HALT has been working for over 30 years to achieve “Simple, Affordable, Accountable Justice for All.”  f/k/a and our self-help-law sister weblog SHLEP have quoted and linked to HALT, its studies, Report Cards, and guides scores of times, beginning on our very first day of blogging in 2003.  To my surprise, however, I was disappointed by HALT’s Understanding Attorney Fees ["UAF"]. It correctly advises consumers that:

“If you find yourself with a legal question, you should explore all of the options available to you and become educated about your legal question. You may actually find that you do not need to hire an attorney. . . . However, if your legal matter is complex, substantial money is at stake, you’re charged with a crime, or you’re simply uncomfortable handling legal matters on your own, you’ll probably need to hire a lawyer.”

For those who do need to hire a lawyer, there is simply too much left unsaid in Understanding Attorney Fees about how to keep your legal fees down.  The HALT Guide does note that “As a legal consumer, your best defense against paying more than you should is to educate yourself about legal fees before signing on the dotted line.”  And, it promises to explain “the most common billing arrangements used by lawyers, some new billing arrangements lawyers are using and specific ways you can lower your legal costs.”

Nonetheless, for our money, HALT’s Understanding Attorney Fees:

• Offers very little help for controlling or lowering fees that are based on an hourly rate for the lawyer’s time — not when the client is entering into an hourly billing agreement, while the services are being provided, nor when presented with a periodic or final bill.
• Takes a real dive on contingency fees, completely ignoring HALT’s own position on such fees from a decade ago, as presented in its Injured Consumer’s Legal Bill of Rights (The Legal Reformer, December 1997; issue no longer online).  At that time, HALT insisted that p/i lawyers should be charging clients a lower percentage in less-risky cases, rather than using the same standard contingency fee for virtually all clients (i.e, one third or 40%).  Lawyers were also required to provide the client with key information and estimates relating to risk prior to entering a fee agreement, with the information included in the signed agreement.  Frankly, the contingency fee section in the UAF Guide sounds like it was ghost-written by the plaintiff’s personal injury bar.  It doesn’t even mention the word “negotiate.”
• Seems to offer a blanket endorsement of “alternative” billing methods, with very little help on how to shop for such fees, and no warning that some lawyers offering alternative fee arrangements in fact intend to extract higher fees than possible when billing by the hour (e.g., so-called Value Pricing).

. .   We hope consumers will read HALT’s “Understanding Attorney Fees,” but we believe the HALT staff has left too much out of its Guide. There’s no way the f/k/a Gang can create a comprehensive new draft or supplement to HALT’s publication (especially since we are moth-balling this site tomorrow).  We will, however, summarize portions of HALT’s UAF Guide, suggest some tips for keeping fees down, and point to a few other helpful sources.

Consumers shopping for legal services need to remember that every kind of pricing arrangement can be exploited or misused to result in excessive fees or inadequate services.  For example, hourly billing might result in a lawyer doing too much, but fixed fees can lead to lawyers doing too little, and contingency fees can make you pay far more than is warranted by the risk the lawyer is taking of not being paid or the amount of work that will be required of the lawyer.  See, e.g., our posts “other thoughtful voices on the lawyer billing debate;” and “the reality of alternate billing.”  Clients need to insist on more information and lawyers need to act in ways that create trust and give full value.

First, two quick points:

• Unbundling can Save You a Bundle: With “unbundling,” the lawyer and client agree that the lawyer will only perform specific, discrete tasks. If you think you’re willing and able to play a large role in your own legal affairs, but know you want or need a lawyer to help perform “discrete tasks” and serve as advisor and coach, look into Unbundling. (see our prior post; and this posting from SHLEP for an introduction); the excerpts from M. Sue Talia’s book Unbundling Your Divorce can help you determine if they are good candidate. Find State unbundling rules here.
• Do-It-Yourself/Pro Se: For information relating to do-it-yourself resources, see shlep: the Self Help Law ExPress [which was started by f/k/a's Editor], where you will find information on locating self-help materials, thinking about whether representing yourself makes sense for you, a Topic Index, and much more.

In “Understanding Attorney Fees,” HALT reminds consumers that “The type of arrangement you enter into can have a huge impact on the amount of fees you’ll pay, so it’s important to understand how each works and the incentives lawyers have for using them.”  It explains that:

“How much lawyers charge depends on where they do business, whether they are self-employed or working for a firm, how complex the case is and, in some circumstances, what you can pay.  The market rate for any given legal service, then, is really a range of fees that often varies.”

“. . . Lawyers usually charge for their services in one of three ways—hourly rates, flat fees and contingency fees.  They can also charge a retainer or “down payment” on the legal services you are purchasing. The type of fee arrangement with your lawyer can have a huge impact on the amount you’ll pay.”

“. . . Hourly fees are based on the number of hours a lawyer works on your case. If your lawyer charges $100 an hour, your fee will be $100 multiplied by the number of hours worked. .  .  .  Flat fees are typically offered for routine legal matters that are largely paperwork, like preparing a will or getting an uncontested divorce.  You are charged one specific fee for all of the work done on your case, no matter how long it takes.  Finally, with contingency fees, attorneys receive payment only if they win your case”

In a too-brief section called “Lowering Legal Fees,” the UAF Guide offers ideas relevant to all fee arrangements.   Here are “specific things you can do before and after you hire a lawyer to help keep legal costs down.”

“Shop carefully.  One of the best ways to ensure you won’t pay more for legal services than you should is by hiring the right attorney at the start.  To do that, you need to shop carefully—much as you would for any big purchase.  Lawyers develop expertise in different areas of the law so you shouldn’t hire a divorce lawyer to assist you with a real estate transaction.  Comparative shopping for a lawyer helps you to understand the range of services and prices available, compare differing views on your legal problem and select a lawyer who is likely to handle your case as you expect and at a price you can afford.”

“Case retainers.  These fees are paid to retain the services of an attorney at the beginning of a case. This is the kind of retainer most often paid by the typical legal consumer.  It may represent all of the fee, none of the fee, or a portion of it. It may be refunded or not, depending on your agreement.  For example, a lawyer may charge you a flat fee of $800 for an uncontested divorce and ask you to pay a retainer of one-quarter—$200—up front.  This money may also be used to pay expenses associated with the case, such as filing fees. The important thing to make clear at the outset is whether the retainer is an advance on expenses, fees or both, and whether any unused part of it will be refunded.”

“Review billing statements.  When you receive your lawyer’s bill, make sure you understand what you are being charged for—don’t be afraid to question discrepancies or to ask about charges you don’t understand.   Reviewing your bills lets your lawyer know you are on top of things and that you do not expect to be charged more than you should be.”

Here’s how HALT’s Understanding Attorney Fees treats the three primary types of billing arrangements, along with my comments and suggestions.

Hourly fees. As most Americans know, hourly fees are based on the time devoted to the client’s matter by lawyers or others in a firm, stated as dollars per hour.  Although most clients still purchase legal services from lawyers by the hour, UAF has a rather brief discussion of hourly fees.  The HALT Guide makes the following points:

• “If your lawyer charges $100 an hour, your fee will be $100 multiplied by the number of hours worked.  Lawyers also bill for partial hours spent, usually by the quarter or tenth of an hour.”

f/k/a says: Hours X Hourly Rate is meant to be the maximum that a lawyer can charge under an hourly billing agreement.  The figure is not automatic or set in stone.  As the 1996 Statement of Billing Principles from the American Bar Association [ABA] Task Force on Lawyer Business Ethics says: “The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement” — e.g., making appropriate reductions (”writing off” hours) for time that is not used in an efficient, cost-effective manner, or that constitutes training or getting up to speed.

Increments:  An “increment” is the shortest amount of time a firm will bill in calculating hours spent working for a client. An increment of 0.10 of an hour means the firm will charge the clients for the equivalent of six minutes, no matter how much less than that was actually spent.  In that context, a quarter hour seems very high and clients should resist such a large increment. [It would mean, for example, at $200 an hour, paying $50 for a two-minute phone call.]  As was stated in Professional Lawyer magazine (in an article discussed below),

“A normal billing arrangement for a firm is to bill in increments of 0.10 of an hour, (6 minutes). ‘[P]rofessional persons who charge their clients fees in excess of $80.00 per hour, based upon time spent, cannot, in all honesty and reasonableness, charge their clients for increments in excess of one tenth of an hour.’ In re Tom Carter Enterprises, Inc., 55 B. R. 548, 549 (Bankr. C.D.Cal. 1985).”

• “Under an hourly-fee arrangement, the more hours worked, the bigger the bill.  This rewards the lawyer who puts in more hours on your case, whether or not it needs that much time.”

f/k/a says:  This is true, which is why the lawyer has an ethical and fiduciary duty to work efficiently and to find out, as the ABA Billing Statement puts it, whether the matter is “of such critical importance to the client that a ‘leave-no-stone- unturned’ approach is appropriate,” or the client would instead “prefer to accept some risk in order to avoid some of the costs attendant to such an approach.”

• “If you agree to an hourly rate, make sure your agreement specifies the hourly rate for your attorney as well as what you’ll pay for junior level professionals or support staff.  You should not be paying the attorney’s hourly rate for work being done by administrative staff.”

The Actual Hourly Rate:  You should keep in mind, when looking at a firm’s schedule of hourly rates for its lawyers that the standards embodied in Rule 1.5(a) of the Model Rules of Professional Responsibility apply — i.e., to be reasonable, an hourly rate must be based on the experience and capabilities of the lawyer, complexity of the matter, skill required, customary local charges, time limits imposed by the clients, etc..  You should not, for example, be paying top dollar for inexperienced lawyers.

• “You should also ask that your hourly fee agreement include a fee cap—an amount that cannot be exceeded without your prior approval.”

• “Some lawyers are willing to coach pro se litigants (those who are representing themselves in court) on an hourly fee basis.  Instead of handling the litigant’s case from start to finish, they advise, coach, direct and charge for these services by the hour.” [Note: This is related to the Unbundling we mention above.  With "Limited Scope Representation," the lawyer might make court appearances.]

………………………. ..

By understanding some of the ethical principles relating to hourly lawyer billing, and utilizing certain practical strategies and tactics, clients can also help ensure that their fees are no larger than necessary.  Here are tips we’ve garnered from sources around the web:

.. .. Retainer Agreements:  The authors of the HALT book “Using a Lawyer: And What To Do If Things Go Wrong,” Kay Ostberg & Theresa Meehan Rudy, have put together a Model Attorney-Client Agreement [5 pages, pdf) that is "designed to secure the rights and stipulate the responsibilities of both the attorney and client."  Using a Lawyer tells us why a well-structured retainer agreement between the lawyer and client is important:

"As the saying goes, 'the devil is in the details.' Sophisticated corporate clients demand that their lawyers hammer out details in their attorney-client agreements.  This helps to ensure that their rights are protected and the fees they'll charge are expected.  The average consumer of legal services should demand the same.  HALT's research shows that most disputes between clients and attorneys could have been avoided if the nature of their relationship had ben made explicit at the outset.  If your attorney refuses to sign or draft an agreement that protects your rights, ask why. The answer will tell you whether or not the attorney is the sort you want to employ.

The f/k/a Gang urges legal consumers to take a good look at HALT's model agreement. As they note, "The language in this model contract is not magic.  There are other ways of protecting consumers' rights in writing.  However, this model will help you identify the most important protections that you should insist upon, and alert you to other possible sources of problems and frictions between lawyers and clients."  Among other items, the Model Agreement urges the client to ask for the inclusion of the following clauses:

- Attorney estimates that these court costs will not exceed the sum of ______ Dollars ($____)
- Attorney estimates additional costs listed above (e.g., phone charges, document search, computer research, investigator, travel) will not exceed the sum of  ______ Dollars ($____)

- Attorney estimates that the total cost of fees for the services of Attorney, junior members, and paralegal will not exceed the sum of  ______ Dollars ($____)
- Client will not be liable for any additional costs or fees which exceed the estimates given above in ___, unless attorney notifies Client of the additional expenses required and receives permission of Client before incurring the additional expenses.

- Client will receive a billing statement monthly (or at some other appropriate interval) with detailed itemization of the attorney's junior members' and paralegals' activities in the case, the amount of time involved, and the additional costs incurred.

- Should the retainer exceed the total cost of completing the case, the remainder is to be returned in full to Client.

A consumer who wants to understand the factors that go into a well-written retainer agreement (for working on representation in a particular legal matter) should also see the article "Retainer Agreements and Rule 1.5(b)" in the December 2008 issue of The D.C. Bar magazine, Washington Lawyer, by Dolores Dorsainvil and Daniel M. Mills.

update (7 PM, Feb. 28, 2009): By accident, I just ran across a post I wrote back in 2003, but had forgotten about, called "improving lawyer fee and retainer agreements."  It says, in part:

T he Law Practice Today blog, which is sponsored by the ABA Committee on Law Practice Management, has a new and useful posting entitled Build a Better Fee Agreement, by David Bilinsky and Reid Trautz (posted 7/10/03). The tips are excerpted from the April 2003 edition of Law Practice Magazine. The article states, with brief explanations, that a comprehensive written fee agreement between lawyer and client should do the following . . . ." [It's worth reading the rest and the original article.]

HOURLY BILLING GUIDANCE for Lawyers (and savy clients): Earlier in this post, we mentioned the Statement of Billing Principles produced by the American Bar Association’s The Task Force on Lawyer Business Ethics in 1996.   The guidelines for lawyer billing contained in the Statement should help clients better understand issues that are relevant to constructing and implementing a retainer agreement, and reviewing a billing statement.  Here are some of the most important concepts and principles (emphases added):

DISCLOSURE AND UNDERSTANDING

The first guiding principle for the lawyer with respect to billing for legal services should be an understanding with the client of the basis for such billing arrangement through full disclosure by the lawyer.   . . . Such understanding between lawyer and client should include not only the method to be used in calculating fees for legal services but also the scope of the legal services to be performed (and charged for) to the extent that an understanding with respect to the scope is expected to be an important factor in the lawyer-client relationship.   For example, is the matter of such critical importance to the client that a “leave-no-stone- unturned” approach is appropriate, or does the client prefer to accept some risk in order to avoid some of the costs attendant to such an approach? . . .

LAWYER’S RESPONSIBILITY IN PREPARATION OF INVOICES  

. . . The lawyer and law firm should make every reasonable effort to provide clients with complete and accurate invoices describing the legal services provided and the amounts charged for same. . . . Each invoice should clearly identify the legal services provided in such specificity as the client requests, the fees charged for such services, and the disbursements and other charges relating to the period being billed. . . .

HOURLY BILLING ARRANGEMENTS

The agreement by a client to be billed for legal services on an hourly basis does not justify the lawyer spending an unreasonable number of hours on a particular matter or task.   The amount of time spent on a matter should be reasonable in relation to the client’s goals and expectations and must also be consistent with the lawyer’s professional ethical obligations.   In general, the lawyer should have an obligation to address the matter that is to be billed on an hourly basis in a cost effective manner and to avoid “churning” hours, whether due to the lawyer being under-worked and therefore spending more time than is reasonable on the matter, the assignment of the matter or task to a lawyer who is too inexperienced to perform it competently and/or cost- effectively, or otherwise.

The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement.

Premium Billing

. . . [An] example of opportunity cost would be a client who demands an unreasonable turnaround time for certain work, thereby rendering it impossible for the lawyer to attend to other business or personal matters in the normal course.   Such “rush” demands may provide a reasonable basis for a surcharge or higher hourly rate.   If such a surcharge is to be implemented, however, it would require advance disclosure to and agreement by the client.

Hourly Billing Rates

When legal services to be performed are to be billed on an hourly basis, the hourly rates or range of rates for lawyers involved (or expected to be involved) in performing work for the client should be disclosed to the client… as well as, if applicable, the existence of multiple hourly billing rates for the same lawyer depending on the type of service provided.

Minimum Time Increments

. . . Legitimate use of a minimum time increment may depend on how the lawyer records the balance of the increment.   Two fifteen-minute charges for two five-minute calls within the same fifteen-minute period seem inappropriate; some balancing should be used.

. . .

Learning Curve

Some clients have indicated that they do not wish to (or will not) pay for the cost of training lawyers or bringing them up the learning curve with respect to a particular substantive area of the law or a particular type of case or transaction.   Resolving this issue requires communication with the client in order to ascertain the nature of the concern.

Provision by the lawyer or law firm of cost-effective services to clients requires that certain tasks be performed by less experienced lawyers whose hourly billing rates are lower but who, in the judgment of the managing attorney on the project, have sufficient expertise and experience to perform such task.   Lack of experience should be appropriately reflected in a lawyer’s hourly rate.. . .

If the primary purpose of participation in a meeting or project by a less experienced lawyer in a law firm is to train such lawyer, then the lawyer’s time should not be billed to the client.

Staffing Considerations

. . . The touchstones for determining such issues as staffing should be cost-effectiveness and quality of legal service to the client.   Staffing should be discussed with the client if the client has expressed an interest in such information and must be disclosed if the lawyer has created an expectation that the matter will be handled by a particular lawyer or one with a certain experience level and such is not in fact the case.   . . .

. . .

In recognition of the value of continuity of representation, law firms should endeavor to staff a specific client matter with a relatively consistent team of lawyers.   If a change must be made in a critical member of the team (other than in response to a client request), and this change necessitates any significant expenditure of time by the new member of the team in getting up to speed, counsel should make appropriate downward adjustments to the fees billed in such matter to avoid unreasonable charges to the client.

• Overhead:  Prof. Yabut says: The more overhead your lawyer has, the higher your fees are likely to be.  Don’t confuse a fancy location or office suite with better service or value.

REVIEWING YOUR BILLING STATEMENT:  In “Reviewing A Law Firm’s Billing Practices” (The Professional Lawyer, Fall 2001), mediator and arbitrator Gerald F. Phillips reviews billing statements received by a client from a law firm.  In discussing the problems he found, Phillips gives us useful concepts to keep in mind when determining whether hourly charges are reasonable or should be reduced or eliminated.  For example, Phillips discusses issues involving rounding up and incremental billing [see the excerpt quoted above].  Here are other topics covered, with select excerpts (emphases added):

C. THE BLOCK-BILLING CONCEALED THE ACTUAL TIME EXPENDED AND FACILITATED BILL PADDING

“Block-billing, assigning one time charge to multiple
tasks is a practice that is almost universally disapproved.”
U.S. Business Litigation (at page 16). It is disapproved
because it allows a lawyer to conceal the time spent on each
task and prevents the determination of whether individual
tasks were performed within a reasonable period of time. In
this case, this practice also enabled the attorneys to round
up and to bill more often for a half or full hour.

Billing Statements should show clearly the amount of time incurred with respect to each task and that information should not be concealed by such devises as block-billing.

D. THE EXCESSIVE REVISIONS WERE UNNECESSARY OR WERE REQUIRED BECAUSE OF THE POOR QUALITY OF THE ORIGINAL WORK

The Statements indicate that it was the regular practice of
the Firm to have attorneys repeatedly review and revise the
work product of others. This practice generated larger fees.
If the constant “reviewing and revising” were necessary, then
the original work was not of the quality that a first rate firm
should perform. If this was the case, the firm should not have
billed you fully for both the poor quality original work and
for the time spent in making the revisions. If the tasks were
given to inexperienced young attorneys, you should not have
been billed for their training. Billing partners, when review-
ing statements, often write off time that they recognize as
excessive and the result of an associate’s inexperience.

E. THE EXCESSIVE RESEARCH AND THE REPETITIVE TASKS SHOULD NOT HAVE BEEN REQUIRED

For a Firm that specializes in the type of law required in
your case and holds itself out as having that expertise one
must wonder why so much time was spent and so many revi-
sions made on what should have been routine matters for
such a firm. . . . [T]he Firm may have misrepresented its expertise.

Some of the research appears to have been used to educate or train
young associates and should not have been billed.

F. INEFFECTIVE STAFFING SUBSTANTIALLY INCREASED THE FEES

The Firm used two partners and two associates on this
case. The Billing Statements show that others often
reviewed and revised the work and that there was excessive
conferencing. The charges for conferences often did not
indicate, as it should, the subject of the meeting.

G. THE BILLING STATEMENTS WERE VAGUE AND MEANINGLESS AND DISCLOSED REPETITIVE ENTRIES

Many of the entries were vague, such as “legal research”
or “Telephone conference with X”. Many entries were
repetitive such as “Review discovery” or on successive days
billed for “Review articles.” If “legal research” was done it
is incumbent on the attorney to specify the nature of the
research. Many entries are vague, especially since they were
repeated month after month. “Reviewing” “revising” and
even editing may have been used to permit gross padding.

PRACTICAL TACTICS for the Cost-Conscious CLIENT

Several lawyers have compiled tips for clients who want to keep their bills from ballooning. here are samples:

In his “Tips on Reducing Legal Fees,” Tennessee divorce lawyer David M. Waldrop says “Divorce is expensive. Nevertheless, there are ways to reduce your legal fees.”  His tips are good for divorce and other family law cases, and many of the notions can be applied elsewhere, too.   Here are a few examples:

1. Prepare for your phone calls.

. . . You are charged for every phone call with your lawyer. Remember, your lawyer sells time. Therefore, make a list of the topics you wish to discuss before you call so you will not forget what you wish to discuss. Also, call only when necessary.

Do not call your lawyer at home unless it is an emergency. Your lawyer does not have your file with him. Most lawyers charge double the hourly rate if you call them at home.

4. Fee disputes.  If you believe you have been over-charged, discuss it with your lawyer. If you are still dissatisfied, contact the bar fee dispute committee to mediate the dispute.

5. Keep your sense of humor. . . .  It will save you money by preventing you from litigating the non-essential points. If you are going to negotiate a settlement, remember both sides have to give to reach a settlement. Otherwise, no one wins but the lawyers.

6. Be responsible and don’t sweat the petty stuff.

“Reducing Legal Fees“  .. Both the website of Minnesota lawyer Maury D. Beaulier and the Separated Parenting Access & Resource Center offered a set of cost-cutting guidelines, under the following categories:

Keeping A File At Home
Organizing Documents and Filling Out Requested Forms
Compiling Questions

“You should also keep a notebook of any issues and questions that you have for your attorney noting the date of your question or issue in your notebook. When you have a sufficient number of issues or questions, you should contact your attorney for answers. By waiting until you have a number of questions at one time, you may significantly reduce your legal fees.”

Do Not Use Your Lawyer as a Therapist;
Focus on the Legal Issues
Don’t Try to Cheat

• Regarding telepone calls, the New York State Bar Association’s “Choosing a Lawyer” suggests:

“If you have agreed to pay the lawyer an hourly rate for work performed on your behalf, then the time it takes to stop working on another matter, retrieve your file and consider the questions that you pose over the phone would be properly billed to you. Therefore, while you should contact your attorney when necessary in the context of the case, you should not do so on the spur of the moment. Make a list of matters that need to be discussed and speak about all matters at one time. If a paralegal can help you, do not insist upon speaking with the lawyer.”

.. For a scholarly-but-practical treatment of the ethics of hourly billing, see “The Honest Hour: The Ethics of Time-Based Billing by Attorneys” by William G. Ross  (280 pages. 1996).  The publisher’s synopisis says: “The Honest Hour explains how attorneys and their clients can work together to develop fee agreements that will give attorneys enough time to produce quality work while guarding against practices that exploit clients.”  And, check out Prof. Ross’s eye-opening surveys, including his 2006 – 2007 Survey.

Nolo’s IEP Guide , by Lawrence M. Siegel, was written to help parents of children with learning disabilities through the Individual Education Program process.  His suggestions, however, have a much broader application:

Be organized.    “Especially when you are paying by the hour, it’s important to gather important documents, write a short chronology of events, and consistently explain the problem to your lawyer.  Keep a copy of everything you give to the lawyer.”

.. Be prepared before you meet your lawyer.  Whenever possible, put your questions in writing and mail, fax, or deliver them to your lawyer before all meetings or phone conversations.  Early preparation also helps focus the meeting so there is less chance of digressing (at your expense) into unrelated topics.

Carefully review lawyer bills.  Like everyone else, lawyers make mistakes.  [like transposing figures] . .. Don’t hesitate to question your bill.  You have the right to a clear explanation of costs.

Ask your lawyer what work you can do.

Listen to your lawyer.  . .. But large legal bills are sometimes the result of clients losing track of time or ignoring advice. . . . As a client, you should not be afraid to question your attorney’s recommendation.  But part of what you’re paying for is reasonable and objective advice, — and when your attorney says not to waste time on an issue, you should probably listen.

Stuart M. Saft wrote “Reducing Legal Fees: A Ten-Step Program” (Habitat Magazine, November 2006) for the board and management of cooperatives and condominiums.  Often, however, his good advice has broader application.

1. The Board Should Not Be Paying to Educate the Attorney

. . . If your attorney has not dealt with a similar issue, ask if someone else in the office has and could handle the matter. You can also consider referring that particular matter to a law firm that does have experience in the area. Using another attorney for a particular matter does not mean that your relationship with the old attorney has to end.

As an alternative, ask your attorney to bill the start-up time at a discount.

2. Don’t Micromanage the Attorney

Several times I have seen the board members or the managing agent call the attorney daily to discuss the status of the matter and to offer suggestions and to cross-examine him or her on how the matter is being handled. This adds significantly to the cost  . . .

3. Appoint a Legal Liaison.  There is nothing more important that having a single point of contact between the board and the lawyer. . . .

4. Listen to the Lawyer 

If your attorney responds to an inquiry by noting that it is forbidden to do something based on the language of the proprietary lease, bylaws, or declaration, then it its not productive to beg or to demand of the lawyer that he or she not object to this thing being done. These documents are written in English — or at least legalese — and they are decipherable. Ask the lawyer to point out the specific language that creates the objection and review it yourself to see it you agree with the interpretation. Then, if you don’t, call the lawyer to see why he or she believes that it says what you don’t think it says.

7. Use Junior Partners, Associates and Paralegals

8. Not Every Principle Is Worth Litigating Over

. . .  Lawyers make money representing clients, so if your lawyer is attempting to dissuade you from bringing a lawsuit, perhaps you should listen. Most of us will bring a lawsuit if the client insists, but we try to talk them out of it first.

9. Don’t Litigate Based on Judge Judy

10. Blame the Lawyer

. . .  just say that you wanted to be tough and fight for truth, justice and the American Way, but the lawyer would not let you.

Contingency Fees:

Understanding Attorney Fees has remarkably little to say about contingency fees — and virtually no advice for reducing the often-excessive fees. Here’s the core discussion:

“Contingency fees.   In this type of fee agreement (used mostly in personal injury or collections cases in which the client can’t afford to pay if the case is lost), the attorney receives payment only if she wins the case, although the client usually must still pay any expenses an attorney incurs because of pursuing the case.

“This is an all-or-nothing proposition—either the client wins and the attorney is paid, or the client loses and the attorney walks away unpaid.  The theory behind contingency fees is simple.  The attorney takes the risk of losing; the greater the risk of losing, the bigger the percentage.  If you win, the attorney is highly compensated on the theory that he must also absorb losses on contingency fee cases that didn’t succeed.”

“The customary contingency fee is 33 percent of the settlement, although fees range from 15 to 50 percent.  Some lawyers offer a sliding scale in which the percentage changes depending on the stage at which the case is settled.  For example, the lawyer may collect 25 percent if you settle before trial, 30 percent if there is a trial and 40 percent if there is an appeal.”

” . . . make sure you ask that the attorney’s percentage be calculated after expenses have been subtracted from the award.  This can result in significant savings for you.”

Although it states “the greater the risk of losing, the bigger the percentage,” the statement in UAF offers no clue on how the client is to determine the degree of risk his or her case poses for the law firm (the likelihood of winning and earning a fee that adequately compensates for the firm’s efforts and expenditures).  As mentioned in the opening segment of this post, HALT appears to have abandoned its campaign to bring fairness to contingency fees, by giving clients enough information about the lawyer’s risk that they can negotiate lower fees.  Instead, UAF seems to capitulate to the standard contingency fee, which is forced upon virtually every personal injury client.

In 1999, HALT’s executive director James C. Turner talked to Washington Post columnist Don Oldenburg about standard contingency fees.  The Consummate Consumer column for March 3, 1999, titled “‘Standard’ Legal Fees”( $$ article preview) reported:

“Last summer, HALT, a District-based legal reform group, launched its Legal Consumers Bill of Rights Project to inform consumers of their rights when hiring an attorney.  Among its consumer protection provisions is the client’s right to have an objective review of a contingent fee by a court or a bar association committee to assure it is reasonable and fair.  It also calls for written fee agreements in injury and death cases that cover the probability of winning, amount of award expected, number of hours of legal services required, out-of-pocket expenses the client will pay, and the availability and cost of alternative fee arrangements.”

HALT’s director told the Washington Post:

“It is a tragedy that people just swallow this one-third concept. Every consumer has a right to expect and demand that there be a relationship between the work that is actually done and the fee they pay.  You have the right to be informed of different fee arrangements.  Responsible and competent lawyers do that already, but there are bad apples in the barrel.

“The most important thing that any person needs to keep in mind is that they are the boss, and the terms of employment are negotiable.”

The December 1997 issue of HALT’s newsletter The Legal Reformer, which explains and contains HALT’s Injured Consumer’s Legal Bill of Rights is no longer available online. Luckily, I printed it out many years ago, and uploaded it to our webserver in pdf form.  The Injured Consumer’s Bill of Rights includes the right to have the lawyer’s good faith evaluation of the case prior to signing any fee agreement, including the following information, which must be incorporated into the fee agreement:

- the probability of a successful outcome;
- the amount of recovery reasonably expected in that outcome;
- the number of hours of legal services that are likely to be required to secure that outcome;
- the amount of any costs or expense that the client must bear:
- the availability and costs of alternative fee arrangements [such as allowing the client to pay a reasonable hourly rate rather than a contingency fee]

With this information, the client can understand how strong his or her case is and attempt to negotiate a fee level that adequately compensates the lawyer for the level of risk and amount of effort required, while  making sure the client wins and keeps all the money he deserves.  The standard contingency fee, on the other hand, is normally the maximum allowed in a jurisdiction for the particular type of injury, and treats every case as if it justified the maximum fee.  Thus, because p/i lawyers are usually very good at weeding out risky cases, injured clients often are forced to pay an unreasonably high fee.

The HALT “client’s rights” mirror those imposed on lawyers using contingency fees in a 1994 ethics opinion of the American Bar Association.  ABA Formal Ethics Opinion 94-389 ( $$ download from ABA; it is described here, along with a full discussion of the ethical use of contingency fees).  Those two sources (along with Florida’s contingency fee Bill of Rights), were the basis for f/k/a’s comprehensive Injured Consumers’ Bill of Rights for Contingency Fees.  Prospective clients can use the HALT Bill of Rights, the f/k/a version, and Op. 94-389 to discover the kinds of questions to pose when shopping for a personal injury lawyer.

Unfortunately, although trial lawyer associations, the Federal Trade Commission, and many courts have stated that contingency fees should correspond in each case with the level of risk (see our post, “risk matters“), most p/i lawyers have refused to give up the excessive fees that are generated using the standard contingency fee.

Flat fees are often a bargain, but never take that for granted.  Here’s what the HALT Guide says about Flat Fees:

“Flat fees.  Many lawyers and legal clinics offer flat fees for routine legal matters, such as for uncontested divorces, will preparation, business incorporation, lease preparation and some probate work—basically uncomplicated legal matters that involve filling out forms.  A flat fee means that you will be charged a specified total for work performed on your case, regardless of the time it takes to complete. . . . Often an agreement with a flat rate will require that the client also pay such “extras” as filing fees, photocopying and other out-of-pocket or unanticipated expenses.

“Flat fees are charged when lawyers can accurately predict the average amount of time a case will take. . . . Recognize, however, that a flat fee often reflects an hourly rate, so ask how much time the work will take, include this estimate in your agreement and choose an hourly figure if the math is in your favor.  Usually, however, flat fees turn out to be bargains because when the work is repetitive and time-saving forms are used, the savings are passed on to clients.”

f/k/a Note: Yes, do the math and compare prices. One fixed-fee advocate recently told his weblog readers “Sophisticated clients who insist on hourly billing do so because they’re smarter than you are, not because they want you to be paid fairly.”  That lawyer admitted at his weblog that he had switched to fixed fees to avoid passing on efficiency savings to clients.

“Flat fees allow you to shop around among lawyers if you have a routine matter.  Ask what specifics the flat fee covers in each case to be sure the various attorneys are offering the same services for the quoted price.  In other words, if one lawyer’s flat fee includes copying costs and another identical fee does not, the first lawyer is more economical.  If you agree to a flat fee, make sure your agreement specifies exactly what the fee covers as well as any costs not included.”

f/k/a Cautionary Note: Lawyers will often switch between hourly and flat fees for their own advantage.  For example, many lawyers (e.g. in Family and Criminal matters) find themselves at court with several clients at the same time, doing motions, status calls, and sundry non-trial matters.  Some would bill each client for overlapping time at court (charging, for example, $200 per hour to each of three clients for the same 60 minutes).  When they were told such multiple billing was unethical, a lot of lawyers started billing a flat rate for each court appearance — say, $500 to each of the three clients, instead of $200 per hour.  That could turn sixty or ninety minutes at court into a $1500 morning, whereas the three clients would have split a mere $600 tab paying by the hour, if the lawyer had spent a full three hours at court.  So, you might want to ask about hourly fees when a busy lawyer is piggy-backing clients at court.

The UAF section on Alternative Fees (which apparently does not include the separate category of Flat Fees) is particularly unenlightening:

“Alternative billing.  While not as common, some lawyers will use an alternative billing arrangement—for example, a lawyer working with a small business owner might offer a steep hourly or percent discount as a way to increase the volume of work he or she gets from that client.”

We can’t flesh out the topic of alternative billing here, but suggest you see our posts “other thoughtful voices on the lawyer billing debate” and “broadening the billable-hour debate” for information that can help you make smarter choices when looking at alternatives to hourly billing — remembering that each billing arrangement has both advantages and disadvantages for the client, and for the lawyer.  If hourly billing gives the lawyer the incentive to work too much, fixed fees give the firm the incentive to do less (they say “be more efficient”) for the client.  Indeed, if lawyers are really busy, they are less likely to be padding hourly fees, but more likely to be cutting corners for clients paying fixed fees. (see, e.g., our post “finally: NLJ on the realities of alternative billing,” Sept. 11, 2007)

Is time expended relevant? A cautionary point: Some lawyers have switched to alternative fees precisely because they want to charge more than they could with hourly billing.  They are unhappy that there are only 24 hours in a day to be used billing clients, and they would rather not pass efficiency savings along to clients. [See, e.g., this post.]  Yet, most clients — including you, if you’re reading this piece — want to move from hourly billing precisely to pay less, not more in lawyer fees.

Therefore, be wary of a lawyer who says the amount of time spent on your case or transaction is not relevant to the size of the fee.  You should want to know how much attorney time is likely to be expended on your behalf, when deciding on the reasonableness of a “value-based” or fixed fee, if only to better compare the fee to that of lawyers billing by the hour. And, because they owe you a fiduciary duty to fully inform you and treat you fairly, lawyers should be willing to tell you their best good faith estimate of the time it will take to provide the needed services (as HALT suggested in its Model Attorney-Client Agreement, which is discussed above).  Furthermore:

– In our economy and marketplace, the “value” of a product or service is not determined merely by how much the buyer needs or wants it.  Otherwise, computers would cost more now than than did 20 years ago rather than much less, because they are so much more central to our personal and business lives.  And, necessities like food, housing, gasoline, would be priced far higher than they already are.  A monopolist may decide to charge without regard to his cost, but when there are lots of sellers competing for your business (as there are in the market for legal services in the USA, which has more than a million practicing lawyers), we expect price to stay close to cost.  For a law firm, the time a lawyer spends applying his or her knowledge is the main input or cost of the service.  And, for more than a century, time expended has been the primary criteria used in deciding the reasonableness of a fee under lawyer ethics rules.

– No mater how important it is for you to have a particular legal problem solved, if it won’t take much effort to fix the problem, or there are many attorneys who know how to fix it, the law firm is usually not adding much value in your situation.  At times, by analogy, all it takes to prevent a major accident or tragedy is to tighten a bolt.  Yet, you pay the mechanic or plumber who tightens the bolt a substantial hourly rate for the expertise it takes to diagnose the problem and turn the bolt, not an extortionist’s (or hero’s) fee for averting the calamity. The same is true for a doctor who saves your life with a simple tourniquet or by prescribing a common pill for a common but deadly malady.  Don’t buy the argument that the fee for lawyer services should be the same, no matter if it takes 30 minutes or 30 hours to perform.  Don’t let them change the definition of marketplace value from “a good product at a reasonable price,” to “whatever you are willing to pay to solve your problem.”

“Certainty Premium“?   Some lawyers charge a “premium fee” higher than what they believe a client’s hourly bill is likely to be, and justify it by saying they are giving the client “certainty” and taking the risk of having to do more work than expected.  Certainty can be very important for some clients and worth a higher fee; and risk can warrant a law firm charging a higher fee. But, most clients seeking alternative billing arrangements are not interested in “certainly paying a lot more” than they were likely to have paid by the hour.  To know whether a higher Certainty Premium is worth the price, you need to know how much you most likely would be paying with an hourly billing arrangement, and how likely it is that the hourly fee might be significantly smaller or a lot bigger than the fixed “premium fee.”

Therefore, before entering into a fixed fee agreement that includes (implicitly or explicity) a Certainty Premium, the lawyer owes you a good faith estimate of the range and probability of likely fees. [For example: Given your situation, the most likely hourly fee, and how likely an hourly fee could be half of that estimate, or could be twice that estimate.]  You can be sure that the lawyer charging you a fixed fee is making those estimates (if only rougly in his or her head), and has weighted the price to minimize its risk of underestimating the amount of work that needs to be done.  Until you know the range and probability of higher and lower fees, you really can’t make a rational decision to pay a Certainty Premium.

We hope the information above will help clients to avoid unnecessarily high legal fees.  (Sadly, they will still, in general, be painfully high.) Don’t be too shy to ask the questions and (politely) assert your rights.  Remember, lawyers have ethical and fiduciary duties to fully inform clients and to charge only reasonable fees.

• Final Note: Criminal Defense Fees:  These days, most private criminal defense lawyers provide their services on a fixed fee basis, but many also use hourly billing arrangements; they’re  not allowed to use contingency fees.  We won’t try to cover this topic here, except to say that we  disagree strongly with Brian Tannenbaum’s assertion in his e-book The Truth About Hiring a Criminal Defense Lawyer, that a client should never ask a lawyer if he charges a consultation fee and “never negotiate,” because you’ll be perceived as cheap or unsure whether he is worth his fee.  There are too many lawyers competing for your business to put up with one who is so cavalier about your financial distress.  As Mark Draughn said when he reviewed Brian’s e-booklet, “Everything is negotiable. It’s just a conversation.” [We can't vouch for them, but you'll find materials on criminal defense fees here, here, and there.]

note: this is #4 in our final week’s erratic ALF Series on American Legal Fees; click for #1; #2; #3 . .

It’s my last week of posting, so I’m going to indulge myself and discuss a pet peeve or two of mine involving the rhetoric of lawyers and consultants who dislike (and often scapegoat) the billable hour.  Rather than sticking with logic, reason, or economics, they often employ hyperbole, overkill, psycho-babble, Straw Men and class warfare (not to mention ridicule).  As discussed below, they even insist that being paid by the hour demeans a lawyer.  Please.

Thus, as mentioned last week, Ron Baker’s acolyte and echo Christopher Marston recently insisted that “there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

Of course, I’m not an excrement expert (and Mr. Baker has accused me of ranting and raving and being “someone who lacks a rudimentary understanding of basic economics.”), but the not-buying-time cliche is just a silly Straw Man.  The client who pays by the hour, like anyone who employs a lawyer to do legal services, “wants” the lawyer to apply his or her legal knowledge, expertise and experience to the client’s problem or project.  Hourly billing is simply one way to compute compensation in a situation where the buyer does not employ the service provider exclusively (and the amount and type of services needed may not be reasonably discernible in advance).  As Prof. Jeffrey Lipshaw recently wrote:

“The real question is whether, overall, the total price approximated by billable hours is an acceptable surrogate for the value to the client. . . . [M]y intuition as a former buyer and seller is that the overall acceptability of the surrogate is indeed revealed by the overwhelming instance of its use in the market.”

Similarly, Steven Matthews pointed out at slaw.ca last year, in “The Economist: Killable Hour” (September 1st, 2008):

“Neither party seems to care that much about the billing model. Cost certainty? yes. Getting value? yes. Those are worth fighting for, but method of billing? If clients or firms were demanding changes, wouldn’t we have seen it by now?

“The push-pull between clients & firms when negotiating price (and understanding costs, for firms…) is going to exist in either scenario, and frequently depends on the situation. Think: area of practice, work volumes, the substance & length of client-firm relationship, average time for matter execution, and so on. But rather than describing this balance to readers, the sensational prevails – pitting one billing model against the other in a full-on death match! I suppose it’s not sexy to say ‘different clients & matters may require different billing models’. A shame, really.”

At times it is a reasonably good measure of the value of those services, and at times it may not be.  More price competition is needed for hour rates, and abuses need to be eliminated, along with excessive quotas imposed on lawyers by their firms.  But, hourly billing is clearly not an inherently irrational, exploitative or unethical method for calculating price.  By painting hourly billing as the benighted source of all evil, proponents of alternative pricing methods hurt their credibility — especially, when they fail to acknowledge there are incentives inherent in every pricing method that could lead to unreasonably high (or low) fees. (see e.g., ALF#1; and our post “broadening the hourly billing debate“)

.. Mauled by Marxism! Demeaned by Da Man! Ronald J. Baker (see prior post), the guru of “value pricing” and ceaseless crusader against hourly billing, isn’t content with his price sensitivity charts and promises of higher fees in his quest to convert lawyers and accountants from the Almighty Hour.  Ron motivates poor downtrodden professionals with his brand of class-based snobbery.  He urges them to rise up to capture their true (higher) value by labeling hourly billing as Marxism, and contrasting his superior “knowlege workers” with mere “cattle,” “union workers,” “blue collar occupations,” and those who “work with their hands” rather than their heads, and are stuck laboring by the hour (see, e.g., here and there).

Meanwhile, the usually level-headed and clear-minded Bruce MacEwen of Adam Smith Esq, recently evaluated the billable hour (in “The NYT’s Obit for the Billable Hour“, January 31, 2009).  Included in Bruce’s “Con the billable hour” list is this factor:

“It’s dehumanizing, reducing talented and highly educated professionals to fungible units as factors of production.“

In addition, conflating the issue of hourly billing with the problem of the grossly excessive billable hour quotas imposed by many firms, Bruce goes on to say: “Lawyers have every incentive to work day and night, and no incentive to recharge their batteries . . . We can debate whether, in the long run, this will produce pale and narrow automatons or whether utter and uncompromised dedication to a profession, 24/7, is the only route to serious excellence, but the point is that decision should be made by each individual with free will unfettered by the hands of a stopwatch.”

The greed that has led to over-blown billable quotas is a separate issue from the appropriate use of hourly billing to arrive at fees.  Indeed, as we said years ago in the post chronomentrophobia, “from the perspective of the overworked associate or partner, there is nothing wrong with the billable hour fee system that is not very likely to be carried over to any alternative billing arrangements, so long as the firm expects the shift to be made without reducing its income or profits, and the lawyer expects the same income.“

In a nation where the vast majority of both blue and white collar workers receive their income based on intervals of time (hour, year, week, etc.), is being paid based on time expended really a demeaning remnant of Marxism?  That’s silly, at best; unseemly manipulation, at worst.  Many of the most talented and respected people I know are paid according to a clock or calendar.  And, many members of the public (myself included) believe that a larger percentage of “blue collar” workers than of lawyers perform truly valuable services.

Consider:

• Most of us would not be the least bit insulted if an employer or customer wanted to hire us on an exclusive basis for a year, a month, a week, or as long as a particular project took, and offered to pay us based on an appropriate interval of time.  We might want to suggest an alternative way to calculate our compensation (e.g., a flat fee, adding bonuses for success, splitting profits), but we would not be insulted.
• Why does it become demeaning then, when someone who will not get your services or time exclusively — because you will be working for other clients or employers, too — suggests compensation based on hours worked?  In two words: It doesn’t.  Period.

By the way, even when a law firm is being paid under a “non-demeaning” alternative method of pricing, I bet their associates are getting paid based on an interval of time.

It’s naptime.  I’m setting my alarm clock.

note: this is #3 in our final week’s erratic ALF Series on American Legal Fees; click for #1 and #2 (hmmm, that sounds scatological); and #4 -

While I was in law school, bar association Minimum Fee Schedules went from being commonplace, apple-pie, “old-time rock-n-roll” in the legal profession, to being Risky Business in violation of antitrust law.  The fee schedules were lists of recommended minimum prices for common legal services.   Through disciplinary actions and ethics opinions, bar associations made it clear that a pattern of charging less than the minimum fee constituted misconduct.  See, for example, this NY Bar ethics opinion from 1964; a 1961 Colorado Bar opinion; and the Virginia Bar opinion discussed by the Supreme Court at Fn 1. in Goldfarb.  The president of the New York Bar Association had himself requested the 1964 opinion concerning departures from the minimum fee schedule, and his so-called ethics committee agreed with him that:

“[T]o let it be known, by whatever means, that a lawyer will customarily charge for his services less than the recommended fees set forth In a duly adopted schedule is not in accordance with Canon 12 and is unethical as a form of solicitation and advertising.”

At the end of my 2L year, the Supreme Court’s decision in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), closed the book on those quaint little non-compete clauses, holding that the Fairfax County Bar Association’s minimum fee schedule was price-fixing in violation of §1 of the Sherman Act.  Until then, bar groups had gone around saying they could do whatever they wanted regarding fees, because there was a blanket “learned profession” exemption to the antitrust laws, and that they also had State Action immunity for conduct permitted by state courts in overseeing the legal profession.  However, as the case Goldfarb syllabus explains.

“The schedule and its enforcement mechanism constitute price-fixing, since the record shows that the schedule, rather than being purely advisory, operated as a fixed, rigid price floor. The fee schedule was enforced through the prospect of professional discipline by the State Bar, by reason of attorneys’ desire to comply with announced professional norms, and by the assurance that other lawyers would not compete by underbidding. . . .

“. . . It is not enough that the anticompetitive conduct is “prompted” by state action; to be exempt, such conduct must be compelled by direction of the State acting as a sovereign. Here the State Bar, by providing that deviation from the minimum fees may lead to disciplinary action, has voluntarily joined in what is essentially a private anticompetitive activity, and hence cannot claim it is beyond the Sherman Act’s reach.”

While in law school, we discussed the fee schedules a little bit in my Professional Responsibility class in 1974 (where my famous Harvard Law professor believed lawyers should not be allowed to advertise), and much more in my antitrust classes. [Thereafter, for more than a decade at the Federal Trade Commission, my law practice was focused on the anticompetitive practices of learned professions like medicine and law.]

I’m bringing up this topic now, before we close shop here at f/k/a, because I’m afraid far too many members of the legal profession (and virtually all of the public) have forgotten this chapter of lawyer history and lessons to be drawn from it and its aftermath.   A lot of lawyers reading this weblog have suggested the f/k/a Gang is far too suspicious of bar associations and lawyers when it comes to fees and competition.  But, I want the “don’t be such a cynic” crowd to remember the Minimum Fee Schedules and what they say about our profession.  For me, history (including rather recent history at that) clearly shows:

• lawyers almost always feel underpaid and entitled to higher fees
• lawyers hate competition, especially price competition and related advertising, and will use peer pressure and ploys like an appeal to the “dignity of the profession” to stifle rivalry
• lawyers will exploit any pricing mechanism (turning it into a racket) — and will always find new ways to increase fees when one method of billing becomes disfavored

You might protest that there must be a good, client-centered motive behind the adoption of Minimum Fee Schedules. Surely, as conspiring doctors often claimed (unsuccessfully) during antitrust investigations over the past three decades, it was done to assure that services were of a high quality and consumers protected from slipshod work.   Well, I think the experience of the Wisconsin Bar was typical, and folks there were nice enough to compose a history “History of the Organized Bar in Wisconsin“, which includes an entire Fee Schedule chapter. Chapter Nineteen begins like this (emphasis added):

“For a hundred years after statehood Wisconsin lawyers were inadequately compensated. . . . [M]ost of the lawyers who became well off did so through side ventures. Much of the fault lay in a haphazard system of charges for service.”

The discussion goes on to tell about early efforts at devising fee schedules.  It started with a “Fee Bill” in 1844, signed by a dozen lawyers in Milwaukee County.  Then, after many forms and revisions, by 1959:

“The American Bar Association’s committee on Economics of Law Practice hammered hard at the economic plight of the profession and what could be done about it. The post-war lawyers were keenly aware of the poor economics of the profession. The stage was set for an event that had far reaching impact on the lawyers’ pocketbooks.

“The fee schedule was extensively revised in September 1959. . . . [T]he Executive Committee voted to publish and distribute to all 6,000 members a “Minnesota Type” fee schedule book. . . .  Binders were procured, the schedule printed, and it was shipped to all lawyers and judges by Feb. 1, 1960.

“The new schedule of minimum fees hit the Bar like a welcome rain on parched fields. Partly because of the attractive binder and the ease with which the schedule could be used, within six months the recommended fees became accepted statewide as the reasonable and customary minimum charges for lawyers’ services. The fee book urged the members to recognize that an average charge of $18 per billable hour was necessary if the lawyer wished to net, before taxes, but after payment of overhead costs, about $14,500 per year.

“The impact of this new schedule was estimated to have raised the lawyers’ incomes by 25 percent to 50 percent within three years. Coupled with new law office management techniques, the lawyers were well on their way out of the financial morass that they had suffered through for 100 years.”

Chapter 19 then discussed the demise of the Fee Schedule due to antitrust scrutiny:

“While the fee schedule was never designed to be other than a guide to fair charges, and only minimum charges at that, an opinion by the Ethics Committee to the effect that continued, flagrant, and publicized fee cutting was in effect a form of advertising and as such a violation of the Canons of Professional Conduct, undoubtedly led many to fear sanctions if they cut fees. The State Bar did formally change the name of the schedule from one of minimum fees to a “customary fee guide” in June 1972, but this came too late to save the schedule.

“Although republished and clearly designated as a fee guide, and not mandatory or compulsory, this did not satisfy the federal officials that the anti-trust implications of fixed fees had been eliminated. The anti-trust division of the U.S. Department of Justice “opened a file” on the State Bar late in 1972, and notified the Executive Director that suit would be commenced to force discontinuance of the fee schedule. . . . Within the year, acting under similar pressure, almost every state bar had repealed its fee schedule.”

Was the Wisconsin Bar suddenly plunged into a blood-bath of discounting and rate cuts?  Of course not, we’re talking lawyers.  Instead, from the perspective of the organized bar, “This repeal had an unanticipated favorable result.” To wit,

“What happened was that there had been massive shift to keeping time records and charging based on time. This shift was largely due to the revision of the schedule. This not only produced greater income but fairer fees to the clients.”

Even better, once the Goldberg decision (with its huge monetary penalties), “clinched the doom of all fee schedules, mandatory or advisory,” lawyers across the State were soon encouraged to raised their hourly fees:

“Following the abolition of the fee schedule, the Wisconsin Supreme Court gave the bar something even better. In a case involving fees for criminal defense, the court recognized in its opinion that a fee of $45 an hour was entirely proper as being the prevailing average rate. Coupled with the bar’s shift to time records and hourly charges, this pronouncement of the court was a welcome reinforcement to the fees being charged.

“In retrospect, the adoption of fee schedules by the bar association were, in light of the times and conditions, both essential and useful. The sad state of the bar economics in the early 1950s, fraught with non-businesslike practices and lack of record keeping, made the publication of the fee schedule book in 1960 timely and helpful. . . .  By the time the anti-trust attack was mounted, the fee schedule had accomplished its purpose, and undoubtedly had outlived its usefulness.”

In concluding the chapter, WisBar pats itself on the back and exclaims: “The economics of the bar had turned around and the State Bar was instrumental in bringing it about.”

Is the era of income-raising Fee Schedules and its melding into the epoch of higher-still “prevailing hourly rates” just ancient history, irrelevant in the enlightened 3rd Millennium?  I doubt it.  Almost every observer of the legal profession seems to believe it is significantly more commercialized and profits-driven than it was in the pre-Goldberg era. Clearly, more and more lawyers have no problem declaring publicly that they deserve to become very rich, to charge what the market will bear, and to leave none of the client’s money on the table.  And, they are aided and abetted by marketing experts who tell them they are under-valuing their services and need to manipulate images and perceptions to reap premium fees.

Despite market forces that in any other industry would bring vigorous price competition (i.e., an over-supply of providers and dwindling number of buyers able or willing to afford their services; consumers better educated and more assertive than ever of their rights in the marketplace; and technological advances that reduce the labor needed to produce their product and allow buyers to do much themselves or use less-costly providers), we see bar members advising each other not to give discounts, and we see no marketing based on price (except for those who try to stand out by charging more than their rivals).   And, we continue to see bar associations acting like guilds.  For example:

• As mentioned in a post earlier today, the Ohio Bar modernized its ethics rules in 2007, by moving its ban on advertising discounts from the body of its rules to the comment section.  See Comment to Ohio Bar Rule 7.1, and our post “we need more low-fee lawyers (even in Ohio)” (March 22, 2006).
• Meanwhile, the American Bar Association revamped its rules on legal fees in its Ethics 2000 project, to deny injured consumers protection against unreasonably high “standard contingency fees.”  (See my 2002 Open Letter to the FTC)

• The President of the New York State Bar Association proposed far stricter advertising rules in 2006, saying he wanted to limit lawyer advertising “to the fullest extent permitted, within the limitations of the First Amendment.”  See our prior post. And the Bar Association passed it, seeking to preserve lawyer dignity.

• Faced with nonlawyer suppliers of services such as real estate closings, and fearing that giving consumers more choices would drive down prices, the Massachusetts Bar rejected the advice of the U.S. Justice Department and the Federal Trade Commission and voted for the broadest definition of “the practice of law” — and therefore of the “unauthorized practice of law” — in the nation.  See our post “bar & guild.”

There’s no reason to think the legal profession has changed its stripes or its priorities.  No reason to think lawyers will compete for clients on price.  Therefore, please don’t forget that, for over a century and until forced to stop, the self-regulating organized American Bar decided to mandate minimum fee schedules when its members felt underpaid.  And, it did it under the hypocrite’s banner of professional responsibility and ethical obligations.

ALF: But, Yabut, why can’t the Melmac Bar & Grill sponsor the Feline Protection League?  You know how important cats are to us.

Yabut:  For snacks and meals, you mean.

ALF:  Like we tell them, “we always serve you first.”

- note: this is #2 in our ALF series on American Legal Fees; click for #1 and #3 and #4-

The f/k/a Gang has been writing about the lax, self-regulated lawyer discipline system since we started this weblog in the Spring of 2003. [See Should Lawyers Control Lawyer Discipline?, June 22, 2003, and links on our Lawyer Disciplinary System Page.]  Sleepy Bar watchdogs often seem to be enabling their lupine cousins rather than protecting the sheep. Like the legal reform group HALT, we believe our nation should:

“Replace the failed system of self-regulation — lawyers policing lawyers — with disciplinary panels on which non-lawyers have a majority voice.” [see our post HALT Suggests a "Better Way to Discipline Lawyers" (June 25, 2003)]

For more, see HALT’s 29-page (pdf) paper “Consumers of Legal Services: Unprotected and Underserved,” which notes: “The system of attorney self-regulation is an abject failure and lawyers’ so-called ‘Rules of Professional Responsibility’ do not require attorneys to provide even the most basic consumer information to prospective clients.”  HALT urges the broader consumer advocacy community to join their efforts to help achieve “Simple, Affordable, Accountable Justice for All.”

Foxes in the Chicken Coop:   We’ve spent 6 years complaining about bar associations that act like mercantile guilds, by protecting lawyers from competition rather than clients from greedy lawyers. There is, in fact, no better reason to junk the self-regulatory system utilized by the legal profession than its utter failure to take its ban on unreasonable fees seriously.  In most jurisdictions, the rule against excessive fees has devolved in practice into a ban on felonious,  fraudulent, or otherwise dishonest billing (e.g., billing for phantom hours, charging more than one hourly-fee client for a particular interval of time, keeping unearned retainers).

Except for judicial review in million-dollar cases, the monitoring of excessive fees by the legal profession has been basically delegated to Lawyer-Client Fee Dispute programs.  When HALT reviewed such programs state-by-state in 2007, and issued Fee Dispute Report Cards, it found:

“The most pervasive complaint about lawyers is that their fees are too high for the work done. But in evaluating the programs established to settle these disputes between clients and lawyers, our Report Card found a system plagued by an appalling pattern of biased procedures, insufficient resources and little enforcement.” And,

“By allowing lawyers to refuse participation in the fee arbitration process, hiding information from the public about the system, placing roadblocks in front of consumers wishing to resolve a fee dispute, stacking arbitration panels with attorneys and refusing to assist clients in recouping their money, fee arbitration programs across the country are routinely failing to provide a much-needed service to American legal consumers. Until there is meaningful reform, the legal profession has only itself to blame for the widespread public belief that lawyer fees are out of control and going unregulated.”

If self-regulation isn’t to blame, how else can we explain:

• So Little Guidance from the Bar or Bar Counsel on How to Avoid Hourly-Billing Excesses and Abuse: You have to look pretty hard to find actual, practical discussion from bar associations or official bar sources on how lawyers and firms can properly use hourly billing.  (One exception, which itself could use some amplification, is the 1996 Statement of Principles from the ABA Task Force on Lawyer Business Ethics).  As a result, far too many lawyers seem to have forgotten that:

– Hours X Hourly Rate is meant to be the maximum that a lawyer can charge under an hourly billing agreement.  The figure is not automatic or set in stone but,  as the ABA Statement of Billing Principles says: “The lawyer is expected to use professional judgment in determining whether the number of hours spent on a matter is reasonable under the circumstances of the engagement” — e.g., making appropriate reductions for time that is not used in an eficient, cost-effective manner.

– Having multiple partners and associates billing their full hourly rates for attending a meeting or court session where they have virtually no active role is unacceptable.  In addition, as the ABA Statement of Billing Principles says, “If the primary purpose of participation in a meeting or project by a less experienced lawyer in a law firm is to train such lawyer, then the lawyer’s time should not be billed to the client.”

– Excessive time spent reviewing and rewriting the work of other lawyers suggests that the original work was not adequately done and should not be billed at regular rates, if any.

update: See our valedictory post “understanding and reducing legal fees” (Feb. 28, 2009)

• Never sanctioning a firm for imposing excessive hourly-billing quotas on its attorneys (nor threatening to do so), despite the incentives created by such quotas to over-produce and pad bills, and the devastating impact on the lives of lawyers. See Sanction This (Firm)! (March 1, 2004).  As that post points out, when the ABA’s Ad Hoc Committee on Billable Hours produced a Model Diet meant as a “best practices” summary for law firms, its suggestion of “2300 Creditable Hours for Lawyers” per year would actually mean perhaps 60 hours at work per week for associate attorneys.
  

• Allowing the Standard Contingency Fee to continue, although its use is contrary to the history and rationale for the contingency fee, and often results in excessive fees not justified by the risk taken by the lawyer; see our prior post on ethical duties when using contingency fees.

Indeed, in 1994, a courageous panel of the American Bar Association challenged the use of standard contingency fees and percentages not related to the level of risk taken by the lawyer in Formal Ethics Opinion 94-389: Contingent Fees (1994; $$ download; discussed in detail here).  The ethics committee noted that  the principles were often “honored in the breech,” and called for the Bar to “redouble its efforts to assure that the ethical obligations associated with entering into a contingent fee arrangement are fully understood and observed.”  Instead, the personal injury bar used the ABA’s Ethics 2000 revisions to the model rules to undo Op. 94-389, by eliminating all phrases in official commentary to the rules that directly support the reasoning of the 1994 Opinion and adding wording that could be used to support standard contingency fees.  (See my 2002 Open Letter to the FTC)

• Maintaining Minimum Fee Schedules, and disciplining lawyers who charged less, until the federal government started suing bar associations for engaging in unlawful price fixing conspiracies. (see Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); and this history lesson; more in “ALF #3: don’t forget those minimum fee schedules (,” Feb. 24, 2009)

In 2007, the Ohio Bar’s new ethics rules were promulgated, and they continue to ban the advertising of discount fees as being “misleading.” Comment to Rule 7.1 See our post “we need more low-fee lawyers (even in Ohio)” (March 22, 2006)

• Failure to discipline lawyers who engage in coercive boycotts aimed at forcing states (and taxpayers) to pay higher fees to assigned counsel — conduct that in fact violates antitrust laws. (see, e.g., our prior post)
  

• Overlooking Fiduciary Obligations:  When it comes to setting fees, you’d never know that lawyers were fiduciaries, with special obligations (far beyond arm’s length marketplace relationships) to fully inform clients and treat them fairly.  For example, many lawyers argue that their fiduciary duties toward the client do not kick in before the retainer is signed.  Very few “counselors at law” feel any obligation at all to advise clients about the existence of less-expensive options, such as unbundling, mediation, pro se resources on court websites.  (see prior posts “fees and the lawyer fiduciary,” and  “the lawyer’s fiduciary duty to disclose“).

• The lack of Consumer Guides to help clients fight for and obtain well-crafted retainer agreements that are, like HALT’s “Model Attorney-Client Agreement” (regarding hourly billing) “designed to secure the rights and stipulate the responsibilities of both the attorney and client.”  For the types of information that would help, see: “Retainer Agreements and Rule 1.5(b)” (Washington Lawyer, December 2008); HALT’s Injured Consumer’s Legal Bill of Rights (The Legal Reformer, December 1997), and the f/k/a Injured Consumers’ Bill of Rights for Contingency Fees. Such Guides or Model Agreements should be available to every client, and lawyers should have to make sure that potential clients have had the opportunity to read, use, and understand them, and negotiate appropriate retainer agreements.  Of course, if nonlawyers controlled lawyer discipline, lawyers would have to offer clients such agreements.

The United Kingdom and Australia have taken the regulation of lawyers away from the bar. (see this post, and this)  America’s legal consumers should also be able to trust that our watchdogs are protecting us chickens and our eggs rather than the foxes at the Bar.

p.s. Consumers need to protect themselves with information.  When it comes to fees, you may want to check out our last piece of legal punditry here at f/k/a: “understanding and reducing attorney fees” (February 28, 2009)

In our last-days ALF Series, we’re going to try to be slightly less cynical than the cranky, mischievous, but goodhearted tv character Gordon Shumway, a/k/a ALF (the Alien Life Form, who was created by Paul Fusco).  We will, however, keep in mind this interchange with his earthly landlord and friend, Willie Tanner:

Willie: Some people are so blinded by the thirst for money, that it causes them to lose their values, and do things they shouldn’t do.

ALF:  Well, that explains Ghostbusters II.

We think it also explains much of what is wrong with American Legal Fees and the relationship between lawyers and clients.

…. While bemoaning too-high fees and too-low morale in the legal profession, ethicalEsq, Prof. Yabut and I have been saying for years just how silly it is to scapegoat hourly billing as the primary cause of either client or lawyer discontent.  Most of the things wrong with hourly billing are related to its abuse or to obscenely high hourly quotas imposed on lawyers by firms.  We’ve pointed out, therefore, that nothing much will change if lawyers switch billing methods but insist on making just as much money.  We’ve argued that each fee mechanism comes with its own anti-client incentives, noting that lawyers have found ways to manipulate every kind of billing scheme to produce fees that clients rightly consider to be excessive.  [e.g., see our 2005 "chronomentrophobia" posting; and “broadening the hourly-billing debate,” Aug. 18, 2007, which includes excerpts from many prior posts]

In response, we’ve gotten virtually no support among the profession, but plenty of ridicule and distortion from those who would like to kill hourly billing — often in order to make even more money.  We’ve wondered when legal ethics experts and others with no financial stake would address this vital topic.   Thanks to a chance stop at the Legal Ethics Forum this week, I discovered a few other thoughtful folks who are unwilling to join the hourly-billing lynch mob and blindly embrace all the alternatives as problem-free solutions.  It was no surprise at all, given our experience, that one of them was a Canadian law professor.

After seeing a much-emailed article in the New York Times about the waning billable hour, U. Calgary legal ethics professor Alice Woolley wrote “Demise of the billable hour again?” (Feb. 2, 2009).  In that post, she points to the kinds of issues we’ve been talking about at length.  Using larger words than our Prof. Yabut, Prof. Woolley says (emphasis added):

“I wonder about the fixation with the billable hour as a measure of lawyer’s value.  While it has its obvious drawbacks, all billing methods are susceptible to the extraction of rents given the imperfections in the market for legal services.  Moreover, lawyers moved to the billable hour for good reasons (more efficient allocation of risk) as well as more dubious ones (accounting firm indications that this would correct the lag in lawyers’ earnings).  Why isn’t there more critical discussion of this?

Value-pricing pitchman Christopher Marston [Esq] responds to this call for more analysis with his usual blanket condemnation of hourly billing and refusal to admit there are any problems with fixed and value billing.  In a comment, Marston says the profession should just kill the billable hour and “stop talking about it.”  He offers this typical analysis:

“[people like himself] get that there is not a single customer that wants to buy an increment of our time. Increments are excrement.”

In her reply to Marston, Prof. Woolley notes that the history of the shift to hourly billing is unclear.  As to the economics, however, she states:

“[W]hile economists may dispute the merits of time as an economic measure, it is not obvious what measure works given the inherent non-homogeneity of the ‘product’ lawyers sell. If I go to lawyer A for task B, and to lawyer B, for task C, what meaningful measure do I have to compare the ‘price’ charged by two different lawyers – whose skills may vary widely – for two different tasks – the inherent ‘value’ of which may vary widely . . . .”

Then, demonstrating why lawyers have fiduciary duties toward clients, Alice continues:

“Further, if you use measures such as ‘value’ or ‘task’ payment, you still have the problem of information asymmetry, the credence good problem and the issue that, even ex post, it is not always clear whether the value received by a client arose from the skill of the lawyer or other factors – getting a good judge, having a case which even an incompetent fool couldn’t lose (or conversely, having a terrible judge).

In other comments to Prof. Woolley’s post, we are pointed to three recent blawg postings that deal thoughtfully with the hourly billing debate.

• “Rumors of the Death of the Billable Hour Continue to Be Exaggerated” by Suffolk Law School ethics professor Jeffrey M. Lipshaw at the Legal Profession blog (Jan. 30, 2009), written in response to the same NYT article.  And,
• Two posts written last month by law firm business developer Lance Godard, at his Are You Writing this Down? weblog. 1) “Who are we fooling?” (Jan. 31, 2009); and “what’s the problem with the billable hour?” (Jan. 14, 2009)

In “what’s the problem with the billable hour?” (Jan. 14, 2009), Lance Godard wrote that “in spite of all of its warts, [hourly billing] is still a pretty efficient way to compensate lawyers for their work.” He continues with insight and candor:

“Isn’t the real problem one of value, trust and service? When clients say they are unhappy with the billable hour method, aren’t they saying they feel like they’re paying too much for their legal services? That the perceived value of those services does not equal the cost they’ve been asked to pay? Legal services have to be paid for, and by-the-hour is a reasonable way to do it until you think your lawyer spends unnecessary time on your matter, or charges too much for her time, or isn’t telling you the truth when she says it will take 20 hours to resolve your problem. And if that’s the case, then the billable hour isn’t to blame.”

Godard continues this analysis in “Who are we fooling?” (Jan. 31, 2009), where he says:

“Of course there are lawyers who pad their hours, who focus on the doing rather than on the result, who work day and night in the relentless pursuit of 2400 hours/year of client work. . . .

“But do you think those lawyers are going to go away or stop overcharging clients or stop wasting their clients’ money when the profession moves away from the billable hour?  That the new billing methods will be completely transparent, that cost will reflect value, that no client will ever again wonder if she got her money’s worth? Who are we trying to fool? . . . The way the compensation is calculated changes nothing. If we believe that clients will get better legal advice, make better business decisions and be happier once the billable hour has been eradicated, we’re fooling ourselves.

“The billable hour isn’t the problem. It’s just a smokescreen. The problem is that clients no longer believe they are getting value from their lawyers. How are we going to fix that?”

Many value billing proponents want to “fix” this by increasing the client’s perception of value (see “value pricing by lawyers raises many ethical red flags”, Dec. 4, 2008).  The f/k/a Gang continues to believe clients don’t want their price sensitivities or fears decreased; they want their fees decreased.

Perhaps nudged by his Legal Profession Blog colleague’s pointer to our Red Flags post, Prof. Jeff Lipshaw wrote “Rumors of the Death of the Billable Hour Continue to Be Exaggerated” on Jan. 30, 2009, after seeing the NYT article on hourly billing.  Jeff goes directly to the crux of the matter:

“The real question is whether, overall, the total price approximated by billable hours is an acceptable surrogate for the value to the client.  Bill [Henderson, his co-blawger] is free to chime in with hard evidence, but my intuition as a former buyer and seller is that the overall acceptability of the surrogate is indeed revealed by the overwhelming instance of its use in the market.”

After saying, “There’s no question that alternative fee arrangements work around the edges,” he poses “an example of a real problem” –  companies looking for a way to make their pension plan obligations more determinate, but without going to defined contribution plans.  Jeff explains and continues:

” The first prong of my thesis is that this is precisely the kind of mixed law and business problem on which law firms assist clients all the time, and it’s really difficult for either side to price the assignment by any method other than the billable hour. . . .

“The second prong of my thesis is that it’s not clients who hate billable hours, but the lawyers themselves. . . .  I don’t think it has anything to do with billable hours per se, but with the fact that being an outside lawyer is a tough and exhausting profession (one that usually happens to pay pretty well) very often entered into by smart people with lots of fungible smarts, but without any particular passion for what they are doing.  (Hence, the fact that well-paid lawyers are among the most prolific whiners in the charted universe!)  The problem isn’t the billable hour, but the fact that the lawyer is only slightly more vested in the outcome or the business (other than by fear of failure) than the typical assembly line worker is in the car.”

Prof. Lipshaw’s suggestion for the BigLaw partner’s disillusionment with hourly billing is:

“A truly radical approach to the practice would recognize that lawyers in big firms might well have more passion around the firm as a business if they had a meaningful stake in it as owners.”

I don’t know how to solve the malaise of so many lawyers.  Merely switching to another billing mechanism is surely only the answer for a relatively few lawyers — and even fewer clients.

It is great to see thoughtful, knowledgeable people (with no apparent financial or emotional stake in the hourly-alternative billing debate) talking about these issues.  I want to again urge legal ethics professionals to delve deeply into a lawyer’s ethical and fiduciary duties to the client when choosing and implementing various methods of billing for their services.  Lawyers need more guidance on just what “reasonable fee” means. Scholarly articles, empirical studies, practice guides, continuing ed materials, and classroom discussion are all needed — along with more extensive blawging.

Finally, I’m going to leave you with excerpts from our post “time, fees, flu, pumpkins, too” (October 10, 2007), which summarizes many notions we’ve raised that are similar to those discussed by Prof. Woolley.  The post starts by thanking the only other blawger I know who has been willing to talk back to (rather than merely echoing or parroting) the anything-but-hourly crowd over the past few years, Carolyn Elefant:

Thankfully, Carolyn Elefant again tries to focus on the most important issue: What do clients want and how do we best serve their interests? . . .  Carolyn asks:

“If value billing benefits clients, then why do we lawyers need to sell them on it? Have clients become so entrenched in the billable-hour concept that they don’t realize that there’s a better way? Or is value billing another way for firms to charge more for the kind of value that as lawyers we’re obligated to provide anyway?”

We continued “time, fees, flu, pumpkins, too” by pointing out “a few important ideas for the law firm or law client to keep in mind, when thinking about the pros and cons of hourly billing and alternatives such as flat fee or value billing.”

1. Billing by the hour does raise the issue of law firms doing too much (being inefficient) because they earn more by doing more, but pricing in advance through a flat fee inherently creates the potential of doing too little for the client, since more effort won’t earn more money and less effort won’t (immediately, at least) reduce the size of a bill.
2. A too-busy lawyer or law firm (and the best almost always are too busy) has no particular incentive to do unnecessary work for a client when billing by the hour; but, a too busy lawyer has plenty of incentive to do less for a client when a fee is fixed in advance.
3. When an hourly-billing lawyer does extra (”too much” or perhaps “unnecessary”) work for a client, the result is often a better-written pleading or contract, or a better understanding of precedent; when a flat-fee-billing lawyer does “too little” (cutting corners or eliminating tasks), the result is very likely to be lower quality work product and possible injury to the client’s interests.
4. As always, it is important to distinguish condemnation of high billable hour quotas for each attorney, which are set by law firms, and which raise many ethical red flags, from billing by the hour, which is not inherently unethical. And,
5. What might be good or fair for savvy clients, who have lots of experience with lawyers and legal problems and offer the potential for significant repeat business, may not be automatically fair for clients who have little relevant experience and, therefore, may have no real idea how much work is required, what a reasonable fee would be, how difficult or unusual their situation is, nor how qualified a law firm is to handle the matter.  In many situations, they also won’t be better able to judge the quality or value of the services even when they are completed.

One tip: If a flat-fee or value-billing lawyer, who wants to be hired by you, is only telling you the good things about alternatives to hourly billing, and only the bad things about paying by the hour, you should think long and hard about whether you are dealing with a trustworthy lawyer who puts your interests first.  If he or she won’t give you an estimate of how much actual lawyer time will be put into your matter, run.

The economics, ethics and practicalities of billing for lawyer services should never be seen as yes-or-no propositions.  Far too much depends on the factual circumstances and on the traits of the people involved (lawyer and client).  By constantly attacking and deriding anyone who points out that there are pros and cons to every billing method, those with a stake in killing the billable hour are trying to create a forced binary choice — one that is likely to hurt those with the least power in the marketplace for legal services: the unsophisticated (or un-wealthy) client and the inexperienced and easily-replaced young attorney.

“Is there any reason to think the ‘like’ factor is different for law faculty success. At least in football there will be an objective measure of success and an opportunity to cut players. In law school hiring there are no measures and the initial hiring decisions are for lifetime jobs.”

Prof. Harrison concludes by opining that likability “sounds like a great approach if you are deciding who you want to go down to the bar with after school for a drink — which sadly may be the standard by which much hiring is done. It’s a disaster for the stakeholders of a law school.”

In response, Gabriella Montelle wrote “They Like Me, They Like Me Not” (February 12, 2009) at her On Hiring weblog on the Chronicles of Higher Education website.  She invited readers to answer two questions:

“Is likability a reasonable consideration in hiring, firing, and tenure decisions or do some committees place too great an emphasis on it? How does it factor into hiring decisions in your department?”

Montelle’s piece attracted a variety of responses, and one Comment by a “humanities doctoral candidate” ["HDC"] impressed Louisville U. law dean Jim Chen so much, he turned it into a separate posting at MoneyLaw called “You like me” (Feb. 13, 2009). [Chen's "Rocket man" post over the weekend about the remarkably valuable yet unselfish play of NBA player Shane Battier may also be related, as part of his ongoing talent versus character debate. via Simple Justice].  Commentor HDC’s insights included saying:

“The really good scholars are self-confident, and that confidence allows them to treat everyone else with respect and kindness. They are excited about ideas, and they are willing to share. Most of all, they are willing to collaborate — they are the ones organizing symposia, inviting guest speakers, cultivating graduate students, and just generally creating the kind of atmosphere where good work flourishes and everyone benefits.

Meanwhile, Jeff Harrison wrote “But will you love me tomorrow” (Feb. 13, 2009) in answer to Dean Chen, saying that in the faculty context likability or “niceness” is the code for “are you someone with whom I will be socially and politically comfortable.” He insists that “Nice in a faculty meeting is only slightly connected to morality, selflessness, or charity.”  Going back to the football analogy, Harrison concludes:

“If personal social and political comfort are critical in determining who gets an offer to join your faculty, it’s like a team thinking more about getting drunk together than winning games.”

An anonymous commentor then told Prof. Harrison that the football analogy was not as apt for a faculty as a comparison to a baseball team.  Using Barry Bonds as an example, he states:

“In other words, superstars are worthless if they create a bad vibe in the clubhouse. . . . but the point is, good scholars who aren’t good colleagues are not worth having around, and whatever is ‘good’ about their scholarship will be worthless if they aren’t the sort of person who can get along with colleagues, train students, and just generally make their work environment a pleasant place to be.”

In my experience, HDC and the anonymous commentor have it right.  As Jim Harrison suggests, faculty should not be trying to hire or promote only persons who fit within their personal socio-ideological comfort zone.  But, they would do well to look for colleagues who match brilliance with unselfishness and congeniality — or, to be more precise, a person who is “genial” in the sense suggested in Merriam-Webster’s definition:

3 a: favorable to growth or comfort . . . b: marked by or diffusing sympathy or friendliness
4: displaying or marked by genius

Naturally (this being the cranky old f/k/a Gang speaking), we do not mean “nice” like the smiley-faced gladhanders with gold stars for every student and colleague.  Nor do we mean “nice” in Harrison’s sense of “just like me,”  as sameness is boring and intellectual quicksand.  Law school faculties need bright minds willing to challenge individuals and institutions, and debate issues of law and policy — but, there is no reason to accept less than respect for eachother and agreeable disagreement. [You need, of course, to respect colleagues and students enough to ask hard questions and expect rigorous thinking.]

Law faculty jobs are far too desirable and desired for us to believe that faculty or students have to put up with jerks and selfish manipulators in order to assure brilliance in scholarship or in the classroom.   Because there are more than enough more-than-capable candidates, there should be a preference for the genial over the jerkish.  That preference may in fact turn out to be a wonderful tool for behavior modification.

In his posting 2007 “talent versus character,” Jim Chen notes how often others have been enablers, willing to justify the odious conduct of a faculty member by saying “He’s a smart guy. Brilliant, even.” That echoed my assertion that same year that:

[H]aving a high IQ is never an excuse for having a low EQ; it’s a reason to demand that our leaders (and our kids) demonstrate and nurture a robust “Emotional Intelligence.”

Daniel Goleman introduced most of us to the notion of EQ, in his 1996 bestseller Emotional Intelligence: Why It Can Matter More Than IQ. (well-reviewed here; click for a quick recap of the “Four Components of Emotional Intelligence“) . . . I’m still amazed at how many otherwise-sensible people are willing to overlook or excuse the emotional immaturity and ineptness of a colleague, friend or family member (and the harm it causes other people), if the low-EQ is attached to a significantly high IQ — and, especially, if accompanied by a large bank account or a powerful position. I think having a high IQ makes the failure to appreciate, nurture and develop ones EQ rather inexcusable.

It was two years ago this week that we wrote about Robert I Sutton’s then-new book “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” (Warner Business Books, 2007, and an identically-titled article in American Lawyer/Law.com (Feb. 20, 2007).  The article explains:

“According to Bob, an asshole is one who oppresses, humiliates, de-energizes, or belittles his target (generally someone less powerful then himself), causing the target to feel worse about herself following an interaction with the asshole. (And, as his examples prove, this behavior is not by any means limited to male perpetrators or female victims.) These jerks use tactics such as personal insults, sarcasm and teasing as vehicles for insults, shaming, and treating people as if they’re invisible to demean others. Sutton distinguishes temporary assholes . . . from certified assholes, who routinely show themselves to be nasty people. The latter, he argues, must go [from the workplace].”

A$$holes surely do not belong in law offices (even though many clients think they want such characters to champion their causes).  They’re even less appropriate in legal academia — especially, when their nasty little show is turned on “impressionable” law students, the very people paying their salaries.

Sutton’s book offers a 24-question self-test to see if you are “a certifiable asshole.” You can take Sutton’s Asshole Rating Self-Exam (ARSE) at Guy Kawasaki’s ElectricPulp website. Search and tenure committees might want to ask themselves how their candidates might fare if they took ARSE and answered honestly.

At her Chronicles of Higher Education weblog, Ms. Mentor advised last week that “They’re Out to Get Me: No matter how good you are at your work, your colleagues won’t keep you if they don’t like you” (Feb. 10, 2009).  She says this advice is especially important in perilous times like now, when jobs that once seemed secure seem quite shaky; and she asks whether “your colleagues already avoid you as a sour, combative personality — someone who’ll waste department energy on vendettas?”.  I’d like to think that law schools would insist on basic geniality from each of their faculty members in good times, too.  In the long run, their “stakeholders” deserve both brilliance and high EQ from every law professor.  There are far too many willing candidates to settle for any less.

p.s. Blawging with EQ: If you have a preference for thoroughness and straight-talk, and also wonder who’s been writing good material at lawyer weblogs, check out Mark Bennett’s Blawg Review #199, at his Defending People blawg.

We can’t promise you consistently high EQ here at f/k/a, but we’ll try our best.  What we do promise is consistently high-quality haiku.  For example, here’s another installment in our project presenting poems from past issues of Modern Haiku.  They’re written by poets who later became members of our f/k/a Honored Guest family. Here are more from Modern Haiku Vol. XXVIII: 1 (Winter-Spring 1997), which have not appeared before here at f/k/a:

almost 200 years of air–
in the room
George Washington died

…. by Gary Hotham – Modern Haiku Vol. XXVIII: 1

..

On the boardwalk
a blind man listens to the sea
finding its way back

… by George Swede – Modern Haiku Vol. XXVIII: 1

water splashing down–
the warmth of the sun
on my eyelids

little waterfall–
they come to see
why we’re not speaking

pushing in walnuts
with my heel–
autumn rain

… by Lee Gurga – Modern Haiku Vol. XXVIII: 1

fall rains
the spring
of mushrooms

tail tucked,
a collie skirts
the bungee jumpers

lunar eclipse
my son
whispering

.. by John Stevenson – Modern Haiku Vol. XXVIII: 1

moonless night
the darkness deepest
where the snowy owl was

… by Yu Chang – Modern Haiku Vol. XXVIII: 1

]]> http://blogs.law.harvard.edu/ethicalesq/2009/02/16/a-preference-for-congeniality/feed/ 2 http://blogs.law.harvard.edu/ethicalesq/2009/02/05/gals-alternative-universe/ http://blogs.law.harvard.edu/ethicalesq/2009/02/05/gals-alternative-universe/#comments Thu, 05 Feb 2009 18:57:45 +0000 David Giacalone http://blogs.law.harvard.edu/ethicalesq/?p=10560 ..  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.

cold morning
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
years later
I still think of her

…. by paul m – white lies: RMA 2008
orig. pub. – Modern Haiku 39:2

55th spring
the cardiologist inserts
a new balloon

… by ed markowski – white lies: RMA 2008
orig. pub.- Shiki Kukai (March 2008)

hard rain
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.

Last weekend, I brought home a box with back issues of the Modern Haiku journal, borrowed from my friend Yu Chang.  Modern Haiku is not available online, except for a few sample poems from each issue that appear at its website. My plan was to start culling haiku and senryu written by our f/k/a Honored Guest Poets from the pages of Modern Haiku and share them here at f/k/a.

The first Honored Guest poem that I found as I opened the oldest volume in the box yesterday morning was this senryu by John Stevenson:

not dead roses
she corrects me
. . . dried

.. by John Stevenson – Modern Haiku XXVII:1 (1996

As always happens, I was soon distracted by an email and then a link on the f/k/a statistics page.  The next thing I knew, I was at Sui Generis, where blawger Niki Black pointed me to a posting at Stephen Bergstein’s Wait a Second! weblog. It was titled “Bouquet of dead flowers is free speech, not illegal death threat” (Jan. 21, 2009).  With simple serendipity, a posting theme was born.

After numerous additional, time-consuming distractions, I finally spent a couple hours at the end of yesterday afternoon putting together a “dead flowers” piece.  At about 6 PM, I moved my cursor to click “Publish,” but missed the button by an inch, and instead hit “Delete post.”  It was gone.  Gone.  And I was far too irked (at myself) and dispirited to start again last night.

a happy little horror 
the headless
tulips

…. by David G. Lanoue – Dewdrop World (2005; free download)

A full day later, I’m dragging out the dead flowers again, oblivious to any message my webserver might have been sending yesterday.

fresh grave
the bare earth covered
with cut flowers

… by Tom Painting  – The Heron’s Nest (Aug. 2003)

newspaper roll -
crushed crocuses just below
the headlines

… by Yu Chang – Frogpond 31:2 (Spring/Summer 2008)

At his civil rights weblog, Stephen Bergstein tells us why Mama Holley was being crass, not criminal, when she left dead flowers for the Orange County probation department:

“The case is Holley v. County of Orange, [S.D.N.Y.,] 06 Civ. 3984, decided on January 14. (The case is not yet reported). The plaintiff is a 69 year-old mother who was upset when the local court revoked her son’s probation and the probation officer laughed while leaving the courtroom.  So mom walked into the probation office undetected and left dead flowers on the receptionist’s desk with a message for the probation department reading, ‘Thinking of you, your ‘HELP’ will be long remembered.’ . . . Plaintiff’s follow-up email to a probation supervisor stated that she was sick and tired of the way that office had humiliated her family.  She also said the bouquet was ’serving notice’ and that the ‘gift spoke for itself’.”

Apparently, the probation folk were very scared by the flowers and notes and, as Stephen explains, “Holley was arrested for menacing, which makes it illegal to intentionally place another person in imminent fear of physical injury or death.”  However, the federal trial judge looked at the situation and concluded Holley’s arrest violated the Fourth Amendment, because there was no probable cause that the flowers placed the “victims” in imminent fear of injury or death. In addition, while Holley’s gesture was “crude” and “offensive,” her arrest also violated her First Amendment right to free speech, because there was no “true threat” of violence. Instead, the court held that:

“[The bouquet and card] were neither unequivocal nor unconditional insofar as plaintiff expressed her dismay with the Department of Probation and asked for an apology.”

Moreover (and surely to Walter’s dismay), Ms. Holley is entitled to have a jury determine any damages caused by the denial of her civil rights.  Stephen concludes that “some criminal prosecutions are really First Amendment violations in disguise” and “irate citizens have the right to express profound dissatisfaction with official decision-making.”

Not unexpectedly, the Holley case reminded lawyer Bergstein of “a Rolling Stones classic from 1971″ that he hadn’t heard in years.  It’s “Dead Flowers,” of course, which we discussed at f/k/a in 2005, after first reading John Stevenson’s “dead roses” poem, in his book Some of the Silence.  Indeed, we invited anyone sittin’ back in a rose pink Cadillac,

“to mail the f/k/a gang some dead flowers.  There’s no need to wait for a wedding or funeral.”

.. The Rolling Stones sang “Dead Flowers” on their 1971 Sticky Fingers album. [Click for the lyrics, and also for a 1972 performance by the Rolling Stones found on YouTube.]  Before he headed north in 1980 to NYC and  Cleary Gottlieb, my friend Martin Welling also sang “Dead Flowers” at night spots around Metro D.C. — often at my request.

after her death
composing roses
instead of words

.. by Pamela Miller Ness

Sending dead flowers without a more direct and deadly threat might not amount to menacing, but another cultural icon from the same era as the Stones’ song raises a similar legal issue.  In 1969, when recording began on “Dead Flowers,” Mario Puzo published his novel The Godfather.  In 1972, the movie version of The Godfather gave actor Lenny Montana’s face, voice and hulking presence to the Don’s loyal enforcer Luca Brasi, and gave us the immortal line “Luca Brasi dorme coi pesci.” Which leaves us with a question we can’t refuse to ask:

.. What about sending dead fish? Judging from this YouTube clip from The Godfather, young don Sonny Corleone was rather upset by that package with Luca Brasi’s vest wrapped around dead fish.  It’s clear message was that hit-man Brasi “sleeps with the fishes,” and it didn’t come from a 69-year-old miffed mother.  Please discuss among yourselves whether New York’s criminal menacing statute should have applied when Sonny got those unflappable fish.  We hope Scott Greenfield will share his vast criminal defense experience and NYC savvy to help answer this question.

first date–
the little pile
of anchovies

.…… by Roberta Beary – from The Unworn Necklace (Snapshots Press, 2007); Frogpond (Winter 2007), 1st Place, Haiku Society of America’s 2006 Gerald Brady Senryu Contest

first-date daisies
she never mentions
they’re wilting

.. by dagosan [Aug. 6, 2005]

No, I haven’t totally forgotten Modern Haiku XXVII:1 (1996).  It has a full bouquet of poetry from the f/k/a haijin family, and I’ll get back to them soon.  Until then, here are another pair in keeping with our floral theme.

in the rain
from the car to the house –
wide open chrysanthemums

… by Gary Hotham – Modern Haiku XXVII:1 (1996

a mist at dawn
moonflowers’ fragrance
trumpeting

…. by Peggy Willis Lyles – Modern Haiku XXVII:1 (1996

Flowers: once they’re picked, they’re all dead.

afterwords (Feb. 20, 2009) See our post on Peo. v. James Blair, in which an Albany City Court judge follows the Oberlander precedent.

We’ve been lax covering sex offender residency news since our marathon posting in 2007.  I’m pleased to report tonight, however, that Supreme Court Justice William Kelly struck down the Rockland County sex offender residency law, in a decision released today. Peo. v. Oberlander (Jan. 22, 2009) It is the first case in New York decided on the basis that the State has pre-empted the field, leaving no room for a county or other government unit to impose further restrictions.  See “State judge throws out Rockland’s housing law for sex offenders” (The Journal News, Jan. 23, 2009; via David Hess, TheParson.net).

According to The Journal News: 

“Justice William Kelly, in an eight-page decision, found that state has specifically taken the responsibility for sex offenders.

“Kelly also wrote the state law specifically empowers local probation officers to decide where sex offenders can live without any borders. He also cited a similar decision banning residency boundaries in New Jersey by a judge in the Garden State.”

Attorney David Goldstein represented the defendant in the case of People v. Yoel Oblerlander, which charged a Violation of Probation based on the defendant’s having  “moved to a residence within 1,000 feet of a ‘Rockland County pedophile-free child safety zone’ in violation of Local Law No. 1 of 2007.”     Under the Rockland County law, sex offenders were prohibited from living, working, and loitering within 1,000 feet of schools, day care centers, libraries or any facilities. Goldstein told the Journal News that Rockland’s 1,000 feet restriction, or any boundary, is arbitrary and meaningless as far as protecting the public.

“The state law of letting probation officers use their discretion is more effective,” Goldstein said. “The county law was an over-reaction with a nebulous 1,000-foot magical line.”

There are 80 similar laws across the state that could be affected if challenged under the preemption doctrine. (See our prior post from October 2007, discussing a lawsuit challenging the Albany County sex offender law under preemption doctrine).

Rules passed by counties and towns often cause ripple effects. Ulster County is currently considering its own sex offender residence restrictions, after a sex offender moved there from Rockland County (see, Sex Offender Issues weblog, Jan. 15, 2009).  Ulster County Legislator Glenn Noonan told the The Daily Freeman that:

“I’m trying to get Ulster County on board with several other counties who have passed similar legislation. Then it forces the (state) Assembly to get off their butts and do something about this on a state level.”

More thoughtful minds will hopefully remind our state leaders that our current State laws and policy work well, and that there is no reason to believe banning offenders from particular zones protects our children. (see, e.g., our post “Sunday papers question sex offender laws“)

update (Jan. 28, 2009):  At his Sex Crimes weblog, Prof. Corey Rayburn Yung points out that “As was the case in New Jersey [G.H. v. Township of Galloway, 401 N.J. Super. 392 (App. Div. 2008)], the state could cure the conflict by either expressly allowing localties to implement residency restrictions or by adopting a statewide residency restriction law.”

update (Feb. 2, 2009): State Senate Majority Leader Malcolm A. Smith has already proposed a bill — S.1300 — that would impose 1000-foot no-residence “safety zones” around schools, parks, day care centers.  See our post “don’t let a bad idea go statewide” (Feb. 2, 2009).

Lawyer Arthur J. Giacalone (who finally has a small website) is my brother (as well as my haiga collaborator). Due to the nature of his law practice, I’ve been more aware than many proponents of Green Energy that large industrial-scale “wind farms” are often not good neighbors. Art’s zoning-development law practice has long focused on helping residents protect their quality of life, property values and community character.  More and more over the past decade, homeowners have come to him deeply concerned over proposed wind farms in their towns, villages and rural communities. Arthur has been working hard on their behalf — with some wins and some losses — to help assure that law makers and public officials use their planning and development powers to require large-scale wind farms to be eco-friendly neighbors.  As Art says at his website:

. . . Art Giacalone  . . .

They may be touted as “green and clean,” but inappropriate siting of industrial-scale wind turbines can adversely impact the health of nearby residents (”wind turbine syndrome”), the community’s rural character, and the value of properties within the towers’ viewshed.

Last week, Art had a well-deserved victory in the case of Hamlin Preservation Group v. Town Board of the Town of Hamlin (NYS Sup. Ct. for Monroe County; Index No. 2008/11217).  In a decision dated January 5, 2009, the Hon. David Michael Barry “set aside and annulled” The Wind Energy Law adopted in April 2008 by the Monroe County Town of Hamlin.  Judge Barry said that the Town Board violated the requirements of the State Environmental Quality Review Act (SEQRA) when it neither took a “hard look” at the relevant areas of environmental concern, nor set forth a “reasoned elaboration” for its determination that the wind energy law would not have a significant impact on the environment.  See “Hamlin wind power decision blown down in court” (Rochester Democrat & Chronicle, Janl 12, 2009).

The facts are instructive. As Art explained in a press release last weekend:

The wind law nullified by the court would have allowed construction of 400-foot- tall wind turbines within 600 feet of property lines and public roads and 1,200 feet of residences.  In adopting the local law, the Hamlin Town Board chose to ignore the recommendations of the town’s Wind Tower Committee for 1,500-foot setbacks from roads and property lines, and 2,640-foot [half-mile] setbacks from residents.  The Town Board also disregarded the WTC’s recommended noise standards intended to protect the health and wellbeing of nearby residents.

The Board had argued (rather lamely, methinks) that it didn’t have to explain its conclusion that there would be no environmental impact, because its legislation only imposed restrictions and did not actually allow any specific project.

As my brother knows, I’ve always been a bit worried about the NIMBY phenomenom.  With all its open space and wind potential, I believe it should be possible for New York to play an important part in achieving our national goal of developing green energy and moving toward energy independence, while helping with needed economic development.  But, I’m also convinced (again, because of all that space) that large-scale wind production can and should be done in a way that minimizes or eliminates environmental damage to the surrounding communities — and thereby eliminates opposition from reasonable people acting in good faith.  Art is right when he argues:

“If a town chooses to allow, rather than prohibit, industrial-scale wind development, it must, at a minimum,  protect its residents’ health, maintain the town’s rural character, and preserve property values by  establishing meaningful setback requirements and noise standards.”

According to the Rochester Democrat & Chronicle, Hamlin Town officials want to move quickly to put a new law on the books. (See “Hamlin to consider new wind power laws,” Jan. 13, 2009)  Let’s hope this time they listen to their own Wind Tower Committee and other experts who have come up with workable standards to make windfarms good (if a bit standoffish) neighbors.

For more on these issues, see:

• “Frequently Asked Legal Questions About Wind Farms” (by Arthur J. Giacalone, orig. pub. The Daily Record, Rochester, NY, June 30, 2005); and Art’s seminar outline “Zoning Challenges: Overcoming Obstacles.”
• the “wind turbine syndrome” website
• National Wind Watch, a strong opponent of wind power, which offers a brochure brochure detailing alleged adverse effects from industrial wind power

p.s. Just a little bit of haiku on a frigid winter night:

withering wind…
the scarecrow’s jacket
fits

… by ed markowski

the narrow place
between my neck and my collar
November wind

. . . by DeVar Dahl – A Piece of Egg Shell, Snapshot Press Haiku Calendar 2003

sudden blast of wind -
borrowing the snowman’s
hat and gloves

… dagosan

“[G]iven the strength of the body odor, I’m satisfied that the other jurors would be put at a distinct disadvantage in their efforts to concentrate.”

When Young contested the point on appeal, the Massachusetts Appeals Court agreed with the trial court judge.  In Commonwealth vs. Rakeem Young (Dkt. 07-P-146, Jan. 9, 2009), the Appeals Court explained that the trial judge had the right to dismiss a juror “in the best interests of justice.”

“We hold that the judge’s dismissal of the juror was not an abuse of her discretion. Here, the jury had not yet been sworn, and therefore, the judge had no duty to hold a hearing or find an extreme hardship. See G. L. c. 234A, § 39. The judge made sufficient findings on the record regarding her concern that the juror’s body odor would affect the ability of the other jurors to concentrate. Accordingly, the defendant’s claim fails.”

As Bob Ambrogi said at Legal Blog Watch yesterday, “The moral of the case: Justice may be blind, but it retains a healthy sense of smell.” (”The Case of the Stinky Juror,” Jan. 12, 2009)

That’s more than enough punditry for me today.  Thanks goodness, Master Issa will help by putting in his two scents:

at the edge
of a stinking well…
plum blossoms

smelling like sake
smelling like piss
chrysanthemums

on honorable Buddha’s 
honorable nose
an icicle

… by Kobayashi Issa, translated by David G. Lanoue

Had enough of the odious olfactory theme?  Four years ago today, we introduced our readers to the pleasantly aromatic haiku professor-publisher-poet Randy Brooks, with these poems:

hands on the rail . . .
the humpback whale
doesn’t resurface

funeral procession . . .
snowflakes blowing
into the headlights

two lines in the water . . .
not a word between
father and son

grandpa drags his daybed 
to the front porch. . .
mockingbird’s songs

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

… by Randy Brooks – from World Haiku Review, Vintage Haiku of Randy Brooks

…. from “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman (Henry Holt and Co., 2007)

There are a lot of words and terms that lawyers use differently than the rest of humanity.  Besides the ones mentioned in the above quote by Adam Freedman, consider: brief, charge, count, party, practice, person, try and real.  Most non-lawyers take these differences in stride and accept the shift in meaning within the legal system or profession.

Nevertheless, there are large numbers of people (including one or two of my aunts) who believe there’s something wrong when a “perp” (the perpetrator who has in fact done the acts charged in an indictment) pleads “not guilty” at his or her arraignment.  They consider a perp’s plea of Not Guilty to be dishonest — a lie — and therefore immoral or unethical (or, for the less judgmental, an unacceptable waste of public resources).  Faced with the following multiple-choice question at his or her arraignment:

How do you plead to the charge?

• guilty
• not guilty
• no contest

these fans of the inquisitional system of justice (where you are forced to answer every question, and to do so truthfully) insist that a perp should admit guilt and face the appropriate punishment.  If the defendant’s lawyer really believes he has a valid legal defense or justification for the seemingly criminal behavior, some of the Inquisitors might permit the defendant to say “not guilty.”  Otherwise, if he in fact did the deeds that amount to the alleged crime, they want him to plead “Guilty.”  It apparently doesn’t matter that in our accusatory system of justice

• the defendant is “presumed innocent” until the State proves his guilt beyond a reasonable doubt.
• the judge has just told the defendant he has three important Constitutional rights: 1) the privilege against self-incrimination; 2) the right to a trial by jury; and 3) the right to confront his accusers;
• the judge will enter the plea of “not guilty” for him, if he fails to respond with one of the allowed answers; and
• to everybody officially involved at court (judge, prosecutor, defense attorney) the term “not guilty” has a far broader meaning than “I didn’t do it”

A few criminal lawyers with weblogs have been discussing this topic at their weblogs the past couple of weeks, starting with Jeremey Richey (ECILCrime, “Is It Ethical to Plead Not Guilty?,” Dec. 20, 2009) and Mark Bennett (defending people, “Justice vs. Fairness,” Dec. 22, 2009), and spreading to Ken Lammers (CrimLaw, “morality and immorality of ‘not guilty’,”Jan. 4, 2009) and Scott Greenfield (”The Two Most Loaded Words in a Courtroom,” Simple Justice, Jan. 5, 2009, where there is even a discussion in the Comment section about the merits of possible substitute phrases).

Mark Bennett has a nice, pithy explanation of the cause of the confusion:

In The World, “not guilty” means “didn’t do it.” Not so in the criminal justice system, where it means, “the government hasn’t proven it.”

• Jeremy Richey insists “It is perfectly ethical [honest] for a person to plead not guilty even if the person believes himself to be guilty as sin,” because he is merely doing what all the players in the judicial system expect him to do — “requiring the government to carry its burden.”  Therefore, “when a person enters a not-guilty plea, he is not being deceptive or dishonest.”
• Ken Lammers says it might be immoral for the defendant to refuse to take responsibility for his criminal behavior, but “Quite simply, the trial system doesn’t care. It is set up to test the government’s ability to prove guilt – not to judge the defendant’s morality. The stains on the souls of those in the dock are between them and God, not them and the court.”

• Scott Greenfield opines that “the vast majority [of defendants] fall within a relatively gray area of morality, where they possess a rationale for their actions that may fail to comport with what most people would consider moral choices but which is not so far outside the box as to render them evil.  Wrong, perhaps.  Stupid often.  But not quite evil.”  As for the Not Guilty Plea:

“These words are not a moral statement, but a legal one, encompassing the plethora of issues and challenges inherent in the criminal justice system.  To utter them in response to ‘how do you plea’ in the courtroom is never to be immoral, for morality plays no role in the proceedings.”

Because some blawgers and commentors were mocking those who confuse the everyday definition of “not guilty” with the legal or judicial meaning of those words, I piped in at Simple Justice that lawyers ought to be educating not ridiculing the public on this topic, and indeed has had centuries to do so.   The legal profession should, concisely and using Plain English, explain the Not-Guilty Plea’s meaning and justification in our criminal justice system, especially its relationship to the privilege against self-incrimination.  Then, we should use our public relations savvy and access to all sorts of media to get the word out — maybe even inserted into episodes of Law and Order or CSI — that:

1. “Not guilty” doesn’t just mean “didn’t do it” in our judicial system. It also means “I’ve got some good defenses,” “I’m presumed innocent,” “you gotta prove it, dudes,” or “I want a trial”
2. “Not Guilty” is the only answer available to a perp who isn’t willing to give up the important privilege against self-incrimination and the status of being “presumed innocent.” For him or her, it’s the best answer out of the three choices available at the arraignment.  Even if more “accurate” or “truthful” pleas were available, such as “did it, but you have to prove it” or “did it, but it was justified,” they would be a form of self-incrimination.
3. Allowing a perp to preserve his or her 5th Amendment right against self-incrimination by making a Not-Guilty Plea serves two valuable and interrelated interests: The preservation of an accusatorial system of criminal justice and the preservation of personal privacy from unwarranted governmental intrusion.  Our 4th and 5th Amendment rights would be far less meaningful, if they were available only to the “innocent.”

[For more on the history and justification of the right against self-incrimination, with cites and links to relevant case law, see "Fifth Amendment Rights of Persons: Self-Incrimination," from the Congressional Research Service Annotated Constitution.]

Let’s hope we don’t have to wait a couple more centuries for the legal profession to come up with informative explanations of the Not Guilty Plea (this Meida Manual by the Boulder County Bar Association doesn’t come close).  Given their expertise, the f/k/a gang thinks the Criminal Law Bar — prosecutors, professors, and public or private defenders — should take the lead.  Considering how many of them blog and tweet their days away, they surely seem to have enough spare time for the project.  We hope that some fragments of this post will be of assistance, and offer this opening, to get the ball rolling:

Why Isn’t the Perp’s “Not Guilty” Plea a Lie? The ability to make a Not-Guilty Plea is central to our criminal justice system, which is accusatory not inquisitional.  That is . . .

. . . . .

Finally, as is our habit here at f/k/a after long pieces of punditry, we offer some short pieces of poetry.

lonely road
a policeman listens
as i recite the alphabet

… by ed markowski

lightning flash–
only the dog’s face
is innocent

night fishing–
the pleading
of a katydid

accusing the pine
of foolishness…
evening mist

in and out
of prison they go…
baby sparrows

… by Kobayashi Issa, translated by David G. Lanoue

In the spirit of the New Year, however, we’ve decided not to chastise Charon excessively.  Three things helped us turn to mercy rather than mud-slinging:

• Buried in the Avaritia-Greed category, we discovered this plum:

“Perhaps this would have been better in the Lust category… but David Giacalone of f/k/a had a sparklingly Savage year in 2008.”

. . . thanks, Charon.

• Charon’s theme gives us a perfect excuse to finally present a video of Warren Zevon performing the title song from his 1991 album “Mr. Bad Example” on the David Letterman Show:

If you’re not familiar with the polka-beat song (which Prof. Yabut can often be heard mangling in the shower), here are a few representative stanzas:

from “Mr. Bad Example”
(Warren Zevon & Jorge Calderon)

I’m very well acquainted with the seven deadly sins
I keep a busy schedule trying to fit them in
I’m proud to be a glutton, and I don’t have time for sloth
I’m greedy, and I’m angry, and I don’t care who I cross

Of course I went to law school and took a law degree
And counseled all my clients to plead insanity
Then worked in hair replacement, swindling the bald
Where very few are chosen, and fewer still are called

I’m Mr. Bad Example, intruder in the dirt
I like to have a good time, and I don’t care who gets hurt
I’m Mr. Bad Example, take a look at me
I’ll live to be a hundred and go down in infamy

• Finally, Charon’s recital of his own vices and peccadillos has convinced us he’s unlikely to be affected in the least by our opinion of his (confessedly award-winning) style.

So, you’re off the hook this time, Charon.  But, please, a little more discretion — and a lot less theme — next year.

no good deeds
but also no sins…
winter seclusion

caged bird–
watching the butterfly
with envy

… by Kobayashi Issa, translated by David G. Lanoue

p.s. Speaking of Greed, Anger, Pride and other such vices, the launching of LexTweet by the folks at LexBlog [see Legal Blog Watch, Jan. 2, 2009] seems to explain why Kevin O’Keefe slammed me so hard when I refused to jump on the Twitter bandwagon, and made a grudging apoplogy that was so meaningless.

]]> http://blogs.law.harvard.edu/ethicalesq/2009/01/04/cardinal-sins-from-charon-and-zevon/feed/ 3 http://blogs.law.harvard.edu/ethicalesq/2009/01/04/lets-not-overlook-the-death-of-melissa-batten/ http://blogs.law.harvard.edu/ethicalesq/2009/01/04/lets-not-overlook-the-death-of-melissa-batten/#comments Sun, 04 Jan 2009 19:25:03 +0000 David Giacalone http://blogs.law.harvard.edu/ethicalesq/?p=10455 . . . Melissa “Missy” Brooks Batten (1972 – 2008) . . .

It was no surprise to find Harvard Law School graduate Barack Obama [HLS '91] on the cover of the current issue of the Harvard Law Bulletin, when it arrived last month.  I was surprised, however, while belatedly thumbing through the Bulletin on New Year’s Day, to read about Melissa Batten, a 1997 HLS graduate.  Melissa wasn’t featured because she left her job as a public defender in 2002 to become a successful video game developer for Microsoft. Instead, her story is briefly sketched in the following In Memoriam item:

Melissa C. “Missy” Brooks Batten ’97 of Renton, Wash., died July 29, 2008. She was a developer in Microsoft’s games division in Seattle. Prior to moving to Washington, she was a public defender at the Mecklenburg County Public Defender’s Office in North Carolina, where she handled hundreds of cases and worked in the domestic violence court. On July 21, Batten filed an emergency temporary protection order against her husband. Eight days later, he killed her before killing himself. Donations in Batten’s memory can be made to the Eastside Domestic Violence Program in the Seattle area: www.edvp.com.

That’s right: A former assistant public defender who specialized in domestic violence cases was shot to death by her estranged spouse a week after obtaining an order of protection. I winced when I first read Melissa’s memorial blurb, feeling both the loss and the irony of her violent death.

Then, as a blogger, I thought: “Why haven’t I heard about her death in the blawgisphere?”  Since my failure to get around to any but a tiny number of other weblogs is virtually legendary, I thought the fault might be mine and Melissa might have indeed received coverage on law-related websites.  Searching this morning, however, I found quite a few posts at gamer blogs (see, e.g., here and there), but only one on a “blawg” about Melissa’s death: Skelly’s pointer at Arbitrary and Capricious to a Dagblog post by the anonymous Articleman, who I have since discovered is a Chicago lawyer and Harvard Law graduate.  Articleman’s post ["The Murder of Melissa Batten: Please Give and Help Prevent Domestic Violence," Dec. 21, 2008] is a thoughtful essay well worth your time (and extracted below).

The legal community needs to mourn and remember Melissa, and this post is our small effort to that end.  For news reports of her gunshot murder by her husband Joseph Batten, see this Seattle Times article; an emotion-filled SeattlePI column, and a post at Maholo.com with Fast Facts about Melissa.  As Dagblog recounts, “On July 29, he confronted her in the parking lot of the Redmond apartments where she had moved, and took her life with eight shots from a 9 mm handgun, before dispatching himself with one.”  Like Articleman, I think it is especially important to note that:

• Melissa Batten spent a significant part of her legal career helping the disadvantaged, rather than cashing in on her prestigious law degree.  Seattle PI columnist Robert Jamieson, Jr. wrote:

“Batten left a blue chip private firm in Charlotte to work for the poor and disenfranchised at the defender’s office.  . . .

” ‘A great lawyer, a zealous advocate for justice,’ Kevin Tully, chief public defender for Mecklenburg County, told me. ‘Just an enjoyable person’.”

• She left law to pursue her creative muse and apparently did the job with enthusiasm and success.
• Domestic violence doesn’t just happen to the poor and uneducated, it “happens in all kinds of families and relationships. Persons of any class, culture, religion, sexual orientation, marital status, age, and sex can be victims or perpetrators of domestic violence.” (see domesticviolence.org for more information, and statistics on DV, from the ABA Commission on Domestic Violence, which offers training and brings together resources for lawyers who work in the field)

Articleman offered many insights and sentiments in his piece that I’d like to think I might have said, with a bit more time and effort.  But, I’ll borrow some of his well-phrased words:

“You can hear platitudinous journalistic tongue-clucking that the victim was a domestic violence lawyer whose knowledge couldn’t save her, who put her faith in a piece of paper that couldn’t save her.  I’m sure that Missy Batten was a very, very smart woman who knew that she was acutely at risk, and knew that brains and paper weren’t a cure-all.  The most important general wisdom I saw in the many articles about her death was this:  ‘a special shelter may be the only way to keep a woman…safe.  Unfortunately, because of funding issues, there are more people in danger than there are safe places to house them.’

“I wrote recently about the importance of bearing witness to suffering around us, especially in this holiday season, especially if we’re ok.  Barack Obama’s election was personal to me, in part because of my pride in having attended his school, and my agreement with his values.  Missy Batten’s death is likewise meaningful to me:  she tried to do good, and tried to create, two deeply important things.

“There are many, many people in danger of domestic violence, and not enough money, or lawyers, or paper, or jails, on the side of keeping them safe.  . . .  Giving to the EDVP, we can do those two things, things that we talked about so much in Campaign 2008.  I hope you choose to give too.”

• Go here to donate at Seattle’s Eastside Domestic Violence Program

The death of any young person is always sad. It seems especially sad when the person is talented, likable, and highly educated.  With young lawyers, an early death tends to be due to an illness (far too often breast cancer) or an auto accident, as opposed to murder.  We certainly don’t often think about domestic violence reaching our profession, but when it does it should motivate all of us to work harder to help prevent domestic violence throughout our society, and to protect its potential and actual victims, through better procedures and education.  I hope Melissa’s death will move more lawyers to assist that cause with their time and money.

. . Click to see Melissa’s video for the newest Banjo-Kazooie game ..

thin winter coat
so little protection
against her boyfriend

. . . . . . by John Stevenson – Quiet Enough (2004)

The death last week of Eartha Kitt — a woman known originally for her sexiness but respected and treasured worldwide for her talent, allure and spunk — reminded me that I wanted to come back to an issue that our coverage of Wendy raised with some of my most valued friends.  One intelligent and sensitive Baby Boomer female friend chastised me, saying:

“The world does not need more posting of women with low cut dresses calling attention to themselves. Sorry, but that’s just the way I see it.  We get to be human beings , too—women these days are way too sexually objectified constantly.”

.. the calendar photo that started it all . .

My reply at the time was something like: “To me, one of the glories of the human race is that we produce people who can be good, intelligent, talented human beings AND beautiful, and even sexy.”

One of the best things about our current age is that it is possible for a woman to be fully respected — among people with even average levels of EQ — as a human being, and a professional, while being beautiful and sexy.   For over a quarter century, I’ve seen smart, sexy women in important positions, as bosses, managers, colleagues, and partners within the legal professsion (beginning in the late 1970’s at the Federal Trade Commission).  When such a talented professional woman chooses to have a tasteful-but-sexy photo of herself used for a good cause in a fund-raising calendar, I believe it helps the cause of cross-gender appreciation — even if some juvenile males (who shall always be among us) act like jerks when viewing and discussing the photo, or some thin-skinned females choose to be offended or to act catty.  [Note: On a related topic, we opined about neo-puritanism within the legal profession back in 2006, during the flap over a Jiwani ad in Massachusetts Lawyers Weekly. And see our post on the Fetman Firm Billboard.]

When I raised this topic with Wendy Savage back in November, she replied: “I do think that modern, educated men are able to appreciate that a woman can be smart and beautiful, and they want both in a partner. “

Furthering this discussion (a little), Boston Magazine has opened its new publication year with an article that focuses on Wendy Savage, titled “Counsel Requests the Right to Appeal: Smokin’-hot lawyer Wendy Savage defends her buzzy turn as a pinup” (Boston Magazine, by Alyssa Giacobbe, January 2009).  After noting that Wendy was “by far the most come-hither among the calendar’s 12 male and female models, and thus the only one who’d attract significant attention,” the BM article states:

.. Photograph at Boston Magazine by Jackson Stakeman ..  ..

“Since Beautiful Lawyers was released in October, Savage—2006 graduate of BU School of Law, corporate lawyer, and sometime model—has inspired both a following of oglers and a torrent of criticism on legal blogs for what some consider a risky move for any attorney aiming to be taken seriously, especially a female one. Beneath a post on Above the Law, which shows a picture of Savage in a plunging neckline and calls her “Boston’s version of Joe the Plumber,” the responses go something like this: Wendy Savage can work on my pipe anytime she wants. Or: Her? She’s not that hot. And then, a multipost, Porky’s-esque debate over whether her breasts are real. (Savage declined to comment on such speculation, calling it ‘gutless objectification.’)”

In actuality, Wendy did submit a longer written response to Boston Magazine writer Gioccobe about the authenticity speculation, but they chose not to print it.  According to an email Wendy sent us this morning, she wrote:

2) I am conflicted about responding to the gossip on the blogs. The fact that my “peers” are taking time out of their days to offer such asinine commentary (all anonymously I will note) speaks volumes about their character (or lack thereof, to put it more accurately). I have done my best to avoid those who are driven to such pathetic, gutless objectification – I don’t intend to start engaging them now.

It seems to me to reflect the “dumbing down” effect of the Tucker Max culture.

I have learned firsthand what ad agencies and countless women before me have known for ages — all it takes is a little cleavage to turn some men into driveling babies.

The BM article does get a bit more substantive, stating:

“Coming off an election season that saw an intellectual woman flogged for her appearance and an attractive woman attacked for her lack of depth, Savage is acutely aware of the double standard that female professionals face—and how to maneuver around it. ‘I wouldn’t say my looks have been a big positive in my career, but people tend to underestimate you if you look a certain way,’ she says. ‘I think I’m smarter than I appear. That’s worked to my advantage’.”

Wendy also told Boston Magazine: ‘When I was younger, I cared a lot about what people thought about me, people that I didn’t even know,’ she says. ‘But I’m 28 and feeling like I’m starting to grow up. Doing the calendar was my choice, and I’m proud of it.’

We clearly are not going to resolve the issue of the effects on professional and personal reputation from the publication of sexy (but not trashy nor pornographic) photographs of lawyers and other women (or men).  When I’ve thought about this and similar topics over the years, I’ve tried to figure out how or why sexiness is any different from all the other attributes that we use to judge/treat/value other human beings, many of which are simply genetic accidents (e.g., intelligence, height, wealth, power, fame, charisma).  I’ve also wondered how and whether to distinguish situations where the individual freely chooses to be judged by or to utilize a particular attribute.   It is tricky stuff.  I know that many disagree with my current sentiments, and I am open to further discussion, while hoping that dissenters or skeptics are also willing to reconsider any blanket condemnation of publishing lovely women in skimpy black dresses.

Enjoying beauty is very natural for human beings of all genders, ages and cultures. If you come here often, you know that the f/k/a Gang also appreciates and greatly enjoys beautiful scenes in nature.  Here’s a (non-retouched) photo that I took from the end of my block yesterday afternoon.   That’s my favorite bench in Riverside Park, and Wendy Savage is welcome to join me there any time to enhance the scene and the sublimity of the experience:

- Riverside Park, Schenectady, NY, along the Mohawk River; Dec. 29, 2008; photo by David Giacalone -

sua sponte –
madame justice
catches me staring

. . . by dagosan

Of course, we have long agreed with this sentiment by Jesse Winchester in his song “Isnt’ That So?” [YouTube video here]

Isn’t That So

Didn’t He know what He was doin
Putting eyes into my head?
If He didn’t want me watching women
He’d a-left my eyeballs dead

©1972 Jesse Winchester – From the LP “Third Down, 110 To Go“

Now, please let us know what you think, with thoughtful and polite comments (both IQ and EQ will be graded by Prof. Yabut).

Leap Day -
an old friend
takes off her glasses

.. by Yu Chang – photo haiga orig. posted at Magnapoets JF (March 2, 2008)

p.s. Speaking of brains, beauty, and talent, here’s a haibun (short prose plus a haiku or senyru) by Roberta Beary, Esq.:

untitled

pity the daughters of beautiful mothers the years spent waiting to
grow into a beauty that never comes the sympathetic looks finally
understood at the moment when childhood ends

mother’s visit
side by side we outline
our lips

- by roberta beary, Modern Haiku Vol. 37:1 (Spring 2006) -

We learned this morning, via Simple Justice, that

The New York Lawyer has provided a chart to show the distribution of lawyers throughout the various counties of the State of New York.  The chart shows the ratio of lawyers to human beings.

Scott Greenfield says “It explains a lot” and — comparing it to Manhattan — extolls the virtues of living in Queens (where you’ll find an empty diner seat whenever you want one).

The f/k/a Gang has to head out to see our primary medical provider, so you can decide for yourself (and let us know) what these numbers mean:

Lawyers per capita in Capital Region Counties of NYS:

COUNTY         LAWYERS    PER CAPITA

Albany County        4317               69/1
Columbia                 220               283/1
Montgomery              85               573/1
Saratoga                   594              363/1
Schenectady             456              331/1
Schoharie                  59               543/1
Warren                     252              262/1
Washington                71              884/1

Most lawyers per capita in New York State by County:

New York            77,952               21/1
Albany County       4317               69/1
Westchester          9,890               96/1
Nassau                13,259               99/1

Fewest lawyers per capita in NYS by County

Allegheny                   46            1,079/1
Lewis                          22            1,203/1
Orleans                       29            1,461/1

Counties with the most lawyers:

New York                    77,952
Nassau                        13,259
Westchester                    9890
Suffolk                            6684
Kings [Brooklyn]              6050
Queens                           5534
Erie  [Buffalo]                 4809
Albany County                4317
Monroe [Rochester]         3320
Bronx                              2461
Onondaga [Syracuse]       2374

Counties with the fewest lawyers:

Hamilton                     14
Schuyler                      21
Lewis                           22
Orleans                        29

p.s. Rural Japan has a shortage of lawyers, with many towns with 100,000 residents still totally lawyer-less.  Depending on who you count as being the equivalent of a lawyer, Japan has either one-third or one-twentieth the number of lawyers that we have in the USA.