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

In many states, the bar is still quaintly bashful about letting the public know which lawyers have been disciplined for violating ethics rules.   The (laughable) fear of hurting the profession’s image and the (self-serving) desire to spare themselves and their colleagues embarrassment do not justify denying consumers information they need to make better choices among lawyers.

Annual Reports:  Arizona issues annual Reports of Lawyers Disciplined, which are available on the web.   Likewise, the Maryland grievance board has annual lists of Sanctioned Attorneys, from 2001 through 2003 (updated monthly), on its website. And, the New York State Bar Association posts an annual report, with a mountain of stats and the names of sanctioned attorneys, on its site.

Discipline Records:  There are a variety of approaches among the states for giving access to the public to the disciplinary records of attorneys:

• New Jersey‘s ethics office has seachable disciplinary records from 1990 through 2002 on its website.
• Oregon‘s bar counsel offers discipline reports online (which were difficult to find), and will inform an inquiring consumer whether a grievance has ever been filed against his or her attorney.
• Illinois has web access to Disciplinary Decisions, New Filings, as well as a Lawyer Search function.  It also allows consumers to find out if an attorney has been disciplined.
• Massachusetts (which HALT found to have the best Disciplinary Agency in the nation) offers all disciplinary Decisions since 1999 online, and allows consumers to find out if an attorney has ever been disciplined.
• Indiana lets consumers ascertain the disciplinary history of a lawyer by telephoning the office of the Supreme Court Clerk.
• Vermont has Decisions of Professional Conduct Board and Professional Responsibility Board online.
• Washington offers a Lawyer Status Directory and a  Discipline Notice Search
• Wisconsin‘s Office of Lawyer Regulation posts the Status of Lawyer Disciplinary Matters online.

I encourage as many people as possible to build links to this page. This page could become the top search result for that law firm and those lawyers. This would be an effective consumer advisory for anyone considering hiring Hogan & Hartson LLP, Dori Ann Hanswirth, Tracey A. Tiska or Katherine M. Bolger.

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  Indeed, H&H ranked 24th on the American Lawyer list, up from 76 in 2001. 

Furthermore, many big companies and other fatcat clients want the kind of counsel who will be their hired gun for settling scores.   On the other end of the client spectrum, if Joe Client is looking to hire your average Jane Lawyer, he will find little if anything of use through Google. 

Yoss is right that we want the managing partner to make clear that his or her firm will not assist in bringing meritless claims.   But, I believe the very best way to stop frivolous lawsuits is to make determined and consistent use of sanctions against such meritless actions — with serious financial penalties and disciplinary punishment for the most egregious offenses or recidivism.  

Whether using Rule 11 in federal matters, or state judicial or ethics rules against meritless actions, the message needs to be clear that frivolous claims will not be tolerated.  Rule 3.1 of the Model Rules of Professional Conduct sets out the standard:

Two Cents from Jack Cliente:  Mr. Editor is enjoying this lovely late-summer Sunday and refuses to post before dusk.   Being his polite and grateful alter ego, I refuse to wait that long to welcome Scripting News fans — and to thank Dave Winer for passing on Jim Moore‘s kind “recommendation” of this ever-humble blawg.   [We didn’t know you cared, James.  Thanks for making a crabby blogger smile.]  If you’re a first-time visitor, Jackie and I want to apologize in advance for the Editor’s longwinded style.  Feel free to click around, check out the resources, and leave your Comments. 

“Several factors, such as the nature of the apology, the severity of the injury and other evidence of responsibility, affect the capacity of an apology to facilitate settlement,” said Jennifer Robbennolt, professor of law at MU, who conducted the studies. “Policymakers and litigants must take into account these complex issues when making decisions about the appropriate role of apologies in settling civil disputes.”

• Supplement:  After posting this item, it occurred to me that the studies’ finding is such a truism that perhaps only lawyers would need convincing on the point — only people steeped in the myths of an adversarial dispute resolution system (and also making their living from creating and extending disputes) would be likely to deny the benefits of apologies.  Certainly, mediators (with formal training or informal common sense) know this point well and use it whenever possible.   


• Jerry Lawson left a Comment that I’d like to share: “Studies have shown that the injured party’s perception of their doctor’s attitude is a key factor in whether they file a malpractice action. Even if there was gross negigence and serious injury, people are much less likely to sue if they believe that the doctor cared about them and did his best to try to help them. I haven’t seen any studies on lawyers, but I suspect the result would be similar.”

Law Practice Management Magazine features an excellent article by unbundling guru Forrest S. Mosten, called “What’s the Big Deal About Unbundling.” (July/August 2003; reprinted in Utah State Bar Journal) Mosten explains that performing discrete tasks for clients is nothing new. He then goes on to argue that unbundling will meet the needs of a new breed of clients, who are uncomfortable with the traditional model of the lawyer as High Priest and who “are no longer willing to be treated like children:”

“Today, clients are more active, more educated in the art of “clienthood,” more inquisitive and more demanding in their quest to control the purchase and supervision of legal services.

“Unbundling meets the needs of this new breed of client. In contrast to the traditional attitude that client anxiety is somehow reduced by a lack of information and attention, unbundling empowers the client in an unbundled case. The client is the architect of the scope and tenor of the relationship — the one who decides how the case is to be managed and what role, if any, the lawyer will play. Even more novel — the lawyer not only agrees to this power shift but invites the public to enter the office on that basis.”

In addition to detailing the benefits unbundling brings to clients (cost savings, control over the process and over choices), Mosten explains why unbundling can also improve profitability and satisfaction for the lawyer. For those who wonder how unbundling works, the article gives Suzanne Burn’s list of the steps in a typical unbundled client-lawyer relationship.

Mosten’s article is a must for any lawyer or firm that is open to the concept of unbundling, but isn’t sure if the process is a good fit or just needs a good push. It’s even more important for the firm that has rejected the idea up until now as unworkable or undesirable financially and professionally. For those who want to know more, the ABA Law Practice Management Section has published Mosten’s book Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte (2000).

• Richard Granat at eLawyerBlog has been experimenting with offering unbundled services on his own website. It’s worth a look.

The CPCS hourly rate calculator is based on the assumption that a bar advocate, working both for indigent clients at a government rate and for private clients at a market rate, should be able to enjoy a lifestyle that is on parity with a prosecutor or an assistant attorney general. Wages for prosecutors and AGs are lower than other attorneys who work for the Commonwealth — this is not addressed by the calculator.

 

The CPCS hourly rate calculator can compute the hourly rate needed to provide parity with the starting salary of a beginning assistant district attorney, in take home pay. The calculator asks for the starting salary of an assistant District Attorney, and the uplift to cover benefits (social security contribution, medical benefits, etc.). (emphasis in original)

“The Commission evaluates competitor exchanges of price and other competitively sensitive information to determine whether they have, or are likely to have, an anticompetitive effect that outweighs any procompetitive justification. In the context of this advisory opinion, the fundamental question is whether the information exchange is intended or likely to result in physicians concertedly or interdependently modifying their pricing or contracting behavior relative to health plans.

“Injury to competition and consumers would result if the proposed exchange of information facilitated an agreement among Dayton area physicians on prices to demand of health plans or an agreement to refuse to deal with health plans except on agreed terms. Comparison of payments in Dayton to insurer payments to physicians in other cities, moreover, could facilitate an agreement among Dayton physicians to use those payment levels as a starting point for negotiations with health plans for higher compensation, and to refuse to deal with plans that offer payment terms below those yardsticks. Publication of data indicating how many or what percentage of physicians receive different, specified prices for particular services, or publication of data showing how prices paid by identified payers differ, could facilitate coordinated efforts to reduce or eliminate price differences as a way of increasing average price levels.

“Because your group’s major premise is that insurer payments to Dayton physicians are unreasonably low, there is ground for concern that Dayton physicians might interpret the group’s actions as a call for collective action of this sort. Such agreements would not have to be express to violate the antitrust laws. Further, they would be unlawful per se, absent efficiency-enhancing integration among the physicians that is sufficient to justify their joint pricing or contracting with health plans. Because the proposed conduct does not involve integration, any agreement of this type would be legally unjustified.”

The spots are a world apart from the earlier generation of lawyer ads, which were often amateurish productions — featuring the actual attorneys touting their law firms. The ads were primarily targeted at individual auto accident victims.

By contrast, today’s typical commercial is a short, informational clip that focuses on a specific product or piece of litigation, with the name of the law firm appearing almost incidentally.

“You can’t say there’s one group of lawyers or types of lawyers doing the advertising” anymore, says William Audet, a partner at San Jose, Calif.’s Alexander, Hawes & Audet, which recently launched its first television commercials.

• The bar advocates have signalled their willingness to take joint action again, if additional fee-related demands are not met (see our Aug. 23rd posting).  As argued at length by this Editor in prior postings, such concerted action constitutes both an antitrust violation (as a coercive group refusal to deal) and ethical misconduct (as, among other things, action prejudicial to the judicial process).  

• The tension between appearing to act unilaterally while organizing unified action can be seen on the site’s FAQs page, and on their newly-created Listserve, which describes its users as attorneys “organizing to be paid in a timely fashion by the state and to increase the hourly salaries.”

• Their fairness arguments and comparisons with assigned counsel in other states fail as an antitrust defense, but could be the foundation for building a strong, lawful, ethical and successful lobbying effort.       

“Many attorneys have evaluated the compensation and timing of that compensation, and concluded that they . . .  will ultimately be assigned clients who are now being “deferred”, and thus they see little downside in not accepting cases.

“In some courts, a handful of bar advocates are ‘filling in’ for days that were cancelled by their fellow bar advocates. . . .  When a bar advocate refuses to accept new cases, in order to force the Commonwealth to deal with the serious issues and mistreatment of bar advocates as a group, filling in is not a favor, but rather blunts the effectiveness of that attorney’s ‘statement’, and the sacrifice of the cancelling duty attorney.

“Accepting a ‘fill in’ duty day to replace a member who refuses to accept assignments is not doing your fellow bar advocate any favor, in fact it often offends that bar advocate. There has been no “strike” vote, and in fact bar advocates are not allowed to organize. In courts where a substantial majority of the attorneys have reached a like mind, and are not accepting cases, the existence of a handful of ‘fill in’ advocates would seem to prolong bringing the matter to a prompt conclusion, and may be seen by your fellow bar advocates as profiting personally while damaging the effectiveness of a fellow bar advocate.”

• The bar advocates have signalled their willingness to take joint action again, if additional fee-related demands are not met (see our Aug. 23rd posting).  As argued at length by this Editor in prior postings, such concerted action constitutes both an antitrust violation (as a coercive group refusal to deal) and ethical misconduct (as, among other things, action prejudicial to the judicial process).  

• The tension between appearing to act unilaterally while organizing unified action can be seen on the site’s FAQs page, and on their newly-created Listserve, which describes its users as attorneys “organizing to be paid in a timely fashion by the state and to increase the hourly salaries.”

• Their fairness arguments and comparisons with assigned counsel in other states fail as an antitrust defense, but could be the foundation for building a strong, lawful, ethical and successful lobbying effort.       

“Many attorneys have evaluated the compensation and timing of that compensation, and concluded that they . . .  will ultimately be assigned clients who are now being “deferred”, and thus they see little downside in not accepting cases.

“In some courts, a handful of bar advocates are ‘filling in’ for days that were cancelled by their fellow bar advocates. . . .  When a bar advocate refuses to accept new cases, in order to force the Commonwealth to deal with the serious issues and mistreatment of bar advocates as a group, filling in is not a favor, but rather blunts the effectiveness of that attorney’s ‘statement’, and the sacrifice of the cancelling duty attorney.

“Accepting a ‘fill in’ duty day to replace a member who refuses to accept assignments is not doing your fellow bar advocate any favor, in fact it often offends that bar advocate. There has been no “strike” vote, and in fact bar advocates are not allowed to organize. In courts where a substantial majority of the attorneys have reached a like mind, and are not accepting cases, the existence of a handful of ‘fill in’ advocates would seem to prolong bringing the matter to a prompt conclusion, and may be seen by your fellow bar advocates as profiting personally while damaging the effectiveness of a fellow bar advocate.”