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July 31, 2003

Balking “Bar Advocates” Should End Their Bay State Boycott

Filed under: pre-06-2006 — David Giacalone @ 8:34 pm

The Boston Globe reported today that Massachusetts “bar advocates” are continuing to protest over their generally low pay and their failure to be paid for Fiscal ’03 services they have performed. (Bar advocates stage protest: They refuse cases on budget issues, by Kathleen Burge, 7/31/03.) Bar advocates are court-appointed attorneys for the indigent, who work in private law practice, and are paid by the hour.

In two postings over the past weekend (July 26, 2003), this blawg reminded my Bay State colleagues that concerted refusals to deal by otherwise independent sellers of services violate the antitrust law — even when done by professionals for quality of service or other public interest purposes, and even when done by “good guys” like low-paid court-appointed attorneys.  I’m even going to cite the U.S. Supreme Court case again for them, FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990).  Unions of employees have specific antitrust immunity for strikes and boycotts.  Private attorneys simply do not.

Some of the protesting lawyers might have gotten the antitrust liability message. In the Globe article, for example, Taunton lawyer Robert P. Kidd went syntactically out of his way to stress that each lawyer was acting unilaterally:

Spontaneously, attorneys like myself were just pushed over the edge,” said Robert P. Kidd, a Taunton lawyer refusing new cases. “Individual attorneys said: ‘Enough is enough.  I can’t afford to take these cases anymore.’ ”

Nonetheless, the article certainly suggests some coordination is going on (emphases added):

  • “One day last week, Kidd temporarily brought business in Wareham District Court to a halt when he announced that he would not take on the day’s cases. The judge queried as many as 10 other lawyers in the room, who also refused to take on clients. Finally, one lawyer agreed.” And,
  • The lawyers had originally planned their work stoppage for the fall, but after they heard about budget problems last week, some acted sooner. They say they may continue their walkout at least until the Legislature replaces some of the money cut from the budget of the last fiscal year, perhaps longer.” And,
  • “‘I think the point is to send a message,’ said Paul J. Machado, a Fall River lawyer representing the bar advocates in a class-action lawsuit filed last year that demands more money. ‘The message is how invaluable these services are. The court does not function without these services being provided.'”

Joint boycotts by competitors are banned because their coercive effects unfairly skew market forces, forcing the buyer to pay more for services or products or change conduct in some other way. Here, the government — and ultimately the taxpayer — is the buyer. By jointly refusing cases or threatening to do so, the bar advocates are counting on their coercive “message” to produce an increase in fees. (And, maybe counting on the backlogged cases to be waiting for them when the boycott is over.)  This is no way for officers of the court, and self-proclaimed defenders of the down-trodden, to be acting.

Trained and experienced lawyers ought to be able to come up with a lawful way to lobby and to get their message to the public and state officials.*  Claiming “individual” actions while acting “concertedly” doesn’t cut the muster.  My plea to my colleagues: Take those cases, serve your clients, lobby like hell.

*Footnote: You can find a lot of information about the bar advocates’ battle for better compensation at the website of the Bristol County Bar Advocates including a comparison chart showing compensation rates in other states. Additional resources include:

  • A page on the activity in other states to gain increased fees, “through the filing of lawsuits or through work stoppages”
  • Information on their Compensation Lawsuit
  • Participation in a “Lobby Day in Boston, on March 18, 2003 (the 40th anniversary of Gideon v. Wainwright, which guaranteed the right to counsel for indigent criminal defendants),
  • A link to the ABA’s “Ten Principles of a Public Defense Delivery System.”

For a Directory of County Bar Advocate Bureaus in Massachusetts, click here.

Helping Ernie Advise New Law Students

Filed under: pre-06-2006 — David Giacalone @ 3:23 pm

Nice guy Ernie the Attorney was worrying today about new law students, who would soon be lugging immense tomes around campus all day.  Here’s his suggestion to save their backs:

I have another idea for law students who tote laptops. Scan all of your materials into PDF and buy a copy of Adobe Acrobat (the educational price for the full version is around $60 –and the regular price is $250). Then learn how to put stickie notes and how to annotate using Acrobat. When you go to class take notes right on the case (or statute) that you are covering. Later you’ll be able to jump right to the pages with notes, and you’ll be able to print your notes out. Most importantly, the notes will be attached to the materials that they relate to.

With a similar spirit of empathy, my (wiseguy) sidekick, Jack Cliente, left the following Comment at Ernie’s site (slightly edited for publication purposes):

Hey, Ernie, I gotta know:

(1) How long would it take to scan every page of every text book into pdf form? And how long will it take for a copyright infringement suit to arise?

(2) Was it my Editor’s paper route or law school experience that created his chronic back problems (and grumpiness)?

(3) Do you know a good p/i lawyer with both a theory of liability for all those bad backs from stuffed student backpacks and a list of likely deep-pocket defendants? 

(4) Why aren’t you telling prospective law students the truth? To wit:  There are way to many lawyers already, and technology, plus the coming consumer-citizen self-help law revolution, will soon be forcing most lawyers to find honest, productive work (outside the profession).  So, avoiding law school altogether, or lugging books in preparation for a career change, might be the kinder, better advice.

Visitors with ethics-related advice for new law students are particularly urged to leave a Comment.   Those interested in the Self-Help Revolution might want to check out our postings on June 15th and June 18th, and surf over to Nolo.com.


Welcome  to the Blawgosphere, Robert Unterberger, with your one-day old twin (but not identical) sites, the Pennsylvania Personal Injury Lawyers Blog and the New Jersey Personal Injury Lawyers Blog.  And thanks for linking to ethcialEsq?  While the blogs may be newborns (dob 7/30/03), Robert’s resume and experience look pretty impressive.  I hope he’ll occasionally let me know whether he agrees or disagrees with the opinions voiced here.

E&L Today Has News on Managing Partners, Impaired Lawyers & More

Filed under: pre-06-2006 — David Giacalone @ 2:04 pm

The guys at Ethics & Lawyering Today got their Late July edition out just in time (July 31, 2003).   In contrast to the often prolix and pontificating style of this blawg, you can count on “pithy and practical” information from William Freivogel and Lucian Pera, approximately every month.

In addition to discussing and providing the text to four court cases on confidentiality, and two opinions on secret taping, the latest edition has three other topics of particular interest to this Editor:

(1) Delaware Sends a Signal on “Enhanced Duties” of Managing Partners.   EandLT explains that “Delaware managing partners have ‘enhanced obligations’ under Delaware rules to ensure that their firms comply with the ethics rules, especially including rules governing trust accounts.” See In re Bailey, 821 A.2d 851 (May 2, 2003)  Here’s a message that ought to be heard across the nation.

(2) Impaired Lawyers: New ABA Opinion Addresses Duties of Firms, Lawyers Concerning Impaired Lawyer.  The authors discuss the ABA Ethics Committee’s Formal Opinion 03-429 (June 11, 2003). The focus is on the duty of a firm to clients and to the disciplinary system when an attorney has a mental impairment. Here’s the synopsis of the opinion from the ABA website:. .

Obligations With Respect to Mentally Impaired Lawyer in the Firm

If a lawyer’s mental impairment is known to partners in a law firm or a lawyer having direct supervisory authority over the impaired lawyer, steps must be taken that are designed to give reasonable assurance that such impairment will not result in breaches of the Model Rules. If the mental impairment of a lawyer has resulted in a violation of the Model Rules, an obligation may exist to report the violation to the appropriate professional authority. If the firm removes the impaired lawyer in a matter, it may have an obligation to discuss with the client the circumstances surrounding the change of responsibility. If the impaired lawyer resigns or is removed from the firm, the firm may have disclosure obligations to clients who are considering whether to continue to use the firm or shift their relationship to the departed lawyer, but must be careful to limit any statements made to ones for which there is a factual foundation. The obligation to report a violation of the Model Rules by an impaired lawyer is not eliminated by departure of the impaired lawyer.  (emphasis added)

  • As mentioned in our posting on June 30th, the June issue of the DC Bar 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.

(3) Client Files: North Dakota Adopts New Rule Banning Retaining Lien, Clarifying Obligations on Client Files.   EandLT  explains discusses and links to a new N.D. Rulemaking that “bans retaining liens on client files and provides reasonably clear and very helpful guidelines for client access to a lawyer’s file.” North Dakota Rule of Professional Conduct 1.19 (effective Aug. 1, 2003).

As you can see, there’s lots of good stuff at their site, including their Archives.

Lawyer for Clergy Sex Abuse Victims Takes Ethics Complaint by Diocese Public

Filed under: pre-06-2006 — David Giacalone @ 10:13 am

“High-profile” New York lawyer John Aretakis uses the press as an integral part of his many lawsuits on behalf of victims of clergy sexual abuse.  According to the New York Law Journal, he’s decided to go public with his fight against resulting ethics complaints, which he says are used by Albany’s Catholic Diocese to stifle his legal advocacy on behalf of his clients.

In the NYLJ article, captioned Lawyer and Diocese Wage Ethics Battle in Public, reporter John Caher (07-31-2003) writes:An attorney’s right or obligation to publicly advocate for his clients, and to make protected allegations within the confines of a lawsuit, is in sharp focus in an ethics complaint lodged against a plaintiffs’ lawyer at the center of the clergy abuse scandal rocking the Roman Catholic Diocese of Albany, N.Y.”  (emphasis added)

The NYLJ article continues:

Aretakis, who was representing alleged victims of clergy abuse years before the national church scandal broke, is a particularly aggressive and media-savvy advocate who has used publicity and the threat of it in demanding settlements.

Church officials have repeatedly questioned Aretakis’ professional ethics, while Aretakis, a solo practitioner, has repeatedly suggested that the diocese and Bishop Howard J. Hubbard are attempting to stifle litigation by stifling the litigator.

The ethics complaint at issue here was filed by Sister Anne Bryan Smollin, a defendant in a lawsuit filed by Aretakis.  Sister Smollin takes issue with questions raised by Aretakis about her qualifications and impartiality counseling clergy abuse victims.  In addition, she points to Aretakis as the source of untrue allegations about her personal life.

The story is also covered in today’s Albany Times Union (“Lawyer in church abuse cases faces complaints”, by Andrew Tilghman, 7/31/03), and various aspects of Artekasis’ battle against the Diocese have received much local tv coverage. In one recent story, Curtis Oathout, a primary plaintiff in an Aretakis sex abuse case, was granted his request to hire a new lawyer, after he cited “irreconcilable differences” with Aretakis, due to the lawyer’s unacceptable actions” in his lawsuit against the diocese. (WTEN news report, posted June 19, 2003.

I can’t pretend to know enough about the facts to have an opinion on the outcome of this ethics investigation.  Absent a judge’s gag order, a lawyer certainly should be able to make truthful statements to the press, about a pending (and non-frivolous?) lawsuit.   Whether doing so actually helps the client’s cause is another matter completely.   I wonder if requiring “honorable” rather than “zealous” advocacy on behalf of a client would alter the lawyer’s ethical restraints or duties.  (See our posting about Arizona’s deletion of “zeal” from its Rules of Conduct.)

Check out a recent article in Law Practice Management Magazine, Dealing with the Media: How to Protect and Enhance Your Clients’ Interests, for some do’s and don’t when dealing with the press. (by Monica Bay, May/June 2003, Vol. 29, Issue 4).

July 30, 2003

Kritzer Contingency Fee Article: More Bunk Than Debunk

Filed under: pre-06-2006 — David Giacalone @ 3:59 pm

[Welcome, Visitors from Overlawyered.com!]

Oklahoma personal injury lawyer Brian Huddleston asked me last month for my reaction to a law journal article by Prof. Herbert M. Kritzer, of U. Wisconsin-Madison.  The article, which is often cited by opponents of “tort reform” and proponents of the current contingency fee system, is Seven Dogged Myths Concerning Contingency Fees, which was in the Fall 2002 edition of the Washington U. Law Quarterly.

Far from debunking the most important “myths” about contingency fees, the Kritzer Article sets up an army of strawmen, shoots statistical and rhetorical blanks at them, and assures a hollow victory in the battle by using volunteer soldiers from the ranks of p/i lawyers.   In fact, the article actually strengthens my most important factual claims about the use of contingency fees, makes no attempt to address ethical issues, and then concludes with a proposal totally consistent with my own:

The Article does a poor job debunking the “seven dogged myths” that Kritzer says are spread by the “so-called tort reform movement.”  He describes the proponents of tort-reform as seeking “to reduce both the exposure to lawsuits and the amounts paid out in damages” (which is why p/i plaintiffs lawyer oppose the movement).   I believe that tort reform is a matter of political and social policy, not legal ethics.  It isn’t my fight. I want clients to get all that they deserve, and I want their lawyers to take only the fees that they deserve.   So, I’m leaving it to actual tort reform advocates to respond point by point to Kritzer’s arguments, and I’m looking forward to the upcoming reply by Prof. Lester Brickman to Kritzer’s empirical “evidence” and arguments, which will be published in the Washington [St. Louis] Law Quarterly.  (Brickman’s fight against excessive contingency fees was discussed in a posting yesterday on this site.  See, this article for a summary of my own position on using a standard contingency fee.  Also, check out the Fees section of our Ethics Resources.)

I will, however, point out the biggest probem with Kritzer’s underlying data and resulting conclusions:  His “most important” source of information is his own “Wisconsin study” of contingency fee usuage. The study is amazingly flawed and suspect from the start, because it uses data from cases and fees chosen and reported by self-selected participants.

  • Prof. Kritzer states that the respondents were 51% or less of the contingency-fee-using lawyers who had been sent the questionnaire.  When a study uses data collected from randomly chosen sources, 51% of the target population is far more than necessary to obtain statistically valid information.  But, the target population here knew the purpose of the study (to debunk contingency-fee myths), had a stake in the outcome, decided themselves whether to participate and, if they did, which examples fit the categories of information request.  No self-respecting lawyer or accountant would let her client make practical or policy decisions based on such a study.

The Kritzer Article supports my concerns about the current use of contingency fees in several ways:

(1) Kritzer states that of the 989 cases he studied (which came from volunteer participants who also selected which cases they reported) “on the order of 60% of the cases employed the standard one-third contingency fee.” Of those that didn’t use a flat 33%, some charged a variable fee that started at 25% or 33% and went to 40% or 50%, if the case entailed significant trial preparation, went to trial, or had an appeal.  Saying, in effect, “hah, hah, sometimes we charge even more than 33%, so there’s no standard fee” is scarcely a persuasive argument.  It is clear that a very large percentage and number of consumers are presented with only a contingency fee option (and given no opptunity to negotiate the percentage rate).  We have no idea if the variable rates used in some reported cases were the offered initially by the lawyer or were demanded by the rare savvy consumer.   Nor do we know if an example given by a p/i lawyer to show that he has in fact offered some client an hourly rate is the bogus situation where the offer is intentionally meant to scare the client away — because the case is so obviously weak that the “injured” party would never try to bankroll his own case.   Kritzer in no way helps quantify the key question in my approach: How many lawyers are willing to negotiate and tailor the fee arrangement to the particular client’s situation, while giving the client enough information and objective advice to make an intelligent choice?

(2) Kritzer also argues against the supposed myth that p/i lawyers take every case that walks into their doors. No sane observer of the legal scene believes that myth or mouths it. Quite the opposite is true: p/i lawyers sort through cases all the time, rejecting the poor prospects (and advertising that they only take “serious” injuries that could bring huge fee jackpots).  That’s why I know that an experienced p/i lawyer can and does make intelligent guesses about the likely outcome of a case, greatly lowering the overall risk in his or her practice. And, that’s why I’ve often suggested that one possible pricing strategy might be a three-tier percentage system based on the lawyer’s perception of the risk: You give the client a good faith evaluation as to whether the case appears to be low, medium or high risk, and offer corresponding percentages (e.g., 13-23-33%).  And you also let the client know that a hourly fee could be negotiated — just like in marital or commercial cases, where the client often has no idea what the final outcome or bill will be.

(3) After sketching a fictional scenario where a lawyer discusses the option of using an hourly fee, Kritzer simply concludes “With all of these considerations, most clients would choose the contingency fee over the hourly fee.” Making such broad assumptions and arguments, or using worse-case scenarios — which I often hear from actual practicing personal injury lawyers — is precisely the wrong approach if the issue is the fairness of the fee for each individual client and case.   Instead, one key question is whether p/i lawyers are offering to work on an hourly basis when the client is very likely to receive a lot of money, and the lawyer is very unlikely to run up enough billable hours to earn more than the fee that would result using the local standard contingency rate.  

My focus is the individual lawyer’s ethical, professional and fiduciary obligations to the individual client. That’s what legal ethics are about.  What’s happening or not happening on the macro-level can reinforce or deter anti-consumer and anticompetitive practices, but can’t justify a failure by the lawyer to give each client undivided loyalty — even when it comes to fees or to pressure from partners to generate profits. No client should be asked to subsidize other clients with riskier cases. And, no client should be forced to enter into a contingency fee arrangement without enough information to make an intelligent choice about fee levels and options.  Beyond its failure to present valid data, Kritzer’s study does not help us gauge the ethical significance of a system that consistently uses contingency fees bearing little or no relationship to the risk and work facing the lawyer.

Finally, Kritzer concludes the article with a suggestion that is totally consistent with my own focus on preventing or punishing individual instances of excessive fees. He states:“[I]f the real goal is to protect the injured parties from greedy, overcharging lawyers, then the route is not to restrict contingency fees.  Rather, the route is to let the market find the appropriate level for such fees by removing artificial controls that allow lawyers to overcharge in a clearly identifiable subset of cases.”  (emphasis added)

Of course, to make the market work, “consumers” need to be well-informed and the “sellers” need to actively compete on the basis of price (to wit: no conspiracy to limit the advertising or offering of fee options other than the local standard contingency fee).

P.S. To the probable dismay of trial lawyers who actually read the entire Article, Prof. Kritzer also makes the following observation in his conclusion: “More importantly, if there are cases that do not merit paying a lawyer a one-third contingency fee because they can be easily settled, then such cases could be handled by nonlawyers; nonlawyers who handled only such cases would be able to charge fees considerably lower than those charged by lawyers.” (Emphasis added)


Fee Simple (Not): Here are two quick blurbs that are also related to legal fees:

Go Judge! Walter Olson at Overlawyered.com wrote yesterday (July 29, 2003) concerning an Australian judge, who wrote an article warning estate lawyers to stop charging excessive fees that gobble up an estate and total more than the share won by their clients. The news report from the Sydney Morning Herald carrying the story is worth a look (July 28, 2003).  Why doesn’t the good old USA have such judges?

Common Better?  In May, as you probably know, Common Good unveiled its “Early Offer” Settlement proposal, and filed petitions in 13 States seeking to reduce contingency fees in situations where an early settlement is reached.  At the time, the organization stressed its willingness to listen to suggestions to improve the proposal.  For example, Michael Horowitz of the Hudson Institute, one of the drafters of the plan, told the New York Times, “[I]t should not give defendants an unfair advantage. If we have struck the balance between those two needs incorrectly, we are willing to make the necessary changes.” (May 26, 2003, now only available through their premium archive)    ethicalEsq? has heard from reliable sources that The Common Gooders are in fact working on revisions that will make the plaintiffs’ obligations less onerous, and clarify that the notice requirement is not meant to give an informational advantage to the defendant. I’ll be watching that space to see what improvements are made, but you need only watch this space. [My take on the Common Good Early Offer proposal can be seen in postings on May 30 and June 6, 2003.]

California Bar Fractiously Endorses Multijurisdictional Practice (MJP)

Filed under: pre-06-2006 — David Giacalone @ 5:06 am

Demonstrating considerably more contention than did their colleagues in New York State in June, “California State Bar leaders on Saturday [July 26, 2003] endorsed proposed rules that would open the practice of law to out-of-state attorneys.” However, according to an article in The Record, the decision came only “over the protests of a vocal minority who say the changes do not adequately protect the public.” (from Law.com, by Mike McKee, July 30, 2003). (as of 9 PM, 7/30/03, text of the proposed rule changes not yet available at the California State Bar website)

The report in The Record explained that:

“The rule changes were proposed by a state Supreme Court committee in May, and would open California’s courts to all licensed public interest lawyers, in-house counsel and attorneys practicing temporarily in the state on either litigation or non-litigation matters.”

“[A] handful of Bar governors, including two of the non-lawyer public members, argued that the ideas were being pushed too fast and that State Bar staff anticipate that 3,000 out-of-state lawyers might swarm into California.”

“The California Supreme Court will make the final decision and has asked for input by Jan. 1. The State Bar has asked for more time to make added comments.”

“Among concerns were that the proposed rules do not require out-of-state lawyers to register when they arrive, nor are they required to contribute to the state’s Client Security Fund, which repays people who have been bilked or badly represented by California lawyers.”   [emphases added] 

In contrast, only a month ago, as reporter John Caher noted in The New York Law Journal (06-25-03), the New York State Bar Endorsed MJP, with far less contention. However, the support was conditioned on subjecting the out-of-jurisdiction attorneys to New York’s disciplinary rules and authorities.

The New York Law Journal reported that NYSBA’s House of Delegates adopted “recommendations designed to provide attorneys and consumers with additional options without infringing on the privileges of the New York Bar, undermining the protections that shield law clients or unduly practicing a form of economic protectionism.”   According to NYLJ, various NY Bar leaders stressed that New York should be in the forefront of adopting rules which recognize the realities of current multi-jurisdictional practice and which foster such practice; and, given the need of many New York attorneys to practice in more than one jurisdiction, there are obvious benefits in promoting a uniform standard governing multijurisdictional practice.”  Click here to see the proposed changes to DR3-101 of NY’s Model Code. 

The NY endorsement was quite different in tone from that in California, where lawyers worried aloud about an influx of 3,000 attorneys from other states.   Thus, when announcing the decision, Thomas A. Levin, President of the NYS Bar Association stated (per a July 15, 2003 press release):

Permitting a lawyer who has been admitted in another jurisdiction to provide limited services in New York that do not create an unreasonable risk to the interest of clients, the public or the courts enhances our position as a legal center and improves lawyers’ abilities to meet client needs more efficiently and effectively. .

As a nation fully engaged in multi-state, transcontinental and worldwide commerce, but functioning with an economically outdated state and local system of admission and regulation for the law profession, there is clearly a pressing need for a modernized and uniform system allowing practice across state lines. The new system should permit MJP to operate in a manner that protects clients (from incompetence or financial loss), and allows lawyers to serve the needs of clients, while preserving the ability of the states to exercise adequate supervision and discipline.

MJP Resources:

The ABA Multijurisdictional Practice Task Force Web Pages: contain a significant amount of information and analysis on the many issues raised by MJP — issues of legal ethics, bar admission, regulation of lawyers and the unauthorized practice of law. The Commission appears to have undertaken an objective and comprehensive national study, and its proprosals were adopted by the ABA House of Delegates in August, 2002.

Task Force Final Report: Introduction and Overview  gives a useful summary of the history of the problems, issues presented, principles applied, and proposals made and adopted.  The Introduction points out:

“The existing system of lawyer regulation has costs for clients. For example, out of concern for jurisdictional restrictions, lawyers may decline to provide services that they are able to render skillfully and ethically. In doing so, they may deprive the client of a preferred lawyer including, at times, a lawyer who can serve the client more efficiently and economically than other available lawyers by drawing on knowledge gained in the course of prior work for the particular client or by drawing on expertise in the particular subject area. . . . These costs are real, not merely hypothetical, for the clients of both transactional lawyers and litigators. Irrespective of the low risk of enforcement, lawyers and law firms take jurisdictional restrictions seriously.”



(Chart) State Adoption of MJP Rules Compares each state on a number of factors related to MJP (May, 2003).

Lessons from the Multijurisdictional Practice Commission: The Art of Making Change, by Stephen Gillers, 44 Ariz.L.Rev. 685 (Fall/Winter 2002)



July 29, 2003

DOJ & FTC Support Non-lawyers Doing Real Estate Closings in Georgia

Filed under: pre-06-2006 — David Giacalone @ 5:42 pm

The two federal antitrust agencies filed a joint amicus brief today asking the Georgia Supreme Court to reject an advisory ethics opinion, which declares that non-lawyers who perform real estate closing are engaged in the Unauthorized Practice of Law. The Advisory Opinion was issued by the State Bar of Georgia UPL Standing Committee.   Click here for the text of the brief.  The case is captioned On Review of UPL Advisory Opinion No. 2003-2, Case No. S03U1451 (Ga. S. Ct.).

Georgia State Bar UPL Advisory Opinion 2003-2 (April 22, 2003) concludes:

[S]ubject to any relevant exceptions set out by the Georgia legislature or courts, one who facilitates the execution of a deed of conveyance on behalf of another within the state of Georgia is engaged in the practice of law. One does not become licensed to practice law simply by procuring a notary seal. A Georgia lawyer who conducts a witness only closing does not, of course, engage in the unlicensed practice of law. There may well exist, however, professional liability or disciplinary concerns that fall outside the scope of this opinion.

Refinance closings, second mortgages, home equity loans, construction loans and other secured real estate loan transactions may differ in certain particulars from purchase transactions. Nevertheless, the centerpiece of these transactions is the conveyance of real property. Such transactions are, therefore, subject to the same analysis as set out above.

The two agencies had submitted extensive comments to the State Bar’s ULP Committee on March 20, 2003, requesting that the Committee either declare such conduct not to be the practice of law or decline to issue an opinion. The Letter and the amicus Brief argue that preventing non-lawyers from conducting real estate closings would likely increase costs and decrease convenience for consumers, while restricting e-commerce, despite a lack of evidence of consumer injury from the practice. They caution against using unnecessary ULP restrictions to prevent competition from non-lawyers. The definition of the practice of law must take into account the public interest, the agencies assert, as determined by a balancing of potential consumer benefits and harms.

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).

Another Lawyer Boycott? NYC Blames Property-Tax Counsel for Software Co. Pullout

Filed under: pre-06-2006 — David Giacalone @ 12:13 am

According to the New York Post, City officials allege that “A group of property-tax lawyers – worried that they’ll lose considerable income – have pressured a computer consultant not to sell the city a valuable piece of property-assessment software.” (City Cries Foul Over Software Hardball, by Stefan Friedman, July 28, 2003) The Washington Times (UPI) also covered the story this morning, July 28th.

The Post article continues:

Genesis Computer Consultants may have violated antitrust laws when it pulled out of talks with the city following threats by property, or certiorari, lawyers to boycott its products, city Corporation Counsel Michael Cardozo said in a June 24 letter to the company.

Apparently, the software is used by so-called “cert” or “certiorari” lawyers to challenge property tax bills.   If the City acquires the software, its assessors would have the same easy-to-access data on incomes and expenses of individual properties over the last 10 years . City Finance Commissioner told the Post that the software “would also allow Finance to perform quick audits of how we calculate property values, making it easier to catch errors and detect any hint of corruption.” Genesis denies the allegations and disputes the City’s legal analysis.

I would have never predicted that this weblog would be drawing so often on my antitrust experience. (See yesterday’s postings, July 27th, on the refusal of Bar Advocates in Massachusetts to take cases).  If the City is correct, it’s the “cert” lawyers who deserve the most scrutiny by antitrust enforcers.  It gets my blood boiling, to think that lawyers might be pressuring a software firm to deprive other users of a valuable tool — an amazingly modern approach to protecting a guild’s source of income. Another blackeye for the profession, or another unjustified slur? We shall see.

July 28, 2003

ISO: “Attractive Nuisance” Blawgger

Filed under: pre-06-2006 — David Giacalone @ 4:42 pm

Weakday Special:

SWM blawg editor, mind currently more active than body, seeks that very special feminEsq co-blogger for creation of the “Attractive Nuisance Blawg.” Further joint productions very possible. No salary, but perks negotiable, as is position of Managing Editor. Respond to “Suggestions” Box at ethicalEsq.

p.s. Thanks to Denise at Bag & Baggage for inspiring this approach to match-making, with the line “I’ve also been enjoying the way arcane legal jargon morphs so well into catchy titles for weblogs.” Extensive Google search by this Editor failed to discover an Attractive Nuisance weblog/blog/blawg. [Please click if you need to learn about the Attractive Nuisance Doctrine in tort law.]

Tip to Lawyers: You Gotta Know WHERE to Exercise Your Free-Speech Rights

Filed under: pre-06-2006 — David Giacalone @ 12:55 am

Steve Minor at SW Virginia Law Blog disrupted my lazy Sunday evening.  He baited me to comment on the free-speech issues raised by the case of Indiana attorney Michael A. Wilkins, who was disciplined for stating in a footnote to a brief exactly what is said every day in lawyers’ lounges and law firms across the planet (cyberspace and universe, too).  To wit, that it often seems as if a judge has started with a predetermined outcome and mangled the facts and the law to reach the desired conclusion.

Marcia Oddi at The Indiana Law Blog pointed to an Indiana Star column that mentioned the Wilkins matter this morning (July 27, 2003) and his intention to bring the free-speech issue to the U.S. Supreme Court.  Marcia does a great job of linking to the history of this case, and summarizing it, so I won’t do that here, except to quote a few explanatory passages from a National Law Journal article, dated Nov. 11, 2002, by Gary Young:

In 1997, Wilkins signed on as local counsel to Michigan Mutual Insurance Co. in a dispute with an Indiana bowling alley over insurance coverage. A three-judge panel of the court of appeals ruled against Michigan Mutual in 1999, with Rucker concurring. Michigan Mutual’s lead counsel, Jeffrey R. Learned of the Southfield, Mich., firm Morrison, Mahoney & Miller, wrote a brief urging the Supreme Court to take review. In a footnote, Learned wrote that the court of appeals opinion “is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual’s opponent] and then said whatever was necessary to reach that conclusion.”

The Supreme Court declined to review the case and struck the brief from the record, describing the footnote (in 1999) as “a scurrilous and intemperate attack on the integrity of the Court of Appeals.”

Wilkins was suspended under a disciplinary rule drawn from the ABA’s model code and widely adopted by state and federal courts. Indiana Professional Conduct Rule 8.2(a) states that a “lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge.” (emphases added)

Those who know me know that I have an ongoing romance and camaraderie with irreverence, sarcasm and irony.  So, they might expect me to do a Patrick Henry and defend to the death (or disbarment) Wilkins’ right to put those words in the brief to the Indiana Supreme Court.  However, I can’t do that, because my job here is to advocate for the client’s interests, not the lawyers’ rights.

Quite simply, I think a lawyer needs to have the good judgment to frame arguments in a manner that doesn’t unduly offend a court — precisely because being offensive is far more likely to hurt than to help the client.  This isn’t a matter of the lawyer being able to forcefully advocate for the client.  It comes down to whether the lawyer is able to stifle his or her need to insult the court, and instead come up with persuasive arguments to prove his point. Most of us learned before we got out of grammar school that mouthing off to the wrong person at the wrong time, or in the wrong place, is just plain stupid (as in counter-productive). (My posting a couple days ago about stifling blawggers convers a related theme.)

Having said this, the Indiana Supreme Court has demonstrated once again, by its own lack of self-discipline, that trying too hard to preserve the dignity, authority or image of any institution almost always backfires — making the institution resemble the back side of a horse, rather than the heroic rider on the statue. The publicity their disciplinary actions against Wilkins has given those few offending words — which were “tame”, but clearly attacked the integrity of the lower court — has done far more to weaken the public’s regard for the judicial system than the buried footnote every would or could have done on its own. The flipflop on the sanction to be given Wilkins didn’t help their image or authority either.

Finally, I don’t know why the two dissenting judges didn’t just say “Wilkins did nothing to deserve punishment under the Rules of Conduct.  He really didn’t write the words and they really weren’t so bad.”  [Note: I have not actually read their dissents.]  Do they really think the First Amendment allows a lawyer to say practically anything in a brief or to a court with immunity from discipline?   I mean, their free-speech argument seems so weak, you’d almost think they were working backwards from a predetermined . . . . .

Update cum apologia: It’s Monday morning as I write this, and I’m as rested as I’m likely to be today.  So, with a nudge from Marcia Oddi, I have finally perused the dissenting opinions in the Wilkins disciplinary decision  (Oct. 29, 2002).  For any visitor who failed to notice my attempt at irony and humor in the last paragraph above, I now solemnly opine that each dissenter (Sullivan, J. and Boehm, J.) offers thoughtful comments about the relationship between the disciplinary process and free speech.  Indeed, in a true test of their wisdom, they make some of the very arguments I so feebly and crudely offered in my original posting.   My bottom line remains the same: Whatever the limits of an attorney’s free-speech rights when before a court, for the sake of the client, lawyers should make their best arguments, in a manner unlikely to offend the court, so that the offense does not become more important than the point being made. 

July 27, 2003

Update: Bar Advocates’ Boycott Threat Gets Reaction in Boston

Filed under: pre-06-2006 — David Giacalone @ 12:55 am

With a court crisis looming, legislators in Massachusetts are promising to make sure that “bar advocates” (court-appointed lawyers for the indigent) are paid in full for work they did during the past fiscal year.  According to an article in The Standard-Times (New Bedford, MA), captioned Action to end lawyers’ protest may come soon (by David Kibbe, July 26, 2003), “Legislative leaders indicated yesterday that they would act soon to pay money owed to lawyers for the indigent to stave off a work protest that is threatening to cripple the state court system.”

According to the The Standard-Times news report, “When the state’s bar advocates submitted their bills for the end of the state’s fiscal year on July 1, they were told the state had no money to pay them because the account for the Committee for Public Counsel Services had been underfunded by $12 million.”  In response, State Sen. Mark C.W. Montigny, D-New Bedford, declared that Gov. Romney and the Legislature had an obligation to pay the lawyers.

“The grievance of these hardworking, underpaid individuals is an accurate one,” Sen. Montigny said. “They are being treated unfairly. At this point, I can’t say I blame them for being fed up, but let’s make sure not one client is injured because of this protest that rightly should be aimed at the governor and the Legislature.”

Additional details can be found in an article published over the weekend by The Taunton Gazette (by Scott Dolan, 7/26/03), and an AP report on Friday in the Boston Globe (by Ken Maguire, 7/25/03).  Both articles note that Massachusetts appointed counsel for the poor are paid from $30 to $39 per hour (third lowest in the nation), which often does not cover office overhead. The Staunton Gazette quotes State Rep. James H. Fagan, D-Taunton as saying that the solution to the budget shortfall will rest with Gov. Romney, because none of the legislators will propose a supplemental budget.  “Lawyers who do CPCS work, in my opinion, have been tremendously underpaid for years,” Fagan said. “I’ve always considered it a total embarrassment that the lawyers that take these cases are treated like second-class citizens.”

The article also quotes Taunton attorney Thomas E. Workman, Jr., who said he is owed $25,000 for work completed in fiscal year 2003.  According to the Taunton Gazette (emphasis added):

Lawyers on the list for court appointment cannot technically go on strike, because they are not state employees and not part of a union, [Workman] said. Workman and several other lawyers already had a class-action suit pending against the state petitioning for a pay increase in superior court, when CPCS ran out of money. “I’m not leading this. I’m not a ringleader,” Workman said of the work stoppage. Attorney Brian D. Roman was in Taunton District Court yesterday, and said every lawyer there refused court-appointed cases.

The AP/Globe piece quotes Michelle Rioux, president of the New Bedford Bar Association, as saying ”We’re receiving e-mails daily from around the state.” She added, “After expenses, I’m probably averaging about $10 per hour.” In Bristol County, 60 lawyers called in on Friday to say they won’t take new cases.

My posting earlier today (Saturday) explained the potential antitrust liability faced by the bar advocates if they acted jointly to refuse new cases.

  • Personal Note:  I was an antitrust attorney at the Federal Trade Commission in the late 1980’s, when a similar group of court-appointed D.C. attorneys boycotted the local courts in an attempt to have their fee levels increased. Some Commission officials were reluctant to take action against such sympathetic legal colleagues, who were among the lowest-paid in the profession. The Commission nonetheless filed a petition against the D.C. lawyers, and they were held in violation of the antitrust laws. The case was upheld by the U.S. Supreme Court in FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990). The threat to competition and the resulting harm to clients (consumers), buyers (the government), the judicial system, and the rule of law prompted me to support the SCTLA petition at the time it was filed by the Commission, and I still strongly believe that the results in are SCTLA correct.    Since they have already performed the work, the Massachusetts Bar Advocates are in an even more sympathetic position than the D.C. lawyers.  Nonetheless, and despite having worked exclusively as a court-appointed lawyer for several years, I continue to believe that a concerted refusal to deal — with its inherent coercive effects and intent — is not warranted and should not be tolerated.   More than ever, uncertainty over being paid is an integral part of receiving money for services to any government entity.  Citizens and lawyers need to work to make payment for legal services to the poor a higher priority.   The antitrust law would permit an Individual lawyer (or law firm) to refuse to take cases, but they may not act in concert. 

(Catching) Update (7/27/03): Through the wonders of luck and web research, I just stumbled across an AP report from KATU 2 News in Portland, Oregon, dated May 21, 2003, stating that “The Federal Trade Commission is investigating whether 43 contract defense lawyers in Clark County [Oregon] broke any laws by refusing to take new murder cases until the county paid them more money. Jeff Sowder, organizer of the strike, says he will comply with a request from the FTC’s Northwest regional office to turn over documents related to the protest. Among them is a “manifesto” signed by 43 attorneys and distributed to Superior Court judges in late 2001.” (emphases added).

update: On June 14, 2004, the FTC issued a complaint against the Clark County “consortium” of attorneys and accepted a Consent Agreement containing a Cease and Desist order.   (FTC Press Release, with links)

I wasn’t able to find information on the FTC website about the investigation, which suggests that it’s existence has not been offically acknowledged.  .

  • You can find a mountain of information about Assigned Counsel Fees around the nation, on the excellent website of the New York State Defenders Association.


July 26, 2003

Bar Advocates in Massachusetts Are Flirting with Antitrust Trouble

Filed under: pre-06-2006 — David Giacalone @ 12:59 pm

Court-appointed lawyers for indigents in Massachusetts are “crying foul” over fees not paid by the State, but they have started a “job action” that could easily run afoul of antitrust law. According to an article yesterday in The Standard-Times (New Bedford, MA) (“Lawyers for poor cry foul,” by David Kibbe, Ottaway News Service, July 25, 2003) (pointed to by Jurist’s Paperchase, 7/26/03):

“When lawyers submitted their bills for the end of the state’s fiscal year on July 1, they were told there was no money to pay them because the state account ran a $12 million deficit. They will not be paid until the Legislature passes a supplemental budget, which could come as soon as next week or as late as the fall.”

In protest, bar advocates have started a “job action”, that reporter Kibbe writes is expected to sweep the state in coming days. He explains that “dozens of private lawyers in Bristol and Plymouth counties this week began refusing to accept new cases involving indigent clients” — a move that “threatens to overwhelm the state courts with thousands of poor defendants without lawyers to represent them.  It has triggered a flurry of phone calls and meetings between court officials and state legislators.”

The Standard-Times article notes that these private lawyers, called “bar advocates,” handle 90 percent of the 250,000 annual cases involving the state’s indigent clients in Juvenile, District and Superior courts.

Michele L. Rioux, a bar advocate who is the president of the New Bedford Bar Association, told the reporter that “We’re not whining.  We chose to do this line of work. It’s the indigent people of the commonwealth who are going to suffer because fewer and fewer attorneys are going to be able to do this work because of this rate of pay.”    Although the first half of my legal career was spent as an antitrust lawyer at the FTC, by the mid-90s, my entire law practice consisted in representation of children in Family Courts in similar appointed cases.  So I can well understand and remember how important receiving those State checks can be. [See my posting of 6/02/03, praising the fee increase for court-appointed lawyers in NYS.]

Although the MA bar advocates might not be whining, they do appear to be engaged in joint action among otherwise independent providers of legal services — to wit, a concerted  refusal to deal by competitors.  If a court or agency deems the bar advocate “job action” to be a conspiracy in restraint of trade, it will almost certainly be treated as a per se violation of the antitrust law.  For example, in 1990, the U.S. Supreme Court applied the per se antitrust rule against boycotts and price fixing conspiracies to a group of court-appointed lawyers for the indigent, in FTC v. Sup. Ct. Trial Lawyers Ass’n, 493 U.S. 411.  There was no question in SCTLA that antitrust applies to the legal profession and to the “strike” by court-appointed counsel, despite arguments by the defendants that they were protecting clients’ rights to quality legal services and exercising First Amendment rights.

This isn’t legal advice from me, of course, but I suggest as a matter of client service and public relations that MA bar advocates forget about their “job action” and go back to business as usual on Monday.  This problem may indeed be over with in a week [see our 7/18/03 posting]  If it is, you’ll all feel better about yourselves and your legal liabilities regarding the antitrust laws, while averting a massive court calamity and avoiding a pr catastrophe.

  • For further reading on how antitcompetitive practices by professionals such as medical doctors, engineers and lawyers came to be recognized as illegal under the antitrust laws, see this chapter in a monograph from the American Antitrust Institute.


Thanks to Jerry Lawson at net.law.blog for adding ethicalEsq? to his list of Blogs I Log.

July 25, 2003

Too Few Mentors

Filed under: pre-06-2006 — David Giacalone @ 11:30 pm

The legal profession needs to start nurturing mentors — preparing experienced lawyers to serve as mentors for attorneys new to the law or to a particular job or specialty. An article featured in today’s ABA Journal focuses on mentoring, and even asks whether it should be made mandatory to bridge the gap between law school and real practice — “Apprentice Attorneys: In Vermont, Months of Mentoring Supplement New Lawyers’ Training,” by Margaret Graham Tebo (July 25, 2003).

The article shows why inexperienced attorneys need mentoring, but making it mandatory probably won’t solve the problem.  It would most likely become a rote process, with both mentor and mentee just going through the motions, and signing off on a form. At its worst, it would be a few months of indentured servitude, free labor for greedy firms.

Informal mentoring within most firms also seems unsuccessful these days — there’s too much worrying about losing billable time of both the senior and junior lawyer (and many new attorneys are very shy about showing their limitations or worries to supervising attorneys).  We need a culture that values and encourages mentoring and a massive corps of attorneys who are dedicated to the process.  Perhaps the great numbers of retiring baby boomers will help bring about a boom in mentoring, but we can’t wait that long.

There’s an article that has some useful things to say about what mentoring should be. It’s by attorney Gary Seiser, and called “Mentoring: Starting the New Year Right“. (ABA Child Law Practice, Vol. 20 No. 11, pp. 171-175, January 2002). Seiser points out that mentoring needs to be a partnership and emphasizes all that the mentor can gain from the process:

Great mentors don’t mentor because they have nothing more to learn. They mentor because they don’t ever want to stop learning. The best mentors treasure the learning process and are enriched by it. They treasure sharing, and realize that in the sharing they also learn. Are all mentors that noble? No. But many are. There are other benefits for mentors too, particularly within an organization such as a court system or a social services agency. It forces mentors to stay current, so they can pass on that information. It offers mentors a challenge, making them think how to help the mentee most effectively. Further, just as mentors support mentees, mentees can also support their mentors—being loyal, providing information, going the extra mile. Mentors gain much from mentoring.

The article has pointers on do’s and don’ts for mentors, as well as suggestions for getting started in mentoring (informally or with a formal program). The article also has an extensive bibliography. If readers of this site know of successful mentoring projects or materials, please let us know, with a Comment or a note in our “Suggestions” Box.

Update (7/26/03):  Glenn K. Garnes at ESQTechlaw Weekly has posted his thoughts on the need for mentors, pointing back to ethicalEsq?  Glenn says “Second only to pro bono work, mentoring younger lawyers is probably the single most important thing an attorney can do for the community, and the profession.” (emphasis added)

And, Carolyn Elefant of MyShingle.com has also written to encourage mentoring.    But, wouldn’t you know, after I finally write what I thought was a very positive, upbeat posting, Carolyn focuses on my “cynical spin” concerning mandatory mentoring.  I’d like to think of it as realistic.   As I’ve told Carolyn, I was once as optimistic as she about the legal profession (while I was working for the federal government).   Things did change when I got down from that tower and into the trenches. 

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