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

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.

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.

  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! 

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.

[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.

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.

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).

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.”

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’.”

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