f/k/a . . . the archives

December 31, 2003

the key to a Happy New Year

Filed under: pre-06-2006 — David Giacalone @ 3:00 pm

Has anybody seen my 2003 To Do List?  delete


fireworks  wishing you peace and prosperity in 2004!


                                                                         from haikuEsq & ethicalEsq

December 27, 2003

Are There Really Too Few Trials?

Filed under: pre-06-2006 — David Giacalone @ 8:54 pm

dunptruck In this season of bliss, it’s probably good that the public is ignorant of the legal profession’s newest crisis: too few trials, a/k/a Vanishing Trials.   As reported here, the ABA’s Litigation Section held a Symposium on December 12 – 14 in San Francisco, delving into the reasons for a dramatic decline in the overall number of trials, despite an increase in case filings — a situation that is “troubling many litigators.”  (“Vanishing Trials’ Issue Won’t Go Away: Conference Seeks Reasons and Solutions for Decrease,” ABA eJournal, by Stephanie Francis Ward, Dec. 19, 2003)

A study by Professor Marc Galanter was at the center of the Symposium.  In the Executive Summary, Prof. Galanter notes that “A central feature of the common law process (and of popular understanding of it) is shrinking while the legal system is expanding along every other dimension.”  He points out that:
  • In the federal courts, the percentage of civil cases reaching trial has fallen from 11% in 1962 to 1.8% in 2002. In spite of a five-fold increase in case terminations, the absolute number of civil trials was 20% lower in 2002 than it was 40 years earlier.
  • As trials diminish we find in their place increases in settlements, in disposition by summary judgment, and in diversion into Alternative Dispute Resolution.
  • The more robust explanations seem to include increases in cost and risk that discourage parties from proceeding to trial, institutional changes in procedure that encourage such avoidance, and a corresponding shift in the ideology of judges, who increasingly view their role as dispute resolvers rather than adjudicators. These may in turn reflect fundamental changes in the organization of legal services and the way that legal professionals and parties view the legal process.

Galanter acknowledges that “The consequences of the decline in trials are even more difficult to fathom than its causes,”  but he seems to worry that “If most outcomes reflect ‘bargaining in the shadow of the law,’ it appears that the portion of the shadow cast by formal adjudication may be shrinking.” (semble)

Call me biased or a fool, but Galanter’s numbers and possible explanations make me want to cheer, not fret.  I spent the majority of my legal career trying to help clients/consumers move away from the “justice = trial” model of our legal system, and toward the increased use of “alternative” methods of dispute resolution.   The ABA’s own Section of Dispute Resolution is dedicated to that goal, sponsoring over 40 committees and task forces, with conferences on court-annexed ADR, and programs to help lawyers learn to be “problem solvers” — rather than merely seeking and super-sizing them.

  • Snide Aside: I’m sure that dentists fret about having too few cavities to fill since fluoride use became widespread, and some funeral directors are disappointed in the ever-increasing longevity of our population.  But, neither of those professions would have the gall to hold symposia on how to reverse such trends.

The legal profession should be helping to remove the misconception that true justice can only be achieved through a trial, rather than finding arguments to perpetuate the notion.  Too much litigation is a curse, even if having too few trials will force some trial lawyers to find other sources of income.

The ABA press release stated that other papers presented at the Symposium would be available online, but that does not yet appear to be the case.   Unless and until I see highly convincing evidence that a scarcity of trials is hurting the cause of justice, my gut reaction to litigation and trials can be seen in the following quotes (from Poetic Justice, edited by Jonathan and Andrew Roth, Nolo Press, 1994):


As a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death. — Judge Learned Hand

The houses of lawyers are roofed with the skins of litigants. – -Welsh proverb


A lawsuit is a fruit-tree planted in a lawyer’s garden. — Italian proverb


The lawyer’s prayer: God grant that disputes may arise that I may live. — Spanish proverb


May you have a lawsuit in which you know you are right. — Spanish Gypsy curse


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

December 22, 2003

ethicalEsq’s first slippery slope

Filed under: pre-06-2006 — David Giacalone @ 4:04 pm

Christmas 1950


slippery slope


giacalone, giacalone & giacalone


No matter how you celebrate, e&h wishes you a time filled with much joy,  gratitude and holiday spirit


Don’t forget to let a few haiku moments happen, too.


p.s. Yes, Mama Giacalone had some cute kids! (that’s me upfront, big sister Linda in the middle and in charge, and twin Arthur for ballast.)  As Denise has suggested, Mama never had enough arms.


-e&h-e&h-e&h-


Special holiday thanks to  friend and webjournaliste George M. Wallace, who can never resist good wines or bad puns at his mostly high-brow A Fool in the Forest , for including us in a random selection of seasonally apropos weblog selections.

December 21, 2003

Should Web Lawyers Use Content-Targeted Ads?

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

no solit neg ?

 

A weblogging attorney recently asked me if I had an opinion on the ethical aspects of a lawyer signing up for the Google AdSense™ program.  I didn’t know what it was, much less have an opinion on it. [Remember, most of my legal ethics knowledge is gained on a "need to know" basis.]  At least one weblogger has praised AdSense highly for its ability to generate income.  For a sample, check out this legal news site to see the kind of ads that appear on its Advertising Law page.  Click here for Google’s Case Study page.


  • You can insert your weblog URL here on Anders Jacobsen‘s Blog to see the kind of ads your site would generate using AdSense. [many thanks to Mike O'Sullivan for this most helpful clue]

After doing some research and a bit of thinking, I only have more questions, and I hope my visitors will help figure out some answers. 

 

Here’s how Google describes its AdSense program:



Google AdSense is a fast and easy way for website publishers of all sizes to display relevant, text-based, unobtrusive Google AdWords™ ads on their website’s content pages and earn money. Because the ads are related to what your users are looking for on your site, you’ll finally have a way to both monetize and enhance your content pages.  The program is free, and Google pays you for clicks on the AdWords ads on your site.


And, here’s part of its explanation on how it targets ads: 




Simply put, we provide you with AdSense HTML ad code to place on the web pages on which you want to display AdWords ads. Then, we take care of the rest by leveraging award-winning and proprietary Google search and page-ranking technologies to deliver relevant AdWords ads to those content pages.


Google’s folk make sure the ads are “Family-Safe,” and the website owner can filter the ads displayed on a site by creating a “filter list of websites whose ads you’d like to restrict from showing on your site.”   However, Google advises the potential filterer to remember “that filtering sites may decrease the number of ads that can appear on your pages as well as decrease your potential earnings.”  Also, note that while Google’s  geotargeting “makes the ads even more relevant for visitors to your site,” it means “that you may not see all of the ads that can be served to your pages.”


My quick research discovered no code, rule, or guidelines on point, but there might be some out there.  [There appear to be no relevant provisions or policiies in the Best Practice Guidelines for Legal Information Web Site Providers (ABA elawyering Task Force, feb. 2003).]   Advertising codes concerned with a firm advertising its own legal services don’t seem helpful.  We probably can safely say that there’s no fee-splitting problem, since the payment is not connected to a successful sale, only to clicking on the link. 


Yet, at least two issues seem to remain (especially because there is no practical way for even a conscientious lawyer to filter out all potentially troublesome ads).  The lawyer weblogger, or the firm using such programs on a site, might be seen as:


  • aiding in the unauthorized practice of law if, e.g., ads appear from lawyers practicing outside their jurisdictions, or from non-lawyers offering services that might be deemed “the practice of law” in a relevant licensing jurisdiction; [e.g., what kind of ads would a site that focuses on Bankruptcy Law or Divorce Law generate?] or 
  • subjecting visitors to, and/or appearing to endorse, misleading advertisements or shoddy products/services, in order to create income.  (This assumes that Google won’t let you put any “we don’t necessarily endorse” disclaimers near the ads). 


If there are problems with a lawyer using a content-targeted program ad program, such as AdSense , on a “legal content” weblog, I have the feeling they would exist even if the weblog were not linked to the lawyer’s practice site (because the webloggist is surely attracting readers due to her or his legal expertise in the subject area), but a link to a law firm site seems to increase the potential problem.  Of course, weblogs that are not law-related, but merely happen to be run by a lawyer shouldn’t be a problem (unless, perhaps, the non-legal weblog links to the website of the attorney’s law firm). 

 

Does it help our analysis to analogize this to a law office having income-generating advertising space in its waiting room that is put there by an ad broker?  Is it any different from having magazines with ads in the waiting area?   The income-generating purpose might create the responsibility for the law firm to police what was being hawked.

 

Even if there is no potential ethical problem, I wonder if such a program is likely to produce sufficient income to warrant its use on a weblawg.   (The Google intro page mentions special services for sites with 20 million page hits a month or more.)  And, given the notion that weblogs are great as reputation builders for lawyers, are such ads likely to fit into the imagine being sought by the weblawyer?  Also, just how does Google guard against the chummy community of webloggers generating fraudulent clicks by clicking on eachother’s ads to generate some income?  [Oh, yeah, lawyers wouldn't do that.]

 

Even more than usual, your comments and insights, experience or anecdotes are requested and even solicited.

Updates:  In between holiday busyness, I’ll be posting comments received by me directly from various weblawgers, as well as noting postings on the topic.




  • (12-21-03) Steve Minor of the SW Va Law Blog (with tongue in cheek, I think), says Perhaps there could be some theory of liability for the endorsement of something defective – like suing Ted Williams for getting a bad fly rod from Sears.”  I’m sure he meant Ted’s estate. 


  • (12-22-03) CorpLawBlog‘s Mike O’Sulllivan says its a fascinating technology, but


     “I doubt they pay much, they’ll cheapen my site’s
    appearance and I suspect the ads on my site will be
    from lawyers advertising for clients to sue my
    clients.”

  • (12-22-03) Carolyn Elefant of MyShingle.com left a very insightful, “practical” comment, here.
  • (12-23-03) It’s very difficult to disagree with anything Jerry Lawson says today in an insightful posting at NetLawBlog – basically (my summary), the ads are tacky, won’t bring in much money, and shouldn’t be unethical unless we incorrectly consider consumers to be ignorant.  Check it out.  
  • (12-23-03) Also, thanks to Denise Howell at Baby & Baggage for pointing her readers in this direction, noting aptly that the new technology “gives the age-old ethical question of lawyer advertising a digital era/third party twist.”
  • (12-23-03) Marcia Oddi of the (much more than) Indiana Law Blog, saw the e&h Holiday Greeting above, and threatens to get out her old Italian baby pictures (goat cart and all); as to the ads, she says:

    “Now that I’ve seen samples of the ads, I realize I have seen them on other sites and have thought they were placed there by the site owner! So others might have the same impression if such ads were placed on my site. And why wouldn’t they? They might think I am in business with this “Trace anyone” firm.

     

    “And what would I get out of all this? A few pennies a click. Clearly not worth it for a trade of making one’s site look cheap and confusing people. If it paid more would I consider it? Not likely it would, and not likely I would.”

  • (12-23-03) Kevin J. Heller of Law Tech Advisor listed this post in his Possible Items of Interest, asking “what do you think?”  Kevin’s site has some Google ads — what do you think of them?
  • (12-24-03) the Stark County Law Library Blawg pointed over to this article, and supplied their visitors with our updates on this topic
  • (12-25-03) B. Janell Grenier of BenefitsBlog was clearly waiting up for Santa when she posted a pointer (at 12:33 A.M.) to this ongoing discussion, with the reminder that “It is interesting to note that many lawyers who sign up for blawgs using the Blogger tool, automatically have these ads inserted on their blawg until they pay the yearly fee.”
  • (12-29-03) Marty Schwimmer of the Trademark Blog posted today on the Limitations to Keyword Targeted Advertising, giving an example published in today’s NY Times (at C-6): “One embarrassing example was the placement of ads by luggage stores on a Web page for a news article about a murderer who carried away his victims in a suitcase.”  Marty also sent these comments to add to our discussion:



“If I were to run context-sensitive ads, my website would be overrun by the ads that target TRADEMARK – Some ads might be those of authentic competitors, some by trademark filing ‘mills’ that might poorly reflect on my practice, and some ads by ‘document preparation’ firms that offer trademark searching and filing services (the provision of which services might constitute the unlicensed practice of law).


“So I don’t think I’ll be running context-sensitive ads any time soon.”




  •  (12-30-03) Kevin J. Heller of Law Tech Advisor says he’s been following the comments on this posting with interest.  He also reminds his readers that his site includes the following Disclaimer: “The author does not endorse or recommend any of the products or services for which advertisements may be displayed on this site by Blogads, Blogger, Google or Skoobie.”  (Ed. Note from an ex-FTC lawyer: The Disclaimer is at the very bottom of a long home page, well below the last batch of ads, in difficult to read — for us oldtimers, at least — grey-on-dark-blue.)

 


 

December 19, 2003

A Few Stocking-Stuffers for Legal Consumers

Filed under: pre-06-2006 — David Giacalone @ 12:59 pm

Light Bulb good ideas
A number of recent developments should bring joy to consumers of legal services — especially, if they are copied throughout the nation.  Let’s hope that these efforts to increase consumer options (and maybe save them a few dollars) are infectious


California Court of Appeal Creates Step by Step Guide for the Self-Represented in Civil Appeals


As reported at the Self Help Support website, The California Court of Appeal in San Diego has recently released an online manual for pro se litigants (and “attorneys with little or no appellate experience”) who are bringing civil appeals — The California Court of Appeal Step-by-Step.


The manual described the civil appellate process and the related Rules of Court in simple terms.   The Introduction states:


The process of appealing a civil case is presented as a series of steps. Many of the steps are in the form of questions that you need to answer in the order shown. This manual answers some questions and guides you in answering others. At the end of each chapter are the forms for the Fourth Appellate District, Division One, that are most often used in appeals and are referred to in the chapter. Each form has instructions and a blank for you to use in your appeal if you wish to do so and are filing in Division One of the Fourth Appellate District.

For filing, briefing, and/or arguing your appeal, think about hiring an attorney if you are able to do so. Bringing a case to the Court of Appeal without an attorney is hard work and takes a good deal of time. If you are self-represented, you are held to the same level of work as if you were an attorney. In most cases, you have only one chance to have the court hear your case. In addition, you must follow all of the court’s rules and procedures. If you do not, your case may be dismissed.


Va. County Requires Mediation Orientation for All Cases

Effective Dec. 1, 2003, in order to encourage the consideration of mediation as a dispute resolution option in every case, all civil litigants in Chesterfield County (Virginia) Circuit Court are required to complete a Mediation Orientation Certification Form and indicate their interest in participating in a mediation orientation session.  According to a court newsletter announcing and describing the program


The Mediation Orientation Certification Form requires that Counsel certify to the court that they have discussed with their client the availability of mediation and also indicate the client’s willingness to participate in or opt out of an orientation session. A copy of the Mediation Orientation Certification Form will be provided to counsel by the Court.  . . . Pro se parties will also be required to complete and return the form to the court. If at least one party indicates a willingness to mediate, the court will refer the case to a mediation orientation session. The Court may also on its own motion enter an Order of Referral.


A procedure is included that would allow a litigant to opt out of the mediation orientation.   This is meant to be model program that could, if successful, be spread statewide.  (Thanks to Steve Minor for the pointer. 12-18-03)

  • Besides needing well-trained and motivated “neutrals” to conduct the orientation and mediation sessions, the program will need the good faith participation of all lawyers involved — including a fair, objective description of the mediation process and its potential benefits and disadvantages for the client.  If one does not already exist, I hope a well-written brochure describing mediation will be made available to attorneys to help inform their clients.


Florida Bar Committee Rejects ABA Changes to Model Rule on Fees
Stating that Florida Bar “contingent fee requirements are much more extensive than the ABA model rule,” the Bar’s Special Committee on Revision of Rules rejected the ABA’s new Model Rule 1.5 (Final Report, at 40) (thanks to sunEthics.com for the pointer).   The Bar’s Board of Governors will take final action on the Report at the end of January, 2004, before forwarding any recommended rule changes to the state Supreme Court.  As we reported on June 30, 2003, Arizona also rejected the ABA’s weakening of protection for clients in contingency fee arrangement.

  • Through Rule 4-1.5(f) of the Rules Regulating the Florida Bar, clients entering into contingency fee arrangements have greater protection than in any other state, including a Statement of Client’s Rights for Contingency Fees (stating, among other things, that there is no set percentage fee and that the client has the right to negotiate the fee level), a 3-day “cooling off” period to reconsider after signing an agreement, and step-down maximum fee levels as the amount awarded increases.  See our compilation of the Florida Bar Continency Fee Rules.


The Blawgosphere Helps Spread a Client-Oriented Message

Dennis Kennedy wrote yesterday that Blawgspace is a Generous Place, stating that “the earliest group of blawgers (the “First Ones”)” have been very generous and helpful to new blawgers.”  Dennis adds:


Ernie the Attorney, Tom Mighell, Denise Howell . . . and others have gone out of their way to mention new blawgs and give new blawgers a bigger audience and more recognition at the start than they could ever have imagined.

As we near the end of 2003, it is so cool to see how blogs have not only brought back the enthusiasm and energy of the early days of the web, but also provided a medium in which lawyers can show that the TV picture is not the only picture, that lawyers can be creative, generous and help in creating communities.


With that, I salute those who have created the blawgosphere in 2003.

I want to express my own thanks to the First Ones, including Dennis, for their spirit of generosity and welcome.  They have helped this webjournal achieve far more than I could have possibly imagined when I started last summer.  The resulting audience and receptivity for a client-oriented perspective on legal ethics and the delivery of legal services may not produce miracles in 2004 or anytime soon, but it will surely give lawyers the chance to reflect more deeply on many relevant topics and give consumers more information to help make them wiser participants in the legal marketplace.

  • P.S. Soloist maven Carolyn Elefant of MyShingle added her perspective on the beneficent blawgiverse today (12-20-03).  Carolyn says she, too, has benefitted from that welcoming sense of community and sharing, but I want to attest that she has “played it forward” and has often reached out to assist and gently nudge this webjouraliste. [Must be the Hanukkah spirit, but this goy is getting all verklempt.]

December 18, 2003

All Those Amazon Links

Filed under: pre-06-2006 — David Giacalone @ 3:58 pm

When was the last time you clicked on a weblog link for a book that didn’t take you to Amazon.com?  As an advocate for competition and consumer choice, I’ve often felt annoyed that webloggers have granted a hyperlink hyper-monopoly to one internet source of consumer items.


So, I’ve been trying to find alternatives when I mention a book on this site — sources that offer the reader not just the chance to buy the book, but information about it, with objective reviews (if possible), and consumer feedback.  Low prices and shipping fees, tax-free opportunities, links to other books by the author or similar titles, and the chance to buy used copies of the book would also be nice.


And — trust, me I own no stock in the company — I have not been able to find any alternative source that comes close to what Amazon.com has to offer my readers with one click.   It’s a maxim of antitrust law that monopoly won on the merits is completely lawful (although Mr. Gates learned that maintaining one unfairly is a problem).   Until I discover a comparable substitute, it looks like I’ll be joining the web-throng linking almost exclusively to Amazon.com.  


Now, who said I don’t have an open mind?

December 17, 2003

Stop Blaming Your Lawyers, Mr. Rumsfeld

Filed under: pre-06-2006 — David Giacalone @ 8:57 am

dunptruck  “My lawyer won’t let me” and “My lawyer said I could” are rarely convincing justifications when uttered by Joe Client.  They totally fail to ring true when coming from high government officials who have armies of lawyers employed for the primary purpose of providing excuses for political decisions.

 

We don’t get into politics here at e&h, but we’ve been quite annoyed by the frequent suggestions lately by Defense Department Secretary Ronald Rumsfeld that government lawyers will be the ones deciding how Saddam Hussein will be treated.  For example, when asked by Lesley Stahl on CBS’s “60 Minutes” on Sunday (12-14-03) whether the Red Cross would be allowed to see Saddam soon, Mr. Rumsfeld replied “Those are judgments that will be made by the lawyers as we go along.” 

 

The client is the Boss — especially when the client is Big Government, and even more so when the issue is whether or not to perform or permit a discretionary action.   Suggesting here that lawyers will decide on how Saddam is treated (other than by indicating to their client the minimal safeguards and standards of treatment that he must be allowed) makes lawyers and clients look bad.  The Client is the Boss and the buck stops with the boss. 

-e&h thanks-


to Ernie for noting the noteworthiness of this most humble weblog.  What could be better than legal ethics and haiku?  A daily dose of vitamin Ernie, of course.

December 16, 2003

Consumer Names Kept Confidential Despite Lawyers’ FOIA Ploy

Filed under: pre-06-2006 — David Giacalone @ 6:29 pm

power plug  The 7th Circuit decided today that the Federal Trade Commission does not have to give the names of consumers who have submitted complaints about “cramming” to lawyers who want potential clients for a class action suit. (The Lakin Law Firm, P.C. v. Federal Trade Commission (12/16/03 USCA 7th Cir.)).  (Thanks to Marcia Oddi at the Indiana Law Blog for the pointer; as usual, Marcia has ably summarized the decision.)

 

Under a Freedom of Information Act (FOIA) request, the FTC gave The Lakin Law Firm (of Wood River, Illinois) information on 1400 complaints of “cramming” — “the shady practice of putting bogus charges on a person’s bill (usually a monthly credit card statement) in the hope that the consumer will pay the inflated balance without noticing that he has been duped” — but withheld names and addresses of the complainants.   

 

The Commission said:


 “[t]his information is exempt from release  under FOIA Exemption 6, 5 U.S.C.

Haiku Coup for Our Readers

Filed under: pre-06-2006 — David Giacalone @ 1:56 pm

kacianSelf

I am very pleased to announce that Jim Kacian, a central figure in the world of English-language haiku, has generously offered to preview his upcoming haiku primer/how-to book at this website.

Tentatively called “First Thoughts–A Haiku Primer,” Jim’s book will appear in monthly installments here at haikuEsq, with the first installment now available here.  You can always reach it quickly from our right-margin navigation bar, by clicking “Jim Kacian’s How-to Primer.”

  • Jim wouldn’t want me gushing over his credentials as an editor, publisher and author of haiku.   Nonetheless, the least I can say is that Jim is the editor/founder of the venerable Red Moon Press, whose annual Anthologies have won many awards and much praise.  He is also co-founder of the World Haiku Society; and editor of frogpond (journal of the Haiku Society of America).

Here’s the chance to painlessly learn from a master the delights of haiku — what it is, its history and future, and how to become a skilled reader and author of the genre.   Jim is hoping that our readers — that’s you! — will give him feedback on the Primer, by clicking on the “discuss this message” link at the end of each installment.

I know my readers are too intelligent (and insightful) to pass up this opportunity.

December 15, 2003

An Honest Lawyer Says Tobacco Fee Claim is Clearly Excessive

Filed under: pre-06-2006 — David Giacalone @ 4:33 pm



  • Update:  The jury awarded the Mass. Tobacco Case lawyers nearly $100 million in fees (on top of an arbitrator’s $775 million award), but not the full amount claimed under the original contract (over $2 billion dollars). (AP, “Law Firms Get Millions in Tobacco Case,” 12-19-03; thanks to Legal Reader for the pointer). The AP article points out that while the firms’ lawyer had used the repeated mantra that ‘a deal’s a deal,’ “The state argued that paying the firms the full amount would be a violation of the standard of reasonableness that governs all legal fees.” 


Thomas Sobol testified today in Massachusett’s $8.3 billion settlement with the tobacco industry that it would be “absolutely, clearly excessive” for lawyers to claim the 25 percent fee agreed upon in a 1995 pact with the state. Sobol served as lead attorney on the tobacco case for Brown Rudnick Berlack & Israels, which is seeking over $2 billion in fees.(AP/Providence Journal,”Attorney testified for third day in tobacco fees lawsuit,” 12-15-03)


small shark  The firms have already received $775 million after arbitration with the State over the fees, and the AP article states:



Sobol left Brown Rudnick in 2000 after questioning the wisdom of seeking additional money and is considered one of the state’s star witnesses against his former partners.


He said the $2 billion in fees would translate to $27 million per year for each attorney who worked on the case – more than the annual salary of the highest paid professional baseball player.


Overlawyered.com has covered this case over the years, including the announcement in early November that the firms would seek the entire $2 billion fee.   We were in our “dormant” period when that news broke.  However, we did notice with some disappointment that the ethical aspect of this fee grab was not covered by other weblawgers, not even those who promised to pinch hit after the demise of ethicalEsq?.  


On Nov. 4th, 2003, we sent the following message in an e-mail to a respected colleague who had opined privately that the firms should get the entire $2+ billion, since “a contract is a contract” and the client (the State) had competent counsel when it entered the contingency fee arrangement:



You make some good points.  I assume that the arbitration proceeding looked into the issues you raised and concluded that they only justify $775 million in fees.  But, your position seems to avoid the question whether an otherwise appropriate contingency fee arrangement can result in a fee that is unreasonably large — because no risk could justify the resultant hourly rate.  [Or, e.g., that it would have been unreasonable for the firm to insist on more than, say, $1 billion in potential fees at the time the arrangement was made.]

 

Put another way:  Even if a client is willing to agree to a pure contingency fee percentage arrangement that has no maximum level, is it ethical for the lawyer to fail to insert an explicit ceiling in the original contract or apply a maximum fee level [retrospectively] when the amount of damages creates an unfair windfall for the lawyer?   If the lawyer doesn’t impose the limit, should the courts or ethics committee impose an implied ceiling, because an amount far less than $2 billion would and should have been sufficient to balance the risk involved and entice the lawyer to enter the contract?   Taking more over-compensates the lawyer for their risk and their services, shortchanging their clients.  

 

Furthermore, a public policy issue might also exist as to whether State officials — especially state attorneys — can be allowed to enter into such an open-ended contingency fee arrangement, which takes the damages away from those injured (the taxpayers) and gives them to their spearholders.

Model Rule 1.5 says (emphasis added)  “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee.”  Doesn’t this suggest that a fee that is reasonable when the agreement is first made, could end up excessive and be unreasonable to collect?

December 14, 2003

Finding and Practicing Your Own Values As a Lawyer

Filed under: pre-06-2006 — David Giacalone @ 9:03 pm

Before the November edition of the ABA Journal gets tossed out with the trash, take a look at Steven Keeva’s article “Whose Voice Is It Anyway? Don’t Let the Legal Culture’s Negative Message Influence the Way You Practice” (Nov. 24, 2003). [update: I can no longer find that article online, but many of the concepts are also included in Keeva's piece "Practicing Your Passion," GPSolo Magazine" (July/August 2005] The article goes to the core of a lot of issues we’ve been discussing on this site (e.g., here and there), and that are an important part of Scheherazade Fowler‘s ongoing conversation at Stay of Execution on issues such as lawyer unhappiness and snobbery.
Keeva, who wrote the respected book Transforming Practices: Finding Joy and Satisfaction in the Legal Life (1999),  starts with the observation that “Some of the attitudes and behaviors that pass for normal in the legal culture these days are less than conducive to living a balanced, satisfying professional life.”    As examples, he cites the notion that “pretty much anything is acceptable in the service of zealous advocacy” and the message that lawyers who are not “doing ‘prestigious’ corporate work in big-city law firms—are, per se, wanting.”   Keeva also states that:
Recent research demonstrates how a majority of first-year students who come to school with an inner motivational focus—that is, a desire to help others, make the world a better place and so on—move rather rapidly to an external focus, such as earning a lot of money or impressing others. Such shifts typically coincide with plummeting levels of well-being, according to the study by professors Kennon Sheldon of the University of Missouri-Columbia and Lawrence Krieger of the Florida State University College of Law.
[The study was published in Behavioral Sciences and Law, and may be viewed here.]
In this article, Keeva suggests ways to explore the values that currently underlie how you view yourself as a lawyer, and view your clients (see this piece, too), other lawyers, and what it takes to thrive in the legal profession (and life).  He then helps you to discover the source of those values and decide whether you want to keep them and let them direct how you practice law.  Investing some time in such contemplation seems very likely, I believe, to lead to happier lawyers with more satisfied clients.   Of course, the ramifications for our society of having truly joyful lawyers — satisfied with their profession and lives — is truly staggering.

December 13, 2003

Official Re-Opening and Name Change

Filed under: pre-06-2006 — David Giacalone @ 8:12 pm

small suave dude e&h

Don’t say we didn’t warn you.   Despite going dormant in October (and receiving the most wonderful eulogies), ethicalEsq? has been attempting a resurrection.  After a fortnight of experimentation and disorientation, we’re ready to re-launch officially, under a new name and with our new game plan.

  • we’ve downsized our ethics coverage a bit — hoping to reduce the workload by (mostly) emphasizing positive developments in clients’ rights and legal ethics.  Don’t forget, though, that all of our ethics archives and resources are still available.
  • we’re going to actively pursue the role of Haiku Advocate, for the reasons discussed in “Yes, Lawyers and Haiku” (Dec. 7, 2003); and
  • we have finally decided on our new name: ethicalEsq & haikuEsq… [note: On May 26, 2004, we changed to our current and last name: f/k/a; see our About Page for the details.]

We hope the partnership of ethicalEsq & haikuEsq will contribute in some small way to helping lawyers achieve the balanced lifestyle prescribed by Professor Patrick J. Schiltz, in his landmark, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871, which we discussed here last September.

sunset mountains We apologize if the name changes have confused or inconvenienced our visitors and weblog colleagues. [Hey, we said we'd be experimenting!]   Although “Giacalone’s Bar & Grill” had a certain appeal, we just couldn’t give up the ethicalEsq goodwill and didn’t want to foster a personality cult.  Also, the new haiku partner thought the Shark pix was a bit unsettling for our gentler visitors and contrary to a posture of positivity, so the grilling motif had to go.  The final weblog name makes clear the dual focus of our site, as well as the multiple personality of its Editor (the ever-present “we”). Honest, I won’t change the name again.  Really. [note: On May 26, 2004, we did change to our current and last name: f/k/a]

Please stop on by frequently for a haiku moment or a little ethics nag.   Around here at e&h, humans “count” a lot more than page hits from probes, robots or phantoms.

  • haikuEsq is thrilled to have Michael Dylan Welch as its first invited Honored Guest poet.   Thanks to his generosity, we’ll be featuring many of Michael’s haiku in our HAIKUesque feature (in the Navigation Margin) for your inspiration, and to whet your appetite for the genre.  You’ll also find his illuminating Ten Tips for Writing Haiku, on our Haiku Resources Page.

Improving Self-Help — Theory & Practice

Filed under: pre-06-2006 — David Giacalone @ 6:42 pm

Jerry Lawson and Richard Zorza keep giving us post after post at elawyer blog on trends and resources for making legal services more accessible, affordable and client-friendly.   Earlier this week, we followed Jerry’s pointers on outsourcing (a topic he re-visted today) and on judges and pro se litigants.  Today, I want to second Richard’s recommendation of the Self Help Support website, which he called “An important new site on innovations in access to justice funded by SJI [State Justice Institute].”  

 

The Self Help Support site has a Library of resources (over 400 items) that “all relate to developing, running, and improving programs for the self-represented litigant,” plus a “What’s New” section with links to new studies, proposals and ethics developments, and articles in the news touching on self-help issues.   Following my new positive approach to legal ethics, I want to highlight two articles I mentioned in the SHS “What’s New” column, one of which looks at the theory behind the growth in support for self-help law and one of which describes a practical approach being used by volunteer attorneys.
 

The first article is Helping the Pro Se Litigant: A Changing Landscape, by Paula Hannaford-Agar, which appears in the Winter 2003 issue of Court Review.  Ms. Hannaford analyzes the response of the judicial and legal community to the chronic accessibility problem facing low- and moderate-income consumers.  As she puts it:   

“Judicial and legal policy makers have gradually come to the realization that there will never be enough affordable legal services to meet the demand for full legal representation for all eligible individuals. Given existing budgetary constraints, a 400% increase in funding for legal services is highly unlikely. Similarly unlikely is a dramatic increase in pro bono activity by lawyers, a dramatic decrease in legal fees, or a return to the barter system of an earlier era in which clients could pay for legal assistance with their own goods or services.” . . .

“It should be no surprise, therefore, that increasing numbers of people choose self-representation as the only feasible option for securing necessary legal rights and remedies. In recognition of the reality of litigants’ needs, the courts and the legal community have slowly shifted from insistence on full-representation for every litigant as a fundamental requirement of equal justice to a more pragmatic approach, offering information and limited counsel for those litigants who are capable of managing their own cases and reserving full-representation for those with more complex cases or fewer personal resources.”

In discussing this shift in outlook, the article explores the need to distinguish between providing legal services (which must be done by lawyers) and providing legal information (which can come from a number of other sources), in constructing solutions to the access problem.  Ms. Hannaford presents a thoughtful analysis that fills in some of the history and theory behind the assertions in my posting of July, 15, 2003, “Pro Bono is Not the Answer to the Access Problem (Self-Help Is),” which concluded that “the most effective way to improve access to the American justice system is to spend public and private dollars and resources helping consumers solve their own legal problems, rather providing lawyers for them.” 

 

The second article presents the very good news that members of a bar association in St. Louis County, Minnesota, along with court administrators, have taken this insight to heart and created a volunteer program that will help people represent themselves in the local court.  ( New volunteer attorney program helps people represent themselves, Duluth News Tribune, by Mark Stodghill, 12-03-03).    According to the Duluth News Tribune, the “Ask the Attorney” program will provide a volunteer lawyer at the courthouse the first and third Wednesdays of each month.  Although the “lawyers in the Ask an Attorney program will not represent you in court, will not enter into an attorney-client relationship and will not fill out pro se paperwork,” the program will provide a half-hour free session in which the lawyer can:

 - Define the steps to represent yourself in court.

 - Help you understand the legal process you will go through.

 - Suggest available alternatives.

 - Refer you to a legal clinic or modest means legal service program such as the Volunteer Attorney Program, which charges no fee or a low fee for income-eligible people.

The formerly cynical ethicalEsq was fond of asking when bar groups were going to start helping people represent themselves.  So, this is a very welcome development, although a small one.

December 10, 2003

Your Honor, Please Read This Article on Pro Se Techniques

Filed under: pre-06-2006 — David Giacalone @ 2:31 pm

pointer dude


Judges play a crucial role in the ability of litigants to represent themselves effectively in court.  There is a major article in the newest edition of The ABA Judge’s Journal that looks at the judge’s role and ethical obligations, and offers important, practical suggestions for making the right — which is often the necessity — to appear pro se a meaningful option.  (Judicial Techniques in Cases Involving Self-Represented Litigants, by Rebecca A. Albrecht, John M. Greacen, Bonnie Rose Hough, and Richard Zorza, Vol. 42, 1, Winter 2003).


The Judicial Techniques article aptly notes (emphasis added):



[O]ne issue of particular concern to trial court judges, and about which little has yet been written, stands out: how a judge can deal with self-represented litigants in the courtroom without departing from the judicial role as a neutral, impartial decision maker. Trial judges have no common understanding of the applicable ethical standards, case law, or practical techniques to use to ensure that justice is done in their courtrooms—and to guarantee that they have not violated or bent the rules by “leaning over the bench” to assist a floundering unrepresented party. This article examines the applicable code of ethics and case law and suggests options for trial judges seeking helpful techniques.


The authors state that there are two basic approaches to the judge’s ethical obligations when one or more party is self-represented:



The minority position, taken by the federal courts, Alaska, Connecticut, and Minnesota (as articulated by Minnesota), is that “[a] trial court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodation so long as there is no prejudice to the adverse party.”


The emotional message that seems embedded in the majority view is that self-representation is a voluntary choice, it is moreover, a foolish choice, and litigants who put themselves in this position “deserve” the consequences of that choice. . . . The emotional message in minority view opinions is that a person’s lack of counsel likely is not voluntary and is instead the result of a lack of means—but that even if voluntary, self-representation is a choice vouchsafed by the Constitution. The court has an obligation to provide as fair a process for the uninformed and unsophisticated citizen as for the one who can afford the most accomplished and aggressive attorney.


The article concludes:



The challenge for the trial judge dealing with unrepresented litigants is to ensure they have a full opportunity to present their cases for resolution on the merits. The duty of impartiality requires the judge to consider all competent evidence in the possession of the unrepresented litigant. We have suggested a number of techniques to help judges accomplish that result. We believe that they are fully acceptable under both the majority and minority views of the judge’s role in these types of proceedings.


The article also reproduces and recommends, a Proposed Minnesota Protocol for Judges in Pro Se Cases, which is the basis for a similar proposal under consideration in Idaho.


If you know a judge who needs a better approach to the self-represented or who would really like to improve the handling of pro se cases, please tell her or him about the Judicial Techniques article.  There is more information in the ethicalEsq? posting More Help for the Self-Represented, and on our Access/Self-Help/Pro Se page  Thanks to Jerry Lawson at eLawyerBlog, for pointing to this article and keeping such a good eye on issues relating to increasing access to the judicial system.


-b&g thanks-


to our e-buddy Tom Mighell at Inter Alia for his hospitality and good wishes. 

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