The most difficult thing about being an ethics gadfly-watchdog is not the feeling of futility, nor the enormity of the task. For me, the hardest part about the ethicalEsq role is the knowledge that what I have to say will often offend perfectly decent men and women. In fact, lawyers who are most atuned to practicing ethically may be the most offended.
. . me?
This recently happened after my discussion on March 4th of law firm branding. In the post, I voiced concerns aboout applying the premium-brand technique to the provision of legal services, “no matter the decency and quality of a particular lawyer or firm using the marketing techniques.” My analysis used statements by Matt Homann from his the [non]billable hour weblog as examples of the branding philosophy that concerns me. Matt responded in a short and strong Comment:
Cheap shot, David. Get to know me better before calling my ethics into question.
Matt is correct to suggest that I do not know him very well. [I had a long telephone call with him last year about promoting mediation, and I've been reading his weblog daily from the day it was launched a few months ago -- and plugged it that first day on ethicalEsq.] From what I do know, Matt appears to be exactly the kind of decent, conscientious lawyer we need more of, and the kind of ethically-atuned lawyer I especially dislike offending.
- You can decide for yourself whether I took cheap shots at Matt. Part of my position on marketing and branding by lawyers is that it concentrates on subjects that are rather superficial, and are thus quite amenable to spoofing
“question mark gray” I do not believe that I have called Matt’s personal-professional ethics into question. My readers will have to decide for themselves whether they think I have. When writing a weblog, giving examples (with links, if possible) is very important. Because Matt has an articulate forum at his weblog, and seems to be a man of integrity, using examples from his site is quite natural. Also, there seems to be no way to advocate for bringing fiducial principles more fully into the lawyer-client relationship, or better informing the client on fee-related issues, or making lawyer services more affordable for the average consumer, without suggesting that the legal profession — and therefore individual lawyers — are falling short of what I believe should be the ethical duties or aspirations of the profession.
However, saying a particular practice or business approach seems to have ethical pitfalls for lawyers or negative results for clients is not, in my mind, the same as questioning an individual lawyer’s ethics. I cannot know his or her intentions, nor how each client is treated by the lawyer.
- For example, it’s been ten weeks since I first raised questions about the practice of “value billing” by lawyers. I raised it in reaction to Matt Homann’s praise of value billing. And, I have literally checked his site every day since then to see if Matt has more fully explained his approach to value billing. Since I agree with him that hourly billing has many problems, I would love to find an approach to value billing that is fair to both lawyer and client. I hope Matt will soon unveil a roadmap to achieving that goal.
I apologize if I have offended Matt Homann, or any lawyers who in good faith attempt to live up to their ethical duties. It’s quite easy to tell when I believe particular conduct is straight out unethical — I say it. However, I have no investigatory powers or magic ways to learn about any one lawyer’s behavior. When I raise general concerns over particular types of conduct, only the individual lawyer knows if my concerns are applicable to his practice — or whether my concerns are valid ones that need full consideration.
Pulling my punches because I like, admire, or enjoy a particular attorney is not, in my view, an appropriate way to run this weblog. Being an ethics watchdog is not fun — especially for someone who genuinely likes people and likes to please them. If someone else is out there ably doing the legal watchdog role, or the profession already does a great job policing itself, please let me know, so ethicalEsq can retire and let haikuEsq run this website (perhaps with some help from the cuddly skepticalEsq).