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

September 13, 2006

lost on the Road to “L”

Filed under: Uncategorized — David Giacalone @ 2:06 pm


Over the past month, many real law professors have been offering advice
to “1Ls” — first year law students — as they begin law school.  There’s a good
Web Roundup by Austin Groothuis for CALI’s Pre-law Blog (via Rob Truman at
Boley Blog); and see Jim Maule at Mauled Again; Michael O’Hear at PrawfsBlawg;
Illya Somin at Volokh Conspiracy; and Brannan Denning at Instapundit.


VC’s Orin Kerr, writing at his own weblog, voiced a common
theme when he said to 1Ls “it is normal to feel lost.”   The f/k/a Gang wants
to do our part (without bending our hiatus promise too outrageously), by
pointing out that much of that “lost” feeling never does go away — because
far too many law school applicants, law students and practicing lawyers
never took the time to assess who they really are and what they actually
do want from life and from a career.

With that in mind, we point back to two of Prof. Yabut’s posts from last year, 
with the hope that the all-important assessment process will be high on every
law student’s must-do-now list, despite all those everyday 1L aggravations.  See:

1L of a decision (Aug. 16, 2005) (law student know thyself)

Here are a few quotes from Prof. Yabut’s assessment sermons:  noYabutsN

“Only a silly a$$ doesn’t self-assess.  Frankly, there are enough lost, unhappy souls practicing law as it is, without you — yes, you! — adding to the numbers by blindly careening toward a painful, depressing legal career.

“Listen to your gut and your heart.  Cutting your losses is a lot better than “investing” in a career and lifestyle that will make you (and your loved ones) miserable.” 

“The best way to be on the road toward a legal career that is in sync with your passions, values and rhythms is to know who you are.  Honestly, almost none of us can do that without making a real commitment of time and energy in the process of self-assessment.”

during discussion
on the meaning of life . . . the crunch
of a student’s apple

 . . .  by Prof. George Swede from Almost Unseen

windowless classroom
the blank look
same as last term

. . . by Prof. Yu Chang from Upstate Dim Sum  (2002/1)

August 29, 2006

still allergic to (o)pine

Filed under: Haiku or Senryu,Uncategorized — David Giacalone @ 11:07 am


It’s been almost three months since the f/k/a “Gang” announced “our” Punditry Hiatus.  Despite a tastey temptation yesterday from Carolyn Elefant at My Shingle, Your Editor can’t seem to find the old ethicalEsq gusto for commentary — or even Prof. Yabut’s proclivity toward irony.  We hope that won’t stop you from checking out Carolyn’s post What Makes a Legal Fee Unreasonable?, which focuses on a controversy involving the September 11th Victim Compensation Fund and a one-third contingency fee paid to lawyer Thomas J. Troiano.   Carolyn graciously linked to an f/k/a discussion of the ethics of contingency fees, and we will rouse ourselves enough to opine that it’s a pretty good place to go to learn about the topic (and it suggests a clear answer to the reasonableness of Troiano’s fee).

DandelionClock As summer turns the corner toward autumn, we have no idea whether seasonal or chronic allergies will continue to make new punditry taboo here at f/k/a.  We will confidently predict, however, that haiku will always be in season.   


a child’s magician hat–
dust motes float
in the moonlit attic

      rebecca lilly from The Heron’s Nest Vol IV:8

early sunset . . .
the shapes
of the clouds







early autumn —
reaching for blankets
after midnight






early March
the stream spreads
over pond ice




“early sunset” – Frogpond XXVIII:3 (Museum of Haiku Literature Award)
“early autumn” – Frogpond XXIX: 1 (2006)
“early March” – Frogpond XXIX:2 (2006)



health food store:
a loud sneeze
in the candle aisle


June 21, 2006

one breath at a time

Filed under: Haiku or Senryu,Uncategorized — David Giacalone @ 10:53 pm

f/k/a‘s Punditry Hiatus continues, so you still won’t find commentary or carping at the top of the page, despite this new posting.  haikuEsq will, however, roll out of his hammock occasionally to bring you more one-breath poetry from our Honored Guest Poets — they are too much of a treasure to keep them hidden during our down time.

Therefore, new haiku and senryu (along with tanka and short haibun) will be added to the top of this page on an irregular schedule.  The f/k/a Gang will stay out of the way and let our haijin friends advocate for their art, one breath at a time

Let’s start with a dozen poems contributed to the June 2006 edition (Vol. VIII: 2) of The Heron’s Nest by some of f/k/a‘s favorite haiku poets:


New Year’s Day
the center of the chocolate
not what I expected



vast blue sky
     we empty
     her closets

        by Carolyn Hall, The Heron’s Nest (VIII: 2, 2006)


a penny for my thoughts?
the fireflies
of last summer  



midwinter thaw
last night I dreamed
my dad was alive 

     by John Stevenson, The Heron’s Nest (VIII: 2, 2006)


mother’s day
a nurse unties
the restraints

   by Roberta Beary, The Heron’s Nest (VIII: 2, 2006)



starlit sky
are you sure
we are alone

   by Yu Chang, The Heron’s Nest (VIII: 2, 2006)



clear night —
snow shifts
on the windowpane 



choosing the sunniest spot
to fill my tank

   by Hilary Tann, The Heron’s Nest (VIII: 2, 2006)



night fading away —
new snow in the playground

   by Gary Hotham, The Heron’s Nest (VIII: 2, 2006)


sweet-grass braids
we bury Grandmother
without her wig

  by Andrew Riutta, The Heron’s Nest (VIII: 2, 2006)



more snow . . .
the brittleness
of the wishbone

   by Alice Frampton, The Heron’s Nest (VIII: 2, 2006)



in the backyard shade
a small gust brings coolness
and a white petal

   by George Swede, The Heron’s Nest (VIII: 2, 2006)


+ You’ll find many more fine haiku at The Heron’s Nest.

June 4, 2006

a/k/a hiatus pundit

Filed under: Uncategorized — David Giacalone @ 5:59 pm


The Management of this webspace has apparently contracted a severe allergy to weblogging — or, at least, to punditry.  Whether or when this malady will be cured or controlled is unknown.   For the time being, therefore, expect no new posting from the f/k/a Gang (viz., haikuEsq, Prof. Yabut, ethicalEsq, or Your Humble Editor’s other alter egos).

If you’ve come here to find haiku or senryu, please go to our Guest Poet Archives, where you will have access to two-years’ worth of daily postings, featuring the work of two dozen fine haijin: [in alphabetical order] Roberta Beary, Randy Brooks, Yu Chang, Tom Clausen, Devar Dahl, Alice Frampton, Barry George , Lee Gurga, Carolyn Hall, Gary Hotham, Kobayashi Issa, Jim Kacian, David G. Lanoue, Rebecca Lilly, Peggy Willis Lyles, paul m, Ed Markowski, Matt Morden, Pamela Miller Ness, w.f. owen , Tom Painting, Andrew Riutta, John Stevenson, George Swede, Hilary Tann, Michael Dylan Welch, Billie Wilson.   You can also find dagosan‘s humble offerings on his archives page

Check out our Haiku Resources Page for more information on materials available at this website (such as jim kacian’s haiku primer and our baseball haiku collection), as well as many haiku-related links.

Click here for the ethicalEsq archives; here for the wit and wisdom of Prof. Yabut; and here for our Inadvertent Searchee blurbs.

Thanks for your visits and comments over the years, and best wishes, ’til we meet again in Cyber Space.

/ david giacalone

p.s. Lost Comments: We have discovered that the Comments left at many prior posts “disappeared”, when f/k/a recently migrated to Harvard’s new and improved webserver.  Because Comments have always been a very important part of the weblog, we’re very unhappy about this situation (and the fact that we were given no warning of this potential consequence of the move).  We apologize to all those who left one or more of the Lost Comments.  If you felt that any of our postings warranted your input, please use the Search Box to find the posts and, if needed, honor us with new Comments.


cloud-covered moon —
the fireflies
are no-shows, too


May 31, 2006

the haibun pundit: our premature arrival [and departure]

Filed under: Haiga or Haibun,Uncategorized — David Giacalone @ 7:54 pm

Welcome to the very premature unveiling of the haibun pundit. Due to recent chronic problems at the old Harvard-weblog webserver, the Editor of f/k/a has decided to rush this very imperfect version of his “next stage” weblog into online publication on the new, improved Harvard webserver. If you travel down this Home Page, you will find a few sample posts featuring the new theme and haibun format. [update:  See our About Page to follow the many changes in this weblog since this post was written.  Someday, the Editor hopes to start a separate, group weblog focused on Haibun Punditry.]

The f/k/a Gang has been searching for something a bit less stressful (and maybe even more effective) than sermons or commentary on the legal profession and its ethics. Frankly, being judgmental has become a physical and psychic drain on all of us here. We’d also like to become a bit more creative and “literary”.

Although we are going to continue to feature haiku and senryu from some of the very best haiku poets around — see our Guest Poet Archive — we are also going to experiment with the “haibun” genre, twisting it a bit to fit into a weblog format that focuses on current events and issues of interest to its Editor (and his alter egoes), and contains relevant links and blurbs.

“Haibun” is a literary and poetic genre with origins in 17th Century Japan and the writings of Master Haiku poet Bashō. It is a “linked form” — and, as the haibun editor of Simply Haiku magazine tells us, “The link is between narrative, prose sections and one or more haiku.” We will be presenting our brand of “haibun punditry” using prose and poems written by the Editor (aka “dagosan“), as well as published haibun written by our Honored Guest Poets.

winding road —

under the influence

of a strawberry moon

– by dagosanThe Heron’s Nest (VII: 4, Winter 2005)

Disclaimer: It is novel, and rather unorthodox, to try to use haibun in a “punditry” context, since haibun usually steers clear of drawing conclusions. Our hope is that it is the punditry rather than the haibun aspect if this union that will be influenced most by the linkage. In addition, please bear in mind that your Editor has never attempted to write “real” haibun before this week. This is, then, a bit of brash experimentation and perhaps a neophyte’s folly. It’s hoped that those who already appreciate the haibun genre will forgive my taking the name in vain. I hope to quickly get the hang of writing passable haibun, while figuring out how to do it in a weblog-commentary context.

We’re going to try to present “non-judgmental” commentary, using a haibun sensitivity — meaning “showing rather than telling,” and using imagery and narrative rather than conclusions, with as much brevity as is possible, given the DNA of the Editor. Most of our home-grown haibun will be followed by links to online news articles and other resources that are (more or less) relevant to the topic. Please let us know how this new approach to our weblog is working for you — and don’t forget that this website will continue to contain the Archives of both ethicalEsq and f/k/a.

full tummies

and empty bladders —

soon, vice-versa

…………………. dagosan from  simply senryu

p.s. Please bear with us on the formatting of this weblog. We have much work to do with the SideBar, as well as learning some of the basics, like spacing and font use, not too mention images. It’s like starting all over again, after getting too used to the prior weblogging software and architecture..

p.p.s. For a better idea of what good haibun should be like, please go to the website of Contemporary Haibun Online, which has lots of examples, a good definitions page and many helpful links. The haibun editor at Simply Haiku, who is now w.f. owen (one of our f/k/a Honored Guests), offered the following perspective on what makes good haibun:

Readers of this and other journals will see the wide range of styles of haibun writing. Content also varies. Traditional haibun have focused on such “mundane” topics as a broom or a gate or a tea cup. Some prose presents stream-of-consciousness, occasionally surreal, writing with little or no punctuation or conjunctions. Other prose sections use reflective memories set off by ellipses and still others offer autobiographical events. Bashô’s writings give excellent examples of one’s travels (e.g., Narrow Road to the Interior). All of these forms of haibun are welcome.

In the context of this flexibility, there are some common standards or criteria submitters should heed. One criterion is to limit or eliminate repetition of words and phrases. Just as haiku are sparse and economical in wording, so too are good haibun. This does not mean a haibun needs to be short in length; it means what is written is tightly constructed. Another major criterion for a successful haibun is a successful haiku. So many fine narratives fail to be good haibun because the haiku do not stand alone as solid poetry. And there is more. Haiku, especially those that end a haibun, need to relate to previous prose sections yet not be an extension of the prose. The oblique but relevant association between haiku and prose is the defining moment of the haibun. Thus, I look for an ending haiku that does not repeat, nor does it seem so unrelated as to leave the readers scratching their heads. The haiku link offers readers a springboard to multiple, and often unexpected, meanings. That is the challenge I hope you embrace.

Note: Your Editor will be on the road June 1st and 2nd and apologizes in advance for any tardy response to Comments.

March 3, 2006

heavy breathing over “heavy hitting” lawyers

Filed under: pre-06-2006,Uncategorized — David Giacalone @ 11:36 pm

[Editor’s Note:  Please excuse all of the formatting problems below.  A change in webservers made a mess of many of our early posts.  We just don’t have the time to re-do thousands of postings, many (like this one) with very complicated formatting.  So, please bear with us.]

As Carolyn Elefant (“More Bar Silliness: Heavy Hitter is Misleading“) and Ben Cowgill (“Heavy hitters: here, there and everywhere“) both reported and analyzed today (March 3, 2006), the regulators of Nevada lawyer advertising have outdone even the most harebrained of the bar’s dignity police. (see our post “MO says legal consumers are really stupid“)
“heavyHitterLerner” Glen Lerner, Heavy Hitter
As the Las Vegas Review Journal reported, p/i lawyer Glen Lerner has been told by the Nevada State Bar that Lerner he cannot advertise himself as “The Heavy Hitter” anymore.  Instead:
at bat flip neg He can merely be “a heavy hitter.” “The bar told me by calling myself “The Heavy Hitter,” it was false and misleading because it was stating I’m the only heavy hitter,” Lerner said. “It’s beyond ridiculous.”
Yes, yes it is.  As I commented at My Shingle, Ernie Svenson may have to start calling his weblog “Ernie An Attorney.”  But, seriously, I’m not at all sure that the Supreme Court will find the issue as easy as Lerner’s attorney Dominic P. Gentile suggests. According to the Review Journal, “Gentile said the U.S. Supreme Court has made clear that if speech such as Lerner’s is accurate and not misleading, then it is protected.”  The question is whether the Court will accede to the Bar’s expertise on just what is misleading or deceptive in the context of choosing attorney services.
It’s not at all clear that this Supreme Court will take as realistic a position as the Federal Trade Commission.  In 2002, the FTC staff told the Alabama Supreme Court that “it is best for consumers if concerns about misleading advertising are addressed by adopting restrictions on advertising that are tailored to prevent unfair or deceptive acts or practices. . . . [I]mposing overly broad restrictions that prevent the communication of truthful and nondeceptive information is likely to inhibit competition and to frustrate informed consumer choice.”
.. Martin, Harding & Mazzotti – “The Heavy Hitters
Finally, Ben Cowgill asks “Why am I reminded of the book by Kentucky native Philip K. Howard, The Death of Common Sense?”  I agree that this type of lawyer advertising makes no sense from the perspective of true consumer protection.  But, it makes a lot of sense if — as I contend — the Bar’s real purpose is to create an atmosphere where there is far less lawyer advertising, because they have an enormous emotional investment in the mythic importance and “dignity” of the profession, and an enormous aversion to competition.
update (March 6, 2006):  California solo p/i lawyer Jonathan G. Stein seems to be rallying a posse for the Diginity Police at his The Practice weblog. Complaining that ads like Lerner’s Heavy Hitter commercials make all lawyers look bad, he says the market won’t regulate such marketing.  He concludes:
“[I]f you don’t think that this makes all of us look bad, you are wrong. It gives everyone a black eye. And the only way to stop it is through regulation (and remember, I am a free market economist by education).
Carolyn Elefant has a well-crafted reply today called “Watch What You Wish for.” (via Home Office Lawyer)   Carolyn makes a lot of good points (with examples of marketing Stein praises that Nevada regulators just might deem to be deceptive), and asserts :” I know that the present system isn’t perfect.  But I’ll take free speech and the attendant mess that goes with it any day over regulation by a group of lawyers.”
Ms. Elefant has it right. I’d love to know what kind of regulation Stein would endorse.  If he wants to assure a “dignified” image for lawyers, he should realize that the public has more respect for someone acting tacky than for someone acting pompous.  If he agrees with the Nevada Bar’s specious approach to “deception”  he should indeed worry about what he wishes for.
Someone looking at Stein’s weblog might think that the tagline “Helping law students and lawyers learn everything they wanted to know about law practice management” (emphasis added) promises rather more than it can deliver.  Looking at his law firm website, a consumer seeing an “about us” link might think that this solo firm has more than one lawyer, while his “Law Offices” declaration belies his one location. And, a regulator might question Stein’s definition of a “neighborhood law firm.”  Also, a real “free market economist” might take umbrage at Stein’s touting that part of his educational background.
There are lots of slippery slopes out there once the concept of “deception” is divorced from reality and reasonable consumer reactions, and is instead left in the hands of regulators who mostly don’t much like advertising.


afterthought (Noon, March 3): Early this morning, I finished listening to the audiobook of John Mortimer’s 2004 novel Rumpole and the Penge Bungalow Murders. Throughout this enjoyable memoir of Rumpole’s first big case, he is chided by Queen’s Inns and Equity Court versions of the bar’s dignity policepompous Heads of Chamber, like Wynset and Ballard, worried more about their own perquisites and appearing in the finest traditions of our great profession” than in working diligently to keep a client from the death sentence or in helping to nurture the career of a young “white wig” lawyer.


UK audio version

Rumpole, of course, refuses to see his role as being “a safe pair of hands” wearing the correct color of pants.   Yes, he never does become rich or famous, or even Head of Chambers, but he serves his clients and profession with his zeal and his soul intact.
tiny check In the haiku world, you can find true heavy-hitter haijin in the Haiku Society of America’s journal, Frogpond.  For example, our mail carrier brought the newest Frogpond (XXIX: 1) to my mailbox today, and it contains this pair from Michael Dylan Welch:
update (March 10, 2006): Is Walter Olson a secret member of the Dignity Police Posse?
foul-up follow-up (March 15, 2006): n.y. heavy hitters get dumped: who you gonna sue?
update (March 27, 2006): In the Syracuse and Rochester region of Upstate New York, the firm of Alexander & Catalano has the Heavy Hitters franchise.  In a recent article, in the Central New York Business Journal (“State Bar Association tackles attorney advertising practices,” March 18, 2006),  James Alexander responds to the crackdown on lawyer advertising proposed by the NYS Bar Association (NYSBA Press Release, Feb. 1, 2006):
“I think lawyers are very sensitized to advertising by other lawyers,” he says, estimating that about two-thirds of complaints about advertising are lodged by lawyers. “There are many lawyers who don’t approve of advertising and think it should only be done in their idea of a dignified manner.” The problem arises when different lawyers have different opinions of what constitutes a dignified manner.
at bat neg “Our avertising tends to be friendly and entertaining, for the most part, and informative,” Alexander says of the television spots that appear on all major network affiliates and cable stations in Central New York. (Alexander and his partner Catalano are often shown with baseball bats to illustrate their slogan.) Other may not agree, but it doesn’t mean the advertising is inappropriate or misleading, he says.
roses on the casket
at the lowering
wedding reception —
the weight of her bottle
on the lip of my cup

frogpond (XXIX: 1, Winter 2006)

bonus: one by michael from the newest edition of The Heron’s Nest:
beached kelp –
we examine
each other?s life lines
The Heron’s Nest (VIII: 1, March 2006)

October 11, 2003

exitedEsq: going dormant (gonna miss ya)

Filed under: pre-06-2006,Uncategorized — David Giacalone @ 7:19 pm

napper gray sm turn, turn, turn . . . .

This is the last posting for my ethicalEsq web journal.   So, I’m going to get sentimental and reflective.

[NOTE: we couldn’t stay away from weblogging and returned on December 13, 2003; click on our About page to read more about our convoluted history — which continued until March 1, 2009, when we stopped production and “archivized” f/k/a]

It’s hard to believe it was only 19 weeks ago, when I made my first news post, “P/I Lawyers v. Common Good” and went public with ethicalEsq. (I mean, Denise is still pregnant with the same Baby!)  Nevertheless, it’s time to follow my own advice to other lawyers:

Don’t take on a client or a project if your services won’t be “diligent (attentive, prompt) and competent (thorough, knowledgeable, well-prepared).”

In the Ethics Nanny business, you know it’s time to stop tilting at windmills and hang up your lance, when you can’t find the energy to write with relish about this story (“State [Ethics] attorney fined for writing on job”). For the past two months, it’s been rather difficult to keep a sharp eye or brain  focused on developments in the world of legal ethics.   My body keeps wanting naps, and my brain-ego keeps wanting to chase down just one more source and link.  It seems that the need to feel productive is a curse for Type A’s who happen to contract Chronic Fatigue Syndrome (CFS), and finding the right pace can be nearly impossible — at least for me, since becoming addicted to editing my weblog.


Yes, Lauren Hillenbrand was able to write Seabiscuit, despite having CFS, and her personal story is inspiring, but:

[H]er success came at a price. “The day after I turned in my manuscript, my health collapsed,” says Hillenbrand. “You want so much to defy this illness and live on your own terms. I hoped I could get away with it, but I couldn’t.” Debilitating symptoms of chronic fatigue, and the devastating vertigo that accompanied them, had returned with a vengeance. (from “Betting on Seabisquit,” Smithsonian Magazine, by Larry Katzenstein, Dec. ’02)

Not to make excuses for myself, but writing a bestseller like Seabiscuit is just one discrete project (although a big one).  On the other hand, riding ethical herd on the legal profession is an endless, thankless, almost infinite, and — let’s be honest — rather futile job.  Don Corleone could certainly do the job a lot better than Don Quixote, but he’d need a very big gang of enforcers.

  • A consigliere’s last bit of advice for the Godfather:  Make sure the consumer of legal services gets lots more information, competition, and options.   Then, maybe give the legal profession and its Watchdogs an offer or two they can’t refuse.  (Unbundle This!)
  • The need for a voice/conscience like ethicalEsq? within the legal profession obviously still exists.  And this web log has demonstrated that there is an audience for its message.   Where are the legal ethics professors, law students, bar counsel, or bar leaders who care deeply about client-oriented reforms? The web-log-osphere awaits them.
  • Meanwhile, readers who want updated information about reforms in the provision of legal services, should check out the newly-revised homepage of HALT for its Breaking News and Press Releases.  Like ethicalEsq?, HALT is “dedicated to helping all Americans handle their legal affairs simply, affordably and equitably.”

I know that some of the new friends I’ve made out there in Web Log Land are a little worried about me and my health, but they shouldn’t be.  I’m not seeking sympathy by telling personal details in this public place.   I’ve learned some very important lessons while dealing with a serious health condition over the past decade, and I’m glad to have learned them and lived them.   Besides discovering my own inner strength, I found out that there are things far more valuable to me than the typical American symbols of “success” — power, influence, recognition, wealth.  Being able to remove myself from ethicalEsq?‘s heady loop of positive feedback is a very good sign that I’m not forgetting those lessons.

Doing ethicalEsq has been a very rewarding experience, whether the correspondents agreed with me or not.  Until I started a web journal, I thought the internet (mostly e-mail) could be used to sustain established friendships and relationships, but couldn’t possibly create new ones of any significant value.  Well, I was wrong!

Comments and e-correspondence sparked by this website have put me in touch with some very good human beings (who can scarcely be blamed for being lawyers).   Although they are a lot busier than I, I hope to continue to connect with them across cyberspace.

  • At the end of this posting, I have listed (alphabetically) a number of the web-log related folks who have become more than just pixelated names to me, due to the quality and/or quantity of their communications, insights, inspiration, or assistance.

For now, ethicalEsq will be right here, with a rather large amount of content, and a pretty good set of links to other resources relating to legal ethics.  This whole weblog experience-experiment has been far too positive for me to forsake web-journaling altogether.

Although I could never be as cultured as George’s Fool, nor as interesting as storyteller Sherry Fowler, I certainly have opinions and observations, and some day soon hope to start a personal web diary/scratch pad.  It will deal with topics that require neither monitoring nor research.   Until then, I’ll be dropping comments here and there, and making a general nuisance of myself.   Do you think I can write an entire paragraph without a hyperlink?
Be well, do well (but have some fun).

David’s ethicalEsq Honor Roll:*
Anonymously Curmudgeonly Clerk
Carolyn Elefant
Scheherazade Fowler
B. Janell Granier
Denise Howell & Child
Madeleine Begun Kane
Ken Lammers
Jerry Lawson
Stuart Levine
Tim Mighell
Steve Minor

Jim Moore

Marcia Oddi
Walter Olson
Lucian Pera
Laurie Hyde Smith
Genie Tyburski
George Wallace
Dave Winer
Tom Workman
*If I’ve forgotten anyone, please blame it on the CFS “brain fog.”
If you had websites, you’d be here, too, Mom, Ana, Deborah Sirotkin Butler, and twinsie Arthur.
P.S. The LAST TWO CENTS from Jack Cliente (Oct. 15, 2003):  There’s no hard feelings from me and Jackie about not being mentioned in all those nice ethicalEsq? eulogies.  We’re sort of used to Mr. Editor taking all the credit.   For what it’s worth, here are some farewell thoughts, as expressed to Ernie this morning:

Now that Mr. Editor has stopped posting, I’m unemployed and have time to leave Comments. So, you get my Two Cents for free, Ernie:

Don’t send e-flowers to honor ethicalEsq?, but actively work for the consumer of legal services both out in the real world, and through the power of weblogs:

(1) help make bar associations at the local and state level client-oriented, instead of guild-oriented (e.g., improving the Discipline System would be a great place to start);
(2) harness the power of the web to make the self-help-law revolution a reality, and
(3) with or without new laws or ethical rules, get more information to consumers about their rights and options — with enough information, consumers can create their own powerful competitive forces for innovation, improved services, lower prices.

For ideas, see the Editor’s article Counselors Oughtta Counsel (Not Conceal), and the ethicalEsq? resources on Informing Consumers, Access and Affordability , Discipline System , and — don’t forget — Fees.

July 29, 2003

Professor Continues to Battle New Model Rule 1.5 and Standard Contingency Fees

Filed under: pre-06-2006,Uncategorized — David Giacalone @ 12:45 pm

Lester Brickman, ethics professor at Cardozo Law School, has taken his fight to improve New Model Rule 1.5 and its treatment of contingency fees to the Rule-making authority of each State.  Over the past few months, Prof. Brickman has sent a Letter to each presiding justice urging “you and your fellow justices to decline to adopt the proposed changes to Model Rule 1.5.” (Letter posted at ethicalEsq? by permission of the author)

Brickman is a longtime foe of the use of “standard” contingency fees — because they are frequently unrelated to the risk taken and work performed by an attorney in a particular case, and therefore often overcompensate the lawyer at the expense of the injured client.  In his Testimony to the ABA Ethics 2000, Brickman argued that current ethical standards and ethics opinions concerning the use of contingency fees were universally ignored, and that the new model rule on fees must explicitly require that contingency fees be linked to the lawyer’s risk and must inform clients of their right to be fully informed, so that they could make informed choices among fee options (such as hourly, flat or mixed fees), and negotiate the level of a contingency fee.

Brickman and other consumer advocates (such as your Editor) lost this fight before Ethics 2000.  The Commission instead proposed a Rule 1.5, later adopted by the ABA in its New Model Rules, that — according to Brickman — “trashed fiducial rights in favor of simple self-interest.”   (emphasis added)

To explain his argument in detail, Prof. Brickman enclosed with each Letter a copy of the page proofs of his soon-to-be published law review article, The Continuing Assault on the Citadel of Fiduciary Protection: Ethics 2000’s Revision of Model Rule 1.5, by Lester Brickman, 2003 Univ. Ill.L.Rev. No. 5 (forthcoming).  Brickman notes in the Letter that:

[The Article spells] out in sad detail how the ABA has abused the bar’s self-regulatory status by urging upon courts the elimination of one of the few remaining fiducial fee protections in the codes of ethics. (underscore added)

The battle over the new model rule governing contingency fees is being fought right now across the country, on the state level.  As reported in our Posting 6/30/03, Arizona recently adopted a version of Rule 1.5 that considerably improves upon the Ethics 2000 proposal, while North Carolina became the first state to adopt the new rule without changes.   Your Editor gave his version of the problems with New Model Rule 1.5 in an Open Letter to the FTC (HALT Forum, “Protecting Fees Rather than Injured Clients: The ‘Standard’ Contingency Fee and the ABA,” April 11, 2002).

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