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March 17, 2004

The Hardest Part of the Watchdog Role

Filed under: pre-06-2006 — David Giacalone @ 5:58 pm

The most difficult thing about being an ethics gadfly-watchdog is not the feeling of futility, nor the enormity of the task.  For me, the hardest part about the ethicalEsq role is the knowledge that what I have to say will often offend perfectly decent men and women.  In fact, lawyers who are most atuned to practicing ethically may be the most offended.

you! . . me?

 

This recently happened after my discussion on March 4th of law firm branding.  In the post, I voiced concerns aboout applying the premium-brand technique to the provision of legal services, “no matter the decency and quality of a particular lawyer or firm using the marketing techniques.”   My analysis used statements by Matt Homann from his the [non]billable hour weblog as examples of the branding philosophy that concerns me.  Matt responded in a short and strong Comment:


Cheap shot, David. Get to know me better before calling my ethics into question.

Matt is correct to suggest that I do not know him very well.  [I had a long telephone call with him last year about promoting mediation, and I’ve been reading his weblog daily from the day it was launched a few months ago — and plugged it that first day on ethicalEsq.]   From what I do know, Matt appears to be exactly the kind of decent, conscientious lawyer we need more of, and the kind of ethically-atuned lawyer I especially dislike offending.


  • You can decide for yourself whether I took cheap shots at Matt.   Part of my position on marketing and branding by lawyers is that it concentrates on subjects that are rather superficial, and are thus quite amenable to spoofing

“question mark gray”  I do not believe that I have called Matt’s personal-professional ethics into question.   My readers will have to decide for themselves whether they think I have.  When writing a weblog, giving examples (with links, if possible) is very important.  Because Matt has an articulate forum at his weblog, and seems to be a man of integrity, using examples from his site is quite natural.  Also, there seems to be no way to advocate for bringing fiducial principles more fully into the lawyer-client relationship, or better informing the client on fee-related issues, or making lawyer services more affordable for the average consumer, without suggesting that the legal profession — and therefore individual lawyers — are falling short of what I believe should be the ethical duties or aspirations of the profession.  

 

However, saying a particular practice or business approach seems to have ethical pitfalls for lawyers or negative results for clients is not, in my mind, the same as questioning an individual lawyer’s ethics.  I cannot know his or her intentions, nor how each client is treated by the lawyer. 


  • For example, it’s been ten weeks since I first raised questions about the practice of “value billing” by lawyers.  I raised it in reaction to Matt Homann’s praise of value billing.  And, I have literally checked his site every day since then to see if Matt has more fully explained his approach to value billing.  Since I agree with him that hourly billing has many problems, I would love to find an approach to value billing that is fair to both lawyer and client.  I hope Matt will soon unveil a roadmap to achieving that goal.

I apologize if I have offended Matt Homann, or any lawyers who in good faith attempt to live up to their ethical duties.  It’s quite easy to tell when I believe particular conduct is straight out unethical — I say it.   However, I have no investigatory powers or magic ways to learn about any one lawyer’s behavior.   When I raise general concerns over particular types of conduct, only the individual lawyer knows if my concerns are applicable to his practice — or whether my concerns are valid ones that need full consideration.

 

boxer gray  Pulling my punches because I like, admire, or enjoy a particular attorney is not, in my view, an appropriate way to run this weblog.  Being an ethics watchdog is not fun — especially for someone who genuinely likes people and likes to please them.  If someone else is out there ably doing the legal watchdog role, or the profession already does a great job policing itself, please let me know, so ethicalEsq can retire and let haikuEsq run this website (perhaps with some help from the cuddly skepticalEsq). 

16 Comments

  1. Must have been tough to write that. I think you were spot on, though.

    Comment by TPB, Esq. — March 17, 2004 @ 7:43 pm

  2. Must have been tough to write that. I think you were spot on, though.

    Comment by TPB, Esq. — March 17, 2004 @ 7:43 pm

  3. The role you have chosen for yourself is a challenging one that burdens the intellect and the soul. Don’t let that stop you!

    As long as you ask the tough questions and make the calls the way you see them, you perform a valuable service. What makes Ethical Esq. & Haiku Esq. a great service is your willingness to reexamine your calls when the need arises.

    Now for a friendly amendment to your post. Enormity means “an outrageous, improper, vicious, or immoral act. http://www.merriam-webster.com/cgi-bin/dictionary?book=Dictionary&va=enormity&x=12&y=16 I don’t think enormity was the word you intended to use in your lead sentence. I believe you were intending to refer to the relative size of the task.

    Keep asking the tough questions and keep answering them. I’ll do my part and let you know if there’s a problem with a word.

    Comment by Ann M. Byrne — March 17, 2004 @ 9:40 pm

  4. The role you have chosen for yourself is a challenging one that burdens the intellect and the soul. Don’t let that stop you!

    As long as you ask the tough questions and make the calls the way you see them, you perform a valuable service. What makes Ethical Esq. & Haiku Esq. a great service is your willingness to reexamine your calls when the need arises.

    Now for a friendly amendment to your post. Enormity means “an outrageous, improper, vicious, or immoral act. http://www.merriam-webster.com/cgi-bin/dictionary?book=Dictionary&va=enormity&x=12&y=16 I don’t think enormity was the word you intended to use in your lead sentence. I believe you were intending to refer to the relative size of the task.

    Keep asking the tough questions and keep answering them. I’ll do my part and let you know if there’s a problem with a word.

    Comment by Ann M. Byrne — March 17, 2004 @ 9:40 pm

  5. Please accept my profuse apologies for submitting my meager comment so many times. I was simply trying to correct the citation to the defintion and I really made a mess of it!

    Comment by Ann M. Byrne — March 17, 2004 @ 9:49 pm

  6. Please accept my profuse apologies for submitting my meager comment so many times. I was simply trying to correct the citation to the defintion and I really made a mess of it!

    Comment by Ann M. Byrne — March 17, 2004 @ 9:49 pm

  7. With a tremendous amount of clicking, I have deleted all but one of the eight or nine versions of your Comments.  (I’ve done similar things at other people’s websites.)  Your batch of Commentary was on the verge of both enormity and enormousness. 
    Thank you for your kind words concerning my ethicalEsq persona and personality problems.   If I end up hanging up my ethics pen, it will most likely be for health reasons — which are, unfortunately, exacerabated by the stress described in my post.
    I also appreciate your advice on word usage, and will probably follow the rule you suggest — if only to avoid getting corrected (since there are plenty of others words for “vastness”.  But, as I’m sure you noticed at the Merriam Webster webpage you cited, the third meaning of “enormity” is indeed “immensity,” and the Usage Note is not at all persuaded by your position:

    usage Enormity, some people insist, is improperly used to denote large size. They insist on enormousness for this meaning, and would limit enormity to the meaning “great wickedness.” Those who urge such a limitation may not recognize the subtlety with which enormity is actually used. It regularly denotes a considerable departure from the expected or normal <they awakened; they sat up; and then the enormity of their situation burst upon them. “How did the fire start?” — John Steinbeck>. When used to denote large size, either literal or figurative, it usually suggests something so large as to seem overwhelming <no intermediate zone of study. Either the enormity of the desert or the sight of a tiny flower — Paul Theroux> <the enormity of the task of teachers in slum schools — J. B. Conant> and may even be used to suggest both great size and deviation from morality <the enormity of existing stockpiles of atomic weapons — New Republic>.

     The American Heritage definition of “enormity” also includes “immensity” as the third meaning for the word.   However, it takes a position closer to yours about when one should use “enormousness” rather than “enormity” in its Usage Note: 

    Enormity is frequently used to refer simply to the property of being great in size or extent, but many would prefer that enormousness (or a synonym such as immensity) be used for this general sense and that enormity be limited to situations that demand a negative moral judgment, as in Not until the war ended and journalists were able to enter Cambodia did the world really become aware of the enormity of Pol Pot’s oppression. Fifty-nine percent of the Usage Panel rejects the use of enormity as a synonym for immensity in the sentence At that point the engineers sat down to design an entirely new viaduct, apparently undaunted by the enormity of their task. This distinction between enormity and enormousness has not always existed historically, but nowadays many observe it. Writers who ignore the distinction, as in the enormity of the President’s election victory or the enormity of her inheritance, may find that their words have cast unintended aspersions or evoked unexpected laughter [or weblog Comments].

    I have just learned that I can never get off this wicked machine, so that I can engage in more pleasant activity, such as reading Greg Iles’ latest novel about a computer with enormous power.

    Comment by David Giacalone — March 17, 2004 @ 10:55 pm

  8. With a tremendous amount of clicking, I have deleted all but one of the eight or nine versions of your Comments.  (I’ve done similar things at other people’s websites.)  Your batch of Commentary was on the verge of both enormity and enormousness. 
    Thank you for your kind words concerning my ethicalEsq persona and personality problems.   If I end up hanging up my ethics pen, it will most likely be for health reasons — which are, unfortunately, exacerabated by the stress described in my post.
    I also appreciate your advice on word usage, and will probably follow the rule you suggest — if only to avoid getting corrected (since there are plenty of others words for “vastness”.  But, as I’m sure you noticed at the Merriam Webster webpage you cited, the third meaning of “enormity” is indeed “immensity,” and the Usage Note is not at all persuaded by your position:

    usage Enormity, some people insist, is improperly used to denote large size. They insist on enormousness for this meaning, and would limit enormity to the meaning “great wickedness.” Those who urge such a limitation may not recognize the subtlety with which enormity is actually used. It regularly denotes a considerable departure from the expected or normal <they awakened; they sat up; and then the enormity of their situation burst upon them. “How did the fire start?” — John Steinbeck>. When used to denote large size, either literal or figurative, it usually suggests something so large as to seem overwhelming <no intermediate zone of study. Either the enormity of the desert or the sight of a tiny flower — Paul Theroux> <the enormity of the task of teachers in slum schools — J. B. Conant> and may even be used to suggest both great size and deviation from morality <the enormity of existing stockpiles of atomic weapons — New Republic>.

     The American Heritage definition of “enormity” also includes “immensity” as the third meaning for the word.   However, it takes a position closer to yours about when one should use “enormousness” rather than “enormity” in its Usage Note: 

    Enormity is frequently used to refer simply to the property of being great in size or extent, but many would prefer that enormousness (or a synonym such as immensity) be used for this general sense and that enormity be limited to situations that demand a negative moral judgment, as in Not until the war ended and journalists were able to enter Cambodia did the world really become aware of the enormity of Pol Pot’s oppression. Fifty-nine percent of the Usage Panel rejects the use of enormity as a synonym for immensity in the sentence At that point the engineers sat down to design an entirely new viaduct, apparently undaunted by the enormity of their task. This distinction between enormity and enormousness has not always existed historically, but nowadays many observe it. Writers who ignore the distinction, as in the enormity of the President’s election victory or the enormity of her inheritance, may find that their words have cast unintended aspersions or evoked unexpected laughter [or weblog Comments].

    I have just learned that I can never get off this wicked machine, so that I can engage in more pleasant activity, such as reading Greg Iles’ latest novel about a computer with enormous power.

    Comment by David Giacalone — March 17, 2004 @ 10:55 pm

  9. David: I concur with Ann that you should continue to do what you are doing. As a lawyer yourself, however, I’m sure you understand why any particular lawyer is alarmingly quick to speak up when he thinks his own ethics are being challenged. Say what you want about the legal profession, but in every state I’m familiar with, ethical breaches are taken very seriously and can result in very steep sanctions for offenders. So lawyers take challenges to their ethics very seriously too.

    I can’t speak for Matt, though I do know him personally and will attest to his superior legal ethics, but lawyers from Madison County, Illinois, are additionally touchy about ethics because we are the target of a campaign by certain tort reform advocates designed to show we are more or less crooks. (This is more true of me, being a personal injury lawyer, than Matt, who focuses his practice on other areas.) As I think you know, I have thick skin (as do most personal injury lawyers by necessity) but I think all the harping, which I hear almost every day in the newspapers around here (and now on the radio) does make me extra-sensitive when I feel my personal ethics are being attacked.

    I think that as the writer of ethicalEsq, you are already senstive to these issues, not to mention very fair-minded when you are challenged; I speak here from personal experience, since I too had an episode like Matt’s in which I thought you were questioning my personal legal ethics. No lawyer likes to have his ethics challenged publicly, especially by someone who holds himself out as being an authority on ethical issues. I know you said in your post you weren’t calling Matt’s ethics into question, and I certainly believe you about this; but I also understand why Matt would react so strongly, since even if we as lawyers aren’t completely sure whether our personal ethics are being challenged, we must defend ourselves as if they were. That’s the kind of times we are living in.

    Again, I am sure you do not post anything unless you are very certain about it. As a lawyer and faithful reader, I would only ask that you continue to be very clear to make a distinction in your writing between lawyers in general or one lawyer in particular. If you are writing about a particular lawyer, he or she should know it; if you mean only to raise a general issue about lawyers, then this should be clear.

    Finally, I agree you shouldn’t hold your punches. By my count, you’ve administered at least two to me concerning my weblogs; we then had some good exchanges about them. I wouldn’t want you to hold your punches. Just expect me to do all I can to defend myself when I think it’s necessary. (And by the way, are you waiting for any follow-up from me about any issue, as you said you were with Matt?)

    Comment by Evan — March 19, 2004 @ 1:12 pm

  10. David: I concur with Ann that you should continue to do what you are doing. As a lawyer yourself, however, I’m sure you understand why any particular lawyer is alarmingly quick to speak up when he thinks his own ethics are being challenged. Say what you want about the legal profession, but in every state I’m familiar with, ethical breaches are taken very seriously and can result in very steep sanctions for offenders. So lawyers take challenges to their ethics very seriously too.

    I can’t speak for Matt, though I do know him personally and will attest to his superior legal ethics, but lawyers from Madison County, Illinois, are additionally touchy about ethics because we are the target of a campaign by certain tort reform advocates designed to show we are more or less crooks. (This is more true of me, being a personal injury lawyer, than Matt, who focuses his practice on other areas.) As I think you know, I have thick skin (as do most personal injury lawyers by necessity) but I think all the harping, which I hear almost every day in the newspapers around here (and now on the radio) does make me extra-sensitive when I feel my personal ethics are being attacked.

    I think that as the writer of ethicalEsq, you are already senstive to these issues, not to mention very fair-minded when you are challenged; I speak here from personal experience, since I too had an episode like Matt’s in which I thought you were questioning my personal legal ethics. No lawyer likes to have his ethics challenged publicly, especially by someone who holds himself out as being an authority on ethical issues. I know you said in your post you weren’t calling Matt’s ethics into question, and I certainly believe you about this; but I also understand why Matt would react so strongly, since even if we as lawyers aren’t completely sure whether our personal ethics are being challenged, we must defend ourselves as if they were. That’s the kind of times we are living in.

    Again, I am sure you do not post anything unless you are very certain about it. As a lawyer and faithful reader, I would only ask that you continue to be very clear to make a distinction in your writing between lawyers in general or one lawyer in particular. If you are writing about a particular lawyer, he or she should know it; if you mean only to raise a general issue about lawyers, then this should be clear.

    Finally, I agree you shouldn’t hold your punches. By my count, you’ve administered at least two to me concerning my weblogs; we then had some good exchanges about them. I wouldn’t want you to hold your punches. Just expect me to do all I can to defend myself when I think it’s necessary. (And by the way, are you waiting for any follow-up from me about any issue, as you said you were with Matt?)

    Comment by Evan — March 19, 2004 @ 1:12 pm

  11. Thanks for adding significantly to this discussion, Evan.
    Please note that I do not purport to be an expert in legal ethics (and certainly not in the sense of having practiced in that specialty or steeped myself in the minutia of the Model Rules or Code) — I do purport to have a keen interest in seeing that the client’s perspective and clients’ rights receive consistent consideration and protection from the legal profession. 
    I also believe that being ethical means much more than avoiding official discipline.
    If a bar group or a weblawger says that this or that practice should be adopted by lawyers (or maintained by them), I reserve the right to say, “Gee, this doesn’t seem to live up to our professed ethical or fiduciary principles.”

    As far as whether you still have some ‘splainin’ to do, I seem to remember that you once threatened to explain why offering virtually every client the local “standard” contingency fee meets the requirements of fairness and reasonableness — especially given that contingency fees are meant to be related to the risk taken, and the fiducuary and professional obligations run to each client individually. [It is not an excuse that “everybody does it,” nor that p/i lawyers are too strong to permit policing these practices.]
    For a review of my perspective and the basis thereof, see:
    Posting 6/03/03 Using a Standard Contingency Fee is Often Unethical

    Posting 7/16/03 A Bar President Writes About Contingency Fees

    Posting 7/16/03 Challenge to Public Citizen: Help Fix the Contingency Fee System (get the current rules enforced . . . )

    Comment by David Giacalone — March 19, 2004 @ 4:20 pm

  12. Thanks for adding significantly to this discussion, Evan.
    Please note that I do not purport to be an expert in legal ethics (and certainly not in the sense of having practiced in that specialty or steeped myself in the minutia of the Model Rules or Code) — I do purport to have a keen interest in seeing that the client’s perspective and clients’ rights receive consistent consideration and protection from the legal profession. 
    I also believe that being ethical means much more than avoiding official discipline.
    If a bar group or a weblawger says that this or that practice should be adopted by lawyers (or maintained by them), I reserve the right to say, “Gee, this doesn’t seem to live up to our professed ethical or fiduciary principles.”

    As far as whether you still have some ‘splainin’ to do, I seem to remember that you once threatened to explain why offering virtually every client the local “standard” contingency fee meets the requirements of fairness and reasonableness — especially given that contingency fees are meant to be related to the risk taken, and the fiducuary and professional obligations run to each client individually. [It is not an excuse that “everybody does it,” nor that p/i lawyers are too strong to permit policing these practices.]
    For a review of my perspective and the basis thereof, see:
    Posting 6/03/03 Using a Standard Contingency Fee is Often Unethical

    Posting 7/16/03 A Bar President Writes About Contingency Fees

    Posting 7/16/03 Challenge to Public Citizen: Help Fix the Contingency Fee System (get the current rules enforced . . . )

    Comment by David Giacalone — March 19, 2004 @ 4:20 pm

  13. David: It’s true I haven’t responded to your critique of “standard” contingency fees. Thank you for providing the links.

    Comment by Evan — March 19, 2004 @ 5:14 pm

  14. David: It’s true I haven’t responded to your critique of “standard” contingency fees. Thank you for providing the links.

    Comment by Evan — March 19, 2004 @ 5:14 pm

  15. Well, as long as you’re feeling grateful for links worthy of perusal, try these, too:

    Posting 02/23/04 Better Data Show Contingency Fees Too High 
    Posting 02/12/04 Fees and the Lawyer-Fiduciary

    Posting 7/30/03 Kritzer Contingency Fee Article: More Bunk Than Debunk

    My cup runneth over.  This should keep you out of trouble over the weekend.

    Comment by David Giacalone — March 19, 2004 @ 8:52 pm

  16. Well, as long as you’re feeling grateful for links worthy of perusal, try these, too:

    Posting 02/23/04 Better Data Show Contingency Fees Too High 
    Posting 02/12/04 Fees and the Lawyer-Fiduciary

    Posting 7/30/03 Kritzer Contingency Fee Article: More Bunk Than Debunk

    My cup runneth over.  This should keep you out of trouble over the weekend.

    Comment by David Giacalone — March 19, 2004 @ 8:52 pm

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