.. We hope it hasn’t been too noticeable in the quality and quantity of our posting, but the f/k/a Gang has had a resurgence of Chronic Fatigue Syndrome symptoms the past month or so. To get better, your Editor needs to be less active physically and mentally, and especially to avoid stress. Unfortunately, last week at his Greatest American Lawyer weblog “GAL” Enrico Schaefer — who is well-known as an advocate of alternative billing methods, including Value Billing — decided to put up a lengthy posting titled “In Response to David Giacalone’s Concerns about the Ethics of Value Billing” (January 26, 2009). Even worse than merely disagreeing with me, the post is chock-full of mischaracterizations of my positions on value billing and alternative fees — presenting them as an array of “strawmen” targets that are easy to shoot down because they twist my arguments into absurdity. Most aggravating, entering an “alternative universe,” GAL depicts me as a defender of the legal status quo. Despite my wanting to avoid controversy, a reply is surely called for. . . .
. . . Nonetheless, as I told Enrico in an email last week, it takes far too much energy and creates much too much stress and agita, to respond point-by-point to a flood of distortions. Enrico offered to let me do a podcast interview in reply, but it is a poor medium in which to make less-than-simplistic arguments. Instead, I decided to write a more general “apologia” that explains my basic position and tries to clarify where I’m coming from as an advocate for the consumer of legal services and reformer of the legal profession.
As I wrote to Enrico: “My fight — and it should be yours, too — is with the people who have taken the term ‘value billing’ and sold it to lawyers as a way to make premium fees higher than could be made doing the same work under the same conditions with hourly billing.” To see what I have actually said about Value Pricing and Value Billing, start with my recent “value pricing by lawyers raises many ethical red flags” and follow the links.
Below the fold [click more], you will find the comment I tried to leave this afternoon at the GAL post. For some reason, a message that the webserver “cannot accept the data” came up, but I’m fairly sure that Enrico will make it available there soon.
Responding to GAL’s mischaracterizations has reminded me to post a few more poems from the newest addition to the Red Moon Press best-haiku anthology series, white lies: Red Moon Anthology 2008 — which we introduced here.
the saw’s song changes
in the heartwood
persimmon still hanging the extra day of the year
heat lightning and the dry burn of whiskey
……… by Jim Kacian – white lies: RMA 2008
“cold morning” – Haiku Poets of North California 2007 Contest
“persimmon” – Betty Drevniok Haiku Contest 2008 (Haiku Canada)
“heat lightning” – Frogpond XXXI:1
scattering cabbage whites
I still think of her
…. by paul m – white lies: RMA 2008
orig. pub. – Modern Haiku 39:2
the cardiologist inserts
a new balloon
… by ed markowski – white lies: RMA 2008
orig. pub.- Shiki Kukai (March 2008)
a river rediscovers
the old ways
…. by Matt Morden – white lies: RMA 2008
orig. pub. – Presence 35
. . . Here’s the Comment that I tried to leave today at the GAL post:
Enrico, I do not have the time, patience or energy to respond point by point to your army of Strawmen. It is disappointing that you have chosen to distort every single point that I make in order to make your points.
E.g., I do not oppose money-back guarantees, but instead say that they do not by themselves remove the ethical question of whether the fee is reasonable. And, I do not say a client who requires urgent attention should never be charged more; I say that a fiduciary should not go beyond taking the urgency into account by adding a premium merely because the client seems particularly upset or angry or rich, and is therefore less price-sensitive.
Thank you for at least linking to my writings, so fair-mined readers can judge for themselves.
Painting me as defender of the status quo is so funny it hurts. For almost six years, my weblog has been virtually the only blawg willing to state over and over that lawyer fees are too high, and that greed has overwhelmed the service ethic in our profession. I have condemned the incentives created by high hourly-billing quotas and listed factors that are required for hourly billing to be done in an ethical manner, and have opposed the unfair use of standard contingency fees in low-risk cases, while praising the use of alternative billing methods that give consumers more choice and value.
Since 1977, I have been fighting to bring more consumer choice, price competition and innovation to the legal profession, and to help consumers tackle more of their legal problems without the use of lawyers. [By the way, despite my credentials, I was charging very low hourly rates and using flat fees before you graduated from law school in 1990.] Of course, my main emphasis has always been on “Joe and Jane Cliente,” who are not sophisticated purchasers of legal services, are rarely in the market for such services, and need to be armed with more information.
My fight — and it should be yours, too — is with the people who have taken the term “value billing” and sold it to lawyers as a way to make premium fees higher than could be made doing the same work under the same conditions with hourly billing. As you well know, every single point that I have raised about questionable value pricing goals and tactics is linked to specific quotes from some of the most high-profile proponents of value billing or “value pricing.” Making believe there are no problems, or that I am somehow delusional or fighting for the status quo, does a disservice to the notion of using alternative billing to give clients better value.
Here are two excerpts from a 2005 posting at f/k/a that help demonstrate just how poorly you have depicted my point of view [ http://tinyurl.com/fkaChronomentrophobia ]:
* In setting fees, the lawyer-fiduciary must act in a manner that puts the client’s interest first. Making sure the client is fully informed when entering into the fee arrangement is essential, taking into account the sophistication level and experience of the particular client. Of course, alternatives to the hourly fee can be ethical and beneficial to lawyer and client, and should be encouraged — because they are a spur to creating the efficiency, innovation, and competition that lead to better client service and lower fees, not in order to lull the client into paying higher fees.
[And, with not a little irony:]
* I like The Greatest American Lawyer’s approach to finding alternatives to the Billable Hour — and to using hourly billing in a more client-friendly and fair manner. Unlike those who pan the billable hour and then substitute higher overall fees through so-called “value pricing,” the anonymous GAL looks for ways to give the client better value for the fees charged, and to fit the fee to the difficulty of the task and how well it is accomplished. See his take on Tasked-Based Billing, his new advertising campaign, and this Missouri Bar article.
f/k/a p.s. I plan to make this my last discussion of value billing/pricing for the time being. Let’s call it “doctor’s orders.” Mama G. agrees.