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

 . .  Dennis says “It’s not the rule that’s unfair to associates, it’s the fact that it adds another worry for associates who are currently living in a system where they walk on eggshells” and “I’ve said many times that the current methods big law firms use with associates are grinding up some of the brightest and most capable young lawyers I’ve seen. There have to be better ways.”  His examples are very much worth reading and considering. 

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  There are a bunch of weblogs I wish used Trackback, and Dennis Kennedy’s is high on that list.  That would allow me and visitors to this site to easily find out what other webloggers are saying about topics broached here. 

   I really did plan to write a new, serious posting today.  But, Carolyn Elefant left a provocative Comment overnight that kept me busy much of the morning, and then Evan Schaeffer really got me off track with his musings about being stuck in traffic at a RailRoad Crossing. 

It seems that half of the weblawg-o-sphere was over at Evan’s place talking about trains today.  Evan — like many others litigators (especially of the p/i ilk) — is a natural entertainer and promoter.  He definitely knows how to attract and distract his weblogging colleagues (some quite easily and often). 

Notes from the (Legal) Underground has become a favorite little e-cafe for a broad cross-section of the legal/law school community, with light fare and a genial host.  [unlike Mr. Schaeffer, I will not use this as an excuse to link to all the faves out there]   Check it out — it’s a lot more entertaining than law.

• Afterthought:  I posted here 15 minutes ago, and it just happened again: Evan’s weblogging has distracted me from legal ethics (and life).  After hecking Detod, I read an interesting Dennis Kennedy posting inspired by Evan, complete with reminisces about the B&O.  Then, lured back to Evan’s site, I read Beldar‘s comment, filled with the history of Houston, which Beldar says once promoted itself as “the City where seventeen railroads meet the sea!” [really makes me want to visit!]  All that history reminded me that I live in Schenectady, New York, which calls/called itself “The City that Lights and Hauls the World” — due to it once being the home of both General Electric and Alco, The American Locomotive Company, which closed its doors in 1969.

You can read some of the history of ALCO, and see great pictures of its famous engines (like Jupiter, Hudson, Challenger, Hiawatha, and Big Boy), by clicking here, the website for the public television program The Iron Horse in Schenectady: Locomotives for the World. (WMHT-TV)

Now, what was it I was planning to do tonight?

  Writing for the court in Daniels v. Alander, in an unaniimous decision upholding a judicial reprimand, Justice Joette Katz said,

“[I]t is apparent that the drafters of rule 3.3, which is entitled ‘Candor toward the Tribunal,’ did not intend to limit its application solely to the party actually making the affirmative misstatement. Depending on the circumstances, the rule can pertain to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney.”

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  “The plaintiff has not presented, nor can we identify, any sound reason to graft an exception onto the rule when an attorney whose conduct is at issue is an associate joined by his employer.”
  
  
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  The Court also noted that “[S]eparate and apart from the obligations imposed independently by rule 3.3 (d), the very fact that this action began as an ex parte proceeding was a unique circumstance that created an enhanced duty of candor toward the trial court.”

. . .   I agree fully with the Court.  Taking part in a deception by keeping silent is contrary to the individual attorney’s responsibility to the court and the justice system, and should be contrary to his or her private ethical code as a lawyer.  I can already hear the wailing of bleeding hearts and enablers, who say such a rule is “unfair” to the poor, powerless associate.  Indeed, the attorney’s lawyer argued below against ‘the hired associate in the role of policing his employer.”

By a vote of 104 to 8, the Florida House passed the highly restrictive lawyer advertising bill we described and bemoaned in this space last month.  The Bill would make it illegal to advertise in “a manner that solicits legal business for a profit by urging a person to consider bringing legal action against another,” with “solicit” broadly defined to mean “to entreat, request or urge another to use the services of an attorney or a law firm.”   

This legislative broadside against lawyer ads succeeded overwhelmingly, despite opposition from bar groups (including p/i lawyers, the prime target of the Bill), and Staff Analysis raising potential free speech problems.  (pointer from sunEthics, 04-01-04)

  The Staff Analysis contains a very good summary of the Bill and the changes it would make in currrent State laws for lawyer advertising.  It does not address the [bogus] issue of the legislative branch’s authority to make rules governing the regulation of lawyer conduct, which some lawyers had raised.

House Bill 1357 has been referred to the Senate Judiciary Committee; no companion bill yet exists in the Florida Senate.  No matter what you think of lawyer advertising, the commercial speech issues raised, or the ability of consumers to deal with hyperbole in lawyer ads, the Florida Legislature’s attitude should cause worry among lawyers who regularly use advertising.   Here’s the statement of purpose in the H.B. 1357:

(1) The Legislature has determined that legal advertising that solicits business by urging a person to file a suit destroys the personal responsibility of individuals, fosters frivolous litigation, and demeans the judiciary and the practice of law. This form of solicitation has created a crisis in this state’s judicial system, thus creating a compelling state interest in the state’s limited regulation of advertising as set forth in this section.

 

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  Mama Giacalone must have been lobbying feverishly behind my back (she does make a great pasta sauce).  There’s no other way to account for the inclusion of this most humble of weblogs in Bob Ambrogi‘s newest version of 60 Sites in 60 Minutes.  Thanks, Bob (and, Mom, too)!

I was driving a few blocks from my home two nights ago, when I noticed the new message on a giant billboard used by a small, local personal injury law firm. It reads:

Over 98% Win Rate!

Put the odds in your favor.

Capasso & Massaroni, LLP

Includes settlements and awards. Prior results do not guarantee future outcomes.

At its website, Capasso & Massaroni says that “Very few cases actually go to trial. In our practice, more than 90% of the cases settle without going to court,” and explains that it only takes cases that it determines to have a “qualifying injury.”

I’m not questioning their statistics. Instead, I’m marveling at the lack of risk in their p/i law practice (how many other lawyer specialties collect their full fee from 98% of their clients?), and wondering how this jibes with the FAQ explaining they charge a fee of 1/3 of the settlement “in most cases” — that is, they charge the local “standard” rate. Why does C&M. or any p/i law firm, believe they have a right to one-third of a client’s damages, no matter the perceived or actual level of risk in taking the case on a contingency basis?

As I’ve argued elsewhere, and more fully here, explaining ABA Formal Ethical Opinion 94-389:

The Ethics Opinion states that a contingency fee “does not violate ethical standards as long as the fee is appropriate in the circumstances and reasonable in amount, and as long as the client has been fully advised of the availability of alternative fee arrangements.”

According to Op. 389, a long list of relevant factors needs to be discussed with every client in every case, and “a lawyer who always charges the same percentage of recovery regardless of the particulars of a case should consider whether he is charging a fee that is, in an ethical context, a reasonable one.” In short, the choice to use a contingency fee belongs to the client and any percentage fee charged should reflect how likely the client is to win, how much money is likely to be rewarded and collected, and how much work the lawyer is likely to have to do (that is, the apparent risk taken by the lawyer).

The three partners in this 5-lawyer firm are well-respected in our community as lawyers and individuals. I know two of them from Family Court and think highly of them and their work. One is currently president of our county bar association, and another is a past-president. I do not believe that they would knowingly violate the ban on excessive fees in the NYS Code of legal ethics.

But, I also believe that — like most personal injury lawyers — they may have developed an ethical blind spot when it comes to use of the standard contingency fee. Applying the one-third formula becomes what my father would call their “racket” — their way of making very good money for relatively little work. “Everyone” is doing it and nobody wants to rock the boat (including NY bar counsel, who have cited Opinion 94-389 to me favorably, but have never challenged the use of the standard fee).

As we have discussed, while they were opposing Common Good’s proposals last year to modify contingency fee rules in “early offer” situations, both the Trial Lawyers Association and Public Citizen acknowledged:

“It is widely accepted that contingency fees should vary depending on the riskiness and complexity of the individual case; indeed, that is what the ethical rules currently require (even though almost universally honored in the breach).”

Isn’t it time that the p/i bar stop honoring this risk-rate principle only in the breach? I’m hoping that the lawyers at Capasso & Massaroni, or my weblog colleague Evan Schaeffer (who keeps threatening to do so), or any other p/i lawyer will explain their side of these issues for our readers.

• Brickman shows that “tort lawyers prevail in approximately 90% of the cases they accept and obtain repayment of substantially all litigation expenses they advance, including expenses advanced in the cases where they do not prevail.” And,

• ” If a case is too risky, it is rejected. If it is lucrative, it is accepted, and a standard contingency fee is charged irrespective of whether there is any meaningful litigation risk and even though the cost of production of the service in no way justifies the enormous projected return on investment.”

Postscript: Capasso & Massaroni‘s advertising got some attention at Overlawyered.com, in September, 2002, when this same sign featured a patriotic background, and the proclamation “We Will Win,” along with the firm’s name. Walter noted that the sign “isn’t going to win prizes for either taste or subtlety.”

I’m tired just reading the headlines from weblawgs complaining about the U.S.News law school rankings. I sure hope everybody gets over it soon (him, too). The professors — whose egos appear to be quite threatened — seem more frenzied than the prospective law students. (see Law.com Daily NewsWire, 04-05-04)

Of course, something as complicated and as highly-subjective as choosing the best law school will never be handled in a manner that pleases all affected persons and institutions — if only because lawyers are argumentative and homo sapiens are sore losers. It seems awfully foolish for anyone to give significance to a school’s moving a few notches up or down on any one list in any one year.

Stewing over school stats seems like the rankest sort of snobbery — or insecurity. Alternative approaches and ideas for improving the process can be useful and thought-provoking, but a little less whining would be nice.

• Afterthought (04-05-04): Serendipity is the salvation of the lazy editor. So, having no new posting today, I couldn’t resist sharing with you the thoughts of Kurt L. Schmoke, dean of the Howard University School of Law, on law school rankings. They appear in an article from this month’s Washington Lawyer, which serendipitously showed up in my mail box this afternoon. ( A Conversation With Kurt L. Schmoke, April 2004).  Here’s what Dean Schmoke has to say (emphases added):

  What effect do U.S. News & World Report–type rankings have on legal education in general?

I come out of a competitive environment in politics where you get judged daily, and every four years people get their opportunity to pass judgment in the election. Being judged, or ranked, is not a bad thing for a school, but personally I question the methodology in the U.S. News system where 40 percent of the grade for a law school is based on reputation among your peers.

That has led to an incredible flood of material from law schools: each dean floods deans at other schools with literature about everything they are doing, and we have web sites highlighting our programs. This ranking system has generated a new paper chase, with deans trying to affect the perception of other deans. It is driven by the need to put yourself on the radar screen of your colleagues, so that when they get a survey they will say, “Oh yes, I remember Tulane has a Caribbean law program.” You don’t know anything about the program, but you remember getting the brochure.

The good aspect of the rankings is that it is helpful to some students trying to decide where they want to go to law school, because it raises questions that they can look into.

Does that rating system affect Howard at all?

 

It does to some extent. Potential applicants ask me about our rating because they want to make sure that they go to a place that is going to give them a competitive edge when they enter the marketplace. That said, most of our students recognize that the ranking methods say very little about schools below the elite, well-endowed top 10.
How do you judge the University of Washington next to the University of Indiana on a national ranking? To put 187 law schools into a national ranking system and judge schools that are state oriented against schools that are nationally oriented is really difficult.

I have found that our students understand that. The rankings have not hurt us in terms of the number of applications we receive, but I know that applicants read the reports and consider it. However, I think they come to Howard for reasons other than our rank in the U.S. News survey.

Personal note: Kurt Schmoke was a classmate of mine in law school.. He was one of the few students whose comments in class I consistently valued. And, thanks to a winning personality, he was one of an even smaller group of classmates who I actually hoped to see again after graduation. Unfortunately, our paths have not crossed. I’m just a little envious of how little he’s aged, from his photos, since 1976.

• Update (04-05-04): Scheherazade has a very good post today, You Can’t Know, for those trying to decide which law school to choose.
• The JURIST Paper Chase has compiled links (04-05-04) showing that “Major movers in the 2005 US News and World Report rankings are responding in very different ways to their upward moves.”

Radio Campaign Launched

Campaign Aims to Educate New Yorkers About the Important Role of Lawyers as the Foundation of the Rule of Law

To help educate New Yorkers about the important role lawyers play in protecting people’s rights, the New York State Bar Association has launced a four-week, statewide radio campaign in cooperation with the 240-member stations of the New York State Broadcasters Association. The campaign, which will run from April 1-30, will feature four separate 30-second spots.

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  Spot 1  To read the headlines, it seems that our way of life is open to attack from both inside and outside forces. We live in challenging times. Change seems certain. But one thing doesn’t change . . . : our system of government . . . based . . . not on the politics of the moment . . . but on the rule of law. The founders of our country made it that way. A lawyer helps keep it that way.  Think about it. The law . . . It’s your business. 
  

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  Spot 2  Voice 1- It’s been said a physician looks after your body and clergy look after your soul.   Voice 2 – What part of me does a lawyer look after? Voice 1 – A lawyer looks after your rights. A lawyer looks after your property. A lawyer looks after your business dealings. Voice 2 – So, my lawyer looks after my interests. Voice 1 Right! That’s what a lawyer is for.   Think about it.  The law . . . It’s your business. .
  
  
  
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    Spot 3   Voice 1 – What do I need a lawyer for? Voice 2 – Do you speak your mind?   Voice 1- Sure do!   Voice 2 – What if somebody said you couldn’t? What if somebody said you had to change religions? What if somebody said you couldn’t read what you wanted, or watch what you wanted, or go where you wanted? What if somebody said your kids couldn’t go to school? What if somebody steals your idea? What if somebody cheats you? Voice 1- Okay. I get it. That’s what lawyers are for.   Think about it. The law . . . It’s your business.

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  Spot 4  We were present at the creation of the Constitution. There were thirty-one of us. We were there when the U.S. Supreme Court ruled that even a poor person was entitled to have a lawyer. We are there everyday, protecting your rights, rights that are guaranteed. We are there as guardians of the “rule of law.” We are lawyers. Think about it. The law . . . It’s your business.

Each Spot ends with the sentence: “This message brought to you by the 72-thousand members of the New York State Bar Association and the New York State Broadcasters Association.“

  According to a BizJournals.com article, the campaign is for real, and is the fourth such campaign since 1996.  (bizjournals/albany, “New radio ads to tout lawyer contributions,” 03-29-04)  An article written last year in The Business Review, told of a similar campaign by NYSBA, which dealt with lawyers “helping people pay for AIDS treatment, adopt a child and advising a woman on how to start a new business.”  (“State bar to use radio to improve lawyers’ image,” by Eric Durr, 09-30-03)  

The Sept. 2003 article quoted the bar president saying the 3-spot campaign cost “about $25,000.”  No dollar figure has been reported for this year’s 4-spot campaign.

Well, now I understand why New Yorkers have been so much more respectful of lawyers the past few years!  ethicalEsq is eloquently on the record stating the belief that the legal profession needs to attend far more to professional responsibility than to public relations, if it wants to increase the reputation of lawyers.  

 

  From my perspective, as a consumer and citizen of New York State (and former member of NYSBA), the spots quoted above can only serve to make the public more cynical about lawyers.  The campaign does nothing to address the public’s main complaints about lawyers and the justice system they have constructed and manipulated for their own purposes. 

 

Imagine, instead, a radio campaign informing consumers that they can negotiate the size of contingency fees, and that the local “standard fee” is the maximum allowed.  Or, consider airing spots reminding the public that Small Claims courts can provide civil justice without using lawyers, and now allow dollar limits up to $5000.  Such ads — serving the public’s interests rather than the profession’s — would improve the image of lawyers.  As would using the $25,000+ to increase self-help resources available at courts, or at the NYSBA website, instead of touting the virtues of lawyers.

 

Until their ads are truly “public service” in nature, rather than mere “public relations,” NYSBA and other bar groups across the nation should at least have the good sense to announce their “educational” campaigns on days other than April First. 

s/ Prof. Yabut . .

 

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Best wishes to the folks at Law.com/American Lawyer Media on the launching of their new Small Firm Business magazine and website, on March 26th.  Here’s how they describe their raison d’etre:

To help you improve your productivity and profitability – and quality of life – it’s time for a magazine that focuses on the business side of running a law practice. Small Firm Business will cover finance, business development, insurance, marketing, technology, real estate, facilities management, research an practice tools, human resources, benefits, personal finance, and so much more.

The good Fool and the good Professor will surely want to review this month’s article on the Rieslings of France and Germany.  I can’t vouch for their taste in wine, but SFB has the very good taste to include this humble weblog in its brief blawg roll.  Thank you, Lydia Markoff.

   Welcome.  I’m Professor Yabut [yabut?] twin brother of that ne’er-do-well skepticalEsq.  “As of now, I am in control here.”  Reluctantly. 

. . Donkey O.T.

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esq er

faq

 

Is there a Code of Conduct for EsqChecker members?

 

Of course not.  ethicalEsq respects the self-disciplinary tradition of the legal profession.  We at EsqChecker take your word (and your check).

 

Are any fees involved?

 

Is that a trick question?  Of course, there are.

 

How much?

 

We at EsqChecker, and our parent organization ethicalEsq, PC, strongly believe that our members come first.  Therefore, we subscribe whole-heartedly to the concept of value billing.   So, you tell us how much you think it’s worth to achieve an instant reputation for the highest level of integrity and professionalism.  Trust us, if your commitment to integrity is not high enough, we’ll let you know.

 

What else do we need to know about EsqChecker?

 

If there were more you needed to know, we would have told you.

___________________________________

P.S.  As he ran out the door, Previous Editor was heard mumbling, “There’s no money to be made in poetry, you can keep that useless haikuEsq.”   He also grumbled about our favorite Fool for failing to post today.

   Welcome.  I’m Professor Yabut [yabut?] twin brother of that ne’er-do-well skepticalEsq.  “As of now, I am in control here.”  Reluctantly. 

. . Donkey O.T.

——————————————————————

esq er

faq

 

Is there a Code of Conduct for EsqChecker members?

 

Of course not.  ethicalEsq respects the self-disciplinary tradition of the legal profession.  We at EsqChecker take your word (and your check).

 

Are any fees involved?

 

Is that a trick question?  Of course, there are.

 

How much?

 

We at EsqChecker, and our parent organization ethicalEsq, PC, strongly believe that our members come first.  Therefore, we subscribe whole-heartedly to the concept of value billing.   So, you tell us how much you think it’s worth to achieve an instant reputation for the highest level of integrity and professionalism.  Trust us, if your commitment to integrity is not high enough, we’ll let you know.

 

What else do we need to know about EsqChecker?

 

If there were more you needed to know, we would have told you.

___________________________________

P.S.  As he ran out the door, Previous Editor was heard mumbling, “There’s no money to be made in poetry, you can keep that useless haikuEsq.”   He also grumbled about our favorite Fool for failing to post today.