f/k/a . . .

It’s hard to say which is more annoying: the kneejerk accusation of sexism by (usually leftish) women in politics (yes, the very ones who revel in their women’s caucuses and support groups), or their refusal to take responsibility for such a claim, after hurling implications at an opponent. Since the weekend, newspapers (e.g., AP/Daily Freeman, May 9, 2006) have reported that:

 

Rep. John Sweeney

“The former chairwoman of the [NY] state Democratic Party attacked Rep. John Sweeney [R - Clifton, Park] Tuesday for referring to a woman challenger as ‘a pretty face,’ saying such remarks are inappropriate.

 

“Sweeney . . . was criticized by Judith Hope for remarks he made over the weekend about his main Democratic challenger, Kirsten Gillibrand.

“You can’t take a resume and a pretty face from New York City and say to people this is good for you simply because we can spend a lot of money and raise a lot of money,” Sweeney told the Troy Record. [The Troy Record, May 7, 2006]

Ms. Hope opined that “Someone should tell John Sweeney that it’s 2006, not 1906.” However, per the Daily Freeman:

“Asked if she thought the comment was sexist, Hope said: ‘That’s for voters to decide’.”

 

 

Kirsten Rutnik Gillibrand …

 

Hope continued, nevertheless, saying, “The remarks jumped out at me because I think it’s so inappropriate for the congressman to use. … As a woman in politics, I call on Mr. Sweeney to represent the district and address the issues and provide accountability and some answers.”

[Hope also charged the congressman’s behavior has embarrassed himself and his constituents, apparently referring to Sweeney’s much-publicized recent visit to a frat party at Union College in Schenectady. I’m with her on the frat party issue — but, I’ve never liked drunken frat boys!]

The f/k/a Gang wants to point a few things out (and/or ask a question or two):

1] Sweeney never said Gillibrand was “just a pretty face,” and he surely could not do so, given her experience in both private and public sector law. She is currently a partner with Boies, Schiller & Flexner LLP. Read her firm bio here.

 

2] For many persons, especially those past a certain age, being called “a pretty face” is a compliment — politics or no politics.

 

3] Kirsten Gillibrand is pretty, and being attractive is often a criteria used by political bosses, and the electorate, in choosing candidates.

 

4] If Gillibrand’s campaign wanted to play down her good looks, they should not be highlighting this photo, which surely shows her to great advantage over a popular New York politician:

K. Gillibrand & E. Spitzer

5] Men have also been called “a pretty face” — for example, Sen. John Edwards (D - NC), during his run for the vice presidency in 2004. See this PBS NewsHour piece, where John McCain and John Cheney poke fun at Cheney — and indirectly at his VP opponent Edwards:

KWAME HOLMAN: In Missouri, Arizona Sen. John McCain introduced the vice president with a jibe at the youthful-looking Edwards.

 

SEN. JOHN McCAIN: In short, my friends, Vice President Cheney is not just another pretty face.

 

KWAME HOLMAN: Cheney followed up on the comparison of vice presidential candidates.

 

VICE PRESIDENT DICK CHENEY: Somebody said to me the other day that Sen. Edwards got picked because he’s sexy, good looking, charming. I said, “How do you think I got this job?”

You may recall, in addition, that Pres. George W. Bush mentioned back in Jan.2004 that Scott Reid, the senior strategist to Canadian Prime Minister Paul Martin, has “a pretty face.”

 

 

6] In general, unless something really important is at stake, a sense of humor is always a better reaction than a sense of outrage in the battle for gender equality. Next time Kirsten Gillibrand is called a “pretty face”, her supporters should consider lightening up, and singing Shania Twain’s rebuttal, “Not Just a Pretty Face” (lyrics).

 

7] In passing, we note this article from the Chicago Tribune, “Daddy material, it takes just 1 look” (May 9, 2006), which begins:

“Just from looking at a man’s face, women can sense how much he likes children, gauge his testosterone level and decide whether he would be more suitable as a one-night stand or as a husband, new research published Tuesday suggests.”

Of course, you the voter will have to decide its relevance to the rest of this posting and to charges of sexism.

p.s. Looks like it’s time to link once again to one of my very favorite comic strips by John Callahan. Go here.

 

 

on the bus
the teenager pulls out a mirror
and adjusts her pout

the son who
argues everything
I study his face in a puddle

droping stone after stone ..
into the lake I keep
reappearing

on the face
that last night called me names
morning sunbeam

through a hole
in the fog billboard girl’s
radiant face

A sigh from her
then one from me—
two pages turn

……………….. by George Swede - Almost Unseen (2000)

Peering into
the deep well, two boys
talk about girls

……………………. by george swede - The Heron’s Nest (Dec. 2005)

Every time I see IBM’s “$8 jar of cashews” commercial, with its touting of

“premium pricing” as “our Holy Grail,” I shudder. The commercial reminds

me of Ron Baker’s example of movie theater popcorn as an acceptable pricing

strategy for professionals (discussed here and below), and of the promises 

from Baker and other gurus of lawyer value billing and law firm branding, that

their techniques offer the key to unlocking premium prices from clients. (See

many prior posts, e.g., “ethics aside”;  ron baker: sensitive guy?; Brand LEX,

and Value Billing or Venal Bilking? )

 

                                                                                                                                              

                                                                                                                                                  the nut factory

                                                                                                    

 

You probably know the ad, if you watch the talking-heads news shows.  I’m

most likely to catch it on Sunday morning, viewing ABC’s This Week. Not

having a transcript (nor a photographic memory) for the ad, I must paraphrase:

A man in hotel room picks up a small jar of cashews, but returns it

to the shelf on the room’s mini-bar.  A voice-over tells us that it is quite

a markup taking a $2 jar of cashews and selling it for $8. But, that’s

premium pricing, which is “our Holy Grail.” 

 

Meanwhile, the fidgety man goes back to the cupboard and picks up

the $8 jar for his snack  The announcer then says you can achieve such

premium pricing by being there at the right moment — and, of course, 

that IBM has the resources that will allow you to reach that goal.    

Planters Nuts

 

Of course, cashews already fetch a “premium price,” as shown by the tiny 

“$2 jar” seen in the IBM ad, and by our current Rite Aide weekly circular

(May 7, 2006, at 10).  Rite Aide has a sale price of $2.99 this week on various

packages of nuts.  For that price, you get 24 oz. of peanuts, 11.5 oz of Mixed

Nuts and 9.25 oz. of Cashew Halves (not even whole cashews!).  

 

Lawyers have a similar built-in premium for their services, as compared to most other

service providers and workers.  Among lawyers, too, there are firms analogous to  

whole, half and split cashews.   Not satisfied with getting $2 for a tiny jar of “lawyer-

cashews”, however, Ron Baker, his acolytes, and fellow gurus and hucksters, want

to use value billing, price sensitivity, firm branding, and other modern marketing tools, 

to propel professionals into the world of $8-jars of cashews.  [e.g., Suzanne C. Lowe,

discussed here]

 

In writing our post on price sensitivty, we looked at articles like “Pricing Strategies”

(SmartPros, Jan.2000), and “Hourly Billing Limits Profitabilty” by Ron Baker, and

browsed in his book The Firm of the Future.  Your Editor pointed out the centrality

of price (in)sensitivity in Ron’s pricing strategy, as he campaigns against hourly billing

and its”‘limited profits,” and we summarized: 

           Baker advises professionals to maximize their “leverage”

over each client, maneuvering so that the client is far less price-

sensitive.  This allows the professional to charge “premium fees,”

well over the amounts that would be yielded using the billable

hour method, resulting in increased profits (and more leisure time

for the professional).   This is apparently Ron’s ethics-sensitive

alternative to client dissatisfaction with hourly billing — fueled

with a righteous theory, in which it is the billable hour that is

condemned as unethical. The professional gets significantly richer

and the client gets the subjective feeling of receiving more value. 

 

Frankly, then, IBM’s cashews ad reminds me of the perils of value billing for the client. 

Am I being unfair to Baker and his cronies by making the leap from IBM’s cashews

ad to value billing by lawyers and charging clients similar “premium” prices?  Well,

two years ago, Matt Homann of the [non]billable hour called Ron Baker “an absolutely

amazing visionary.”  A few months ago, he did it again, handing his weblog over to Baker,

to let him promote his new book Pricing on Purpose. 

 

“PricingOnPurposeBaker”   Pricing on Purpose : Creating and Capturing Value

 

The very first chapter to Pricing on Purpose is devoted to explaining why movie theater

popcorn costs so much — and to justifying the price. At page 2, Baker explains that the

theater owner wants to maximize his profits and knows that some movie goers love pop-

corn more than others. Therefore:

 ”The purpose of expensive popcorn is to extract different sums from

different customers.”

Amplifying on the explanation of economist Steven Landsburg, Baker explains that 

the movie-goer buying a ticket to the theater is buying “an opportunity set” — “an

opportunity to enjoy the movie, or to enjoy it with popcorn.”   This two-part tariff is,

according to Baker, a form of price discrimination that increases overall welfare. In-

stead of charging everyone a higher fee to maximize profits::

“By engaging in price discrimination, businesses are actually increasing

social welfare, and making more products and services available to the

poorest members of society.”

We don’t want to sound cynical, but this saintly rationale just doesn’t ring true coming 

from Ron Baker — except for the maximizing profits part, and the strategy of charging

more to those who are less price-sensitive (even if you have both fiduciary and ethical

duties to avoid excessive prices).  You see, this “visionary” has a track record and a

paper/pixel trail: 

the world today–
even for mountain chestnuts
a night watchman!

 

   Kobayashi Issa 

       translated by David Lanoue    

 

In the Introduction to his The Firm of the Future, Baker “affectionately” calls a chart

showing price sensitivity “The Beloved Value Curve“ [at 4].  He coos over his curve 

[at 5]:

“The curve shows the relative value added by the professional has an inverse

relationship to the price sensitivity of the customer . . . For now, it is important

to understand your firm is all over this curve for any one given customer, at any

one point in time. The major mistake professionals make is in treating all cus-

tomers equally by pricing their services with one hourly rate method, no matter

where they are on the curve.” 

In The Firm of the Future, and in the article “Hourly Billing Limits Profitabilty“, Baker gives

a tutorial on “pricing psychology, and emphasizes that “Regarding price leverage, the im-

portant point to remember is that you want to set prices when you possess the leverage.”

 

As an example of leveragae, see Baker’s article “Change Orders: What a Concept!“, where

Ron says:

“A favorite way to make the client insensitive to premium fees

is the use of Change Orders when services are needed beyond 

those covered in the initial fixed-price arrangement [no kiddies,

pricing can’t really all be done up front]. ”

 

(Ed. note: those are Baker’s words in the brackets, not your

Editor’s)

In “Change Orders and Innovative Pricing Methods,” Baker brags about the results he has

seen from those using his pricing techniques: if properly ”leveraged,” clients will offer to pay

two or three times as much (sometimes ten times as much) as a professional’s regular fees. 

 

 

But, you ask, doesn’t that mean that the client is receiving more “value”?  Well, take a look

at Ron Baker’s idea of the customer getting greater value:  In “Burying the Billable Hour,” he

emphasizes that the following pricing strategy from Harry Beckwith is central to his theory

of value and value billing:

“Like money, price talks. It changes perceptions. Price

changes the actual experience of using the service: A

high price actually improves the experience.  Watch

what your price says. Push price higher. Higher prices

don’t just talk, they tempt.”

Still, you say, Baker doesn’t look out for the little guy — telling firms to discriminate in

pricing so that the poor will also get needed services?   Let’s let Baker answer you him-

self, with this piece of advice from ”Pricing Strategies“:

“. . . If you cannot conquer price resistance through educating the customer,

then I would seriously suggest you not take the engagement.  Never decrease

your price in order to acquire a customer suffering from price resistance - that

cheats your firm’s best customers, those who value what you provide, and sub-

sidizes your worst customers, those drawn to you by price considerations alone.”

So, yes, cashews remind me of popcorn, and IBM’s promise to help you achieve

premium pricing reminds me of Ron Baker’s similar siren call for lawyers.  The f/k/a

Gang believes that the gurus of value-billing — along with those easily-tempted lawyers,

who buy their books and attend their seminars, and applaud from their websites, in the 

hope of obtaining premium clients and fees (with both increased profits and more leisure

time) –  have forgotten or ignored the ethical and fiduciary duties of the lawyer to insure

that the client is treated fairly (without manipulation), fully informed, and, in the end, 

charged a fee that is reasonable.

“complaint BillF”

No, it’s not okay for lawyers to charge fees significantly higher than their hourly rates as

an ironic response to client complaints that bills are too large under the hourly-fee system.

Fiduciaries don’t manipulate clients to reduce their price sensitivity.  Period.

 

The price of cashews in restaurants and popcorn in theaters are simply not relevant to our

learned profession.  If you want to “leverage” premium prices from the price-insensitive,

please find a job outside the legal profession.  And, please, don’t tell us that your premium

fees themselves create client value, or that they are automatically an ethical improvement

over hourly billing.  Paying $50 or $150 for one of Ron Baker’s books, or many times that

for his seminars, may soothe your conscience by telling you what you want to hear, but it

is not like buying an indulgence that will absolve you of your sins. 

 

Baker is right about one thing: better service will help create client loyalty and attract

new clients.   However, where I come from, excellent service is part of the regular fee.

 

 

More chestnut haiku from Kobayashi Issa 

translated by David Lanoue:    

 

 

worm-eaten–
the best chestnut!
the best!

 

 

in mountain shade
rest without a care!
nut-less chestnut tree

 

 

 

big chestnuts–
the travelers stop
and gather

 

 

 

 

fallen chestnuts–
the crow gets first
dibs

 

 

 

 

knocking chestnuts
out of the little garden…
thief cat!

 

 

  And, a reprise from last May, from

gary hotham:

 

flashing ambulance lights–

rain still filling

every puddle 

 

 

 

 

 

 

 

 

at the bus stop

our backs to the wind

the sunrise changes color

 

 

 

 

 

she comes back–

the ocean drips off

every part of her

 

 

huge trees in the park–
a different dog
chasing the stick

 

gary hotham 

“she comes back” & “at the bus stop” - breathmarks: haiku to read in the dark 

“flashing ambulance lights–” - Walking the Same Path (HSA 2004 Memb. Anth.)

“huge trees in the park–“  the heron’s nest (April 2001)

 

 

  the nut factory

 

While I’m trying to write a post on cashews and premium pricing,

here are some priceless chestnut haiku from Kobayashi Issa

(translated, of course, by David G. Lanoue).

 

 

 

little chestnuts
pissed on by the horse…
shiny new

 

 

 

grassy meadow–
letting the child harvest one
chestnut

 

 

 

 

 

 

 

ashamed–
eyes glued to the chestnut
beyond reach

 

 

 

 

 

 

 

a chestnut hit
an old man…
so the legend says

 

 

 

 

 

 

 

foolish cat–
eyes returning to where
the chestnut was

 

 

 

Kobayashi Issa 

translated by David Lanoue    

 

Thanks to Blawg Review #56, which is hosted by Point of Law this week, I learned today that another bunch of Ohio lawyers [prior post] is “protecting” consumers by protecting themselves from competition. Walter Olson writes for BR#56:

“If you set out to devise a case that would bring unauthorized practice of law statutes into public disrepute, you could hardly have done better than the Cleveland bar, which is seeking to punish a nonlawyer for representing his own autistic son in IDEA (special-education) proceedings–even though the father and son prevailed in the proceedings, undercutting any consumer-protection line of argument. Prof. Ribstein isn’t impressed with the bar’s action (”I am beginning to wonder whether it’s worth preserving any piece of lawyers’ monopoly on legal representation”), and neither is the Berkeley, Calif. blogger who posts at Bookworm Room. [But see: Jonathan Wilson, “Is Lawyer Licensing Necessary? A Response to Professor Ribstein, ” May 8, 2006]

A similar case that is worth a look came out of Delaware, in 2000. In the Matter of Arons (Delware Supreme Court, 456 A.2d 867, 2000), cert. den. 121 Sup. Ct. 2215 (2001), the Delaware Supreme Court ruled that, by representing families of children with disabilities in due process hearings, Marilyn Arons and her partner, Ruth Watson, were engaged in the unauthorized practice of law (UPL). (related article) The local School Board had accused Arons of UPL — in a situation where the Board was being asked to pay the expenses of victorious parents, who had fought the Board over their children’s educational rights, with the help of Arons and Watson (and their Parent Information Center).

 

Public Citizen represented Arons in her unsuccessful petition for certiorari, which can be found here. One very important point was emphasized in Public Citizen’s cert petition — the experience and competence of the nonlawyers:

“[T]here is no question that non-lawyers like Ms. Arons and Ms.Watson are competent to advocate effectively on behalf of families with disabled children. To be effective, an advocate at an IDEA hearing must be familiar with the clinical aspects of the child’s condition (skills that lawyers ordinarily lack), as well as the rules governing the conduct of the hearing. [cite omitted] Non-lawyers with “special knowledge and training with respect to the problems of children with disabilities” are fully capable of presenting the parents’ case to the panel. Indeed, Ms.Arons and Ms. Watson obtained significant relief in each of the five cases at issue here, even though they were matched against members of the Delaware Bar.”

The same school district is involved in a case argued before the US Supreme Court last month (April 19, 2006), over whether Arons should be awarded fees for nonlawyer advice and advocacy in a disabilities case. See Murphy v. Arlington Central School District, 2nd Cir. 2005, and find a summary at WrightsLaw.com.

To learn more on the unauthorized practice of law (or its obverse: defining the practice of law), I’d suggest taking a look at our ethicalEsq UPL Page. The article “Lawyer vs. NonLawyer,” by HALT’s Executive Director, Jim Turner, has a useful discussion on crafting a consumer-friendly defintion of the practice of law. (from Legal Times, Feb. 3, 2003, 2 pp, pdf.). And, HALT’s UPL page sets forth the principles endorsed by the consumer legal reform group for treating the unauthorized practice of law:

One of the most effective ways to increase consumer choice in legal services would be to abolish unauthorized practice statutes. As the simple and routine legal needs of millions of Americans continue to gounmet each year, it is critical that consumers be able to utilize independent paralegals and other nonlawyer resources.

At the core of HALT’s efforts to reform restrictions on unauthorized practice are three principles:

1. The unauthorized practice of law means saying you are a lawyer when you are not;
2. Innovative partnering between lawyers and nonlawyers is permissible with client consent after full disclosure of work and fee arrangements; and
3. A client or customer complaint should be required before unauthorized practice of law proceedings can be initiated.

 

 

On the broad topic of professional licensing, there are many viewpoints. For example, see:Restrict Lawyers’ Licenses — Authored by attorney Ralph Warner, this Nolo.com Soap Box Column states that “A license to practice law is no guarantee of legal knowledge, skill or experience. Incompetent lawyers regularly mislead and defraud clients who rely on the promise of expertise that the lawyer label brings.” Warner concludes:

“When it comes to lawyers who sell personal legal services, a lawyer’s license should be limited to specific subject areas — for example, family law, criminal law, tax or probate. A separate exam should be given for each specialty. That way, an exam could test the skills and knowledge needed by a lawyer who wants to represent clients in a particular legal subject area.”

Protecting lawyers, not clients — In this article by George C. Leef (for the Cato Institute), the author argues that “The best means of delivering affordable legal services to the public with minimal risk of harm is through a competitive marketplace, backed up with remedies for fraud and incompetence. Professionals want to do competent work for their clients. Fear of failure and financial loss is a stronger deterrent to incompetent work than any licensing scheme” and concludes that “Competition works as well in legal services as in other markets. But we’ll have to get rid of the UPL statutes to enjoy the benefits.”

 

The Objective of Professional Licensing — In “What is the Objective of Professional Licensing? Evidence from the US Market for Lawyers” (Nov 2004), Turin Univ. Professor Mario Pagliero finds that the objective of such regulation in the USA is explained by capture theory, rather than public interest theory, and that “licensing increases annual entry salaries by more than $20,000, ” with a total welfare loss of over $6 billion. (This link accesses an abstract, but the entire study is available with a free registration.)

 

Prof. Ribstein’s suggestion that no licensing might be a better alternative for clients seems rather extreme. For example, first moving to a disciplinary system that is not dominated by the legal profession seems more prudent [see our post “Should Lawyers Control Lawyer Discipline?,” as well as the post “UK Gets Improved Lawyer Discipline System] The analysis given byJonathan Wilson in support of continued licensing rings true:

“My defense of lawyer licensing is not a defense of the status quo with respect to the various bars.More accurately, though, lawyer licensing is necessary because legal services are precisely the kind of good for which the market is an inefficient method of regulation. . .

“Corporate buyers of legal services do, in fact, have little need of state licensing. The corporate legal marketplace, if left to its own devices, would, in the long run, produce an efficient price and tend to wean out poor producers of legal services.

 

“A second market, however, is the consumer market. Consumers are generally ill-equipped to evaluate their own legal needs and are generally unable to evaluate the merits of competing producers.Consumers cannot evaluate competing price proposals . . .

“The current state of lawyer licensing may be flawed, but it is better than the state of affairs that would exist if lawyering was utterly unlicensed.” . . .Nonetheless, as can be seen in materials on our Access/Self-Help/Pro Se Page, the f/k/a Gang believes that much more should be done to enable consumers to handle much of their legal problems on their own. In addition, so long as the consumer clearly understands that a particular service provider does not have a law degree, and general consumer protection laws against fraudulent, unfair, or deceptive practices are adequately enforced, consumers should be allowed to choose nonlawyer providers. Consumers who want a “real” lawyer should have the protection of well-crafted and implemented licensing regimes. Informed choice and oversight by consumer-oriented regulators (not by the local lawyers’ guild), should increase options and price competition.

p.s. Thanks to Carolyn Elefant, writing at Inside Opinions, I learned this evening that, making some rather lame excuses, the Cleveland Bar has dropped its UPL case against Brian and Susan Woods, the parents who had (successfully) represented their child. See Cleveland Plain Dealer, “Lawyers’ Group drops claim against parents,” May 5, 2006; and NYT, “Nonlawyer Father Wins His Suit Over Education, and the Bar Is Upset,” May 6, 2006.

 

A haiku break with Prof. Randy Brooks:

missing in action
she dusts off his guitar
returns it to the shelf

empty farm wagon
a cell phone
buzzing under the hay

lock out . . .
workers burn the editorials
to warm their hands

- from World Haiku Review, Vintage Haiku

gramma hoes the beans
a weed clings
to her nylon anklet

door left open . . .
there he goes
with his kite

………….. from School’s Out (Press Here, 1999)

Have you registered yet for IP Grab - The Struggle Between Intellectual Property

Rights & Antitrust?   The Conference, which takes place on June 21, 2006, at the

National Press Club, in Washington, D.C., is the Seventh Annual Conference of

the American Antitrust Institute.

Your Editor rarely travels outside of upstate New York, but tries to get to the AAI

annual conference each year (AAI’s president, Bert Foer, is a former boss and old

friend, and let me put together AAI’s online Guide to Antitrust Resources on the Web). 

I’m hoping that this posting will help bring some fellow webloggers of the IP variety

to the Confernce.

       It would, for example, be great to meet the proprietors of

such sites as: Bag & Baggage; BrandyKarl bk!; The Invent Blog;

ICANNWatch; Netlawblog; Between Lawyers;  Copyfight; PHOSITA®;