f/k/a . . . the archives

November 28, 2004

mounds of coal

Filed under: pre-06-2006 — David Giacalone @ 5:49 pm

. . . no, they’re not Santa’s gifts for naughty weblog editors.  We’ve got a much better present for you: a pair of haiku from Rebecca Lilly (use our search box to find more):
First snow
the white mounds of coal
beside the closed station
Cold autumn twilight NewRes2 neg small
the garden slope’s stepping stones
edging out of line
. . . from A New Resonance 2 (Red Moon Press, 2001)
credits: “First snow” — Brussels Sprout 9:3
“cold autumn twilight” — Modern Haiku XXXI: 2

finally touching her face –
“are your fingers
always this cold?”

[Nov. 28, 2004]

yin yang one-breath pundit


  • Thanks to a pointer from BenefitsBlog today, I learned that.

    “Web logs are referred to in Chinese as bo ke, which is phonetically similar to the word ‘blog’, but also has a literal meaning of rich or abundant traveler.” (Asia Times article on weblogs in China, July 22, 2004)

    Hmm, why didn’t they come up with terminology that sounds like barfing?  Such elitists!

  • Jerry Lawson echoes Carolyn Elefant’s complaint, in response to proposed changes in Mississippi
    pro bono rules, that “Solos can’t delegate their pro bono obligation to other lawyers, so why should biglaw attorneys have that ability? ”   As I have mentioned on other occasions to Carolyn, she seems to leave her lawyer skills behind when advocating for solos, and instead sounds like the mother of a juvenile delinquent or like a whiny adolescent, for whom it is always unfair when someone else gets to do something they can’t do.  Seems to me:
    • Being a solo is not like being born into a caste from which one can never escape.  Indeed,
      Carolyn’s shtick is mostly as a cheerleader pointing out the advantages of being a solo, as compared to being in a BigLaw firm.  Here in the real world even Good Things have downsides.
    • What would we say if BigLaw partners complained they should not have to be responsible for
      monitoring the behavior of associates, because solos don’t have similar ethical obligations?
    • Or, they shouldn’t have to pay the bar or CLE fees for any employees, since solos don’t have to?
    Do some rules here on Earth affect the poor differently than the rich, and the big differently than the small? Of course, they do. I’d suggest using traditional equal protection analysis to see whether the differences are malicious, undue or unfair before crying foul — and before crying wolf so often no one cares to listen.


  • It just came to my attention that a Google Search today for “yabut generation” yields no results. prof yabut small
    This weblog did, however, come in at #3 and #4 for the quote-mark-less search yabut generation>.
    As the home of Prof. Yabut, we are happy to use the phrase first right here — “yabut generation”.
    However, there are so many generations that deserve the appellation, that it is impossible to choose one.  The But-Boomers.  Brokaw’s Gratest Generation.  Generations Y-But and X-But, etc.

10 Comments

  1. Speaking of pro bono…do you support mandatory pro bono? I do, and I’d like to read what you think.

    I think that if partners want to delegate pro bono to associates, then parters may do so, since in doing so, they are suffering the opportunity cost of that associate’s work. A large law firm takes on risks in hiring lawyers (e.g., malpractice and ethical issues) and also receives certain benefits. I don’t know why that statement – a platitude, really – should engender talk of unfairness.

    Indeed, I think that a law firm that endows a fellowship should get credit for up to 1000 hours of the fellow’s work.

    The point is not fairness vel non to solos. The point is that poor people should receive representation when possible. If big firms can take advantage of their scale to provide representation through some other means – good.

    Indeed, the reason I support mandatory pro bono is to ensure that everyone has access (even if it’s very limited) to an attorney. And I’m not some socialist. Lawyers make their living using PUBLIC COURT SYSTEMS – from the filing clerk to the U.S. Supreme Court. It’s really scummy to then imply that they owe the public nothing. (I know Caroyln is not making this argument, but many lawyers do). It’s kinda like a state worker complaining about taxes. Knucklehead, you would not have anything to pay taxes on if it weren’t for taxes. (!)

    No lawyer, even wealth BigLaw partners, pays in taxes more than he receives in public benefits. So the state should be able to exact a little extra from lawyers. How that lawyer pays it should be up to him or her.

    Comment by Mike — November 28, 2004 @ 9:07 pm

  2. Speaking of pro bono…do you support mandatory pro bono? I do, and I’d like to read what you think.

    I think that if partners want to delegate pro bono to associates, then parters may do so, since in doing so, they are suffering the opportunity cost of that associate’s work. A large law firm takes on risks in hiring lawyers (e.g., malpractice and ethical issues) and also receives certain benefits. I don’t know why that statement – a platitude, really – should engender talk of unfairness.

    Indeed, I think that a law firm that endows a fellowship should get credit for up to 1000 hours of the fellow’s work.

    The point is not fairness vel non to solos. The point is that poor people should receive representation when possible. If big firms can take advantage of their scale to provide representation through some other means – good.

    Indeed, the reason I support mandatory pro bono is to ensure that everyone has access (even if it’s very limited) to an attorney. And I’m not some socialist. Lawyers make their living using PUBLIC COURT SYSTEMS – from the filing clerk to the U.S. Supreme Court. It’s really scummy to then imply that they owe the public nothing. (I know Caroyln is not making this argument, but many lawyers do). It’s kinda like a state worker complaining about taxes. Knucklehead, you would not have anything to pay taxes on if it weren’t for taxes. (!)

    No lawyer, even wealth BigLaw partners, pays in taxes more than he receives in public benefits. So the state should be able to exact a little extra from lawyers. How that lawyer pays it should be up to him or her.

    Comment by Mike — November 28, 2004 @ 9:07 pm

  3. Carolyn does oppose mandatory pro bono requirements, saying “I just don’t think the bar can force attorneys to undertake what is a personal moral obligation.” [emphasis added; from the post, "If You're Going to Force Pro Bono Don't Make It Equitable", Nov. 6, 2004; I think that "Don't" is an editing mistake]
    I do not believe that pro bono is merely a “personal moral obligation.”  It is a professional responsibility that grows from the privileges that come with being a member of the Bar — from having been granted permission to act as an attorney at law for other persons, and from gaining protection from competition from non-members.  Therefore, I do not object to mandatory pro bono requirements, and agree with your assessments. 
    I would not, however, limit the fulfillment of this pro bono obligation to activities directly representing the indigent.   As I said in Pro Bono is Not the Answer to the Access Problem:

    Forcing lawyers to work pro bono (that is, free — for the good of the public) is not the answer to the crisis that exists for millions of Americans needing access to the legal and justice system or simply needing to solve everyday legal issues.  The best way to ensure that the non-rich — Americans of low and moderate income and wealth — have access to necessary legal and judicial services is to give them the ability to represent themselves, rather than solely using lawyers. By combining the existence of a literate public with computer technology, and with lawyers willing to “unbundle” their services and perform discrete tasks for clients who want to handle their own legal matters, we can now make it possible for self-help law to be a viable option for solving most of the legal problems of most Americans.   (Of course, it is just that potential that worries the legal profession, which continues to expand, while becoming in many ways obsolete.  The response so far has been an attack on nonlawyer services and the de minimis provision of free services.) 
    There simply will never be enough pro bono lawyers, hours or resources to service the majority of Americans who cannot afford attorneys.  A pro bono mandate, or even a nation-wide volunteer program to greatly increase the amount of pro bono services performed or financed by attorneys, can only amount to a small bandage for a deeply wounded system, and an ineffective balm for a profession’s guilty conscience.  . . .
    I in no way mean to discourage individual lawyers who have special causes they want to assist with pro se efforts, or who want to use their legal talents to help the needy.   Nevertheless, consumer advocates, judges, court administrators, and civic-minded bar associations across the country have come to the conclusion 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.   

    In NY’s Disappointing Pro Bono Report, I opined:

    From the ethicalEsq perspective, “The Future of Pro Bono in New York State,” and correspondingly of accessibility to the justice system for all, looks bleak.  Perhaps it will take a legislative push (a mandate and adequate funding) for bench and bar to work harder to achieve universal legal access.  Traditional pro bono service is clearly not the answer, or even a small part of the answer, and mandating such pro bono would only make a tiny dent in the problem.  
     
    It will take a determined judiciary and a committed and organized bar.   Bar associations who are serious about improving access to the legal system could help fund, tailor and produce, in their own states and locales, self-help programs similar to the online and courthouse resources available in California and Nevada,   Local bar groups could also recruit and train volunteers for hands-on assistance in programs similar to those in Duluth, MN, and Santa Clara, CA., where lawyers help persons with legal problems represent themselves.   Much more can and must be done.  I wish the judges in New York State had leaned a lot harder on the Bar and taken a lot broader perspective from their benches.

    Also, it seems ridiculous to me that Mississippi is considering reducing its pro bono requirement from 50 to 20 hours, and allowing a lawyer to pay a mere $200 in lieu of the 20 hours. 

    Comment by David Giacalone — November 28, 2004 @ 9:54 pm

  4. Carolyn does oppose mandatory pro bono requirements, saying “I just don’t think the bar can force attorneys to undertake what is a personal moral obligation.” [emphasis added; from the post, "If You're Going to Force Pro Bono Don't Make It Equitable", Nov. 6, 2004; I think that "Don't" is an editing mistake]
    I do not believe that pro bono is merely a “personal moral obligation.”  It is a professional responsibility that grows from the privileges that come with being a member of the Bar — from having been granted permission to act as an attorney at law for other persons, and from gaining protection from competition from non-members.  Therefore, I do not object to mandatory pro bono requirements, and agree with your assessments. 
    I would not, however, limit the fulfillment of this pro bono obligation to activities directly representing the indigent.   As I said in Pro Bono is Not the Answer to the Access Problem:

    Forcing lawyers to work pro bono (that is, free — for the good of the public) is not the answer to the crisis that exists for millions of Americans needing access to the legal and justice system or simply needing to solve everyday legal issues.  The best way to ensure that the non-rich — Americans of low and moderate income and wealth — have access to necessary legal and judicial services is to give them the ability to represent themselves, rather than solely using lawyers. By combining the existence of a literate public with computer technology, and with lawyers willing to “unbundle” their services and perform discrete tasks for clients who want to handle their own legal matters, we can now make it possible for self-help law to be a viable option for solving most of the legal problems of most Americans.   (Of course, it is just that potential that worries the legal profession, which continues to expand, while becoming in many ways obsolete.  The response so far has been an attack on nonlawyer services and the de minimis provision of free services.) 
    There simply will never be enough pro bono lawyers, hours or resources to service the majority of Americans who cannot afford attorneys.  A pro bono mandate, or even a nation-wide volunteer program to greatly increase the amount of pro bono services performed or financed by attorneys, can only amount to a small bandage for a deeply wounded system, and an ineffective balm for a profession’s guilty conscience.  . . .
    I in no way mean to discourage individual lawyers who have special causes they want to assist with pro se efforts, or who want to use their legal talents to help the needy.   Nevertheless, consumer advocates, judges, court administrators, and civic-minded bar associations across the country have come to the conclusion 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.   

    In NY’s Disappointing Pro Bono Report, I opined:

    From the ethicalEsq perspective, “The Future of Pro Bono in New York State,” and correspondingly of accessibility to the justice system for all, looks bleak.  Perhaps it will take a legislative push (a mandate and adequate funding) for bench and bar to work harder to achieve universal legal access.  Traditional pro bono service is clearly not the answer, or even a small part of the answer, and mandating such pro bono would only make a tiny dent in the problem.  
     
    It will take a determined judiciary and a committed and organized bar.   Bar associations who are serious about improving access to the legal system could help fund, tailor and produce, in their own states and locales, self-help programs similar to the online and courthouse resources available in California and Nevada,   Local bar groups could also recruit and train volunteers for hands-on assistance in programs similar to those in Duluth, MN, and Santa Clara, CA., where lawyers help persons with legal problems represent themselves.   Much more can and must be done.  I wish the judges in New York State had leaned a lot harder on the Bar and taken a lot broader perspective from their benches.

    Also, it seems ridiculous to me that Mississippi is considering reducing its pro bono requirement from 50 to 20 hours, and allowing a lawyer to pay a mere $200 in lieu of the 20 hours. 

    Comment by David Giacalone — November 28, 2004 @ 9:54 pm

  5. In this comment, I’ll respond to two points above: first, David’s points about logical weaknesses in arguing that solos and biglaw firms should always be treated identically and second, to the discussion about mandatory pro bono.

    First, while I objected to the Mississippi proposal whereby large firms could delegate pro bono to one attorney whereas small firms lack the ability to do so, that’s only a small part of my criticism. What really annoys me about these pro bono proposals is that they fail to recognize that many solo and small firm attorneys perform pro bono as a regular part of their practice – either by taking court appointed cases at reduced rates or writing off bills for people involved in divorces. None of this work is recognized as pro bono. My point is that if Mississippi is willing to recognize the factors unique to large firms (e.g., the ability to delegate cases) to allow them to meet pro bono requirements, it should also recognize the factors unique to small firms (e.g., that we often serve lower income clients to begin with) and credit us for pro bono in that regard. To recognize only what large firms can do, but not what small firms do is inequitable.

    Second, I have thought long and hard about mandatory pro bono requirements – and written 2 articles on this topic, Can Law Firms Do Pro Bono?, Ala. Journal of Legal Profession (1990) and “Just Give Money”, American Lawyer, Feb. 1991. The crux of these articles is that while each lawyer, as an individual, should do pro bono, as a profession, it’s only money that will make a difference in promoting access to law. In the Alabama article, in particular, I did a large amount of research on law firm pro bono programs (which were then just coming into vogue) and concluded that firms were spending a lot of money which could be better used to fund legal aid groups, etc…rather than make the firms look good.
    Because I see pro bono as a moral obligation, I cringe when I see these programs insitutionalized. Firms only do pro bono to help themselves – to train and retain attorneys and to achieve good publicity- all of which are secondary goals to serving the poor. I don’t think that biglaw associates should turn down pro bono – one learns alot from helping individuals. But I think this should be done on their own and the money that firms pour into pro bono should go to endowing fellowships, setting up pro se clinics, etc…
    These days, large firms have enormous pro bono programs which are run by professional “pro bono” attorneys in house. And guess what? There’s still a problem with competent attorneys for indigents and access to law. Complete misallocation of dollars. But the bar will never step up and say something because they are so glad that the big firms are doing anything at all.

    Comment by Carolyn Elefant — November 29, 2004 @ 10:01 am

  6. In this comment, I’ll respond to two points above: first, David’s points about logical weaknesses in arguing that solos and biglaw firms should always be treated identically and second, to the discussion about mandatory pro bono.

    First, while I objected to the Mississippi proposal whereby large firms could delegate pro bono to one attorney whereas small firms lack the ability to do so, that’s only a small part of my criticism. What really annoys me about these pro bono proposals is that they fail to recognize that many solo and small firm attorneys perform pro bono as a regular part of their practice – either by taking court appointed cases at reduced rates or writing off bills for people involved in divorces. None of this work is recognized as pro bono. My point is that if Mississippi is willing to recognize the factors unique to large firms (e.g., the ability to delegate cases) to allow them to meet pro bono requirements, it should also recognize the factors unique to small firms (e.g., that we often serve lower income clients to begin with) and credit us for pro bono in that regard. To recognize only what large firms can do, but not what small firms do is inequitable.

    Second, I have thought long and hard about mandatory pro bono requirements – and written 2 articles on this topic, Can Law Firms Do Pro Bono?, Ala. Journal of Legal Profession (1990) and “Just Give Money”, American Lawyer, Feb. 1991. The crux of these articles is that while each lawyer, as an individual, should do pro bono, as a profession, it’s only money that will make a difference in promoting access to law. In the Alabama article, in particular, I did a large amount of research on law firm pro bono programs (which were then just coming into vogue) and concluded that firms were spending a lot of money which could be better used to fund legal aid groups, etc…rather than make the firms look good.
    Because I see pro bono as a moral obligation, I cringe when I see these programs insitutionalized. Firms only do pro bono to help themselves – to train and retain attorneys and to achieve good publicity- all of which are secondary goals to serving the poor. I don’t think that biglaw associates should turn down pro bono – one learns alot from helping individuals. But I think this should be done on their own and the money that firms pour into pro bono should go to endowing fellowships, setting up pro se clinics, etc…
    These days, large firms have enormous pro bono programs which are run by professional “pro bono” attorneys in house. And guess what? There’s still a problem with competent attorneys for indigents and access to law. Complete misallocation of dollars. But the bar will never step up and say something because they are so glad that the big firms are doing anything at all.

    Comment by Carolyn Elefant — November 29, 2004 @ 10:01 am

  7. Here is my recent comment on pro bono from my law.com article. I do believe that lawyers owe the profession – but they must realize this themselves. I don’t want it forced:
    (from http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1100535371596)

    Many lawyers are so unhappy practicing law that they’d cringe at the idea of expressing gratitude to the legal profession. We must keep in mind that our profession profits from a judicial system that is funded and sustained by taxpayer dollars. It enables individuals — for the price of some business cards, a cell phone and a decent laptop — to set up shop and charge $200 an hour for legal advice. Not bad.

    So how does one thank an entire profession? I do it by meeting my pro bono obligation — which I undertake voluntarily. (Note to the Bars: You can’t force gratitude by mandating pro bono.)

    Every year, I handle at least one pro bono matter, or I contribute money to a legal aid group or my law school’s public interest service organization — one that raises money for summer salaries and loan forgiveness for attorneys who work for groups that serve the poor. It’s my way of making sure that as many people as possible benefit from the system that benefits me.

    Comment by Carolyn Elefant — November 29, 2004 @ 11:56 am

  8. Here is my recent comment on pro bono from my law.com article. I do believe that lawyers owe the profession – but they must realize this themselves. I don’t want it forced:
    (from http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1100535371596)

    Many lawyers are so unhappy practicing law that they’d cringe at the idea of expressing gratitude to the legal profession. We must keep in mind that our profession profits from a judicial system that is funded and sustained by taxpayer dollars. It enables individuals — for the price of some business cards, a cell phone and a decent laptop — to set up shop and charge $200 an hour for legal advice. Not bad.

    So how does one thank an entire profession? I do it by meeting my pro bono obligation — which I undertake voluntarily. (Note to the Bars: You can’t force gratitude by mandating pro bono.)

    Every year, I handle at least one pro bono matter, or I contribute money to a legal aid group or my law school’s public interest service organization — one that raises money for summer salaries and loan forgiveness for attorneys who work for groups that serve the poor. It’s my way of making sure that as many people as possible benefit from the system that benefits me.

    Comment by Carolyn Elefant — November 29, 2004 @ 11:56 am

  9. Hi David – you are right, I am going a little bit overboard in dichotomizing biglaw and small law. I’m not sure how I have reached this point since I really don’t buy into the biglaw-bad, small-law good approach – it’s a mixed bag on both sides.

    However, while I agree that many, many solos take court appointed work just for money (and I have criticized solos who try to make a living exclusively off pro bono work), the evidence is strong that pro bono, as a law firm institution is motivated by business concerns. Individual lawyers at large firms may support the idea of pro bono, but the reason that firms have pro bono coordinators and institutional programs is because it’s good for business. Many new associates want to do pro bono and will go to firms that support it; in order to attract those associates, firms need to put in place what they want. I believe that if firms were not getting some kind of “return” for money invested in pro bono (good PR, retaining attnys, training) they’d not be doing it.

    Finally, there is some (latent) consistency to the ideas that I endorse. First, with respect to the India program, I did read the article quickly and didn’t realize that the mentor/training program would be mandatory. But be that as it may, I think that a mandatory training program would do much more to improve the quality of law for a large number of people than mandatory pro bono (which is a second reason that I oppose mandatory pro bono service – would be more willing to support mandatory $$s payment). If a biglaw attorney handles one L&T case and spares 1 family from eviction, it could be $10,000 in foregone billables (50 hrs, $200/hr). That could hire 1/4 of an attorney a Legal Aid shop who’d handle 20 eviction matters in a 1/4 year period. But if a biglaw attorney also invests 50 hours in training a new attorney – perhaps paying for LEXIS (@ $2500 for a year) and the rest training on writing and procedure, that attorney could start a firm that might also handle L&T evictions, if not for free, then at least for competitive rates. Or represent a criminal indigent competently if the attorney knew how to use LEXIS for research. I guess if the bar wants to go to the trouble of making something mandatory, it should implement a program that will actually achieve some real results.

    Comment by Carolyn Elefant — November 29, 2004 @ 2:24 pm

  10. Hi David – you are right, I am going a little bit overboard in dichotomizing biglaw and small law. I’m not sure how I have reached this point since I really don’t buy into the biglaw-bad, small-law good approach – it’s a mixed bag on both sides.

    However, while I agree that many, many solos take court appointed work just for money (and I have criticized solos who try to make a living exclusively off pro bono work), the evidence is strong that pro bono, as a law firm institution is motivated by business concerns. Individual lawyers at large firms may support the idea of pro bono, but the reason that firms have pro bono coordinators and institutional programs is because it’s good for business. Many new associates want to do pro bono and will go to firms that support it; in order to attract those associates, firms need to put in place what they want. I believe that if firms were not getting some kind of “return” for money invested in pro bono (good PR, retaining attnys, training) they’d not be doing it.

    Finally, there is some (latent) consistency to the ideas that I endorse. First, with respect to the India program, I did read the article quickly and didn’t realize that the mentor/training program would be mandatory. But be that as it may, I think that a mandatory training program would do much more to improve the quality of law for a large number of people than mandatory pro bono (which is a second reason that I oppose mandatory pro bono service – would be more willing to support mandatory $$s payment). If a biglaw attorney handles one L&T case and spares 1 family from eviction, it could be $10,000 in foregone billables (50 hrs, $200/hr). That could hire 1/4 of an attorney a Legal Aid shop who’d handle 20 eviction matters in a 1/4 year period. But if a biglaw attorney also invests 50 hours in training a new attorney – perhaps paying for LEXIS (@ $2500 for a year) and the rest training on writing and procedure, that attorney could start a firm that might also handle L&T evictions, if not for free, then at least for competitive rates. Or represent a criminal indigent competently if the attorney knew how to use LEXIS for research. I guess if the bar wants to go to the trouble of making something mandatory, it should implement a program that will actually achieve some real results.

    Comment by Carolyn Elefant — November 29, 2004 @ 2:24 pm

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