for legal services.  Moreover, lawyers moved to the billable hour for good reasons (more efficient allocation of risk) as well as more dubious ones (accounting firm indications that this would correct the lag in lawyers’ earnings).  Why isn’t there more critical discussion of this?

Value-pricing pitchman Christopher Marston [Esq] responds to this call for more analysis with his usual blanket condemnation of hourly billing and refusal to admit there are any problems with fixed and value billing.  In a comment, Marston says the profession should just kill the billable hour and “stop talking about it.”  He offers this typical analysis:

“[people like himself] get that there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

In her reply to Marston, Prof. Woolley notes that the history of the shift to hourly billing is unclear.  As to the economics, however, she states:

“[W]hile economists may dispute the merits of time as an economic measure, it is not obvious what measure works given the inherent non-homogeneity of the ‘product’ lawyers sell. If I go to lawyer A for task B, and to lawyer B, for task C, what meaningful measure do I have to compare the ‘price’ charged by two different lawyers – whose skills may vary widely – for two different tasks – the inherent ‘value’ of which may vary widely . . . .”

Then, demonstrating why lawyers have fiduciary duties toward clients, Alice continues:

“Further, if you use measures such as ‘value’ or ‘task’ payment, you still have the problem of information asymmetry, the credence good problem and the issue that, even ex post, it is not always clear whether the value received by a client arose from the skill of the lawyer or other factors – getting a good judge, having a case which even an incompetent fool couldn’t lose (or conversely, having a terrible judge).

In other comments to Prof. Woolley’s post, we are pointed to three recent blawg postings that deal thoughtfully with the hourly billing debate.


February 21, 2009

is prune juice your cup of tea?

Filed under: haijin-haikai news,Haiku or Senryu — David Giacalone @ 7:01 pm

…. Prune Juice Journal

at last in his coffin
depressed friend
is smiling

… by George Swede – Prune Juice (Issue 1, Winter 2009)

morning after—
what’s left of the cheese
has a bite

…. by Jim Kacian – Prune Juice (Issue 1)

.. Haiku legend Alexis Rotella has uncorked her first distillation of Prune Juice: Journal of Senryu and Kyoka (Issue 1, Winter 2009), which she describes as a biannual print and digital journal “dedicated to publishing and promoting fine senryu and kyoka in English.”  Issue 1 offers more than 130 poems by about four dozen haijin, many of them very well-known for their well-crafted poems and wry insight into human nature.

Senryu are structured like haiku, and kyoda like tanka, but their focus is different.  As Alexis explains:

“Senryu generally emphasize human foibles and frailties, usually satirically, ironically, humorously. Season words are not necessary nor usual in senryu. Kyoka have a different history than senryu; nevertheless, for modern kyoka in English, the definition is similar: a poem in the tanka form but with the satirical, ironic, humorous aspects of senryu.a poem in the tanka form but with the satirical, ironic, humorous aspects of senryu.”

Agreeing with the bumper sticker from StickEm2/CafePress, Alexis tells us that senyru “is an outlet, a therapy of sorts.”  She wants poets and readers to use senryu and kyoka to help reveal and share their real emotions, saying in her introduction to Issue I:

“I hope this issue inspires you to step up, to come and mingle with the rest of us—to make a toast with a glass of prune juice in honor of the plum blossoms who, without that delicious metaphorical elixir that gets things moving, would not exist. And if you are one who hides behind a potted plant, come out come out whoever you are.”

Alexis seeks to publish senryu and kyoka that range from “gently humorous to the most wicked satire”  — and advises that “Our tastes run towards the wicked end of the scale.”

Frankly, the curmudgeons in the f/k/a Gang like to sip, rather than swig, senryu. And, we’re a little wary (maybe even weary) of editors and poets trying to give us shocking or “wicked” poems.  So, we plan to decant our Prune Juice a little at a time. With Alexis Rotella at the helm, however, we’re pretty sure a lot of readers will be filling their cup to the brim with Prune Juice, and asking for refills.

Here are a few more poems by members of our f/k/a family of Honored Guest Poets from Prune Juice: Journal of Senryu and Kyoka (Issue 1, Winter 2009):

blind date—
the jangle
of handcuffs

……… by Roberta Beary

Instead of an air conditioner . . .
I return
with popsicles

… by Tom Clausen

new to the group—
sitting in back with
the artificial plants

… by Jim Kacian

reading of the will
cremated mother

the feud continues—
shoveled snow piled high
on the property line

first ice
on mother’s gravestone . . .
her tea time

…… by George SwedePrune Juice (Issue 1, Winter 2009)

.. click for an annual subscription to the Prune Juice print edition ($32 with S&H) ..

p.s. Seven-Day Countdown: Speaking of feeling our emotions, getting things moving and setting ourselves free, the f/k/a Gang plans to stop adding to this weblog as of March 1, 2009.   It will remain online, with thousands of haiku and senryu, and a lot of law-related and cultural punditry. But, the last f/k/a posting will roll off your Editor’s fingers no later than Feb. 28, 2009. We’ll try to write a few more posts related to lawyer fees before we hang up our blawger sword; then we’ll be looking for something more enjoyable and less stressful to do online.  Naturally, we’ll have a little more to say when we sign off at the end of this week.

afterwords: Many thanks to Scott Greenfield at Simply Justice for his kindly post reacting to my announcement that f/k/a is closing down production. See “Phoenix Rising” (Feb. 24, 2009)

the pond ices over –
impressionist to
cubist overnight

early March –
the weather vane goose
still heading south

small sad face
in the puddle –
last weekend’s snowman

…….. by David GiacaloneSimply Haiku (Autumn 2006, Vol. 4 no. 3)

February 20, 2009

Albany City Court Judge says local sex offender law is pre-empted

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 9:14 am

In a thoughtful 12-page decision, dated Feb. 18, 2009, Albany [New York] City Court Judge Thomas K. Keefe refused to enforce the City’s sex offender residency law, using the Oberlander case as precedent, and refusing to follow a decision by his City Court benchmate, Judge Rachel Kretser.  See Peo. v. James Blair (File #08-186882); “Sex offender residency case tossed” (Albany Times Union, Feb. 20, 2009).  After citing the recent proposal to ban sex offenders from living near eachother in Colonie (see our prior post), Judge Keefe notes:

“As easily imagined and as was already noted by the Legislature, these ‘not in  my backyard’ local residency restrictions create great difficulties for the Division of Parole, local probation and social service agencies to locate appropriate housing for sex offenders.”

The Times Union notes:

“The conflicting decisions from the same court could send mixed messages to city police.

“Attorney Terence Kindlon, whose firm is suing the county pro bono, said he believes it would be ‘more intelligent than not to refrain from prosecuting these cases’.”

” . . . Detective James Miller, a spokesman for the Albany Department of Public Safety, said officers in the city will keep making arrests.

As the Times Union Politics Blog noted yesterday evening, “Amid all this, state Supreme Court Justice Roger McDonough is still considering a constitutional challenge to county law nearly identical to the one made in Rockland.”  Justice McDonough has a summary judgment motion before him in the suit mentioned above brought by Terence Kindlon.

It’s clear that we need statewide action on sex offenders.  However, we also need politicians who will have the courage to oppose counterproductive and ineffective residency bans — like the fear-mongering S.01300, proposed by Senate Majority Leader Malcolm A. Smith — that prevent whole classes of sex offenders from living in most populated areas, rather than allowing professionals to locate housing most appropriate for each individual sex offender.  See our prior post “don’t let a bad idea go statewide” (Feb. 2, 2009).  If courage is lacking, perhaps politically-motivated leaders from rural areas of the state will rise up against S.01300, which will force many sex offenders to live in less-populated areas.

p.s. See the informative Wall Street Journal article “After Prison, Few Places for Sex Offenders to Live: Georgia’s Rules That Keep Some Convicted Felons Far From Children Create Challenges for Compliance, Enforcement” (Feb. 19, 2009; via Corey Yung)

Need a more inspiring subject to head you toward the weekend?  How about more haiku from the latest issue of Frogpond [Vol. 32:1 (Winter 2009)], written by our Honored Guest Poets?

windowless classroom
we talk about thinking
outside the box

Appalachian spring
can I still learn
to play the violin

…. by Yu Chang – Frogpond Vol. 32:1 (Winter 2009)

lovers still
a falling petal
catches moonlight

fern fronds
tightly coiled–
the fetus kicks

…. by Peggy Willis Lyles – Frogpond Vol. 32:1 (Winter 2009)

she would have
polished the silver
Mom’s memorial

dogwood blossoms
Mom’s ashes
lighter than expected

…. by Carolyn Hall – Frogpond Vol. 32:1 (Winter 2009)

late August
eel grass
breaks the surface

…. by Hilary Tann – Frogpond Vol. 32:1 (Winter 2009)

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