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

“I have no trouble believing that a decent blog can easily attract three times as many readers as most conventional web sites. And yes, I do consider this significant“

garbage in?

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  If an ad said “Our medicine starts to work three times faster than our competitor’s product,” the wise consumer would want to know (1) is it three times 1 minute or three times one hour? and (2) is the quicker relief as effective and long-lasting as with the competitor’s product?  If the advertiser isn’t willing to tell you the answer to both questions, paying attention to the claim is foolhardy and, although the claim may be “true,” it may be misleading or meaningless.

Update:  Jerry and I have continued our dialogue via the e&hEsq Comment box, which can be reached by following this thread, and his Netlawblog Comments, too. Dave! also chimed in and I hope you will, too.

update (Sept. 10, 2005):  For several months now, I’ve been using two (free) services that count “unique visitors.”  It appears that actual visitors are about 50% of my “page loads,” and tend to be 6 to 10 percent of “hits” measured by my webserver. 

 

Marcia Oddi at the Indiana Law Blog often finds non-legal stories worthy of perusal (especially on frigid winter nights, when one’s avoiding writing a difficult post).  She did today, with a blurb about barns wilting away as tobacco fades in America.

  Marci usually starts such posts with “Not Law But Interesting.”  I must confess that I often want to start my posts with Not Interesting, But Law.

P.S.  What’s an Indiana Gal doing reading that East-Coasty radical rag called the Washington Post?

I’m still finding it difficult to understand why egregious financial irresponsibility by a bar applicant is irrelevant to his or her fitness to be a lawyer, fiduciary and officer of the court.  So, I’ve tried to draft a question for bar applications that gets at the issue of financial irresponsibility without overly intruding on privacy or being excessively moralistic — and, without suggesting that every bankruptcy indicates irresponsibility.  (See this post, and that one for background; and contrast with this stuff.)  

Further Update (02-15-04 at 9 PM):  See Scheherazade‘s very thoughtful Let’s Stop Picking On David, for a discussion not only of the bankruptcy issue but of the wider one of using subjective or unnecessary judgments to keep people out of the legal profession, and the narrower one of my personality type.  I think two friends can learn a lot when they disagree (or think they do) on a topic and actually listen to each other.  Thanks, Sherry. 

Bar applications may already treat this topic (my memory fails and my files are absent, so assistance is welcome), and some help with the technical phraseology is probably necessary, but how about asking a question like this:

:

1) Have you ever petitioned for and been denied the dissolution of your debts in bankruptcy?  If so, explain the circumstances below.

2) a. Have you, within the past ____ years, sought bankruptcy protection or been forced into bankruptcy? 

    b. If so, and the total debts involved were in excess of $_________, explain the circumstances below.

  Seven years might make sense for the first filter, and perhaps $10,000 for the second.  It seems to me that reasonable minds could disagree on how to fill in the blanks to create a reasonably-tailored filter, or when to follow-up, or possible repercussions.  Totally ignoring the issue of financial responsibility, however, offers clients and the profession too little protection.  What do you think?

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  A wise friend has written with “privacy concerns.”  Bankruptcy is already a matter of public record, of course.  Further, no one has suggested to me that bar applications should not ask about such judicial history as judgments against the applicant and pending matters where he or she is a party.  Since privacy is always a balancing issue, I do not believe the intrusion here is undue considering the other interests being protected. 

   Here’s a taste of the story from the NYT article:

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  “Twenty-six of the lawsuits have been dismissed or have been won by We the People, and it is starting to gain grudging acceptance in law circles. And now it has a business ally who may help it win even greater respectability: Rudolph W. Giuliani.” [through his consulting firm, Giulini Partners] 

  
  
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  “‘They tout themselves as a document-typing service,’ said William Anaya, a Chicago lawyer who represents the Illinois State Bar Association in the case. ‘It’s our position that they are more than that. They are making a profit on the marginal practice of law, putting clients at risk.'”

  
  
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  ‘Mr. Distenfield says he thinks he knows why opponents may go to such lengths. ‘Because of us, some lawyers are Maytag repairmen waiting for their phone to ring,’ he said. ‘We’re the only large company out there that offers affordable legal access to the underserved.'”

  
  
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  “[WtP attorney Jason E.] Searns also cited a recent public opinion letter issued by the Federal Trade Commission and endorsed by the Justice Department that criticizes the American Bar Association’s definition of practicing law as overly restrictive. The letter, he said, urges a balance between protecting consumers and giving them access to alternative forms of legal assistance.”

Find the FTC/DOJ Statement here, and much more on our UPL resource page.  The bar needs this competitive spur and the People need competent service options that are affordable. .

phantom hits?

 

“But, Baby, you know I love you — look at all those page-hits I’ve been sending your weblog!”

 

update (Sept. 10, 2005):  For several months now, I’ve been using two (free) services that

count “unique visitors.”  It appears that actual visitors are about 50% of my “page loads,”

and tend to be 6 to 10 percent of “hits” measured by my webserver. 

 

 

They’re ganging up on me over at Scheherazade’s place.  I could use some allies. 

 . . . . . .

Here’s my most recent Comment there:

Does anybody read or listen to what some one else is saying before unloading their black-or-white, preconceived, or ultra-glib response? Are we really a society where almost no one can make a nuanced judgment – not even those trained to “think like a lawyer”?

I do not think there would be a lot of instances where going bankrupt would preclude a lawyer from being admitted to the bar, due to misuse or abuse of the bankruptcy privilege.

I do not think many (or virtually any) of the small group whose situation would warrant a closer look are part of the demographic group of double-income families with large mortgages and huge child-care expenses.

I do think that lawyers have special duties and obligations that warrant some ethics screening prior to admission.

The fact that there are some very good reasons to go bankrupt and that many very good (and often very unlucky) people do use bankruptcy to get a new start, in no way justifies looking the other way when an applicant for a position that includes enormous trust and responsibility, and bestows many privileges, appears to have abused the system.  [e.g., intentionally living a very high-life while in college and law school with the intention of going bankrupt before heading out into the real world]

Help.  Sometimes, silence is not golden (it’s yellow).

. .

The Valentine theme got this weblawger thinking for the first time in years about Jackson’s Browne’s 1983 song Lawyers in Love, from the album of the same name. Browne’s 1977 anthem Running on Empty, appeared during my first year practicing law, and captured the out-of-control fatigue of the anxious neophyte in a high-powered, government job. 

Only six years later, the cynicism and “strangled cries” of Lawyers in Love, which marked  Browne’s transition from the realm of the personal lyric to the political, again fit the mood of this journeyman lawyer, jaded by the do-nothing enforcement policies of the Reagan White House, and by a ball-and-chain career that had lost its glow but refused to release its grasp on me. 

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  In each of those years, my heart had been broken by a brilliant and beautiful lawyer (not the same one), just before Valentine’s Day.  That saved me an expensive night on the town and a hefty bill for flowers, but left me wondering whether any part of my life would ever be fulfilling or fulfilled.  [violins, please]

  Over two decades have passed since I drove around DC and Northern Virginia in my aging VW Rabbit singing “Lawyers in Love,” smiling at the adolescent double entendre of “Rosie,” and enjoying a full 90 minutes of recorded-for-personal-use songs by Jackson Browne.   Tonight’s Google search for “Lawyers in Love” — which was sparked by the question, “Did anyone ever write a song called ‘Old Lawyers in Love'” [apparently not] — brought me the news that Jackson Browne will be inducted into the Rock and Roll Hall of Fame in March (along with the Dells, George Harrison, Prince, Bob Seger, Traffic and Z.Z. Top). 

I’m pleased that Browne’s career as a singer-songwriter is being celebrated, and I hope he’s loved his life’s work and found his life’s love.  My legal career didn’t turn out to be particularly inspiring or fulfilling, but it did offer a lot of challenges, successes and meaningful relationships. And, it has now morphed into this rewarding soapbox and scrapbook.  

Some of my early readers may remember that I posted a Personal Ad here last July: ISO: “Attractive Nuisance” Blawgger.  I must report that the ad has yielded no prospects for a weblogging mate or a Valentine’s date.  The result is this plaintive haiku:

Feb. 14 . . .

mailbox filled with cards

from relatives

…….[dag, 02-13-04]

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  And, a special tip of the hat to my weblawgging friend and the light of his life out there in California.   Save a toast for me.  It’s good to see that Old Lawyers in Love is not just a rejected song title.

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We’ve got an interesting discussion going on over the relevance of bankruptcy to bar admission.  It began a couple days ago with this posting.  See our thread, and the somewhat hot debate at Stay of Execution.  We’d love more voices and points of view (note: actually reading what we’re talking about before replying would sure enhance the value of Comments).

In a unanimous ruling, the seven-justice court said the fees violate the U.S. Constitution’s Sixth Amendment protections.

The fees are among the budget-balancing moves approved by the Legislature last spring and are intended to raise about $10 million over the next two years to help run the public defender program. Depending on the crime, defendants are charged between $50 and $200 a case.

Unlike some highly esteemed webloggists, I don’t normally talk about my high-tech consumer purchases, but tonight I wanted to relate a shopping experience with Amazon.com. 

I recently found out that I have carpal tunnel syndrome in my right wrist along with pinched nerves and other decrepitude in my neck.  [Sigh] It quickly became apparent that maintaining a laptop in an ergonomically correct position is difficult, given that the monitor is attached to the keyboard, so I decided to get an additional keyboard.

  When I ordered it, yesterday, it was estimated that the item would not be shipped for another 5 days, and would not arrive for another 3-5 business days.  I got regular ground delivery — Free Shipping variety — and bemoaned the fact that it would be such a long time until my Logitech wireless keyboard and mouse duo arrived. 

Well, golly, the doorbell rang at noon today, and the UPS guy handed me an Amazon.com box with my Logitech Cordless MX Duo. Cool.   I’m charging the mouse now.   There are a whole lot of buttons and keys on this new-fangled device, so it might take me a while to use it proficiently (or even awkwardly). 

Is this a new (but old-fashioned) marketing technique: lower expectations and then thrill your customers with surprisingly prompt service?  It’s working, even for skepticalEsq, consumer kvetsch.

• Hey, Ernie, how the heck does one keep this thing at a height where the wrist is straight and elbows are at one’s side close to the body, when using a desk chair with (purportedly ergonomically correct) sloping arms?  I sure hope the keyboard is shock-absorbing, as it will surely make the aquaintance of my floor in the near future.
  
• For excellent instructions “to maximize your comfort and lessen the chance of injury,” working at a computer, see Logitech’s Comfort Guidelines, which are available in several languages.

P.S.  I just checked My Account, and was told that the item is “Shipping Soon,” with delivery estimate date of Feb. 18-19.  Talk about lowered expectations! 

Update (02-13-04):  At 3 PM today, 26 hours after I signed the UPS computerized receipt and opened the package with my new cordless keyboard,  Amazon.com emailed me that “We thought you’d like to know that we shipped your items today.”  Maybe I’m getting a free bonus keyboard! 

I always assumed he was championing the cause of the little guy.  Within the last week I read somewhere that Abe’s days of riding the circuit to courts around Illinois and the Midwest were as a trial lawyer for the railroads. If that’s true, he certainly was not championing the cause of the underdogs while he was a lawyer. He would have been in the business of using every trick in the book to make certain that those with the money got their ‘justice’ and that the little guy received no justice.

[On the circuit, Lincoln left] home and family for nine or ten weeks at a time, driving over muddy or dusty roads, now under a hot sun and again through pelting showers or all-day rain, putting up with the scanty comforts and monotonous fare of cheap hotels and boarding houses, where the lawyers slept two in a bed and six or eight in a room, and spending long hours in court for the ten, twenty, or fifty dollar fees, occasionally supplemented by larger ones, which, along with the more substantial fees he earned in the State Supreme Court and the Federal Courts in Springfield and the interest he received from a few notes and mortgages, added up to an annual income of some $2500.

room for growth

On this celebration of his birth, I wonder how Abe Lincoln, Esq. would have defined the fiduciary duties of a lawyer when setting fees. I’m afraid that many lawyers never consider fiduciary principles in the context of fees. That oversight goes a long way toward explaining how the legal profession managed to squander the goodwill that was its legacy from honest Lawyer Lincoln.  Here are some helpful quotes about fee-setting by the lawyer-fiduciary that might help correct the situation, and gain clients their fiducial rights.

In his Brief Primer on Legal Ethics and Legal Fees (1999), Virginia Ethics Counsel James McCauley put the basic concept quite succinctly:

Contracts between an attorney and client, be they written or oral, are not construed as are ordinary contracts between parties dealing at arms length. This is because the attorney, by virtue of accepting an engagement, enters into a fiduciary relationship with his/her client.

The Law.com dictionary of legal terms offers some broad guidance on the particulars of this fiducial duty:

fiduciary n. from the Latin fiducia, meaning “trust,” . . . . Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid “self-dealing” or “conflicts of interests” in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it.

While fully explicating the history and meaning of lawyer fiduciary duties, in The Continuing Assault on the Citadel of Fiduciary Protection, (2003 University of Illinois Law Review., at 1185-86; available at SSRN) Prof. Lester Brickman has explained (emphasis added):

The principal fiduciary obligations imposed on the lawyer include the duties of confidentiality, loyalty, safeguarding property, giving disinterested advice, and acting fairly towards the client. The duties to act fairly and in a non-self-interested fashion, in particular, relate to the financial relationship between the lawyer and client and require that a lawyer present the client with information regarding the fee arrangement that approximates what the client would obtain if the client consulted a second lawyer for assistance in negotiating the fee arrangement with the primary lawyer. Fairness is to be determined according to a heightened fiduciary standard rather than the arms-length marketplace standard.

Similarly, in 1996, the ABA Task Force on Lawyer Business Ethics, issued its Statements of Principles in Billing for Legal Services (excerpted in Business Lawyer, 51 Bus. Law 1303, Aug. 1996), which included these notable introductory remarks:

[T]he Statement of Principles in Billing for Legal Services and the Statement of Principles in Billing For Disbursements and Other Charges are predicated upon an understanding between lawyer and client. To be valid, such an understanding requires, at the least, a fully informed client, whose information usually comes from the lawyer seeking agreement. The form, nature, and extent of the disclosure will depend on the sophistication and knowledge of the client as to legal matters and business dealings with lawyers. Thus, what might constitute acceptable disclosure to an in-house counsel accustomed to negotiating with lawyers over engagement letters and fee arrangements might be unacceptable when dealing with a business executive very knowledgeable about technical aspects of the business, but relatively inexperienced in dealing with lawyers over fee arrangements, the custom in the community with respect thereto, or the availability of alternative fee arrangements.

The courts and lawyer-disciplinary bodies normally do not require separate representation of the client with respect to the billing aspect of the engagement, even if the client is woefully naive. They often look, however, at the fairness of the understanding with skepticism, insisting that the lawyers carry the burden of establishing fairness.

In setting fees, then, the lawyer-fiduciary must act in a manner that puts the client’s interest first. Making sure the client is fully informed when entering into the fee arrangement is essential, taking into account the sophistication level and experience of the particular client.

• Asking what fee might result, if the client had engaged another lawyer solely to negotiate fees, seems to me to be a very useful standard. update: Don’t laugh. Canadian tort lawyers Polten & Hodde have this advice on their contingency fee FAQ page:“Negotiate with your lawyer. It may well be advisable to pay a separate, independent lawyer to negotiate the contingency agreement with the lawyer who is taking your case. Don’t laugh. If a small up front fee saves you $100,000 in fees down the road, it is money well spent.” (for more in this spirit, see our prior post a Canadian role model, Jan. 5, 2005.)

Afterthought: See our follow-up posting, A Lincolnesque Law Practice, for details on A. Lincoln trial lawyer and on his approach to law practice, including fees. (Thanks to Kevin, whose Comment inspired the subsequent post).

update ( Sept. 4, 2007): Further discussion and analysis on this topic can be found in our new post “contingency fees and the clueless fiduciary” (Sept. 4, 2007).

The Federal Trade Commission is alerting consumers that The National Do Not Email Registry is a sham and a scam, as there is no such Registry.  According to a press release posted this morning:

The FTC is concerned that the “unsub.us”site could be part of a high-tech scam that uses a deceptive Web site to trick consumers into disclosing their e-mail address or other sensitive personal information. This site may be a ruse to collect valid e-mail addresses to sell to spammers. The result could be even more spam for consumers who sign up for this “registry.” Or it may be even worse – some scammers have collected information through bogus web sites like this one that mimic those of legitimate organizations, and then used the information to commit identity theft.

At the Registry website, the “sponsors” say: “The National Do Not Email Registry is managed by National Email Registry, LLC, an Independent Consumer Protection Organization based in New York, NY.  The Registry was created to provide Consumers and Direct Marketers the tools required to help significantly reduce the volume of unwanted bulk messages ”  Just this week, Evan Schaeffer started a discussion about ‘cynic incubators” — words (such as reform and consumer) that are adopted or misused to confuse the unway.

The FTC is advising consumers not to submit their e-mail addresses or any other personal information to any site claiming to be a “National Do Not E-mail Registry.”

The agency’s Bureau of Consumer Protection says the best way to avoid scams like this one is to keep your personal information to yourself – including your e-mail address – unless you know who you’re dealing with.

Should you get an e-mail claiming to represent a “Do Not E-mail Registry,” an organization to stop spam, or even the FTC itself, report it to the FTC at www.ftc.gov or 1-877-FTC-HELP. If you believe you have already been scammed, file your complaint at www.ftc.gov, then click on www.ftc.gov/idtheft to learn how to minimize your risk of damage from identity theft.

The press release notes that the FTC is “studying the feasibility of creating a National Do Not Spam Registry, and will issue a report in June 2004. At this time, there is no legitimate “National Do Not E-mail Registry’.”

Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time.  — Abraham Lincoln