f/k/a . . . the archives

September 30, 2003

UK Lawyers Get New Discipline System

Filed under: pre-06-2006 — David Giacalone @ 10:31 am

Acting with a swiftness impossible in the multi-jurisdictional (and pro-lawyer) American legal discipline system, the British Lord Chancellor has announced the establishment of a new Commissioner for legal services complaints, stripping the Law Society of England and Wales of its ancient right to regulate the profession.  

 

According to an article in The Guardian  (“Threat of huge fines on Law Society,” by Clare Dyer, Sept. 27, 2003, via law.com‘s Daily Legal NewsWire), the commissioner’s role will be to scrutinize the Law Society’s overall complaints-handling process, impose targets on the Society, and even fine it if it fails to meet them.   An Ombudsman’s Office will continue to be concerned with how well the Society responds to individual complaints.




Lord Falconer, the UK Lord Chancelor is quoted in the Guardian explaining that: “The process by which complaints are dealt with has not commanded public confidence over the years. It is a significant problem.”   The article continues: “He described a culture in firms of not trying to satisfy a complainant but trying to ‘knock out a complaint by a detailed analysis of the facts’, or regarding a complainant as ‘someone who doesn’t quite understand the process, and therefore must be wrong’.”


The impending reforms in the UK were discussed at length, along with comparisons of many issues impacting client services and legal discipline in the USA and UK, in our posting here on Aug. 4, 2003.We’ve wondered before, and have to ask again:  When will those with the power to affect change (e.g., judges, bar leaders, politicians) champion such reforms for the American system, on behalf of the American consumer of legal services? 

September 29, 2003

E&L Today’s September Edition Arrives (finally)

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

If you’ve been missing your Ethics & Lawyering Today as much as this Editor, you’ll be happy to know that the September ’03 edition is now available.  As usual, it’s filled with pithy descriptions and useful links on important ethical developments.   Included this time: Washington State vs. SEC on Sarbanes-Oxley; Jury Nullification decisions in Florida and D.C.; the inapplicability of G-L-B to lawyers; NJ’s abandonment of its “bona fide office” rule; and several quick takes, such as a pointer to a new site covering Florida ethics, sunEthics.com, which I’ve just bookmarked and plan to visit frequently (unless it gets too muggy).


E&L Today’s editors, William Freivogel and Lucian Pera, appear to share one major trait with the “staff” here at ethicalEsq? –  deadline-motivation complex.  You may know DMC by its nasty former name, “procrastination” (the greatest work-savings device ever invented).   Of course, Lucian and William may merely be showing off their prior law review scheduling experience. 

Welcome to the Irony Posse, Prof. Froomkin!

Filed under: pre-06-2006 — David Giacalone @ 1:48 pm

Memo
To: Prof. Michael Froomkin, U. Miami Law School

From: Word Usage Panel

Re: Irony Subcommittee

Due to your obvious love and mastery of the English language — as evidenced daily at discourse.net and ICANNWatch, and more specifically, on September 28, 2003, in your posting ‘Irony Distinguished From Chutzpah’ — the ethicalEsq Word Usage Panel Section (WUPS, pronounced “whoops”) is pleased to offer you the Chairmanship of our Irony Subcommittee.

Admittedly, this is a big job for an already very busy law professor, pundit, and author, but it is an especially important job. As demonstrated daily on television newscasts, in articles from every medium (see, e.g., our recent Verbal Quibble entry), and in student essays and (sadly) legal memoranda across the land, the word “irony” is being chronically abused in our society, most frequently in its adverbial form, “ironically.” The indiscriminate discovery or attribution of irony where there is no incongruity is, to use the vernacular, dumbing down the English language, as well as the human thought process. As aptly noted in the American Heritage Dictionary:

The words ironic, irony, and ironically are sometimes used of events and circumstances that might better be described as simply “coincidental” or “improbable,” in that they suggest no particular lessons about human vanity or folly.

For further discussion of the use and misuse of the concept of irony, see the Guardian article Isn’t It Ironic? (June 28, 2003) (“‘Isn’t it ironic?’ You hear it all the time – and, most of the time, actually no, it isn’t. Hypocritical, cynical, lazy, coincidental, more likely.”) Also, see the Wikipedia entry on the topic (which includes discussion of the Alanis Morrissette song “Ironic”). If you’re not convinced of the depth and breadth of the problem, please peruse the Purpose page at Irony Central. Ironically, that site’s editor apparently believes you can achieve irony by merely stating the opposite of what you believe — even if you tell the reader that you are doing exactly that.
With your help, WUPS hopes to turn the tsunami of misuse that is drowning a once precious word into a gentle tide of precision and restraint. At the very least, we hope to rid legal weblogs, memoranda of law, and even court decisions of such verbal abuse.
Please join us in this noble enterprise.

P.S. Sadly, some people may not see the connection between legal ethics and irony. That’s a topic for another posting, or perhaps an entire weblog.

September 27, 2003

Schiltz’s “Sermon” Should Be Mandatory Reading for Everyone Who Cares About Lawyers and the Legal Profession

Filed under: pre-06-2006,viewpoint — David Giacalone @ 8:35 pm

Editor’s Note: Below you will find the opening of a lengthy posting that was inadvertently deleted from the archives of this weblog, and which had summarized or quoted key portions of Professor/Dean [now federal district judge] Schiltz’s article,”On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 Vand. L. Rev. 871 (81 pp pdf). As argued below, it is well worth reading in its entirety, or — at the very least — in the condensed form found in the Bar News publication of the Washington State Bar Assn, “Money and Ethics: The Young Lawyer’s Conundrum” (January 2000).  Also see our post, “Do lawyers choose to be unhappy” (March 29, 2006).

Today, I’m preaching (not posting). It may be four years old, but the law review article On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871, by Professor Patrick J. Schiltz, is a “must read” for anyone who truly cares about the well-being of individual lawyers and about the future of the legal profession — that should include every law school applicant and student, recent graduate, professor, school administrator, firm managing partner, bar leader, and practicing attorney. (College and high school counselors, parents, spouses, and significant others, should also take a close look.) The Schiltz Article provides scholarship, perspective and context to help explain the recent Boston Globe/LexisOne puff piece Lawyers Questioning, Abandoning Their Profession (by Ralph Ranalli, Sept. 2003), while underscoring the City Journal article “My Life As a Law Associate,” by Jonathan Foreman (Winter, 1997), which was recently cited at Civil Procedure and MyShingle.

In many ways, our profession is in such a sorry state because law schools and firms have adopted and perpetuated [perpetrated?] lowest-common-denominator values (mostly driven by greed and made worse by pretension), and because individual attorneys have gladly or blindly embraced those values. Too many lawyers have then decided to live with, and made excuses for, the intolerable consequences. That’s the bad news. The good news is that individuals can choose better values in order to give better career advice, change institutions, or make corrections in their lives.

September 23, 2003

formative moments — legal ethos and ethics (a non-posting)

Filed under: pre-06-2006 — David Giacalone @ 8:01 pm

The Editor insists that the following intercepted e-mail to Scheherazade is a reminiscence, rather than an actual posting in violation of his self-imposed hiatus on blogging.  You can judge for yourself, but I think he’s fallen off the wagon on this first day of Fall.  s/Jack Cliente, designated alter ego.

Hello, Sherry,

I wanted to tell you how two short clips on last night’s news reminded me of my very early years in the law arena and how important just a small gesture or event can be in the life of a legal neophyte:

1) South Dakota Rep. Bill Janklow finally held a press conference, yesterday, saying how sorry he was about the fatal accident he caused last month.  (Don’t get me started about politicians getting special treatment from the law concerning traffic violations.)    Hearing that he had been the State Attorney General before his four terms as governor got me wondering if he was the South Dakota Attorney General in 1977, when I happened to be in that State for an electrical utility rate hearing, in early.  I was a cub lawyer only six months out of school.  The D.C. firm I worked for represented the interests of utility consumers in many contexts, and we were actually serving as the staff of the PUC, which had only started regulating private electrical rates in 1975.    I got online after seeing the news clip, and found out at Janklow’s congressional website that he had indeed been A.G. while I was there.
dagSicilianAfro Why should that matter?  During the lunch break in the hearing, I went to the cafeteria in the State Capitol with the lawyer on the other side (the head of the largest firm in town, who was representing the utility company).  When we walked in, a man sitting at a table across the room made a big fuss, calling the utility’s lawyer over to him, and in a loud, mocking voice, asked him “Who’s the foreigner with you?”   You see, despite my suit and tie, with my goatee, southern Italian features, and fairly large “Sicilian Afro,” I didn’t look like a lawyer was supposed to look.  I felt especially humiliated and angry, when I was told that the taunter was the Attorney General of the State.  That feeling that I didn’t belong in “the club,” despite my elite law school stayed with me a long time.  It made me sensitive to, and committed to help avoid and prevent, stereotypes of all types.

2)  On a much more positive note, I also saw Mark Rosenbaum on the tv news, arguing before the en banc Ninth “Circus” on behalf of the California ACLU in the recall election case.   Hearing the name and the affiliation, I recalled that back in 1974, as a first-year law student, I did my first-ever legal research and memorandum on a “real” case for Mark, as an extracurricular project.  The California ACLU wanted to halt an “Alpha List” that was being collected by the authorites on supposedly trouble-making adolescents.   When Mark got my memo on when and whether the government could stigmatize individuals, he took the time to call across the continent (a big deal three decades ago) with high praise for the work.    A “real” lawyer had given me a compliment (as opposed to many professors who still believed in ridicule as an incentive).  He could never know how good that made me feel, nor how much confidence he gave me in my budding abilities.   I should have let him know in the years since then, and I should never forget how important positive feedback can be for any neophyte (and oldies, too).
..
3)   Yesterday’s reminder of my work in South Dakota brought back some other formative memories.  The local newspaper, The Pierre Times, timed a front-page expose and lead editorial to coincide with our visit — complete with photos of the two bearded attorneys, who it was stressed where outsiders from D.C.  You see, it was a shock and scandal that the PUC was paying supposedly huge sums of money to consultants and lawyers from out of state.   The editorial demanded to know why the PUC could not find local lawyers and rate experts, rather than “East Coast firms,” and it asked how the utility customers must feel having outsiders make the decisions instead of the PUC.
..
One thing was clear, the prominent local lawyer, who represented every private utility company in the State, was the moving force behind the article.  The PUC had recently refused $7 million of the $18 million in rate hikes his various clients had sought, siding with it staff and consultants on virtually every issue.   The customers were probably feeling pretty good, but the utility company clients definitely were not.,
As a direct result of this pressure, the PUC hired a law professor from the State’s only law school to represent it on the next appeal from a rate determination.   Because so many issues were first impression (given the new regulatory scheme), there were several dozen issues raised by the utility company, and I believe the PUC opinion was over 100 pages long (I had written the first draft).  The in-state professor submitted an appellate brief that was literally less than two full pages, with more than half of the first page being the caption, and the introductory paragraphs detailing the dates in the rate-hike process.   There was one sentence of legal argument, which I can only paraphrase all these years later:  “All actions of the Commission were fair and reasonable and supported by the facts and law.”   Needless to say, the PUC decided to bring back its D.C. lawyers for the next brief.  But, our firm’s job was to help train the local staff, which was able to take over shortly thereafter.
That episode was my first exposure to (1) the parochialism and fear of competition of a local bar, (2) the clout of politically-connected lawyers; and (3) the vast difference in diligence and competence that existed within the practice of law.   I was also amused to think of how many more pages my regulatory law professor would surely have submitted were he given the chance to file a similar brief (it was Steven Breyer, who does tend to do thorough work).
..
Looking back, the seeds of the lawyer and advocate (and person) I have become can be seen in each of these instances.  I hope I haven’t taxed your patience setting them out at length here.   Now, I need to get back to my non-blawggie week off.
..
best wishes,
David

September 19, 2003

This Blawg Is Adjourned Until October 1st[ish]

Filed under: pre-06-2006 — David Giacalone @ 4:37 pm

Call me resticalEsq or even lazyoldEsq, but I’m heading for any rocking chair, hammock, futon, or sofa I can readily find, for a couple of weeks or r’n’r.  (Sigh: Not too long ago, that would have meant rock’n’roll.)


I’ll be stopping by our cyber cafe to “listen” to the discussion on Lawyer Snobbery.  But, mostly, its mystery novels, personal correspondence, riverside strolls, and haiku appreciation that should be filling my non-napping moments.


Last month, we wondered whether ethics classes made lawyers less ethical.  Things might actually improve in the legal jungle while ethicalEsq? takes a break.   If you need a shot of Giacalone while I’m gone, please feel free to browse and linger.  However, if you break it, you bought it.   

Come Join Our Chat About Lawyer Snobbery

Filed under: pre-06-2006 — David Giacalone @ 3:29 pm

Here’s a great example of cyber serendipity in the little virtual coffee shop we call the blawgosphere: A couple days ago, your Editor wrote about the Guild Mentality of the legal profession, and its tendency to reject innovation that’s seen as a threat to profits.  Scheherazade at Civil Procedure started up a correspondence that soon became focused on law student debt — how the need to pay off the debts created a pressure to choose more lucrative options over other career choices within the law, followed by “golden handcuffs” that seem to prevent changing to a more fulfilling practice.  

 

That was interesting enough, but my response got Sherry/Scheherazade wondering why the profession is so snobbish and puts certain elite schools and elite firms and forms of practice at its pinnacle.  The result was her posting Why Are Lawyers Such Snobs?   Over the next two days, a number of lawyers from various places (geographic, career, and philosophical), joined in with Comments.  This morning, the big e-kahuna himself, Ernie the Attorney, entered the conversation and pointed his legions in Scheherazade’s direction.  (Does It Matter Which Law School You Went To?)  And, Prof. Bainbridge sat down with the group, too (sipping a pre-lunch glass of wine perhaps).   As Ernie notes:



Both her story and [Alex Wellen's story in his book Barman] are worth reading, and their observations about the practice of law should not be something that only young lawyers are interested in.

So, you’re all invited to pull up a cyber chair, click on the postings, follow the threads and, especially, add your insights or “incites”.  Here’s a taste of some of the conversation:


David Giacalone: 


[T]he best way to deal with snobbery is to ignore it. Unless your goal is to achieve maximum prestige, power and/or income, the fact that there’s a lot of snobbery in the profession should invoke bemusement and not frustration. Let them play their little ego games. Be grateful that you don’t have to see these people everyday and work with them — with everyone having to keep up the facade of superiority, and visiting their shrinks weekly.

Scheherazade:


David, the point I’m trying to make is that our profession, through a pervasive worship of credentials, makes it very hard to explore honestly (or even to consider) careers away from BIGLAW. People tell us that’s where the “interesting work” is and imply, explicitly or implicitly, that “ordinary” legal work for small businesses or consumers is somehow beneath us if we have brains and decent legal writing skills. So asking young lawyers to make other choices is asking us to choose a path that has been deemed intellectually less worthwhile by most of those we look up to.

Another Dave:



But if you base your decisions on “what people tell you,” then you’re ingoring the most important voice–your own. Sure, there are going to be snobs in law firms. But there are snobs everywhere–in business, in charities–it pervades our culture. You just have to blissfully ignore those people. You’ll be much happier when you do.


Do work that is fulfilling to you, the rest be damned.


David Giacalone response:



Yes, Dave has it exactly right. It’s too bad that most people graduate from law school before they’re mature (experienced? confident?) enough to listen to that voice, or to even have a clear voice inside letting them know who they really are. Instead, they only hear a peer group and a society that puts prestige, power and profit above personal fulfillment — or, actually thinks that those 3Ps will give you personal fulfillment.


That’s all the better reason to live frugally while experimenting with big-time law practice — then, you won’t have those golden manacles when you discover who you really want to be.


Don’t be shy.  Stop on by.


P.S.  Sherry (a/k/a Scheherazade) Fowler’s weblog is way to interesting to have a name like Civil Procedure.  I hereby start a campaign to have the blawg’s name officially changed to Scheherazade’s Civil Procedure.  Otherwise, some unsuspecting lawyer drone will be exposed unexpectedly to fresh ideas and enjoyable writing.  Like Queen Scheherezade in The Arabian Nights, Sherry is a skilled storyteller and not some mere civil procedure expert.  (Someday, I hope to find out why some people spell Scheherazade with two a’s, while others just one.)

September 18, 2003

Even Struggling Lawyers for the Poor Don’t Get Antitrust Immunity

Filed under: pre-06-2006 — David Giacalone @ 8:50 pm

A dedicated lawyer in Massachusetts, Deborah Sirotkin Butler, has been corresponding with me about the recent refusal of assigned counsel across the Commonwealth to take new cases, and their hints at future boycotts.   As argued here and there, I believe that a group boycott to achieve better pay or other terms by independent providers of services violates antitrust law, even when the target is a huge buyer, such as a State, and the boycotters are sympathetic, struggling lawyers.   Deborah recently voiced the following concern to me, which I’d like to address in this posting:


I thought the public policy purpose of antitrust law was to protect the little guy against the monopolist giant.  Your analysis seems to protect the monopolist giant against the little guy.  This just feels all wrong, morally, and in terms of common sense to me. 

As the U.S. Supreme Court has often said, antitrust protects “competition, not competitors.”    Brunswick Corp. v. Pueblo Bowl-O-Mat Inc., 429 U.S. 477, 488 (1977)  Antitrust law is not based on the notion that bigness itself is bad or that the “pygmies” should always prevail against the giant.  Instead, antitrust law:





” . . . was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade.  It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions. But even were that premise open to question, the policy unequivocally laid down by the Act is competition.” (emphasis added) Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958).


Furthermore, t
he firm consensus across the political spectrum is that protecting consumers and consumer interests is the primary purpose of antitrust law.  For a good summary of the goals of antitrust enforcement see Looking Forward, a speech by FTC Chairman Timothy J. Muris (Dec., 2002).   As Muris states, “Competition policy succeeds when it serves consumer interests – for example, by pressing producers to offer lower prices or to improve product quality. The true measure of our contribution to the economy is our progress in increasing consumer welfare.”   



  • The Robinson-Patman Act, which was passed in 1936 and prohibits various types of price discrimination by sellers, is the one so-called antitrust law that attempted to protect competitors (e.g., small grocers and other “mom’n’pop” stores) from competition by larger entities (especially discounters).  RPA departed from a consumer-oriented focus as a result of a conscious political-policy choice that equated the well-being of individual firms with consumer interests.   However, as Chairman Muris describes, almost all economists and antitrust experts agree that enforcing RPA often harmed consumers — by paying insufficient attention to the effect of the challenged conduct on competition, market efficiency, and consumer welfare.  The statute is still on the books, but has been virtually abandoned by enforcement agencies. 

The joint boycott — “pressuring a party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or services from the target” (the Barry Case, 438 U.S. 531) — has received special attention by antitrust enforcers, because it is particularly able to distort competitive process and to force the target to accept the terms demanded by the conspirators, who would otherwise have to make individual decisions in the marketplace.   The Barry Court emphasized that buyers are protected against group boycotts, just as are sellers and competitors of the boycott conspirators.



In the context of a fee dispute between attorneys on assigned counsel panels and a government attempting to obtain legal services for indigents, it the government is the buyer (and is also standing in the shoes of the taxpayer-consumer who pays the bills and of the defendant-consumer who needs legal representation).   The assigned counsel are the sellers — independent providers of legal services who are in competition with eachother to provide the services.  Each lawyer must decide for herself or himself whether to accept the price and other terms offered by the government.   

 

Thus, it is no surprise to an antitrust lawyer, professor or court that the Supreme Court, in the 1990 SCTLA decision, had no problem finding an antitrust violation, when faced with a group boycott by assigned counsel for indigent criminal defendants to obtain increased fees from the D.C. government.  Yes, the lawyers were the worse paid in the City, and yes the government was a large buyer of criminal defense services, but the Supreme Court nevertheless adopted the FTC’s reasoning regarding the conduct of the “CJA” (Criminal Justice Act) attorneys who were the members of SCTLA (emphasis added):



    “`[T]he city’s purchase of CJA legal services for indigents is based on competition. The price offered by the city is based on competition, because the city must attract a sufficient number of individual lawyers to meet its needs at that price. The city competes with other purchasers of legal services to obtain an adequate supply of lawyers, and the city’s offering price is an element of that competition. Indeed, an acknowledgement of this element of competition is implicit in the respondents’ argument that an increase in the CJA fee was `necessary to attract, and retain, competent lawyers.’ If the offering price had not attracted a sufficient supply of qualified lawyers willing to accept CJA assignments for the city to fulfill its constitutional obligation, then presumably the city would have increased its offering price or otherwise sought to make its offer more attractive. In fact, however, the city’s offering price before the boycott apparently was sufficient to obtain the amount and quality of legal services that it needed.’” 272 U.S. App. D.C., at 278, 856 F.2d, at 232.


Similarly, the SCTLA Court (493 U.S. at 423) favorably quoted the reasoning of the Court of Appeals (emphasis added):



    “The Commission correctly determined that the CJA regulars act as `competitors’ in the only sense that matters for antitrust analysis: They are individual business people supplying the same service to a customer, and as such may be capable, through a concerted restriction on output, of forcing that customer to pay a higher price for their service.   That the D. C. government, like the buyers of many other services and commodities, prefers to offer a uniform price to all potential suppliers does not alter in any way the anti-competitive potential of the petitioners’ boycott.   The antitrust laws do not protect only purchasers who negotiate each transaction individually, instead of posting a price at which they will trade with all who come forward.  Nor should any significance be assigned to the origin of the demand for CJA services; here the District may be compelled by the Sixth Amendment to purchase legal services, there it may be compelled by the voters to purchase street paving services. The reason for the government’s demand for a service is simply irrelevant to the issue of whether the suppliers of it have restrained trade by collectively refusing to satisfy it except upon their own terms. We therefore conclude, as did the Commission, that the petitioners engaged in a `restraint of trade’ within the meaning of Section 1.” Id., at 281, 856 F.2d, at 235 (footnote omitted). [emphases added]

The Commonwealth of Massachusetts — like the D.C. government in SCTLA — must compete with other consumers of legal services in order to attract assigned counsel.   On the other side of the  marketplace, the lawyers are expected to compete with each other to sell their services, by deciding individually if the fees and terms offered are acceptable (taking into account, for example, “excess capacity”, need for income, idealism, desire for experience and exposure).  It is up to the buyer to decide whether it is getting the amount and quality of legal services that it wants or needs, and whether it is being shortsighted at not.  It is not the right of the sellers to force the buyer to see things their way by using joint boycott tactics.   They may, of course, lawfully join together in lobbying and education efforts. (see this posting and the related comments)


  • Just today, as described in this press release, the Federal Trade Commission issued an antitrust complaint against some “little guys” selling professional services — independent competing physicians in Texas — who were acting together to get better terms from some “big guys” who sought to buy their services — insurers, HMO’s, etc.  (In re North Texas Specialty Physicians, Dkt. No. 9312). 

ANALOGIES

 

It’s human nature that other people’s analogies often seem unpersuasive, but let me leave you with a few examples of situations where one large buyer-consumer offers its terms to a marketplace with many small sellers-providers.  


(1)   The State’s schedule of Medicaid fees are considered too low by physicians across State X.   Dwindling numbers of doctors are willing to accept Medicaid patients.  Due to growing financial distress, the State legislature turns down lobbying efforts by the State Medical Society for increased fees.   At their annual meeting, members of the Medical Society vote to refuse to take Medicaid patients if the State has not approved their higher fee schedule within 30 days.  

 

(2)  Sadsong Prison is by far the largest purchaser of foodstuffs in an isolated, rural New York county.   Due to belt tightening (caused by the public’s lack of interest in the conditions faced by prisoners), the Prison announces that it will pay no more than $2.00 per gallon for milk.   The county’s dairy farmers are incensed, saying they can get $3 or more per gallon elsewhere, but many farmers continue to sell to the Prison.   The Prison Administrator refuses to budge on the price, despite constant complaints by the farmers, who say they must sell locally and might go out of business.   One morning, a majority of dairy farmers in the region meet and agree that they will no longer sell to the Prison for less than $3.   They issue a statement condemning both the Prison and any farmer who crosses their picket line.

 

(3)   Sadsong Prison has also announced that, in order to achieve efficiencies and save money, it will hire staff physicians for primary care of the prisoners, but will continue to purchase specialty medical care on a per case, fee-for-service basis.   Angry general practitioners meet with their colleagues at the 19th Hole club house and persuade the specialists to refuse to deal with the Prison unless it returns to using fee-for-service private practitioners for all of its medical needs.   The specialists go along out of professional courtesy, and also because they fear a loss of referrals from the angry primary care doctors.

As you know, I could go on and on (e.g., a county purchasing garbage collection services, the only newspaper in town contracting out delivery services to adult carriers), but I know that my readers are too quick to need more examples.  It seems clear that antitrust would and should be able to intervene in the above examples to stop a boycott.   I hope it now makes more sense — even to the attorneys involved — that antitrust would and should also condemn any joint refusal to deal by lawyers who want better terms from their State before accepting more assigned cases.

 

Belittling the Judge Can Really Hurt Your Client

Filed under: pre-06-2006 — David Giacalone @ 1:29 am

Reacting to combativeness, belittling, and other “reprehensible” conduct by plaintiff’s counsel, Justice Stanley A. Green has reversed a $16 million Bronx jury verdict, in a decision dated last month, in the case of Smith v. Sophia AU, M.D.    An article in today’s New York Law Journal provides many of the offending remarks, and notes that the lawyer in question, Thomas A. Moore of Kramer, Dillof, Livingston & Moore, is “one of New York’s top medical malpractice attorneys,” as well as a frequent contributor to NYLJ.  (“Verdict Set Aside Over Lawyer’s Conduct,” by Tom Perrotta, 09-18-2003)   The “upset” Moore plans to appeal.

 

Supplemental (09-18-03):   George Wallace at Declarations and Exclusions was far more diligent than I was willing to be after midnight last night — he took the time to excerpt some of the juicy quotes from the NYLJ article.  Besides thanking him for pointing back to “us,” I have to share with you his wonderfully apt Rhetorical Rule of Thumb:


Rhetorical Rule of Thumb: When an attorney prefaces anything with the phrase “with all due respect,” the odds that a respectful remark will follow decrease rapidly toward zero.

You can find more of such wisdom at D&E and at George’s personal(ity) blog, A Fool in the Forest.

 

Update (09-19-03):   My cyber colleague Carolyn Elefant over at MyShingle  has opined today:


“[F]or a judge to penalize innocent clients for their attorneys’ alleged misconduct…well, with all due respect (see George Wallace’s remarks on that phrase) and in the judge’s own words, that’s conduct that is truly “degrading to the institution of the court.”  

Well, it is respectfully submitted, that we need to know more about the decision  and its procedural context (I could not find the Opinion online), before deciding whether the judge has degraded the court.   If the plaintiff’s lawyer engaged in conduct that unduly prejudiced the jury, and the Opinion and resulting order allow a re-trial, perhaps justice will be done (with, for example, a settlement that is fair to all parties, or a new trial).   We need to worry (at least a little) about the defendant here.   When a plaintiff chooses an “attack dog”-style attorney, he or she might have to live with the consequences.

Belittling the Judge Can Really Hurt Your Client

Filed under: pre-06-2006 — David Giacalone @ 1:29 am

Reacting to combativeness, belittling, and other “reprehensible” conduct by plaintiff’s counsel, Justice Stanley A. Green has reversed a $16 million Bronx jury verdict, in a decision dated last month, in the case of Smith v. Sophia AU, M.D.    An article in today’s New York Law Journal provides many of the offending remarks, and notes that the lawyer in question, Thomas A. Moore of Kramer, Dillof, Livingston & Moore, is “one of New York’s top medical malpractice attorneys,” as well as a frequent contributor to NYLJ.  (“Verdict Set Aside Over Lawyer’s Conduct,” by Tom Perrotta, 09-18-2003)   The “upset” Moore plans to appeal.

 

Supplemental (09-18-03):   George Wallace at Declarations and Exclusions was far more diligent than I was willing to be after midnight last night — he took the time to excerpt some of the juicy quotes from the NYLJ article.  Besides thanking him for pointing back to “us,” I have to share with you his wonderfully apt Rhetorical Rule of Thumb:


Rhetorical Rule of Thumb: When an attorney prefaces anything with the phrase “with all due respect,” the odds that a respectful remark will follow decrease rapidly toward zero.

You can find more of such wisdom at D&E and at George’s personal(ity) blog, A Fool in the Forest.

 

Update (09-19-03):   My cyber colleague Carolyn Elefant over at MyShingle  has opined today:


“[F]or a judge to penalize innocent clients for their attorneys’ alleged misconduct…well, with all due respect (see George Wallace’s remarks on that phrase) and in the judge’s own words, that’s conduct that is truly “degrading to the institution of the court.”  

Well, it is respectfully submitted, that we need to know more about the decision  and its procedural context (I could not find the Opinion online), before deciding whether the judge has degraded the court.   If the plaintiff’s lawyer engaged in conduct that unduly prejudiced the jury, and the Opinion and resulting order allow a re-trial, perhaps justice will be done (with, for example, a settlement that is fair to all parties, or a new trial).   We need to worry (at least a little) about the defendant here.   When a plaintiff chooses an “attack dog”-style attorney, he or she might have to live with the consequences.

September 17, 2003

We’re Over-lawyered and Under-Informed

Filed under: pre-06-2006 — David Giacalone @ 10:00 pm

Walter Olson at Overlawyered.com put the spotlight today on an article from Smart Money

entitled 10 Things Your Lawyer Won’t Tell You (by Brigid McMenamin, Sept. 15, 2003).  As Walter notes:


“You may be shocked to find how little you’ll net from the proceeds of your lawsuit, how little experience your lawyer has, or how hard it is to proceed against him later if you think he has wronged you.”

There’s no satisfactory answer to his plaintive question: “Where are the consumer protectionists demanding advance disclosure?”  We point some fingers at the culprits and at some solutions, on our Informing Consumers resource page — which W.O. was kind enough to mention in his posting. 



  • I’m no apologist for the legal profession (as I think you well know), but some of the Smart Money complaints are actually cheapshots — e.g., the ABA can and does promulgate model rules and ethical opinions, but it has no direct authority over lawyer conduct.  It’s a bit unfair, therefore, to suggest that the Association is somehow ducking an issue by leaving it up to the individual states to ban or allow a practice — especially, on an issue, like sex with clients, in which the ABA has in fact called for a total ban (which we oppose).   Also, how significant is the fact that “Nearly 20 percent of attorneys surveyed nationwide by the University of Memphis in 1993 admitted they or a lawyer they knew had had an affair with a client”?   Nevertheless, the article’s overall focus is correct: clients and prospective clients deserve a lot more information, should be asking more questions, and choosing lawyers who willingly share all important information.  See this article for some examples. 

Special Hiatus P.S. (09/24/09): Congratulations to Overlawyered.com‘s founder/editor, Walter Olson, who was awarded the annual Individual Achievement Award by the Legal Reform Summit, in Washington, D.C. today. Well-deserved, W.O.!!

haikuEsq ponders Isabel

Filed under: pre-06-2006 — David Giacalone @ 1:22 pm

haikuEsq has been thinking about the weather today.

 

banging away at a nail

trying to stop

the hurricane

            [David Gershator, VI, from Haiku World, by Wm. J. Higginson]

 


they call it

a driving rain, but

        we better not drive

                 [haikuEsq]

 


fickle Isabel,

don’t hurt my

old, new, cyber friends

           [haikuEsq]

 

 


batteries, beans, lightning flash

. . . did the children see

       the fear in my eyes?

            [haikuEsq]

 

        A fractured rainbow

Is straining under thunderbolt clouds with

        Cathedral quiet.

                    [James Kirkup, in Haiku: The Poetry of Zen, ed. Manuela Dunn]

 

be safe, feel safe,

no need to post tonight

– priorities

           [haikuEsq]

When Is Donation Solicitation?

Filed under: pre-06-2006 — David Giacalone @ 1:29 am


Overlawyered.com raises important issues in its Sept. 15 posting on the connection between clergy-abuse survivor groups and plaintiffs’ lawyers who represent abuse victims.    According to the featured Forbes article plaintiffs’ attorneys are among the biggest contributors to some survivor groups, while other groups — e.g., Survivors First in Boston — refuse to take such contributions.  (Paid to Picket, by Daniel Lyons, 09.15.03; free regis. req’d) Forbes notes a strong difference of opinion between two prominent lawyers for clergy-abuse victims:



“The symbiotic alliance makes Mitchell Garabedian squeamish. The lawyer last year negotiated a $10 million settlement for 86 plaintiffs in Boston, but he won’t give money to advocate groups because he believes the practice violates legal ethics guidelines. “It’s sort of a solicitation,” he says.

“Hogwash, say [Stockton, CA's] Anderson, Drivon and Morey. “It’s not a solicitation. I don’t think I’ve ever gotten a case from SNAP [Survivors Network Abused by Priests],” Drivon says.”


This Editor agrees with Mr. Garabedian that such donations have at least the appearance of  impropriety.   A donation given with an understanding, or in anticipation, that clients will be referred to a firm looks an awful lot like solicitation.   And, donations given under pressure from a victims’ group — in order to prevent being blackballed or to assure consideration for referrals (or other forms of assistance and cooperation) — also put the law firm into unholy ethical territority.   The aura of impropriety that surrounds such donations should be a good enough reason for lawyers to beg off when asked to contribute to the survivor groups.  A little self-imposed discipline, stifling the urge to  contribute or to ask for such contributions, would go a long way towards instilling faith in the legal proceedings that surround the clergy-abuse scandals. 

When Is Donation Solicitation?

Filed under: pre-06-2006 — David Giacalone @ 1:29 am


Overlawyered.com raises important issues in its Sept. 15 posting on the connection between clergy-abuse survivor groups and plaintiffs’ lawyers who represent abuse victims.    According to the featured Forbes article plaintiffs’ attorneys are among the biggest contributors to some survivor groups, while other groups — e.g., Survivors First in Boston — refuse to take such contributions.  (Paid to Picket, by Daniel Lyons, 09.15.03; free regis. req’d) Forbes notes a strong difference of opinion between two prominent lawyers for clergy-abuse victims:



“The symbiotic alliance makes Mitchell Garabedian squeamish. The lawyer last year negotiated a $10 million settlement for 86 plaintiffs in Boston, but he won’t give money to advocate groups because he believes the practice violates legal ethics guidelines. “It’s sort of a solicitation,” he says.

“Hogwash, say [Stockton, CA's] Anderson, Drivon and Morey. “It’s not a solicitation. I don’t think I’ve ever gotten a case from SNAP [Survivors Network Abused by Priests],” Drivon says.”


This Editor agrees with Mr. Garabedian that such donations have at least the appearance of  impropriety.   A donation given with an understanding, or in anticipation, that clients will be referred to a firm looks an awful lot like solicitation.   And, donations given under pressure from a victims’ group — in order to prevent being blackballed or to assure consideration for referrals (or other forms of assistance and cooperation) — also put the law firm into unholy ethical territority.   The aura of impropriety that surrounds such donations should be a good enough reason for lawyers to beg off when asked to contribute to the survivor groups.  A little self-imposed discipline, stifling the urge to  contribute or to ask for such contributions, would go a long way towards instilling faith in the legal proceedings that surround the clergy-abuse scandals. 

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