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

August 25, 2003

Twelve-Steppin’ to a B.A. Vacation

Filed under: pre-06-2006 — David Giacalone @ 4:25 pm

My name is David and I’m a blawgoholic.   It has ruined my social life and threatened my health.


Thank goodness, I’ve found Blogoholics Anonymous and reserved space in a total immersion, week-long retreat, starting right now. (Well, in a few minutes.)  I have promised to stay at least twelve steps from my computer at all times through Labor Day.   Should my alter ego, Jack Cliente, hack into my website, I have programmed this weblog to keep all postings to 12 words or less.


You’ll be expected to self-police in my absence (diligently, for a change).  Maybe, I should check detod.com just one more time before shutting down.   I mean, something really important might have . . . .

Finding Self-Help Info on Bar Association Websites (Good Luck!)

Filed under: pre-06-2006 — David Giacalone @ 3:37 pm

Clicking the “Public/Consumer Resources” button on bar association websites can quickly turn Pollyanna Advocate into skepticalEsq!.  It is rare to find a bar group that lets the public know about viable alternatives to hiring a lawyer for solving legal problems.
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The defensively plaintive refrain I hear when raising this issue is “Gee, you don’t expect us to put ourselves out of business, do you?”   No, I don’t.  But, I do expect responsible “counsellors” and advisors to fulfill their professional and fiduciary duty by giving consumers objective information about the various ways to solve a legal problem.

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With that standard in mind, let’s look at some examples from cyberspace involving information on self-help resources.  [My search could not be even close to exhaustive, so I hope visitors will let me know of examples, both the good and the bad.]
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Starting on a positive note, I invite bar association officials and webmasters to view the Santa Clara County (California) Bar Association website. When you click on Lawyer Referral/Public Resources, you get a drop-down menu that lets you access its Self-Help Center/Legal Consumer Resource Center.  The introduction rightly claims uniqueness for the site, which offers over 130 links in several categories, including alternative dispute resolution, small claims and traffic court, and individual areas of law:
The Internet provides vast resources for self-help with legal matters. The Santa Clara County Bar Association is pleased to provide this unique Center for the public to assist you in more easily and efficiently helping yourself. This is a comprehensive gateway to on-line information about the law, legal procedure, and legal documents.

Though there are many simple legal matters, which you may be able to handle without the assistance of a lawyer, we strongly recommend that for the majority of legal maters an individual should seek the assistance of a lawyer; the law can be more complicated than it seems and court procedure more exacting than a non-lawyer can be expected to know. Even a consultation with a lawyer before deciding to represent yourself can be important to a successful resolution of your legal issue.

This open-minded view toward self-help options is far different than the silence or scare tactics found far more often on bar websitesE.g., the Ohio State Bar Association website offers a Consumer Resources LawFacts Pamphlet, “Attorneys.”   There is no direct mention of self-help alternatives in the brochure.  Instead, you’ll find this message:
Remember that when you have a legal problem, you should go to a lawyer. Be wary of advice and opinions from persons who are not lawyers. To consult someone who is not an attorney about a legal problem is always risky and often costly. Generally, no two legal problems are exactly alike.
More strikingly, the New York State Bar Association pamphlet You and Your Lawyer (which we gave our Judee Pamphleteering Award on August 9, 2003) contains the following section (emphasis added):

Why you should not seek to handle your own legal affairs

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A number of do-it-yourself “kits” are offered for sale from time to time. Kits are available for getting a divorce, declaring bankruptcy, or forming a business. It’s not illegal for you to use these for your own affairs; however, you risk paying the consequences. Kits may appear to save you money, but a minor detail, one that you might overlook but one that a lawyer is trained to notice, could result in a loss far greater than what you “save” by trying to be your own lawyer. After all, there’s an old saying, even for lawyers, that “he who represents himself has a fool for a client.”

The NYSBA pamphlet The Attorney’s Role in Buying or Selling A House uses a similar strategy.   It starts with the question “Do I Need an Attorney?”, then lists in detail 10 transactions (from dealing with the broker, to arranging financing, to searching title, and conducting the closing) that are part of the process.   It baldly asserts that an attorney “usually has more experience dealing with them than any other service providers for the transaction.”   The pamphlet concludes with the statement: “An attorney’s help and guidance are essential from the time you decide to buy a house until the actual closing. [all-caps, bold  blue print] That’s Why You Need an Attorney.”
  • A fairer approach to the same topic can be found in the online brochure What Should I Know Before I Buy a House from the California State Bar.  It explains many aspects of buying process and states “If you are not sure that you understand all of your rights and responsibilities, it is advisable to see an attorney who is experienced in the purchase of residential real estate. An attorney can help you with legal and tax questions that come up during the purchase of the home, and can assist you in reviewing all of the documents and reports that will be provided to you in the process of purchasing the home.”


Unfortunately, the Public Resources sections of many other bar association websites have information limited to Grievance Procedures, the group’s own Lawyer Referral system, and pro bono resources (for the indigent and other disadvantaged groups).   That’s true from the Los Angeles County Bar Association, to the San Franciso Bar, to the Association of the Bar of the City of New York .


The prevalent attitude is clearly shown on the NYSBA Lawyer Referral Page:
“Remember, if you have a legal problem, you should have legal representation. The Lawyer Referral and Information Service is designed to serve anyone who can afford the services of a lawyer. Persons who have a legal problem and cannot afford a lawyer should contact the Legal Aid office in their community.”

The consistent Message from bar associations to consumers:  “If you can afford a lawyer you should hire one.  Only the indigent cannot afford a lawyer.
Bar associations who want to improve the information they are giving the public on alternatives to retaining a full-service lawyer, can find a good model at the Santa Clara County Bar Association site, highlighted above.   They should also look at the ABA Consumer’s Guide to Legal Help on the Internet, which tells visitors:  “You may decide that the legal matter is simple and that you want to try to handle it yourself. Or you may feel that you can’t afford to hire a lawyer to handle the entire matter, and that you’d like to do part of the work yourself. If this is your situation, see our “Self Help” page for more information.”
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Consumers visiting the excellent ABA Self-Help page will find plain-English, sensible advice for deciding whether they can represent themselves, finding assistance and materials such as forms and how-to guides, understanding the concept of “unbundling” (in a section captioned Hire a Lawyer to Do Part of the Work), and locating lawyers willing to perform discrete tasks for clients.
With positive examples from the relatively small SCCBA and the giant ABA, there really is no excuse for bar association websites to be so barren or hostile on the topic of self-help law, alternative dispute resolution, or unbundling of services. If lawyers and their associations are not willing to use websites to truly inform consumers about their options, they should at least delete all the pious statements about putting the client’s interests first, living up to the highest standards of ethics, and existing to serve the public.
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Instead, bar association websites might conspicuously post this disclaimer:
Warning:  We are a guild, here to serve the economic interests of our members.  We’ll fight (’til your last dollar) to protect you from any legal adversary and to secure your legal rights.  However, when it comes to your financial interests versus our own, we will put ours first whenever possible.

Fee-duce-ary Advice and Pension Funds

Filed under: pre-06-2006 — David Giacalone @ 12:03 am

BenefitsBlogger B. Janell Grenier was nice enough to ask ethicalEsq? to comment on her posting of Aug. 21, and a Benchmark Alert, captioned Invasion of the Class Action Securities Lawyers.    The Alert states that securities class action law firms, hoping to secure lucrative lead counsel status in pension class action suits, appear to by paying lawyers who represent pensions hefty referral fees (which may or may not be disclosed to the fund-client).”   Noting that this appears to raise serious ethical questions, the article continues (emphasis added):



Pension boards rely upon their lawyers to provide them with advice regarding (1) whether to participate in a securities class action lawsuit; (2) which law firm to retain to represent them and, finally, (3) what level of contingency fee the firm should be paid. Obviously, if fund counsel is receiving 10-18% of a class action law firm’s fee for the referral, he cannot be relied upon to provide the fund with impartial advice.


It is our understanding that many legal advisers to pensions and others receiving referral fees do not disclose the financial arrangements. While states may differ as to the ethical requirements applicable to lawyers within their boundaries, in our opinion those who serve as legal advisers to pension fiduciaries should observe the highest ethical standards. 


There is indeed a great potential for harm to the pension fund client if referral fees are taken without fully informing the client of their existence and size — and, if the fees is out of  proportion to the contribution of the referring attorneys to the class action firm.   Whether in the form of a fixed fee (kickback) or a division of any future class action fees received, Model Rule 1.5 (e)  seems applicable:


(e) A division of a fee between lawyers who are not in the same firm may be made only if:



(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;


(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and




(3) the total fee is reasonable


Even if the requirement of a fully informed and consenting client is met, fulfilling the proportionality requirement in subsection (1) appears — to put it mildly — fairly difficult.   I agree with the Benchmark article: pension fund attorneys need to abide by the “highest ethical standards,” and should therefore stop taking such referral fees.   Pension funds owe it to their own beneficiaries to insist upon it, perhaps requiring a signed statement from their lawyers confirming that no referral fees will be taken.  That’s the only way to avoid the appearance of giving or receiving “fee-duce-ary” [fee-induced] advice.

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