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

[from Jack Cliente:] I’m typing this quickly, while Mr. Editor is listening to The Sinister Pig, Tony Hillerman’s latest audiobook. Let’s be frank, the worries mentioned in today’s article from the ABA eJournal — about “Problems Ahead” for blogging lawyers — are just plain silly (July 25, 2003, written by Stephanie Francis Ward).
Like Howard, and Denise, and Steven [in SWVirginia] “we” over here at ethicalEsq have a lot more faith in clients than does the average uptight lawyer (is that redundant?).
Attempts to stifle blogging attorneys are far more likely to come from paranoid partners, thin-skinned judges, and butt-covering bureaucrats than from actual breathing and thinking clients.  If a lawyer doesn’t have the good judgment it takes to have both a personality and an opinion online, while keeping clients happy, he or she should stay away from blogging, and maybe from lawyering.  Of course, being in retired status, our Editor feels no chilling effects in any case (at least not when he’s under his blankie).

P.S. from the Editor: It’s strange. Lawyers often seem to think they have to appear very bland or very offensive to be successful. My law school went out of its way to attract interesting students — from a former POW and a topless go-go dancer, to pop idols and pimply boy geniuses. Yet, by midway through the first semester, no one talked about anything other than law and law school gossip (and, sometimes, spectator sports). Even while in practice, my survival response to “Do you want to have lunch?” was always “Not if you’re talking law.” Blogging lets us all have a personality and a professional persona, while focusing on topics of interest and expertise. We can’t let the bean counters and worrywarts shut us down.

I’ve been an opinionated blogger for 8 weeks now and a few things are already clear about me and blogging:

Recent FTC signals, including Hill testimony today (July 24, 2003) by Chairman Timothy J. Muris, suggest that the Commission will continue to focus resources to help prevent or stop professional rules of conduct that stifle competition or unnecessarily limit consumer choice.

One of the two examples given was the release on January 24, 2003, of two ethics opinions by the North Carolina State Bar. [discussed in our 7/3/03 posting ]  Muris noted that the opinions eliminate the requirement that an attorney be physically present at real estate closings, and allow non-attorneys to obtain signatures and receive and disburse funds at closings, which were recommendations made in joint comments with the DOJ in December 2002.

Joe Simons, the head of the FTC Bureau of Competition, also recently emphasized the importance of advocacy activities relating to the professions, with most examples relating to the legal profession. Addressing the Annual Spring Meeting of the ABA’s Antitrust Section, Director Simons asserted:

Use of Nonenforcement Tools Congress provided the FTC with a unique collection of capabilities to address competition-related policy issues.  These capabilities include expansive power to conduct studies or perform research about the economy and a broad charter to act as an advocate for competition before other government bodies, in addition to the authority to initiate administrative and federal court litigation. We make full use of these capabilities in pursuing a multi-dimensional approach in pursuing our mission.   As with our merger and nonmerger enforcement work, we apply our nonenforcement tools to those sectors of the economy that have the greatest impact on consumers. . . .

Professions In many regulated professions, regulatory bodies and groups of practitioners regularly attempt to restrict advertising and prevent competition from those outside the profession.  These restrictions result in higher prices, less information, and fewer choices for consumers. When it is not feasible to use our enforcement authority to challenge competitive restraints in the professions, we seek to persuade policymakers of the benefits of competition. Most recently, we and the Department of Justice’s Antitrust Division submitted a joint letter to the ABA urging it to substantially narrow or reject a proposed model definition of the practice of law, which would likely reduce or eliminate competition from non-lawyers in providing certain services. Previously, we submitted a joint letter with the Antitrust Division urging the North Carolina State Bar to approve a proposed opinion that would explicitly permit non-lawyers to compete in real estate and mortgage closing services.  In other advocacy work during the past year, we: provided staff comments to the Alabama Supreme Court on attorney advertising rules, urging that any restrictions should be narrowly tailored to prevent unfair or deceptive acts or practices, and that the rules permit communication of truthful and non-deceptive information, and filed an amicus brief in a case seeking to overturn an Oklahoma law that permits only funeral directors to sell caskets.  (emphasis added)

Today’s edition of Legal Week (UK) reports that “The Government has recruited an industry figure to hold a wide-ranging inquiry into the regulation of the legal profession in a move that could see the Law Society stripped of its regulatory powers.” The official announcement of the investigation, which may take 18 months, is expected to be made today by the Department of Constitutional Affairs (DCA).

The article (written by James Lumley, July 24, 2003) note (emphasis added):

“A key focus of the inquiry will be the Law Society’s position as both the representative body for solicitors and the regulator of the profession, in light of repeated attacks by the Government and the Legal Services Ombudsman on the quality of the society’s complaints handling.”

“[T]he Government is already understood to be preparing to increase the powers of the Legal Services Ombudsman. The ombudsman is expected to be turned into a commissioner, with the power to fine the Law Society and Bar Council if they fail to meet their consumer redress targets.”
“The news comes in the same week that a Legal Week/EJ Legal poll of more than 100 partners uncovered strong support for the Law Society losing its dual role, with 64% of respondents calling for such a move.”

Legal Week also reports that the study will be looking into recent failures to police conflict of interest problems, while tackling controversial issues, including whether multi-disciplinary partnerships should be allowed.

A legal reformer could get envious seeing that there’s a nation where these issues are taken seriously by the Government and the regulatory scheme can be addessed on a nationwide basis, rather than fiefdom by fiefdom.  [By the way, I discovered this Legal Week article while browsing the law-related headlines collected — from around the world, with emphasis on UK and USA — at In the Papers.]

There’s an article posted today on the ABA Journal webpage that is destined to be hanging in a lot of law firm snack rooms.  It’s called Working Together 101: Lawyers May Have the Degree, But They Can Take a Lesson From Support Staff (dated July 24, 2003, by Stephanie Francis Ward, from the July edition of ABA Journal ).

This morning’s National Law Journal contains a must-read article for anyone interested in the availability online of interactive divorcing services. Titled, Online Divorce Services Spark Debate: Lawyers, providers split over pitfalls, it is written by Dee McAree (07/22/03, available without fee, with registration for free daily newsletter)., it is written by Dee McAree (07/22/03, available without fee, with registration for free daily newsletter).The article has links to existing online services, along with quotes from proponents and opponents.   As McAree notes:

and by the State of

The current edition of GPSolo magazine focuses on Security and Ethics. (Vol. 20, No. 4, June 2003)  One intriguing article looks into the ethical and liability risks from not using new technology in one’s law practice.

If you’re going to the ABA Annual Meeting in San Francisco in August, consider attending the panel on “Competition and Ethical Issues in the Unauthorized Practice of Law Debate,” presented by the Antitrust Section and held Aug. 11th (2:00 PM). Click here to see the Section’s full agenda.

The FTC and the Justice Department submitted a joint letter to the North Carolina State Bar (in late 2001) opposing a proposed ethics opinion that would have required attorneys to be present at all real estate closings.  Humphrey played a prominent role drafting a response to that letter, dated 12/14/01 (but I couldn’t find the letter online). He was also a member of the ABA Task Force on the Model Definition of the Practice of Law.   On Dec. 20, 2002, a joint FTC/DOJ letter was submitted to that ABA Task Force opposing attempts to restrict competition from nonlawyers through broad definitions of the “practice of law.” (Dec. 20, 2002).

We discussed these issues at length in our July 3, 2003 posting. and our July 1st posting.  The advocacy efforts of the federal agencies (along with a slew of other commentors) helped convince the ABA task force to withdraw the proposed model definition of the practice of law.   However, the agencies’ letter apparently had little effect on the resulting North Carolina ethics opinions, which were issued on Jan. 23, 2003. See Authorized Practice Advisory Opinion 2002-1.

For more background information on this topic, see the submission of Tom Lammert General Counsel, National Real Estate Information Services, to the FTC’s Public Workshop on the Possible Anticompetitive Efforts to Restrict Competition on the Internet (Oct., 2002), which is entitled State Regulation Impeding Competition on the Internet for Real Estate Settlement and Information Services.  Also check out the recent Legal Times article by HALT’s Executive Director, Jim Turner, Lawyers vs. Nonlawyers.

ethicalEsq?ethicalEsq?ethicalEsq?

Thanks to Steve Covell at La-Legal annotated  for adding us to his comprehensive Legal Beetle directory of “20,000” law-related sites. 

Some Saturday Snippets: I’m going to try to be pithy on this fine summer weekend, covering a couple of topics with relative brevity, so that we can all get serious about relaxation.

Honorable Optimism: In a posting on July 17, Overlawyered.com‘s Walter Olson mentioned our treatment last week of Arizona’s word-change from “zealous” to “honorable” in its Rules of Conduct.  Walter is hoping the word change will produce meaningful results, as

“Time and again, in our experience, the putative obligation to represent clients in a “zealous” fashion has proved the last resort of the scoundrel litigator and ethical edge-skater.   Yes, in principle there can also arise dangers when lawyers aren’t zealous enough, but no sane observer could imagine that the big problem with American litigation is that lawyers care so much for honor that they aren’t combative enough.”

P.S.  I may not be feeling zealous today, but I am feeling somewhat humble.  A couple days ago I complained about an instance of tax-whining by Eugene Volokh on his Volokh Conspiracy blog, hoping to get a substantive reponse to my arguments against the epidemic of taxophobia (misotaxia?) that has infected so many Americans.  I guess ethicalEsq? doesn’t have the visibility it takes to deserve a reply on the merits (or, were my arguments simply irrefutable?).  The good Professor and I did exchange a couple of friendly email messages (pardon my non-French), but nothing of substance to quote to my visitors.  Similarly, my challenge to Public Citizen to help fight abusive use of contingency fees has received no reply (BIG surpise). 

On weekends at least, humility is good for me, but I don’t want to overdo it.   Which is why I’m grateful to Walter Olson.  There’s nothing like a reference from Overlawyered to bring visitor traffic to a site. Thanks again, Walter, for watching and touting this space.   .

In ACCD Ethics Opinion 03-01, the American Council of Chief Defenders proclaimed in April that Chief Defenders are ethically required to refuse to accept more cases than their agency can competently handle. As explained in a press release from the National Legal Aid and Defender Association, dated April 14, 2003, after “a comprehensive review of nationwide professional ethical requirements and court rulings,” ACCD declared:

• A chief public defender is ethically prohibited from accepting a number of cases which exceeds the capacity of the agency’s attorneys to provide competent, quality representation in every case, and
• Individual attorneys on public defender staffs are also required to refuse additional assignments that would prevent them from providing such competent, diligent quality representation in all their cases.

ethicalEsq believes that private attorneys and law firms should have — more accurately, do have — similar obligations to refuse to accept new clients when it is unlikely that the client will be provided services that are diligent (attentive, prompt) and competent (thorough, knowledgeable, well-prepared).  To have a lower standard, is unfair to the new client and current clients. The Model Rules of Conduct currently state:

Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.3: Diligence A lawyer shall act with reasonable diligence and promptness in representing a client.

(Click here to compare the diligence requirements across jurisdictions; and click here to compare the competence requirements across jurisdictions.)

Lawyers, how often have you heard yourself or opposing counsel ask for lengthy adjournments that are contrary to the client’s interests, because of an overload of work?  A solo practitioner in one case I handled a few years ago told the judge that a brief custody trial needed to be postponed a couple of months (into September, despite the parties living in different school districts) because she “had more work than 4 or 5 lawyers could handle.” [She’s a judge now.]   How often has your work or preparation been less than thorough because you simply were handling too many matters?  Our clients deserve better — even if it means accumulating fewer billable hours and less income. Sorry, those are the rules.  If you don’t think so, please explain to your clients why not.  Let us know, too.

A special welcome to first-time or returning visitors arriving in response to referrals from Overlawyered.com, MyShingle.com or the Volokh Conspiracy.   You’re invited to browse our Archives and Ethics Resources, and to check the Recent Postings list in the righthand margin to see the many topics that have been covered here over the past few weeks.

Although there was good news out of Massachusetts yesterday for legal aid lawyers and clients, the drama suggests once again that we need a better approach than offering free lawyers to consumers, if we are serious about solving the crisis in access to legal services.

As noted by MyShingle.com, which pointed to this AP article  from the Hampshire Daily Gazette (7/17/03), lawmakers in the Massachusetts House voted yesterday to restore the $7.6 million budget of the Massachusetts Legal Assistance Corporation, the state’s main program for providing civil legal aid to the poor, and to restore $501,000 for another program that provides legal aid to the mentally ill. According to today’s Boston Globe, the State Senate agreed to go along with the House in order restore the funds by overriding vetoes by Gov. Mitt Romney.

Romney had used his line item veto to remove legal aid moneys. As the AP article explained :

Romney had also noted that “This would be a great place for firms to focus their pro bono work, which is doing civil litigation for the poor.”  The presidents of four legal associations wrote a letter to House Speaker Thomas Finneran urging him to override the vetoes before the summer break. (go here and click on “News Releases” to locate the bar leaders’ 7/17/03 letter).

Just three days ago (7/15/03), I argued that Pro Bono is Not the Answer to the Access Problem.  Now, I’m more sure than ever.   If legal aid funds for the poorest and most vulnerable Americans are in jeopardy in Massachusetts, they will be in grave danger across the nation, as each state faces its budget deficits.   Despite Romney’s flip remark about pro bono work filling in the gap, it’s clear that there will never be enough volunteer legal assistance to serve even a tiny fraction of the needs of the poor, and such programs don’t even try to help the scores of millions of moderate income consumers who are underserved by, or shut out of, our judicial and legal system.

Because the Massachusetts Bar Association was so anxious to see the legal aid funds restored, I looked at its site to see what else MBA is doing to help make the legal system more accessible.  My expectations were raised, after learning that Article XI of the Constitution of the commonwealth of Massachusetts provides:

1. There has apparently been very little progress since the Probate and Family Court Department of the State judiciary issued its 1997 Pro Se Committee Report, Pro Se Litigants: The Challenge of the Future (Oct. 29, 1997, 85 pp. pdf format), and asked for the cooperation and assistance of bar leaders.  A search of the MBA’s large cache of documents, revealed only 3 from the Access to Justice Committee containing the term pro se, all of which were members-only Minutes, and the last of which was created in February, 2001.  A site-wide search for the term “self-help” returned similar dismal results.
   
2. The Pro Se Committee Report made many recommendations, including creating educational materials for pro se litigants and court staff, plus Self-Help facilitators, hotlines, simplified forms, unbundling efforts, and more.  The response of bar President Edward P. Ryan, Jr., to these recommendations, can be seen in his article Educating pro se litigants on the need for counsel.   As suggested by its title, the article asserts that self-represented litigants (plus judges and court employees) must be educated so they understand that every litigant needs a lawyer.    A program would be established, that would match pro se litigants with attorneys who would charge them for their services (but, maybe a little less than usual, if necessary to get the business).  Amazingly, Ryan also complained that the self-represented got too much help at court, giving the “represented” clients the impression that they too might not need lawyers the next time they are at court. [As Dave Barry would say, I am NOT making this up.]
   
3. Meanwhile, MBA is seeking Nominations for its annual Access to Justice Awards.  Explaining that “These awards offer a unique opportunity to recognize the efforts and achievements of MBA members for their public-service contributions,” the Notice states that Nominations may be submitted in various categories — every single one of which relates to an attorney acting as a salaried or pro bono lawyer or prosecutor, and none of which involves helping to improve access or services for those consumers wishing to represent themselves or to handle their own legal matters.
   
4. The MBA’s list of sponsored legislation for the 2003-2004 session has more than three dozen entries, none of which appears aimed at helping the self-represented or otherwise improving access to the judicial system.
   
5. An article with the promising title Local attorney works to make Probate and Family Court a more welcoming place (MBA Law Journal, by Krista Zanin, posted July 1, 2003) tells the story of an attorney who received an MBA Community Service Award through the Hampshire County Bar Association for her work beautifying the hallways of the court with a quilt and other artwork.

Robert Ambrogi’s LawSites blog (7/17/03)  points to an illuminating article from GPSolo Magazine (April/May 2003) entitled “Should Disclosure of Malpractice Insurance Be Mandatory?” It’s a pro and con piece by James E. Towery and Edward C. Mendrzycki.

Towery’s “pro” argument is comprehensive and persuasive. His short history of laws and rules on the topic is quite useful, and his description of the organized bar’s reaction to such proposals is quite dispiriting (but not at all surprising).  Most clients simply presume their lawyer has malpractice insurance, but Towery notes that “most experts in legal malpractice insurance believe that one-third or more of American lawyers in private practice are uninsured.” Towery (a past chair of the ABA Standing Committee on Client Protection and past president of the State Bar of California) makes far too many good points to catalogue them all here, but his final thoughts are worth quoting and contemplating:

When a client hires a lawyer, is the lawyer’s lack of insurance a material fact that the client is entitled to know? It is difficult to fashion a persuasive argument that clients are not entitled to that information. Lawyers operate under a state license and have a monopoly on practicing law. With that monopoly go certain obligations. Full disclosure to clients of material information regarding their representation is certainly one of those obligations. And if you don’t believe that most clients would consider information about lack of insurance to be material, I suggest you put that question to a cross-section of your own clients. You may be surprised by the response.

On the other hand, there appears to be far too much “con” in Mendrzycki’s counterpoint statement.   Mendrzycki, who chairs the ABA Standing Committee on Lawyers’ Professional Liability, worries that the issue is just too complicated to be explained to clients and that a rule would a problem by stigmatizing lawyers who don’t have malpractice insurance, or driving them out of practice.  Mendrzycki stresses that disclosure is simply not a proper issue for an ethics rule, merely because clients would want to know that information.  Among his scarier excuses for opposing the disclosure requirements are:

1. “Although purchasing insurance may be a sound business practice, it does not implicate the traditional notions of morally “right” and “wrong” behavior that the disciplinary rules were designed to address.”
2. “We accept the principle of caveat emptor in all manner of other business transactions, and hiring a lawyer should be no different.” [editor’s note: !!! ]
3. “To many of our clients, the law is complex and nebulous, and there is no need to further complicate the attorney-client relationship or negatively affect the perception of the profession.”

As Towery explains, and HALT has reported, (ABA Punts on Mandatory Malpractice Insurance, Spring 2003 Legal Reformer, at 3), an ABA Committee did once propose the adoption of a Model Rule making disclosure of the lack of malpractice insurance mandatory, but many other Committees objected, and Ethics 2000 rejected the notion, and failed to include the requirement in the new Model Rules.

UPDATE (10-27-03): See Declarations & Exclusions Blog Should Clients Bear the Risk When Attorneys Risk Going Bare? for a discussion on informing the client when an LRIS lawyer drops his malpractice insurance.

UPDATE (10-31-03):  The October ’03 edition of Ethics and Lawyering Today reports that Michigan, Nebraska, and North Carolina have adopted rules requiring disclosure of malpractice insurance coverage (or the lack thereof), “bringing the total number of states with disclosure rules to eight (plus one with a mandatory insurance requirement).”

Update (Feb. 22, 2006): For information on activity in several states on this issue, see our post “the Arkansas Bar Association irks me.”