Weakend Special: The Illinois State Bar Association and the Maryland Trial Lawyers Association have been chosen as the first-ever recipients of the ethicalEsq Judas ESQariot Award, in recognition of their exceptional efforts to promote the financial interests of lawyers, while purporting to protect consumers of legal services. Named in honor of the famous biblical character (who got 30 pieces of silver for his betrayal), Judees will be granted whenever especially deserving lawyer groups come to the attention of ethicalEsq.
Announcing the awards, weblawg spokesperson Jackie Cliente gushed: “At a time when a growing number of courts and legislatures are trying to make the legal system more accessible and affordable for low and middle income Americans, it is very inspiring to see that some lawyers have the courage to openly practice traditional guild and cartel values, in order to protect their privileged place in society and in the economy. We can only summarize a few of the reasons for giving Judees to ISBA and MTLA.” They include:
Illinois State Bar Association : Over the past year, ISBA has passionately sought to protect consumers from the dangers of the Unauthorized Practice of Law and low-cost legal services. It has sought legislation expanding the definition of UPL and allowing county bar associations to directly sue to stop instances of unauthorized practice. (See the April 1, 2003 edition and the May 15, 2003 edition of the ISBA Bar News).
With the new millennium, ISBA’s members found themselves faced with the prospect of losing more and more business to self-help internet sites, books, and computer programs. More important, in early 2003, they faced the imminent opening, at the Lake County Courthouse in Waukegan, IL, of a well-designed, user-friendly, computer-based Center for Self-Representation. Accessible at County Law Library terminals, or through the internet, the Lake County self-help resources currently cover only small claims, but are expected to soon include simple divorce matters. Acting boldly, ISBA took extraordinary measures to preserve the values it holds most dear. (Legal Reformer, HALT, Spring 2003, at 3 ) Using modern technology to assert their old-fashioned First Amendment rights, ISBA announced in a Feb. 2003 press release [no longer available online] that it was launching a paid tv advertising campaign “to encourage consumers to use a professional lawyer rather than a self-help type of service for their legal services.” The press release explains:
“Themed ‘Lawyer in the Box,’ the thirty-second television spot uses humor to deliver its message that the type of cookie-cutter approach available through the Internet or from do-it-yourself software cannot substitute for the quality services performed by a trained, experienced attorney. The ads will run in all media markets in the state.” (You can [no longer] see the 30-second ad by clicking here.)
With refreshing candor now often absent from bar pronouncements, the Association’s Board of Governors stated in a Resolution of Appreciation adopted in May for outgoing ISBA President Loren Golden (ISBA Bar News, June 16, 2003), that “the top concerns of the practicing bar are the economics of the practice and the image of the profession.” Since the television ad campaign plays an important part in achieving those goals, the Chicago Tribune reports that ISBA will resume the ads as soon as funds are available. (Low-cost Web divorces under fire: Online process has lawyers up in arms, by Rachel Osterman, Chicago Tribune, July 5, 2003, reprinted at HALT.com)
In addition, in his valedictory “love letter” to the Association’s members, the ISBA Bar News, June 16, 2003) outgoing ISBA President Loren S. Golden said he had asked “the members and staff of the ISBA to explore new horizons for the betterment of our members, the public and our system of justice.” He went on to say:
“Together we explored . . . the use of television as a means to educate the public that before they use ‘the lawyer in a box,’ they should instead hire an ISBA attorney who is committed to financial responsibility, continuing legal education and the dedication and passion (there I said it again) needed to represent clients with unequaled skill and the utmost respect.”
Golden then concluded by saying he believed that the Lawyer in a Box ads “will ultimately be a positive benefit to our members and act as a further incentive to other attorneys to join the ISBA.” That’s right: When nonmembers see that ISBA is willing to sponsor ads knocking self-help centers, they will surely want to join the Association.
No more needs to be said to explain why the Illinois State Bar Association so well deserves our Judas Esqariot Award.
Maryland Trial Lawyers Association The Association is being recognized for its tireless efforts to protect the consumers of Marlyand from the destructive expansion of the State’s small claims court jurisdiction. MTLA’s willingness to spend its political and financial capital in this cause, over several years, was extraordinary.
The story of MTLA’s valiant efforts to resist court reform hysteria in the Maryland legislature can be found in a Baltimore Sun article (April 4, 2002), in an op/ed piece from the Washington Post (June 2, 2002), and on the website page of HALT’s Small Claims Reform Project. Gov. Parris N. Glendening’s Veto Message (May 17, 2001) also generously credits MTLA for his decision to veto legislation that would increase the dollar limits in Maryland small claims courts. The basic tale:
In the 2001 and 2002 legislative sessions, both houses of the Maryland legislature unanimously passed legislation to increase the ceiling on small claims awards from $2500 to $5000. The legislators apparently agreed with “reform” elements, such as HALT, who argued that the low Maryland limit (which had not been increased in over a decade and was 8th lowest in the nation) now made small claims court useful for matters involving only relatively trivial sums.
As HALT counsel argued in the Washington Post:
Both consumers and businesses often face disputes involving amounts as high as $10,000 or $20,000 — sums too large to be written off but not large enough to merit hiring an attorney, because the attorney’s fee would eat up most of any money awarded by the court. A logical venue for such cases is small claims court [which is] designed for people representing themselves in cases with simple issues.
In both legislative sessions, then-Governor Glendening vetoed the Small Claims legislation, due to a concern that the change might “unfairly prejudice plaintiffs by limiting their rights,” agreeing with the Maryland State Bar Association’s “reluctance to change jurisdictional amounts unless supported by substantial evidence that such a change is warranted,” and closing with the statement that “This concern prompted the Maryland Trial Lawyers’ Association to request a veto of this bill.”
After the second veto, the Baltimore Sun noted that “In 1998, the trial lawyers association donated $12,000 – the maximum it could give legally – to Glendening’s campaign. The organization spent $100,000 on radio ads attacking the governor’s opponent in the race.”
In 2003, due to no fault on the part of MTLA, a new governor took office, and a similar bill again passed unanimously in both houses. As HALT explains, “Governor Robert Ehrlich signed the bill into law in an April 22 ceremony, raising the state’s small claims ceiling from the eighth-lowest in the country to just above the national median of $4,500. The increase takes effect on October 1, 2003.”
Although MTLA did not ultimately prevail, we believe it has demonstrated the spirit and tenacity embodied by the Judas Esqariot Award and we are proud to choose MTLA as one of our two initial honorees.
- Unlike the episodes described above, it is anticipated that most Judee awards will include victories for the Award winners and defeat for so-called consumer interests. No matter the outcome, your “Suggestions” for Judee nominees will be much appreciated. Please explain the basis of your nomination, including facts, with appropriate links, if available.
- Check out the JuDee Pamphleteering Citation given to the New York Bar Association.
Update: Click on the Comments link below this item to see the response of MyShingle.com‘s Carolyn Elefant to our treatment above of ISBA’s tv ads. MyShingle had a favorable reaction to the ISBA ads in this posting. Naturally, your Editor replies with his usual pithiness.
ethicalEsq?ethicalEsq?ethicalEsq?
Welcome (somewhat belatedly) to Blog 702 and thanks to its editor, Peter B. Nordberg, for putting us on its blawgroll.
David:
I blogged about the ISBA TV ads a couple of months ago here at this
post (if link doesn’t work just search ISBA at the site). I took a different view. I don’t see anything wrong with educating consumers about some of the drawbacks when service is rendered by non-attorneys. For example, there are many situations where a plain vanilla will by a paralegal or form will work OK. But there are others where it is not suitable and can cause major problems down the line. The non-attorneys have a substantial advantage in that they can freely advertise their services with no regulation by the bar. Attorneys do not have that liberty – so an attorney (unlike a non-attorney) can’t guarantee results or make other representations that might lure a client. Non-attorneys can also sell the point that they are cheaper than and as effective as attorneys, again, without being subject to any limitation. Given the limitations on lawyers’ ability to advertise, what is wrong with the ISBA ad informing consumers about the drawbacks of non-attorney providers and letting consumers make a decision. It’s a far, far better solution than banning non-attorneys from handling certain matters or the UPL proposals that the ABA has floated recently.
Comment by Carolyn Elefant — July 13, 2003 @ 5:11 pm
Carolyn, Thanks for adding your thoughts. I just looked at your prior post [ at http://myshingle.com/article.pl?sid=03/03/05/060219&mode=thread ]. Here are my quick reactions:
1) I think you’re giving ISBA far too much credit. The tv ad does not help consumers choose between a lawyer and non-lawyer services; it tries to scare them into using lawyers (“professional lawyers” even), while exaggerating possible problems. Of course, there is no indication that any Ill. lawyer is attempting (as a good fiduciary and advisor should) to help clients make that decision once they come to the lawyer.
2) ISBA was simultaneously trying to ban non-lawyers services as UPL and get the power to bring suit directly, while using the tv scare tactics;
3) given the timing, ISBA was surely most worried about the new program in Lake County — a court-sponsored project that would actually HELP individuals decide if they could do without a lawyer and then help them present their case and see it through;
4) I have seen so many incompetent and inadequate lawyer-written matrimonial agreements, that I have little worry that well-designed computer-assisted programs can do at least as well in simple divorce situations; I am also far from impressed with the results of CLE programs (they’re better at getting lawyers tanned than an getting them up-to-date and up to snuff).
5) I do not see the existence of significant restrictions that you have mentioned here and elsewhere on lawyer advertising. It seems to me that any chilling effect is self-imposed, especially since most disciplinary systems investigate only a fraction of complaints and only impose discipline sanctions in a tiny portion of those. [According to ABA and HALT, http://www.halt.org/lap/reportcard/illinoisrc.pdf, Illinois imposes discipline in only 1.9% of investigated cases.] Also, non-lawyers are certainly subject to anti-fraud and misleading advertising laws. Is the Lake County Self-Representation Center engaging in such conduct?
6) Non-lawyer providers do NOT have an advantage currently — relatively few Americans know they exist and, except for the financially desperate, only a tiny portion of them are willing to try low-price options. Middle class Americans don’t like to use services advertised in one-inch newspaper ads — they too often believe that more expensive means better. But, the bar won’t be able to laugh off successful court-sponsored programs, so — instead of helping to sponsor them — they, as with ISBA, are trying to scare away pro se litigants and deprive the court programs of funding for such programs.
7) Finally, I don’t want you to think that I NEVER trust lawyers: I believe ISBA when it says the main purpose of the ads was to advance the economics and image of the profession.
Comment by David Giacalone — July 13, 2003 @ 6:44 pm
P.S. There is absolutely nothing stopping a lawyer, law firm or bar association from using advertising with a message that truly informs consumers and helps them to make a decision between various levels of legal services. For example, a matrimonial firm can surely say — without fear of bar discipline — “If you and your spouse are not in agreement on important issues, such as child custody and support, or how to share assets and liabilities, you need a lawyer [or a mediator], not a computer.”
Comment by David Giacalone — July 13, 2003 @ 7:16 pm
Dave–You’re way off base with respect to the “award” to the Maryland Trial Lawyers Association (of which I am not a member).
Maryland has two trial courts, the District Courts (our “small claims court”) and the Circuit Courts. Currently, the District Courts have exclusive jurisdiction of civil cases up to $2500 and concurrent jurisdiction of civil cases up to $25,000.00.
Exclusive jurisdiction means that neither party may request a jury trial. The bill in question was introduced and passed in the 2001 session and was vetoed by then Governor Glendenning. A similar bill was introduced and passed in the 2003 session and was signed by Governor Erhlich. It is effective 10/1/03.
The increase in the District Court’s exclusive jurisdiction may be good or it may be bad, but it’s clearly not good for small defendants, usually individuals seeking to fend off claims (presumably disputed claims) of corporate creditors. The bill strips the right to have the claim tried before a jury. Thus the bill was sought by large commercial interests who saw it as a way to expedite their ability to collect debts and claims against consumers. The intent of the bill in no way was to lower the attorneys’ fees consumers are exposed to.
Comment by Stuart Levine — July 14, 2003 @ 5:26 pm
Interesting perspective, Stuart, and I shall mull it over. The notion of MTLA advocating the veto to protect defendants seems a bit counter-intuitive. I sent the text of your Comments to HALT, which was a major proponent of the legislation, for their input. If I get a useful response from them, I’ll post it.
Comment by David Giacalone — July 14, 2003 @ 7:53 pm
Dave–Would you be offended if I offered some counter-comments on my blog?
Comment by Stuart Levine — July 14, 2003 @ 11:15 pm
Dave–Would you be offended if I offered some counter-comments on my blog?
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[…] In numerous posts, ethicalEsq took bar groups — e.g., in Illinois and Maryland, New York and Ohio, Massachusetts — to task for obstructionist attitudes toward self-help law (including reform of small claims courts). […]
Comment by shlep: the Self-Help Law ExPress » Blog Archive » a guide or a guild: where does your bar group stand? — September 8, 2006 @ 9:27 pm