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

Respondent in this case has engaged in a pattern of deliberately false and deceptive conduct, including distortions of fact to clients, courts and the Committee, undertaken for purposes of self-aggrandizement and in an arrogant and devious manner. Moreover, in addition to the conversion, respondent has failed to preserve escrow funds, charged and collected an excessive fee, solicited clients and sought part of their share even though he was not retained by them (causing them to expend money to defend against his claim and delaying the distribution of the estate). In addition, these proceedings have been marked by his repeated misrepresentations, lack of candor or remorse and failure to acknowledge any misconduct in all three client matters involved herein.

you forgot what?   . .

We agree with both the Referee and the Panel that charges 17-20, which concern respondent’s false representations in the Surrogate’s Court petition and in a July 6, 1999 affidavit in support of a subsequent fee application that the distributees other than Dalton were paying him a 25% fee and the additional statement in the latter that the court in the Labutis matter awarded respondent a 33% fee, should be sustained. The Referee found respondent’s assertion that these statements “were made not knowing they were false, simply incredible. . . . [It is] highly unlikely that respondent could have forgotten or misremembered such an important detail as his fees in the Dalton and Labutis matters. His fees are, apparently what he is principally concerned about.”  

Mr. Weinstein, 62, is the son of Moses M. Weinstein, a former justice of the Appellate Division, Second Department. Before his election to the bench, he was a Democratic Party leader in Queens and majority leader in the state Assembly for two years.

Mr. Weinstein’s brother, Queens Supreme Court Justice Jeremy S. Weinstein, is currently the supervising judge of the Civil Court in that borough.

   Here’s FAQ #1 (edited for brevity, emphasis added):

1. Can you give me advice about a legal problem I have?

Our site cannot give any legal advice or help with anyone’s specific legal problem; If you have a serious legal problem, there is no substitute for working with a lawyer.  . .

If you cannot afford an attorney, contact your local Legal Aid Society . . .

NOTE— For some legal matters (e.g. a situation that is not a criminal matter, and no one is opposing you, and not much money is at stake), some people can handle some or all aspects of the legal issue themselves with the help of information and forms from very reputable sources (one such source is Nolo Press). Fairness.com LLC generally does not encourage this approach.  For most people, even in low-stakes situations, we feel that self-help is not the best option; if the matter is serious or high stakes, don’t even consider it.

We sure wouldn’t want to encourage choice or fairness for consumers, some of whom do not have unlimited legal budgets or disposable income.  [I’m not sure it’s relevant, but three of the five-member Advisory Board are lawyers].   For legal consumers, apparently, life is unfair and should stay that way.

• 
  
  The strange thing for me is that this anti-self-help-law position is the only policy position taken by Fair.com on any topic that I could find on the website (unless you count the fact that they only want sponsors and advertisers with a “squeaky-clean” image and reality).

• an information clearinghouse to help you research any topic related to fairness
  
• a communications medium to let you broadcast your opinions, arguments, tips, and warnings about what’s fair (through informal Message Board postings or by writing articles for our site)
  
• a source of ideas and discussion topics for those in academic settings; ethics and philosophy classes, social and applied science classes, debate classes and teams, etc.

          Topics covered include:

Arts & Humanities
Businesses & Organizations
Computers & Information Technology
Education
Family & Friends & Interpersonal
Government & Politics / History
Health & Medicine
Law & Justice
Media & Journalism
Personal Finance & Career
Philosophy & Religion
Recreation & Entertainment
Science & Technology
Social Sciences & Groups

• 
  
  Afterthought (03-08-04): “Fair” and “fairness” surely belong on the list of “cynic incubators” recently discussed by Evan and I.

City of Chicago: Contesting a Parking Ticket — on this “I Object” webpage, Chicago lists each defense available for challenging a parking ticket, and supplies an email link for asking questions.  You need to check your local ordinances, of course, but this information would be valid in many communities:

1. 
   
   The respondent was not the owner or lessee of the cited vehicle at the time of the violation.
   
   
2. 
   
   The cited vehicle or its state registration plates were stolen at the time the violation was issued.
   
   
3. 
   
   The relevant signs prohibiting or restricting parking were missing or obscured.
   
   
4. 
   
   The parking meter was broken or malfunctioning through no fault of your own.
   
   
5. 
   
   The facts alleged on the ticket contain inconsistent or inaccurate information, or the facts fail to establish that the violation occurred.
   
   
6. 
   
   The illegal condition described in the compliance violation did not exist at the time the violation was issued.
   
   
7. 
   
   The compliance violation has been corrected prior to the hearing; provided, however, that this defense shall not apply to [various violations listed in particular sections of the City’s regulations]  

And,

The National Parking Adjudication Service — It’s no surprise that a comprehensive site is available with parking-ticket information in the United Kingdom.  “The National Parking Adjudication Service is an independent tribunal where impartial lawyers consider appeals by motorists and vehicle owners whose vehicles have been issued with Penalty Charge Notices (or have been removed or clamped) by councils in England and Wales enforcing parking under the Road Traffic Act 1991.”  At the site, you’ll find information on Challenging Your Ticket, plus links to relevant Regulations and Legislation.

I wonder what Atticus Finch would have thought about the legal profession’s current obsession with brand creation and management. Maybe I watched too many cowboy shows as a kid, but my subliminal response to the word “branding” is a wince. My more conscious, client-advocate response isn’t positive, either.

• As usual, my main concern is with the average “Main Street” client — consumers and business persons who are unsophisticated when it comes to purchasing legal services. The sophisticated business client, which often uses major marketing campaigns and strategies itself, can usually protect its interests quite well when confronted with lawyer marketing (and, although once willing to pay extra for an elite image, many have revolted against the premium prices charged by the well-branded, “top” law firms)
• With famous branded consumables like Coca-Cola and Hershey’s chocolate, or even large-ticket items like Ford cars or Apple Computers, the average consumer can personally, or through readily available information, compare and contrast the offerings.
• The inexperienced or unsophisticated legal client has virtually no way to compare law firm options. That’s usually true both before and after a particular engagement. Infrequency of the need for legal services and the relatively large cost makes comparison shopping even more difficult or impractical. It is the imbalance of information, of course, that creates the lawyer’s fiduciary obligations.

With over one million lawyers, in a “mature” market, and facing partial technological obsolescence, the goal of most lawyer marketing in 21st Century America is to attract “quality” clients — those who want extra services despite premium prices. Branding is seen as the magic wand for creating the quality client. (e.g., here and here) It focuses on creating perceived value and perceived credibility (even if separate from actuality) — on establishing a premium brand that will allow higher fees. As I voiced in a post yesterday, this makes me uneasy, no matter the decency and quality of a particular lawyer or firm using the marketing techniques.

A look at Trey Ryder’s website, for example, makes the focus on premium pricing quite clear. While explaining How to Interview Prospective Clients: Focus on Their Problems and Your Credibility for Success, therefore, Ryder suggests:

Step #11: Quote a fee for each service. Use the contrast principle so your prospect views your fee in the proper perspective. Before quoting your fee, mention a larger number; then by contrast your fee won’t seem so high. After you quote your fee, restate one or two major benefits your prospect will gain from hiring you.

In his essay How to Charge More Than Other Lawyers and Attract Better Clients, Ryder has, inter alia, these edifying things to say:

All of your attorney marketing efforts should be designed to increase credibility. As your credibility soars, your law firm marketing efforts allow you to charge more than competing lawyers. Here is how to increase your fees and attract better clients.. . .

When faced with a question about why another lawyer charges less than you:

3. Emphasize that a low fee is an obvious sign of weakness — because if the lawyer had even a moderate level of knowledge, skill and experience, he would charge more.

5. Emphasize that you don’t know (or can’t be sure) what the other lawyer offers. And, since he charges less than you, it’s logical to conclude that he offers less than you. It could be less knowledge, less experience, less skill, less service. Is it worth the risk to find out?

6. Then, with a question in your voice, add: “I wonder what he’s leaving out.” With those six words, you increase doubt and arouse skepticism. And you do this legitimately because neither you nor your prospect knows what criteria the other lawyer uses to establish his value.

Ryder may be a bit ham-handed, but the importance of premium pricing can be readily seen at Matt Homan‘s far more polished and nuanced website. It is implicit in his concept of “value billing,” as we discussed here. It can also be seen in Matt’s vision of Meaningful Marketing:

Do one thing right. Meaningful Marketing is about building a trust between customers and your brand. Trust is built on the belief that you and your company have a higher-than-normal level of expertise in a specific area. This trust results in greater customer loyalty and less price sensitivity. (emphasis added)

The superficial focus of much branding theory and activity is also disconcerting. At Homann’s weblog, it means an overweening preoccupation with firm naming (e.g., here and there). At Ryder’s, it’s concern over finding just the right name for your niche. In Niche Marketing: Define A New Niche To Seize A Big Competitive Advantage When Marketing Legal Services, Ryder says

IMPORTANT: Take your time and make these decisions carefully. Create different terms for your niche and ask clients and friends for their reaction. See which niche names do and don’t appeal to them. See if they have an idea what the niche name means. The name you attach to your niche will likely determine its success or failure. So make this decision slowly, carefully, wisely

Similarly, at Airblogger’s place, we see a preoccupation with packaging and visual symbols (“name, logo, colors, style, look/feel, etc.”) and with personality-crafting:

[F]or individual lawyers, [intense competition] means increased pressure to establish themselves as individuals. That doesn’t just mean establishing expertise in a specific area, it also means creativity, speaking skills, a compelling personality.

Creating a Southwest Airlines ambiance is also in vogue — but, never, the low-cost, low-price aspect that secured its brand. Instead, Matt Homann — perhaps taking Marty Neumeier’s definition of a brand too literally (“a person’s gut feeling about a product, service, or company“) — is planning a BBQ and baseball outing for his clients. This takeoff on SWA’s chili cookoff (which is for its employees, to create family feeling and boost morale) may make a client or two feel warmly about a law firm, but it’s hardly at the core of providing caring, professional service (at a reasonable price).

None of this is reassuring or inspiring — earning your client’s trust so that you can charge him and her more. Rather non-fiducial, don’t you think?

afterwords: For more on this topic see our posts, “Another Lap Around Law Firm Branding” (April 11, 2004); “lawyers and cashews (and premium pricing)” (May 9, 2006)

. .

brand this!

  The huhCorp marketing spoof site says 

• 
  
  the firm provides “distinct clients with groundbreaking business strategies to aggressively and creatively compete in a changing economy.”
  
  
• 
  
  “Our ideas will entice and excite you. Our professional solutions will give you the confidence to succeed.”
  
  
• 
  
  and, “Express your uniquely synergistic self!  Let the world know that you are an aggressively dynamic, solution providing e-person.”
  

Yesterday, in a real posting on lawyer-marketing, Matt Homann stated that a “Good question” for a law firm to ask itself is how it serves the needs of yoga-esque women “looking inward for balance, strength, and focus.”  Meanwhile, lawyer marketeer Airblogger explains

” the visual symbols of a firm’s brand – it’s name, logo, colors, style, look/feel, etc. – are becoming more rather than less important” and “Ultimately, the brand will instantly signal – within the confusion and chaos of the marketplace – a clear experience to potential clients.”

[Airblogger David seems to think this is a good thing for the legal profession and its clients.]

Elsewhere, in a post called Customer-centricity for Law Firms, Matt favorably quotes real marketer Chris Lawer:

Individual-centric customer innovating businesses understand this and aim to overcome these challenges. They focus on creating a more positive brand, marketing and customer context; one that reconfigures mostly intangible (and hitherto unrecognised) aspects of people’s needs and problems into new forms of social, relational and brand capital. These intangible value dimensions include new drivers such as time, attention, knowledge, uncertainty, trust, privacy, personal productivity and simplicity.

Then, Matt declares:  “Chris’ ideas dovetail with my thoughts on value billing that I’ve been trying to articulate in this weblog. By focusing on those “intangible value dimensions” important to my customers (trust, certainty, security), I am hoping to build a lasting legal relationship with them that isn’t tied to the time I spend working on their individual matters, but rather the value they get from me.”  

  Either quote would have done quite well on the Spoof Site, don’t you think? 

Snazzy Covers:  The spoof site has on strategy: When we deliver your new business strategies to you, they’ll be in really snazzy binders that look nice sitting on big, round meeting tables, so you’ll know you got your money’s worth.

In a serious article in Law Practice Magazine, while describing ways of “adding value to your service” (in order to justify a fee increase). Edward Poll actually states:

Sometimes, showing that you provide better-than-excellent service is all you need to justify a fee increase. For example, consider packaging final documents in an attractive folder and hand delivering them to the client. This improved presentation adds only pennies to your costs, but it will be perceived as an example of your caring for and nurturing the client.   [from LPM, April 2002, at 36)

And, the latest Lawyer Marketing Alert from Trey Ryder (March 3, 2004, via ESQLawTech) is totally devoted to the wonders of using first-class letters because

First class letters from lawyers are effective for many reasons:

1. Since many people use e-mail for quick communication, when you take
time to write and mail a letter, you make a powerful, personal impression.

2. An envelope with a lawyer or law firm as its return address always
commands attention.

3. Upscale law firm stationery can and should reflect your confidence,
integrity and success.

Setting Expectations:  Matt Homann also recently focused on a  post from the Ripples weblog, by David St. Lawrence:

Hindsight is so humbling. It took me 45 years of professional life to arrive at the following conclusion: Setting expectations correctly is far more important than the actual work that you do.

  What’s Matt’s marketing-type solution?  He says

I have heard of a consultant who has voicemail that says, “Leave a message and I’ll return your call in 90 minutes.” He always returns the call in sixty minutes or less — or has an assistant do it. He sets a client’s expectations and then exceeds them. If we lawyers were able to consistenly do the same thing, we wouldn’t be the butt of so many jokes.

Thankfully, David St. Lawrence left a Comment that sees a lawyer’s setting expectations as far more than a gimmick:

“Setting expectations as a lawyer is probably more important than in any other profession because you are taking responsibility for the person’s life when you take the case.  The expectation need not be that you are going to win the case. The client might feel satisfied if he had certainty that you were going to do everything possible to get him a fair deal.”

  Until convinced otherwise, skepticalEsq will approach legal marketing as if its purpose were primarily to manufacture the consent of the unwary to the purchase of unneeded extra services at extra-competitive prices.  The fact that there are clients who are susceptible to appeals to emotions, “intangibles” and marketing hype, does not make it okay for the lawyer-ficuciary to exploit those weaknesses.  Would  Atticus Finch and Clarence Darrow  be amused or outraged?

  For related discussion, see Value Billing or Venal Bilking?,

Another Lap Around Law Firm Branding, Brand LEX, and

LexThink about higher fees (er, value billing).

 

 

  with cream on top

Corporate Counsel magazine names its 2004 Innovative GCs in its current edition, and I’d like to salute the work of one honoree — Starbucks General Counsel Paula Boggs (see “Breaking Grounds,” 03-02-04).

According to GC, Boggs largely chose to work for Starbucks “because of its varied charitable efforts.”

“Boggs was especially interested in expanding a nascent program started by her predecessor and run out of the legal department that helped Seattle’s poor make their way through housing court. In the 15 months since she joined the ubiquitous latte purveyor, she has dramatically increased the size of the program, made her department’s 30 lawyers and 46 staffers freely available to the project on a regular, ongoing basis — and made expansion of pro bono activity a central part of her department’s five-year strategic plan.”

The article notes that staffers get extra points at bonus time for regularly performing pro bono work.  The litigation experience in housing court is also seen as a plus.

Several other corporate pro bono programs are described in the article.  Bravos to all, with this oft-voiced plea from ethicalEsq:

Corporate Counsel — especially those from companies and communities with computer expertise and resources — should consider supporting and creating self-help and pro se programs across the nation.  Access to justice by indigent Americans (and those of modest means) can be greatly improved by spreading such programs.  For example:

• 
  
  Pick a state with little or no self-help resources available to the public and help make excellent programs available.  
  
  
• 
  
  Line up volunteer lawyers to act as pro se facilitators in local courts. 
  
  
• 
  
  Use legal and software expertise to produce user-friendly, interactive programs in many areas of the law — and use financial and political clout to make them available to the public.
  
  
• 
  
  Train staffers to serve as mediators for family, housing, small claims courts.

There are many ways to make access to justice real.  You don’t have to be litigators to help the poor find justice — don’t give them a fish; teach them to fish.

Is it time to start disciplining law firm management for creating ethically hostile work environments? Publically shaming the worst culprits is surely the least we should do.
This isn’t a new thought, of course. It’s difficult to read Prof. Patrick Schiltz’s description of BIGLAW culture, or the other pieces cited in our sermon last year, without wanting to do something about the work pressures that now exist in our “best” law firms (and those that want to be like them) to produce billable hours and endless profits.

. .

The New Jersey Law Journal article featured in our post yesterday (along with background research), focused my attention on just how thoroughly our profession is permeated with a culture that makes fee generating far more important than client service and professional ethics. (“Sorry, Addiction and Work Pressures Don’t Lead to Light Ethics Sentence,” 02-16-04; free reg. req’d), It’s not just the big firms or the “boutique elite.” Despite my feeling that work pressures should not mitigate disciplinary sanctions for neglecting duties to clients, I am sympathetic to the plight of lawyer Bowman, which was discussed in the NYLJ article.

According to the article, Bowman “testified that he suffered from alcoholism and that he was stressed out by long hours of work and civic activities required by his firm.” The disciplinary board explained,

If an attorney at Gruccio, Pepper did not meet the required ‘billing goal,’ his salary was withheld and possibly forfeited.” Bowman just couldn’t say no.

Here’s the for-publication response from the firm in question to Bowman’s three-month suspension, as presented by NYLJ:

At Bowman’s old firm, partner Lawrence Pepper Jr. says, ‘It’s unfortunate what happened. We’re heartsick about it.” He won’t say what punishment Bowman deserves, but he does not dispute the notion that long hours, hard work for clients and time spent in civic activities are required at his firm, or any other firm that takes its work seriously.

“When you are diligent for your clients, you work long hours,” he says. “Unfortunately, in today’s world, sometimes the pressure gets to you.”

Makes me all warm inside, and most pleased that clients can expect uncompromising diligence (zeal, too, I bet).

We might have expected some useful guidelines and limitations from the profession by now, given all the words written and spoken about the evil of excessive hourly billing (see, e.g., The Hours, by Niki Kuckes; and Matt Homann’s soapbox). Indeed, the ABA’s Ad Hoc Committee on Billable Hours produced a Model Diet meant as a “best practices” summary for law firms — “that ensures a level of billable and non-billable activity to serve not only the interests of an acceptable level of productivity given the firm’s reasonable profitability aspirations, but also other important objectives.”

There’s one big problem with this Diet, however: it is based on “2300 Creditable Hours for Lawyers” per year. The profession’s “leaders,” after thoroughly studying the problems surrounding law firm demands for excessive billable hours, somehow concluded that 2300 hours is “significant” but “manageable”:

The model reflects an assumption that law firm associates are willing to work hard, that the profession is demanding, but that it provides great rewards, not only monetarily but also through the challenge and stimulation of work for paying clients as well as the other activities reflected in the model. The total is, at the same time, manageable — it represents less than 50 hours of recorded, professional time, billable and non-billable per week, allowing for vacation, holidays, etc. We do not view that as an unrealistic burden for incentivized, enthusiastic, hard-working associates who enjoy what they do. Indeed, the allocations suggested for all types of work — billable and non-billable — are designed to provide a varied set of challenges and to enhance the psychic rewards of the practice.

With that introduction, the proposed typical “diet” is:

1. Billable client work — 1900 hours

2. Pro bono work — 100 hours

3. Service to the Firm — 100 hours

4. Client Development — 75 hours

5. Training and Professional Development — 75 hours

6. Service to the Profession – 50 hours

This might make a lot of law firms feel righteous, but it is not the least bit reasuring from the perspective of a healthy profession or a well-served clientele. As it takes considerably more than an hour to create an hour of billable time, the Diet is prescribing perhaps 60 hours per week on average for associate attorneys (after allowing for a bit of vacation, plus sick and holiday leave). Not much pressure there!

So, what can we do? Suspending (or even reprimanding) the entire leadership of the profession, and virtually all managing partners, might be unworkable and unpopular. Doing “ethics environment” audits one law firm at a time just might work. Confidential employee complaints could begin the process. Why shouldn’t we hold partners responsible for the work environment they create and perpetuate? quixoteEsq is on the case. Get your donkey, Pancho, and come along.

• In the meantime, besides re-reading Professor/Dean/Judge Patrick Schiltz’s article,”On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 Vand. L. Rev. 871 (81 pp pdf), check out The Dangerous Link Between Chronic Office Chaos, Stress, Depression, and Substance Abuse (ABA General Practice magazine, by Nancy Byerly Jones, July-Aug. 2001). Jones says “If ignored for too long, chronic problems at the office can play a big part in setting the stage for battles with depression, substance abuse, and other stress-related problems.” The article includes 29 tips for a healthy law office.