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

June 30, 2003

Law School Substance Abuse Still High

Filed under: pre-06-2006 — David Giacalone @ 3:46 pm

The New York Law Journal has an article today entitled Despite ’93 Report, Substance Abuse Persists at Law Schools (full text available with free registration for e-newsletter) (by Thomas Adcock, 6/30/03).  Honestly, I haven’t worried about this issue before, but it could clearly have a strong impact on the future of the profession and its clients (as could the Generation’s attitudes towards topics like honesty & cheating, service & entitlement — yikes!).

The NYLJ article covers a conference held on June 24th, which was hosted by Rochester, NY, attorney James C. Moore, and co-sponsored by the New York State Bar Association, the City Bar, and bar groups from seven surrounding states. Moore said the event was the first of its kind nationally. According to the NYLJ article:

  • “Ten years after U.S. law schools received a startling white paper on alcohol and drug abuse among students and faculty, there seems to be no firm evidence of improvement. Last week, at a gathering of campus administrators at the Association of the Bar of the City of New York, the focus was on what — if anything — schools can do to address substance abuse problems in this high-stress population earlier and more effectively.”
  • “According to several studies, attorneys are prone to the diseases of alcoholism and drug addiction at a ratio greater than the general population. The studies suggest this is due to the unusually high pressure of the profession.”
  • Shannon Salinas, dean of students at Columbia Law School, noted “If I put on a program about alcoholism, I don’t think any [students] would come.” Instead, Salinas believes that instruction in substance abuse should be incorporated into professional responsibility and ethics courses. In addition, she said, “The school has a big hammer,” by which she meant the reckoning during bar certification proceedings. “If you don’t take care of yourself, something may happen, and you’ll jeopardize your future. The bar notice issue is a convenient tool for law school administrators.”
  • John A. Sebert, former dean of the University of Baltimore School of Law, recommended that “Law schools should at least develop a written alcohol policy.” He suggested that the AALS report, with appendices containing formal policies adopted at some schools, might be re-released this fall, “to remind the deans — again.”

On a related topic, this month’s issue of the DC Bar’s magazine, Washington Lawyer, has a Bar Counsel column titled Factoring Disabilities Into Discipline: A Special Equation.  In it, Joyce E. Peters explains the complications that arise when substance abuse, mental illness or other disabilities are brought into the disciplinary process. Also, if you’re looking for an Articles Archive for Lawyers Seeking Counseling on substance abuse, depression, or stress, you can find a good one on the DCBar website.

New Arizona Rules Reject the Ethics 2000 Fee Conspiracy

Filed under: pre-06-2006 — David Giacalone @ 10:30 am

In a major victory for p/i clients and foes of the standard contingency fee, the Arizona Supreme Court adopted new Rules of Professional Conduct earlier this month that include fee provisions significantly different from those recommended by the ABA’s Ethics 2000 Commission and incorporated in the ABA’s New Model Rules of Professional Conduct.  The new AZ Rules, were adopted on June 6, 2003, and will be effective as of December 01, 2003.

As I have argued here, the Ethics 2000 process constituted concerted action to restrain competition over contingency fee levels. The changes made by the ABA and Ethics 2000 in Rule 1.5 of the Model Rules “make it clear that the ABA has capitulated to defenders of the ‘standard’ contingency fee. The approved Rule changes reverse recent attempts within the ABA, and by client advocates across the nation, to apply traditional ethical and fiduciary duties to the use of contingency fees.”

The most dramatic improvement in the new Arizona version of Rule 1.5 is its change to the traditional 8th factor to be considered in determining the reasonableness of a fee. Rule 1.5(a)(8) no longer has the cryptic phrase “whether the fee is fixed or contingent.” As of Dec. 1, 2003, the factor to be considered is “the degree of risk assumed by the lawyer.” Combined with factor (1)’s consideration of “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,” it is now clear in Arizona that the reasonableness of a contingency fee will depend on how much risk the lawyer assumed of working extensive hours without adequate pay, and how much skill and exertion it will take to perform the task.   That makes applying a “standard” fee to each client unethical.

In addition, the new AZ Rule restores the clause “including consideration of the degree of risk assumed by the lawyer at the outset of the representation” to a new Commentary section [3], which discusses the reasonableness standard as applied to contingency fees. The final version of Ethics 2000’s proposal removed the clause, which had been part of previous drafts.

  • Arizona also refused to follow Ethics 2000’s gutting of the current Commentary section [3] — which is now renumbered as section [5].  The ABA deleted the statement that “When there is doubt whether a contingent fee is consistent with the client’s best interest, the lawyer should offer the client alternative bases for the fee and explain their implications.” The Arizona version keeps the sentence, which supported the obigations outlined in the landmark ABA Formal Ethics Opinion 94-389 [described here], except for changing the word “offer” to “discuss with.”

Thanks to the example of the Arizona Supreme Court, States that are “uncomfortable” with the ABA’s changes to Model Rule 1.5 now have a model to use to spur competition and client choice over the level and use of contingency fees.  Lawyers, clients and consumer advocates who were disappointed and appalled by the Ethics 2000 conspiracy to defend the standard contingency fee should let the rule-making bodies in their own states know about the Arizona alternative.

The Arizona choice is in stark contrast to the path taken by North Carolina’s Supreme Court earlier this year, when it became the first state to consider the Ethics 2000 model rules and act upon the proposals. A black-line version of the North Carolina Rules (effective as of March 1, 2003) can be found hereNC seems to have joined the contingency fee conspiracy.

Two Cents from Jackie Cliente: The ABA showed its disdain for the average client, when the House of Delegates rejected a proposal by Ethics 2000 that clients be given a written statement of the hourly or flat fee that would be charged by their lawyer (despite an exemption for fees likely to total less than $500). The new Arizona Rule 1.5 (b) does include the requirement of a written statement of the basis or rate of the fee to be charged.

June 28, 2003

The Word on Lawyer Discipline: Maybe They DO Mean What They Say

Filed under: pre-06-2006 — David Giacalone @ 1:07 pm

Weakend Special: Lawyers are known for their annoying insistence on verbal clarity AND their use of words to obscure meanings — depending, of course, on whose ox might be gored.

I bring this up because a tv commercial last night promised that “nothing works better” than the advertised product.  Whenever I hear that claim, I wonder “do they mean that literally — would using nothing be better than using their product?”   That thought merged two of my favorite hobbies: contemplating the lawyer discipline system and enjoying the oddities of the English language. 

Below are some of the most important words in the realm of lawyer discipline and ethical responsibility, along with their various dictionary definitions.   Were the words chosen to clarify or obscure?  Which meaning is intended?

Code (from OneLook Dictionary Search Quick Definitions):

noun: a coding system used for transmitting messages requiring brevity or secrecy

noun: a set of rules or principles or laws especially written ones

verb: convert ordinary language into code

Rule (from OneLook Dictionary Search Quick Definitions):

noun: prescribed guide for conduct or action

noun: directions that define the way a game or sport is to be conducted

noun: dominance or power through legal authority

verb: exercise authority over

verb: be larger in number, quantity, or importance

Profession (from Wikipedia, the free encyclopedia): 

“A profession is a specialized work function within society. A profession is always held by a person, and it is generally that person’s way of generating income. Some historians believe that the foundation of modern civilization is division of labour into different professions, thus increasing the level of expertise held by professionals. ‘Profession’ is very often restricted to include only those occupations requiring extensive study, such as law, medicine, the Church or engineering. . . . Note that sociologists have been known to define “professionalism” as organised exclusivity along guild lines, much in the sense that George Bernard Shaw characterised all professions as “conspiracies against the laity”.

Sanction (from The American Heritage

June 27, 2003

Objecting to “Serial Objectors” — parasites need oversight in class actions

Filed under: pre-06-2006 — David Giacalone @ 11:34 pm

Yesterday (6/26/03), Overlawyered.com spotlighted the often un$avory tactics of “serial objectors” in class action cases.  As described in a St. Louis Dispatch article, “professional” or “serial” objectors are “lawyers who make money by threatening to hold up class-action settlements in hopes that class-action lawyers will pay them to go away.” [“More lawyers cash in on class-actions,” by Trisha L. Howard (06/21/2003), stltoday.com]

The St.LD article tells of the serial slight-of-hand practiced last autumn at the Madison County Courthouse, where objecting attorneys said they could improve a a $350 million class-action settlement for AT&T customers who claimed the company had overcharged them for leasing telephones. “A few months later, they quietly dropped their objections to the settlement, leaving the settlement only slightly changed. Even so, they pocketed fees for their trouble.” The agreement reached by class counsel (paying the objectors out of their own fees) was confidential as to the amount paid and any changes made to the settlement to “improve” it.

One “frequent objector,” California attorney Lawrence Schonbrun, who has appeared in over 60 cases in that role, says that earning a living by objecting is “a niche where a certain limited number of lawyers who are crazy and have got nothing better to do can make some money.”  The St.LD article quotes Schonbrun saying that “I can’t listen to class-action lawyers saying objectors are doing it for the money when they are the epitome of lawyers who do things for huge sums of money.”

Two law professors help explain the issues for St.LD readers:

Objectors can range from the legitimate to the leech, said class-action expert Richard Nagareda, a professor at Vanderbilt University Law School in Nashville, Tenn.

In the best case, Nagareda said, an objector improves the terms of a settlement. But at their worst, objectors use criticism to block the settlement and shake down the lead lawyers for a cut of their fees, Nagareda said.

“What professional objectors have realized is that there are gains for both sides in settling any lawsuit,” Nagareda said. “They want to mooch on the gains.”

And, as to the secret agreements:

Such an agreement, cloaked in secrecy, should raise suspicion about the validity of the original settlement in the minds of the “clients” who belong to the AT&T class, said Kathleen Clark, who teaches legal ethics at Washington University School of Law.

Clark’s question: If the class counsel were so sure their settlement with AT&T was fair, why would they dig into their own pockets to keep the case out of appellate court?

That class has the right to know about a confidential side agreement between their lawyers and the objecting lawyers because it will help them evaluate whether their lawyers did a good job representing them,” Clark said.

I think it’s time for an ethicalEsq? moment. Who is looking out for the interests of the plaintiff clients?  Why aren’t judges closely scrutinizing the objections and resulting agreements?  What possible circumstances could warrant keeping the deals confidential?  Why are the organized bar and bar ethics counsel silent on this issue?

No, my move this week hasn’t made me extra grumpy.  I am extra tired, but I’m even more tired of hearing how embarrassed the legal profession is by the supposedly tiny part of the profession that is greedy and self-serving.  Rather than being embarrassed into paralysis — which suggests either tacit acceptance or irresponsible cowardice — members of the profession need to demonstrate our outrage through tough rules, commentary and oversight.  (Or, at least some stern CLE seminars!)

  • Two Cents from Jack Cliente: At the bar (tavern, that is), we guys sometimes bad-mouth buddies who cheat on their wives, but not too loudly if the philanderer’s too large.  Honestly, we’re also a little envious and fantasize it might happen to us someday.  Makes me wonder about the “proper” attorneys, who tsk-tsk over high-rolling plaintiffs lawyers but do nothing about them.  Maybe they’re really hoping one of their partners will strike it rich in the JD-Jackpot someday (or don’t want to derail the gravy train for defense lawyers).  And, maybe they’re afraid of retaliation from the big-bucks bar buccaneers.  Me, I hope that the abused clients will wake up to what’s going on someday, and react like the abused spouse — with frying pan, hatchet, or a good lawyer of their own.

June 26, 2003

Class Action Attorneys vs. Clients (Leary’s Leery)

Filed under: pre-06-2006 — David Giacalone @ 7:42 pm

In a speech to the Class Action Litigation Summit in Washington, DC, today, FTC Commissioner Thomas B. Leary pledged that the Federal Trade Commission would continue to keep a watchful eye on class-action settlements, to ensure that the interests of consumers are adequately represented.  Leary argued that the interests of class action attorneys are not always aligned with those of their clients.   Today’s FTC Press Release summarized Leary’s address and you can find the full text here.

Com’r Leary’s main points were:

  • “We depend on private litigation to supplement our [FTC] efforts, and, therefore, we have a direct interest in the way that class actions are administered.”
  • One unintended consequence of 1966 changes in federal procedure rules that authorized “opt out” classes [in which all injured consumers, except those that affirmatively “opt out,” become members of the class] was to make class action lawyers themselves, rather than their nominal clients, the real parties in interest. This potential conflict-of-interest, which is more or less pronounced in different cases, can compromise the class action mechanism’s ability to achieve its two main goals of compensating consumers and deterring similar conduct in the future.
  • Some courts are granting certification with increasing ease, leading to dramatic consequences in today’s massive, multi-state class actions — because certification of a class almost always puts a case on a settlement track, regardless of the merits of the underlying claims.  In too many cases, the resulting bargain represents the interests of the settling defendants and the class action lawyers rather than the interests of the class members, he said.

Com’r Leary concluded his remarks by describing the FTC’s recent efforts to combat these problems in the class action area.

June 25, 2003

HALT Suggests “A Better Way to Discipline Lawyers”

Filed under: pre-06-2006 — David Giacalone @ 2:59 pm

In response to last week’s Washington Post Report on Probate Clients and their lawyer Guardians, the legal reform group HALT sent the following letter to the Editor, which appeared in Sunday’s Post [emphasis added]: 

A Better Way to Discipline Lawyers
Washingon Post, Sunday, June 22, 2003; Page B06

The June 15-16 front-page series, “Misplaced Trust,” exposed ugly abuses of the District’s most vulnerable residents by unethical lawyers. It also confirmed our findings that the attorney discipline system fails to afford justice to those who are victimized.

Sadly, this pattern of laxity, secrecy and delay is nationwide. According to the most recent American Bar Association statistics, more than 93 percent of attorney discipline cases lead to no punishment, and when discipline is imposed, it usually amounts to a slap on the wrist.

Three fundamental reforms could go a long way toward correcting this situation:

. Replace the failed system of self-regulation — lawyers policing lawyers — with disciplinary panels on which non-lawyers have a majority voice.

. Open the disciplinary system by abolishing gag rules, replacing private
reprimands with public discipline and releasing lawyers’ full disciplinary

. Impose real deadlines — hold a preliminary disciplinary hearing within
90 days, for example, and require the lawyer to attend.

Until the attorney discipline system addresses long-recognized failures and
implements meaningful reforms, unscrupulous attorneys will exploit our most disadvantaged citizens.

Executive Director

Associate Counsel

HALT — An Organization of
Americans for Legal Reform

Meanwhile, I’m still in a fog of post-move fatigue and tasks, so I’ll only state that I agree fully with the HALT analysis and recommendations.  For more information see HALT’s Lawyer Accountability Project and  Lawyer Discipline Report Card.  Our postings on the topic are listed at the top of ethicalEsq?’s Lawyer Discipline resource page.  As always, your Comments are welcomed.

June 23, 2003

On Moving Day, We’re All Curmudgeons

Filed under: pre-06-2006 — David Giacalone @ 12:48 pm

I’m going to be uncharacteristically pithy today and the next few days.  Tomorrow, a truck and some muscles will arrive to move my residence.  [No, I’m not hiding myself from the trial lawyers (yet).]  Today, a lot of unpacked items are still staring at me.  It’s hard to think lofty thoughts while engaging in the moving process and battling dust dinosaurs. 

I want to point visitors to a posting today at The Curdmugeonly Clerk, where you will find a lengthy discussion in response to the posting here yesterday on whether lawyers should be in control of the lawyer disciplinary process.  The crusty clerk has doubts about non-lawyers regulating the legal profession.  They deserve the kind of disciplined response that I won’t be able to offer for at least a few days, but I’m pleased to have CC’s input.  You, however, are invited to join in the debate right now. 

Yes, I did promise pithy.  Please enjoy the first week of summer, which is too hot for moving.  Those empty boxes are calling.

June 22, 2003

Should Lawyers Control Lawyer Discipline?

Filed under: pre-06-2006 — David Giacalone @ 2:58 pm

The Sunday Gazette (NY Capital Region) published an op/ed piece today entitled Sustained Objection: Lawyer-disciplinary process still woefully inadequate, which was written by ethicalEsq’s Editor and was originally called “D for Discipline.”  [click the link above link to read the text; the article is available by subscription only at the Gazette site]

Thirty-three years after a blue ribbon panel of the American Bar Association declared the lawyer discipline system to be in a “scandalous situation,” and over a decade after a follow-up ABA report in 1992 found that the system was still “too slow, too secret, too soft, and too self-regulated” there is very little improvement. I believe that much that is wrong with the attorney discipline system stems from the fact that it is controlled by lawyers, and that nonlawyers should instead be in charge (obtaining advice from staff attorneys as needed).  I’d like to know your opinion: Should lawyers or nonlawyers control the lawyer discipline system?   In addition to requesting (as always) Comments to this posting, I would be pleased to place a well-written Essay (up to 600 words) taking an opposing viewpoint in the Essays folder.

For further reading, I suggest HALT’s Lawyer Discipline Report Card project.  In the report’s Summary , HALT states:

Public Participation One fundamental problem that HALT’s Report Card exposes is the lack of public participation on lawyer discipline hearing panels. In most states, lawyer discipline agencies are run by state bar associations. In these states, the bar also acts as a trade association, charged with protecting the status and economic interests of the legal profession. In the remaining states, although the disciplinary agency is technically independent, the state bar has considerable influence over who sits on the disciplinary governing board, who is hired as bar counsel, how complaints are processed and what is considered unethical conduct under the state’s rules of professional responsibility. This not only poses a strong conflict of interest, but it also discourages consumers who have already been victimized by lawyers from filing complaints with agencies that are by, for and of lawyers.

In all but one state – Iowa – lawyers make up at least two-thirds of the adjudicating committee. In Arizona, California, Georgia, Indiana, Kansas, Kentucky, Mississippi, Michigan, North Carolina, Pennsylvania, Tennessee and Washington, lawyers comprise 100 percent of lawyer discipline hearing panels.
Recommendation : Public Participation The lawyer discipline system should eliminate its inherent bias by creating an independent regulatory system. Canada, Great Britain and Australia provide useful models for independent regulation.  Canada and Great Britain have provided oversight through ombudsmen and advisory commissions with most of their members drawn from outside the bar.   Australia has an independent office that handles complaints and Australian law professor Adrian Evans reports that the system consequently performs more effectively.

Also, check out In the Interests of Justice: Reforming the Legal Profession (2000) by Deborah Rhode, a professor of law and director of the Keck Center on Legal Ethics and the Legal Profession at Stanford Law School.  Professor Rhode found that over two-thirds of Americans lack confidence in the integrity of the lawyer discipline system.

update: See our post HALT Suggests a “Better Way to Discipline Lawyers” (June 25, 2003)

June 20, 2003

“Amen!” to WashPost Editorial on Guardians

Filed under: pre-06-2006 — David Giacalone @ 11:16 pm

In an editorial today (06/20/03) titled Guardians or Goof-Offs? the Washington Post aptly summarizes the findings of its two-part investigative report on the D.C. probate court and then clearly focuses on the most crucial issues raised and remaining:

It helps that training and performance standards for probate lawyers are now in place and that eligible probate guardians and conservators are being screened. It may also improve matters now that court officials will strictly enforce audit schedules and reporting requirements. But the series raises the possibility that cozy relationships between some judges and the lawyers they appoint may work against guardians and conservators faithfully performing their fiduciary roles in behalf of their clients. That is an issue that leaders of the Superior Court, the D.C. Court of Appeals and the D.C. Office of Bar Counsel, which prosecutes ethical violations, should examine promptly. Confidence in the legal system, and the Superior Court’s ability to protect the vulnerable, hang in the balance.

Amen! And, thanks to the Post for bringing this scandal to light. Read more at the Post’s Special Guardians Page, and in our postings on June 14 and 19, 2003.

June 19, 2003

Tighter Guardian Rules in D.C.

Filed under: pre-06-2006 — David Giacalone @ 12:01 pm

The Washington Post reported yesterday (6/18/03) that Chief Judge Rufus G. King III, of D.C. Superior Court, had “ordered stricter requirements and heightened scrutiny aimed at preventing guardians from neglecting or victimizing residents they were appointed to protect.”

The new rules are a quick response to WashPost investigative reporting, which we covered here earlier this week, and which should have shamed the court and the bar.  According to the Post, in an article by Carol Leonnig and Lena Sun, the rules would go into effect immediately and would:

  • bar attorneys from being paid for work until they certify they have recently checked on their clients’ health and fully accounted for their money.
  • prohibit attorneys from receiving new appointments if there are any pending ethical complaints against them.

The article added that “the court would begin to keep better track of attorneys who are failing in their duties and that the court would send auditors to nursing homes and banks to spot-check attorneys’ work.”  In addition, the Register of Wills, who runs the probate division, would be asked “to perform random audits, including calling relatives, as a way to more quickly catch abuses or dishonest lawyers.”

The Post also quotes Kelly Bagby, senior attorney for University Legal Services, an advocacy group for the mentally ill and retarded: “If people are going to put their law license on the line by neglecting their clients and their duties, there’s nothing to say their sworn declarations are truthful either.”  Bagby added, “And how would the register of wills, who has failed to notice for six years when an attorney filed no reports, track a list of attorneys with problems?”

For now, ethicalEsq? has more faith in the Washington Post‘s willingness and ability to play an active and effective watchdog role than in the Court and Probate officials.  One big remaining question, of course, is just what the D.C. Bar’s ethics counsel plans to do about this scandal.


Thanks to Mike at CorpLawBlog for highlighting yesterday’s posting on Fees and Fiduciaries, including a lengthy quote.

June 18, 2003

Fiduciaries Everywhere: Except in the Mirror?

Filed under: pre-06-2006 — David Giacalone @ 9:57 pm

I can’t help but wonder what kind of fee arrangements were made in the ERISA class actions suits that were highlighted in the blawg world and online this week. A Law.com article from the San Francisco Recorder described this “burgeoning arena of ERISA cases filed on behalf of company employees who lose their retirement savings when corporate scandals hit.” The cases are targeting new fiduciaries and broadening fiducial duties.
BenefitsBlog (June 16, 2003) asked whether the ERISA fiduciary lawsuits are “an oasis for plaintiffs’ lawyers?” CorpLawBlog referred to them as the “Newest Happy Hunting Ground for Plaintiffs’ Firms”. The Recorder article is filled with boastful quotes from plaintiffs’ lawyers about the ease and size of settlements, and the willingness of some employers who have survived their scandals to reach an agreement.  Recorder reporter Jason Hoppin gushes, “Imagine, if you will, an oasis for plaintiffs’ lawyers, where you can make new law, the bar is friendly on both sides of the aisle, there are few competitors and, of course, huge recoveries are the norm.”


It’s great that lawyers for employees who lost their pensions (and often their jobs) may have found a creative way to make the employees whole.  I’m worried, however, that there may be a large hole in that whole — of perhaps 25%, or 33%, or 40%. When it comes to fees, you see, lawyers are too often phantom fiduciaries: They are superheroes with amazing powers to detect and defeat fiduciary-defendants.  But they frequently are blind to their own duty to earn only a reasonable fee from their clients, and to fully inform those clients about the factors involved in making their fee reasonable. A lawyer’s job is to help the client assert a claim. It is not to insist on a taking a large share of that claim, in order to work for the client. [check out our 4-part essay on the ethical obligations involved with charging contingency fees]

If visitors can provide me, or point me to, information about the fee arrangements in these ERISA suits, I’d appreciate it.  I’m hoping to be pleasantly surprised by novel fee arrangements that compensate the lawyers appropriately but not outlandishly for their risk, creativity, and exertion.

P.S. Senator Dascle, with a dozen Democratic co-sponsors, has introduced Senate Bill 9, which will amend ERISA to extend fiduciary duties in the manner argued in the class action suits — and cover all pending suits on behalf of employees against insiders and other plan fiduciaries.

Update (6/19/03, 9:33 AM): See the article in today’s New York Law Journal (via law.com), entitled WorldCom Employee Claims Go Forward: Former CEO Ebbers allegedly withheld negative information about finances. Reporter Mark Hamblett quotes U.S. District Judge Denise Cote: “When a corporate insider puts on his ERISA hat, he is not assumed to have forgotten adverse information he may have acquired while acting in his corporate capacity” from In Re WorldCom Inc. ERISA Litigation, Master File 02 Civ. 4816.


June 17, 2003

Should Inexperienced Lawyers Be on Bar Referral Panels?

Filed under: pre-06-2006 — David Giacalone @ 6:16 pm

MyShingle’s Carolyn Elefant raises a good question today about the criteria to use for Lawyer Referral Systems.  Carolyn takes note of a June 13th article in bizjournal.com (free, registration required) that describes the new “objective criteria” being adopted as of September 1st by the Boston Bar’s LRS

The standards will apply to four areas most often sought out by consumers calling the LRS — personal injury, bankruptcy, employment issues and discrimination. To be eligible for a Chapter 11 bankruptcy case, for example, an attorney must have completed 3 liquidations. Carolyn muses:

“On the one hand, how can one disagree with the Bar’s goal of enhancing the quality of legal services for consumers? Yet, on the other hand, the Bar proposal creates a “chicken and egg” problem: new lawyers who don’t have the requisite experience can’t get in the door to take referrals and yet without being able to access the referral program as a source of clients, new lawyers may have difficulty in finding clients with whom to gain experience.”

Carolyn suggests a mentoring program might work to safeguard clients while allowing lawyers to gain needed experience.  I’m not so sure mentoring will work.  It’s hard enough to mentor an attorney in your own office suite; extra-office mentoring might turn out to be less than useful, even if you could find experienced lawyers willing to give new rivals a helping hand.  Carolyn suggests paying the mentor, but who would you attract as mentors?  Also, the co-counsel issues might get compicated for clients.

Instead, why not require training in the subject area plus requiring attorneys with experience below a particular level to inform clients in writing of the number of similar cases they have already handled?  Then, the client can decide on tradeoffs — e.g., inexperience, lower fees, smaller caseload, or enthusiasm vs. more experience, higher fees, large caseload (and possible ennui).

Checking out the current LRS Standards and Rules used by the Boston Bar, I learned that “An applicant may only list areas in which he or she is competent and either experienced or trained.” Fair enough, but then I was surprised to see that a “panel member may select up to thirty-six (36) practice areas for referrals.  Isn’t that a heck of a lot of (purported) experience or training?

Two Cents from Jackie Cliente: Editor promised this would be a short posting. Everything is relative and relevant for him.

Easier to Stay In Than Get In the Club

Filed under: pre-06-2006 — David Giacalone @ 4:46 pm

A visitor asked an intriguing question today — why are the standards for staying in so much more lenient than for getting into the Bar?   We would both like “Suggestions” on this topic, especially cites to any studies or reform proposals.   Here’s what VirginBound had to say:

I am looking for resources/discussion on the double standard applied to aspiring lawyers versus practicing ones via the “character and fitness” evaluation required in all U.S. jurisdictions. A couple of recent cases reversing a character and fitness denial in the jurisdiction where I used to practice (In re Vanderperren, 661 N.W.2d 27 (Wis. 2003); In re Rippl, 639 N.W.2d 553 (Wis. 2002)), when contrasted with news reports of attorney ethics violations (both practice-related, e.g., embezzlement of client funds, and non-practice related, e.g., vehicular manslaughter), highlight how anachronistic and untenable this practice has become.

It seems that if an act or behavior pattern is not deemed egregious or relevant enough to warrant disbarrment (e.g., http://www.madison.com/archives/read.php?ref=tct:2003:03:01:214290:LOCAL/STATE; NB: although this attorney’s license is suspended, it is for failure to meet state CLE requirements, not the accumulation of five DUIs, see: http://www.wisbar.org/lawyersearch/resdetails.asp?ID=1000402), that same act should not be sufficient to warrant licensure denial (e.g., In Vanderperren, the BBE’s primary concern was the applicant’s “history” of alcohol problems).

Can you point me to anything referencing either efforts to reform this practice and bring the two standards into concert or explanations justifing it’s continued existence?

Many thanks, VB

Of course, a similar phenomenom happens at a lot of law schools.  Scott Turow’s Prof. Kingsley in One L tried to scare his first year law students into believing one in three of them would flunk out of the School.  But even a couple of years later, the Harvard Law Class of ’76 was already talking about the “infallibility of the Admissions Office” — if you still had a pulse and would hand in a bluebook for each final exam, you could return, no matter what was in the bluebook. 

A skeptic like my sidekick Jack Cliente might think that the “character and fitness” committees thin out the herd to reduce the competition entering the arena.  Once you’re in the club, however, ranks are closed and self-preservation for each member becomes minimal, non-judgmental self-regulation of all members. 

On the onehand, it might be difficult to explain to the public, after clients are severely harmed, why an attorney with a prior substance abuse problem or criminal record was given a license to practice law and “prey” on clients.   On the other hand, the public might be very surprised to find out that there are any character reviews done before entry to the bar.  With my consumer protection hat on, relaxing entry requirements makes little sense to me without increasing oversight and levels of discipline.  But, the competition advocate in me likes entry to be as free as possible (once minimum competency is shown) in order to provide consumers with more options and competitors.

Economic or empirical studies on the effects of entry barriers to the legal profession might give a clue as to the direction policy should be heading.   Click on the Access & Affordability link in our Navigation menu to find descriptions of two studies that might prove useful:  Regulation of the Legal Profession, by Frank H. Stevens and James H. Love (1999), which includes a full bibliography; and Economic Impact of Regulating Professions an extensive EU report (2003) produced for the Competition Directorate-General of the European Commission, which compares the various levels of regulation and their effects in the highly diverse European nations.

Public Citizen Picks Apart Ky Bar Ad Rules

Filed under: pre-06-2006 — David Giacalone @ 12:38 pm

Public Citizen submitted a detailed set of Comments to the Kentucky Bar association’s commission on advertising rules.  A PC Press Release, dated June 2, 2003, announced and described the filing, with links to the 29-page (pdf.) submission, and to letters sent by PC on May 30th to antitrust officials at the Department Justice and FTC asking for investigation of the rules. 

Public Citizen scrutinizes each of the proposed restrictions on advertising, demonstrating in great detail that the new rules would prevent truthful and nonmisleading advertising and stifle competition — resulting in violations of both the First Amendment and antitrust laws.  Relevant legal precedent are cited throughout.  ethicalEsq? covered this topic in a posting on June 11, 2003.  

Public Citizen is especially concerned that the new rules will harm plaintiff’s attorneys for whom television advertising is crucial.  This excerpt summarize’s PC’s conclusions:

The portions of the Commission’s proposed regulations to which we object share certain common features. They forbid attorneys from using advertisements that contain statements that are truthful and can be presented in ways that are not deceptive or misleading. They assume that consumers are ignorant, naive, or stupid and will draw irrational inferences when presented with accurate statements about legal services.

They proscribe types of advertising that employ techniques that are conventional in commercial advertising generally and/or in legitimate marketing by attorneys, including attorneys in large firms catering to corporate defendants. And they are likely to have their greatest impact on attorneys who need to market their practices through mass advertising and are less capable of relying on other means of conveying the same information to prospective clients through other means (such as word-of-mouth references passed among well-connected corporate clients).

The cumulative effect of the proposed regulations would greatly magnify their individual flaws. Collectively, the regulations would result in the virtual prohibition of television advertising by attorneys that is interesting visually and in its substantive content. The regulations would handcuff attorneys who seek to employ television commercials by virtually requiring that the commercials be dull, ineffective, uninformative, and unpersuasive. The underlying impetus appears to be not protection of consumers but hostility to advertisers.

(thanks to Bert Foer at the American Antitrust Institute for pointing me to this item) 


Thanks to CAFFMONSTER for mentioning this blawg today.   Their blawg is definitely running on e-caffeine.

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