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

January 5, 2005

a Canadian role model

Filed under: pre-06-2006 — David Giacalone @ 11:56 am

from the dEsq of ethicalEsq:

Clicking around on our Referer Page yesterday, it was quite satisfying to discover that a Google Search for lawyer contingency fees yielded the ethicalEsq archive on Fees as its #1 result. More exciting, however, was noting that the #2 result was a law firm that apparently told its clients they should negotiate with their lawyer over contingency fee levels. My euphoria was only diminished a little when I learned that the firm, Polten & Hodder, was located in Toronto– but it spiked back up again when I saw the content of the website.

podium sf When lawyers get together to discuss how to improve lawyer marketing, branding, images. etc. I hope they will learn some lessons from the attitude and substance of the materials found at the P&H website. When the visitor clicks on the English-language homepage, he or she is greeted by these passages from The Lawyer’s Calling, by Joseph G. Allegretti

(Paulist Press, New York, 1996):

“How much easier it is for a lawyer to conceive of his client not as an
adult, but more like a child, or a “case” to be tried or settled. How much
easier it is to take command, tell the client you’ll handle everything, and
then get on with your work without having to expend time and energy
nurturing a relationship between equals.”

“There can be no covenant between a lawyer and his client unless and
until the lawyer is willing to encounter his client as an equal who has
something of value to contribute to the relation. … The indispensable
first step in forging a covenant between a lawyer and a client is the
willingness of both parties to entrust themselves to the other.”

Beyond such generalities, you can find links to more materials which show that P&H takes the philosophy into its practice of law. It’s contingency fee FAQ page is a prime example — containing information and advice impossible to find on the pages of American tort/p-i lawyers, including:

  • “Such fees are usually based on a percentage–often 20% to 45% of

    the proceeds. Such agreements may also be dependent upon various

    factors including the nature and complexity of the matter, the risk involved,

    the cost in pursuing the matter, and the likelihood of success.”

  • “The key disadvantage is less obvious. Generally speaking, a

    contingency fee will in the long run cost you more than if you

    were paying monthly as the matter progressed.”

  • “Be wary of the “straight percentage.” You claim may settle early on. …

    You should try to arrange, therefore, what some lawyers call a “graduated”

    fee arrangement, whereby the percentage fee increases as the matter progresses.”

  • “Make sure your contingency fee agreement contains a provision that you are

    entitled to have the lawyer’s fee reviewed by a Superior Court judge to ensure

    that the agreement is fair and reasonable and is void of improper motive or conduct

    by the lawyer involved. You should insist on this provision. Try to get your lawyer

    to agree that he or she will make this application if you require it and that he or she

    will pay the cost of doing so–not you!”

  • “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 $100,000.00 in fees down the road, it is

    money well spent.”

[You know, Brickman or Giacalone could have written this webpage copy!]

P&H also offers an extensive list of the Top 10 Ways to Save Money on Legal Fees. There are

good, practical pointers, with the preface: “We have observed over the years that the amount

of time lawyers have to spend on files can be a source of frustration not only for clients (who

have to pay for all that time) but also for lawyers, who would much rather spend their time applying

analytical skills than coping with the administrative details of a client’s file. EFFICIENCY is the name

of the game in keeping your legal bills down, way down.”

You’d almost think these guys were nurturing a fiduciary relationship with clients with regard to

fees. I’m inspired. What do you think ATLA? Public Citizen? Evan? Matt?

Speaking of inspiration from Canada, let’s share a few moments with poet-professor-

psycholgist George Swede from his treasury of haiku, Almost Unseen.

in the windswept window
among the wild trees
my face

one by one
to the floor all
of her shadows

as the professor speaks
only his bald spot
is illuminated

by dagosan:

neighborhood stroll

January 5th —

no one says “Happy New Year!”

[Jan. 5, 2005]

one-breath pundit

“tinyredcheck” I hate to be a curmudgeon, and Matt Homann does seem to deserve fiddle bow

all the nice things said about his personality and talent. But, from the

client/consumer’s perspective, I must continue to dissent from many

of the positions he takes on pricing legal services and branding law

firms. As I recently noted, he seems too often to be “dreaming up ways

for lawyers to extract more money from clients without giving them a better

product.” I continue to wonder how the fiduciary relationship jibes with

manipulating client psyches and price elasticities in order to maximize profits.

See our posts on value billing, lawyer marketing, and fees and the lawyer-fiduciary.

tiny check Evan Schaeffer has opened his weblog today to a post from a tort reformer.

Evan will respond. This should be a very useful forum on an important topic.

fee fie foe and fum

Filed under: pre-06-2006 — David Giacalone @ 12:15 am

While thumbing through his dictionary tonight, ethicalEsq learned that fum means “to 

 play a fiddle.” He insisted on sharing that information (which Steve Minor probably

 already knew) and then asked to “guest post” here at his old weblog on the topics of

fees and lawyer-client relationships.  Naturally, we couldn’t refuse.                                                                                          

fiddle bow   From the dEsq of ethicalEsq:

Fa, Fe, Fi, Fo, Fum!
I smell the blood of an Englishman.
Be he live or be he dead,
I’ll grind his bones to make me bread

The verse from Jack and the Beanstalk seems more relevant than ever to America’s lawyers. 

When it comes to fees, our legal profession is fiddling away its scant goodwill, while its clients —

and youngest members — scream “fie” and are treated like foes.


An example is found in the latest cover story of Washington Lawyer, which is one more lament

over “The Tyranny of the Billable Hour.” (Jan. 2005)  The Billable Hour, rather than lawyer/law-firm

greed, is cast as the evil source of lawyer discontent and lousy lifestyles.  It’s as if the writer and

interviewees honestly believe law firms who shift to other billing methods will gladly allow each

lawyer to generate less income.  If you happen to see any hint of such an attitude (for instance,

here or there), please let us know.  Until there’s proof to the contrary, the track record of the profession

suggests that lawyers will either charge more while working less, or work just as much while collecting

at least as much in fees, which will merely be structured differently.  (e.g., our one-breath blurb here)


The one good aspect of the Washington Lawyer Billabe Hours article is the realistic approach —

taken by two lawyers who are outside the law firm rat race (MCI’s Anastasia Kelly and Justice Steven

Breyer) — that puts a lot of the onus on associates for accepting excessive billable hour.  The article




Referring to lawyers who work for her at MCI, and who reported to her when she partnered

at Wilmer, Cutler & Pickering, Kelly says emphatically, “The quality of your life is your

responsibility! It is not my responsibility to give you a quality of life.  If you don’t have a

quality of life, it’s your responsibility to come to me and say, “I don’t have a quality of life,

and it’s because you’re making me work 80 hours a week.  So many people say it’s the

responsibility of a law firm or a company to make sure that their people have a quality of life.

It is a two-way street!


 “Moreover, says Kelly, any lawyer who feels an employer?s demands on his or her time are

too burdensome always has the option to walk out the door and go find a place that gives

you quality of life. That’s your responsibility: to go.  


“Justice Breyer, who sympathizes with the predicament of newcomers to the profession who

find themselves overworked, expressed a similar view in 2000:  More young lawyers may

have to speak up, tactfully of course, in an effort to help the firms create the workplace

environment that they will need. [They must] decide consciously what kind of career they

want and what they want the story of their lives to say.

If young lawyers want to work saner schedules but don’t want to sacrifice income or “prestige,” they need

to stop whining and realize that they are part of the problem (while, perhaps, hoping that maturity will bring

a change in priorities).    Is fumming related to fuming?  [read about lawyers and chronomentrophobia — the fear of time or clocks]



looking now
with greedy eyes
bare winter trees

greedily using up
the year’s first water…
the woman


Kobayashi Issa – translated by David G. Lanoue

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