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February 12, 2004

Co-pays by Indigent Defendents Struck Down In Minnesota

Filed under: pre-06-2006 — David Giacalone @ 10:59 pm

According to reports at Law.com and WCCO.com, “The Minnesota Supreme Court on Thursday struck down mandatory fees the Legislature imposed last year on criminal defendants who use public defenders.” 


WCCO tv in Minneapolis reports:

In a unanimous ruling, the seven-justice court said the fees violate the U.S. Constitution’s Sixth Amendment protections.

The fees are among the budget-balancing moves approved by the Legislature last spring and are intended to raise about $10 million over the next two years to help run the public defender program. Depending on the crime, defendants are charged between $50 and $200 a case.

A similar confrontation may soon arise in Massachusetts. Find more on the nationwide crisis over funding criminal representation of the poor at the NYSDA website.

Bad Estimate, Great Service

Filed under: pre-06-2006 — David Giacalone @ 10:20 pm

Unlike some highly esteemed webloggists, I don’t normally talk about my high-tech consumer purchases, but tonight I wanted to relate a shopping experience with Amazon.com

I recently found out that I have carpal tunnel syndrome in my right wrist along with pinched nerves and other decrepitude in my neck.  [Sigh] It quickly became apparent that maintaining a laptop in an ergonomically correct position is difficult, given that the monitor is attached to the keyboard, so I decided to get an additional keyboard.

crystal ball  When I ordered it, yesterday, it was estimated that the item would not be shipped for another 5 days, and would not arrive for another 3-5 business days.  I got regular ground delivery — Free Shipping variety — and bemoaned the fact that it would be such a long time until my Logitech wireless keyboard and mouse duo arrived. 

Well, golly, the doorbell rang at noon today, and the UPS guy handed me an Amazon.com box with my Logitech Cordless MX Duo. Cool.   I’m charging the mouse now.   There are a whole lot of buttons and keys on this new-fangled device, so it might take me a while to use it proficiently (or even awkwardly). 

Is this a new (but old-fashioned) marketing technique: lower expectations and then thrill your customers with surprisingly prompt service?  It’s working, even for skepticalEsq, consumer kvetsch.

  • Hey, Ernie, how the heck does one keep this thing at a height where the wrist is straight and elbows are at one’s side close to the body, when using a desk chair with (purportedly ergonomically correct) sloping arms?  I sure hope the keyboard is shock-absorbing, as it will surely make the aquaintance of my floor in the near future.
  • For excellent instructions “to maximize your comfort and lessen the chance of injury,” working at a computer, see Logitech’s Comfort Guidelines, which are available in several languages.

P.S.  I just checked My Account, and was told that the item is “Shipping Soon,” with delivery estimate date of Feb. 18-19.  Talk about lowered expectations! 

Update (02-13-04):  At 3 PM today, 26 hours after I signed the UPS computerized receipt and opened the package with my new cordless keyboard,  Amazon.com emailed me that “We thought you’d like to know that we shipped your items today.”  Maybe I’m getting a free bonus keyboard! 


A Lincolnesque Law Practice?

Filed under: pre-06-2006 — David Giacalone @ 8:59 pm

Kevin O’Keefe just left a Comment asking if I knew what Abraham Lincoln did as a trial lawyer.  Kevin says:

I always assumed he was championing the cause of the little guy.  Within the last week I read somewhere that Abe’s days of riding the circuit to courts around Illinois and the Midwest were as a trial lawyer for the railroads. If that’s true, he certainly was not championing the cause of the underdogs while he was a lawyer. He would have been in the business of using every trick in the book to make certain that those with the money got their ‘justice’ and that the little guy received no justice.

It’s a most intriguing question, but I had not a clue to the answer.  So, I just spent 30 minutes with Mr. Google, and learned a few things:


From an Atlantic Monthly article by the Lincoln biographer Benjamin Thomas (Feb. 1954):

[On the circuit, Lincoln left] home and family for nine or ten weeks at a time, driving over muddy or dusty roads, now under a hot sun and again through pelting showers or all-day rain, putting up with the scanty comforts and monotonous fare of cheap hotels and boarding houses, where the lawyers slept two in a bed and six or eight in a room, and spending long hours in court for the ten, twenty, or fifty dollar fees, occasionally supplemented by larger ones, which, along with the more substantial fees he earned in the State Supreme Court and the Federal Courts in Springfield and the interest he received from a few notes and mortgages, added up to an annual income of some $2500.

For more detail, here are excerpts from John A. Lupton’s valuable The Law Practice of Abraham Lincoln: A Narrative Overview:

Abraham Lincoln practiced law for nearly twenty-five years in the Illinois courts. . . . Lincoln handled cases in almost all court levels: justice of the peace, county, circuit, appellate, and federal. . . . Like many of his colleagues at the bar, Lincoln was a general practice attorney and represented clients in a variety of civil and criminal actions including debt, slander, divorce, dower and partition, mortgage foreclosure, and murder.

Lincoln handled many different categories of litigation during his career. Debt-related issues filled the court system during the antebellum period, and the majority of Lincoln’s legal cases consisted of debt collection. In this type of litigation, he represented both creditors and debtors. As plaintiff attorney for creditors, he won the majority of cases because many defendants failed to appear and defaulted. As defendant attorney for debtors, he lost the majority of cases because the legal system favored creditors over debtors. He also handled cases relating to land titles, inheritance, patents, and railroads. 

In the 1850s, the Illinois legislature chartered railroads, and many of them began construction. These events increased litigation over issues of right of way, stock subscriptions, fencing, and damages to real property. Lincoln generally supported the development of railroads all over the state, but that did not prevent him from opposing the railroad companies in the courtroom. He became involved in railroad litigation and represented individuals nearly as often as railroad corporations. The Illinois Central Railroad secured his legal services more often than any other railroad, and Lincoln opposed them in only a few cases. 

Office Practice

Lincoln’s legal career did not consist solely of litigation. He maintained an office practice that included writing deeds, registering land, paying taxes, receiving money, and giving legal advice.

Legal Fees

time money abe


According to entries in their fee book, Stuart and Lincoln generally received $5 to $10 for legal fees, but in People v. Truett, an 1838 murder case, they received $500. Stuart and Lincoln generally divided fees equally. On average, Lincoln and Herndon charged a typical client $5 to $20. However, there were several occasions when Lincoln either charged his clients nothing or charged them a substantial amount. . . . Lincoln’s federal practice probably supplied him with much of his income. A case could not be heard in the U. S. Circuit Court unless it involved a dispute exceeding $500. As a result, Lincoln charged his federal clients higher fees. He probably charged clients less while practicing in the state circuit courts because disputes involved lesser amounts.

Go to Lincoln Legal Papers, for an outstanding documentary history of his law practice from 1836 to 1861 (Ill. Historical Society)


I like Lincoln’s advice to aspiring lawyers:

“Always bear in mind that your own resolution to succeed, is more important than any other one thing.”


“If you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself. That will make a lawyer of you quicker than any other way.”


His Notes for a Law Lecture are also wise and inspiring.  Here are some examples:

The leading rule for the lawyer, as for the man of every other calling, is diligence. 

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

penny sm  The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. .. . Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty — negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

Finally, for the young lawyer-storyteller or poet, who sometimes can’t quite find the right word to express a feeling, some parting lines from Benjamin Thomas in the Atlantic Monthly:

“A man of deep emotions, Lincoln craved the power to put his feelings into words. Of a commonplace poem he had once declared: ‘I would give all I am worth and go in debt, to be able to write so fine a piece as I think that is’; and, unsatisfied with the clarity and fluency that are the lawyer’s tools, he had attempted to write poems of his own.” 

  • Thanks for taking me on this tangent, Kevin.  Now, back to my Repairman Jack novel.

Fees and the Lawyer-Fiduciary

Filed under: pre-06-2006 — David Giacalone @ 6:59 pm

abe young room for growth

On this celebration of his birth, I wonder how Abe Lincoln, Esq. would have defined the fiduciary duties of a lawyer when setting fees. I’m afraid that many lawyers never consider fiduciary principles in the context of fees. That oversight goes a long way toward explaining how the legal profession managed to squander the goodwill that was its legacy from honest Lawyer Lincoln.  Here are some helpful quotes about fee-setting by the lawyer-fiduciary that might help correct the situation, and gain clients their fiducial rights.

In his Brief Primer on Legal Ethics and Legal Fees (1999), Virginia Ethics Counsel James McCauley put the basic concept quite succinctly:

Contracts between an attorney and client, be they written or oral, are not construed as are ordinary contracts between parties dealing at arms length. This is because the attorney, by virtue of accepting an engagement, enters into a fiduciary relationship with his/her client.

The Law.com dictionary of legal terms offers some broad guidance on the particulars of this fiducial duty:

fiduciary n. from the Latin fiducia, meaning “trust,” . . . . Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary is held to a standard of conduct and trust above that of a stranger or of a casual business person. He/she/it must avoid “self-dealing” or “conflicts of interests” in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts him/her/it.

While fully explicating the history and meaning of lawyer fiduciary duties, in The Continuing Assault on the Citadel of Fiduciary Protection, (2003 University of Illinois Law Review., at 1185-86; available at SSRN) Prof. Lester Brickman has explained (emphasis added):

The principal fiduciary obligations imposed on the lawyer include the duties of confidentiality, loyalty, safeguarding property, giving disinterested advice, and acting fairly towards the client. The duties to act fairly and in a non-self-interested fashion, in particular, relate to the financial relationship between the lawyer and client and require that a lawyer present the client with information regarding the fee arrangement that approximates what the client would obtain if the client consulted a second lawyer for assistance in negotiating the fee arrangement with the primary lawyer. Fairness is to be determined according to a heightened fiduciary standard rather than the arms-length marketplace standard.

pointerDudeSm Similarly, in 1996, the ABA Task Force on Lawyer Business Ethics, issued its Statements of Principles in Billing for Legal Services (excerpted in Business Lawyer, 51 Bus. Law 1303, Aug. 1996), which included these notable introductory remarks:

[T]he Statement of Principles in Billing for Legal Services and the Statement of Principles in Billing For Disbursements and Other Charges are predicated upon an understanding between lawyer and client. To be valid, such an understanding requires, at the least, a fully informed client, whose information usually comes from the lawyer seeking agreement. The form, nature, and extent of the disclosure will depend on the sophistication and knowledge of the client as to legal matters and business dealings with lawyers. Thus, what might constitute acceptable disclosure to an in-house counsel accustomed to negotiating with lawyers over engagement letters and fee arrangements might be unacceptable when dealing with a business executive very knowledgeable about technical aspects of the business, but relatively inexperienced in dealing with lawyers over fee arrangements, the custom in the community with respect thereto, or the availability of alternative fee arrangements.

The courts and lawyer-disciplinary bodies normally do not require separate representation of the client with respect to the billing aspect of the engagement, even if the client is woefully naive. They often look, however, at the fairness of the understanding with skepticism, insisting that the lawyers carry the burden of establishing fairness.

In setting fees, then, the lawyer-fiduciary must act in a manner that puts the client’s interest first. Making sure the client is fully informed when entering into the fee arrangement is essential, taking into account the sophistication level and experience of the particular client.

  • Asking what fee might result, if the client had engaged another lawyer solely to negotiate fees, seems to me to be a very useful standard. update: Don’t laugh. Canadian tort lawyers Polten & Hodde have this advice on their contingency fee FAQ page:“Negotiate with your lawyer. It may well be advisable to pay a separate, independent lawyer to negotiate the contingency agreement with the lawyer who is taking your case. Don’t laugh. If a small up front fee saves you $100,000 in fees down the road, it is money well spent.” (for more in this spirit, see our prior post a Canadian role model, Jan. 5, 2005.)

Afterthought: See our follow-up posting, A Lincolnesque Law Practice, for details on A. Lincoln trial lawyer and on his approach to law practice, including fees. (Thanks to Kevin, whose Comment inspired the subsequent post).

update ( Sept. 4, 2007): Further discussion and analysis on this topic can be found in our new post “contingency fees and the clueless fiduciary” (Sept. 4, 2007).

There Is No “Do Not E-mail Registry”

Filed under: pre-06-2006 — David Giacalone @ 12:20 pm

The Federal Trade Commission is alerting consumers that The National Do Not Email Registry is a sham and a scam, as there is no such Registry.  According to a press release posted this morning:

The FTC is concerned that the “unsub.us”site could be part of a high-tech scam that uses a deceptive Web site to trick consumers into disclosing their e-mail address or other sensitive personal information. This site may be a ruse to collect valid e-mail addresses to sell to spammers. The result could be even more spam for consumers who sign up for this “registry.” Or it may be even worse – some scammers have collected information through bogus web sites like this one that mimic those of legitimate organizations, and then used the information to commit identity theft.

At the Registry website, the “sponsors” say: “The National Do Not Email Registry is managed by National Email Registry, LLC, an Independent Consumer Protection Organization based in New York, NY.  The Registry was created to provide Consumers and Direct Marketers the tools required to help significantly reduce the volume of unwanted bulk messages ”  Just this week, Evan Schaeffer started a discussion about ‘cynic incubators” — words (such as reform and consumer) that are adopted or misused to confuse the unway.

The FTC is advising consumers not to submit their e-mail addresses or any other personal information to any site claiming to be a “National Do Not E-mail Registry.”

don't forget The agency’s Bureau of Consumer Protection says the best way to avoid scams like this one is to keep your personal information to yourself – including your e-mail address – unless you know who you’re dealing with.

Should you get an e-mail claiming to represent a “Do Not E-mail Registry,” an organization to stop spam, or even the FTC itself, report it to the FTC at www.ftc.gov or 1-877-FTC-HELP. If you believe you have already been scammed, file your complaint at www.ftc.gov, then click on www.ftc.gov/idtheft to learn how to minimize your risk of damage from identity theft.

The press release notes that the FTC is “studying the feasibility of creating a National Do Not Spam Registry, and will issue a report in June 2004. At this time, there is no legitimate “National Do Not E-mail Registry’.”

a few words from an honest lawyer

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


Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time.  — Abraham Lincoln

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