f/k/a archives . . . real opinions & real haiku

[Editor’s Note:  Please excuse all of the formatting problems below.  A change in webservers made a mess of many of our early posts.  We just don’t have the time to re-do thousands of postings, many (like this one) with very complicated formatting.  So, please bear with us.]

As Carolyn Elefant (“More Bar Silliness: Heavy Hitter is Misleading“) and Ben Cowgill (“Heavy hitters: here, there and everywhere“) both reported and analyzed today (March 3, 2006), the regulators of Nevada lawyer advertising have outdone even the most harebrained of the bar’s dignity police. (see our post “MO says legal consumers are really stupid“)

“heavyHitterLerner” Glen Lerner, Heavy Hitter

As the Las Vegas Review Journal reported, p/i lawyer Glen Lerner has been told by the Nevada State Bar that Lerner he cannot advertise himself as “The Heavy Hitter” anymore.  Instead:

He can merely be “a heavy hitter.” “The bar told me by calling myself “The Heavy Hitter,” it was false and misleading because it was stating I’m the only heavy hitter,” Lerner said. “It’s beyond ridiculous.”

Yes, yes it is.  As I commented at My Shingle, Ernie Svenson may have to start calling his weblog “Ernie An Attorney.”  But, seriously, I’m not at all sure that the Supreme Court will find the issue as easy as Lerner’s attorney Dominic P. Gentile suggests. According to the Review Journal, “Gentile said the U.S. Supreme Court has made clear that if speech such as Lerner’s is accurate and not misleading, then it is protected.”  The question is whether the Court will accede to the Bar’s expertise on just what is misleading or deceptive in the context of choosing attorney services.

It’s not at all clear that this Supreme Court will take as realistic a position as the Federal Trade Commission.  In 2002, the FTC staff told the Alabama Supreme Court that “it is best for consumers if concerns about misleading advertising are addressed by adopting restrictions on advertising that are tailored to prevent unfair or deceptive acts or practices. . . . [I]mposing overly broad restrictions that prevent the communication of truthful and nondeceptive information is likely to inhibit competition and to frustrate informed consumer choice.”

.. Martin, Harding & Mazzotti – “The Heavy Hitters“

Finally, Ben Cowgill asks “Why am I reminded of the book by Kentucky native Philip K. Howard, The Death of Common Sense?”  I agree that this type of lawyer advertising makes no sense from the perspective of true consumer protection.  But, it makes a lot of sense if — as I contend — the Bar’s real purpose is to create an atmosphere where there is far less lawyer advertising, because they have an enormous emotional investment in the mythic importance and “dignity” of the profession, and an enormous aversion to competition.

update (March 6, 2006):  California solo p/i lawyer Jonathan G. Stein seems to be rallying a posse for the Diginity Police at his The Practice weblog. Complaining that ads like Lerner’s Heavy Hitter commercials make all lawyers look bad, he says the market won’t regulate such marketing.  He concludes:

“[I]f you don’t think that this makes all of us look bad, you are wrong. It gives everyone a black eye. And the only way to stop it is through regulation (and remember, I am a free market economist by education).

Carolyn Elefant has a well-crafted reply today called “Watch What You Wish for.” (via Home Office Lawyer)   Carolyn makes a lot of good points (with examples of marketing Stein praises that Nevada regulators just might deem to be deceptive), and asserts :” I know that the present system isn’t perfect.  But I’ll take free speech and the attendant mess that goes with it any day over regulation by a group of lawyers.”

Ms. Elefant has it right. I’d love to know what kind of regulation Stein would endorse.  If he wants to assure a “dignified” image for lawyers, he should realize that the public has more respect for someone acting tacky than for someone acting pompous.  If he agrees with the Nevada Bar’s specious approach to “deception”  he should indeed worry about what he wishes for.

Someone looking at Stein’s weblog might think that the tagline “Helping law students and lawyers learn everything they wanted to know about law practice management” (emphasis added) promises rather more than it can deliver.  Looking at his law firm website, a consumer seeing an “about us” link might think that this solo firm has more than one lawyer, while his “Law Offices” declaration belies his one location. And, a regulator might question Stein’s definition of a “neighborhood law firm.”  Also, a real “free market economist” might take umbrage at Stein’s touting that part of his educational background.

There are lots of slippery slopes out there once the concept of “deception” is divorced from reality and reasonable consumer reactions, and is instead left in the hands of regulators who mostly don’t much like advertising.

afterthought (Noon, March 3): Early this morning, I finished listening to the audiobook of John Mortimer’s 2004 novel Rumpole and the Penge Bungalow Murders. Throughout this enjoyable memoir of Rumpole’s first big case, he is chided by Queen’s Inns and Equity Court versions of the bar’s dignity police – pompous Heads of Chamber, like Wynset and Ballard, worried more about their own perquisites and appearing in “the finest traditions of our great profession” than in working diligently to keep a client from the death sentence or in helping to nurture the career of a young “white wig” lawyer.

UK audio version

Rumpole, of course, refuses to see his role as being “a safe pair of hands” wearing the correct color of pants.   Yes, he never does become rich or famous, or even Head of Chambers, but he serves his clients and profession with his zeal and his soul intact.

In the haiku world, you can find true heavy-hitter haijin in the Haiku Society of America’s journal, Frogpond.  For example, our mail carrier brought the newest Frogpond (XXIX: 1) to my mailbox today, and it contains this pair from Michael Dylan Welch:

update (March 10, 2006): Is Walter Olson a secret member of the Dignity Police Posse?

foul-up follow-up (March 15, 2006): n.y. heavy hitters get dumped: who you gonna sue?

update (March 27, 2006): In the Syracuse and Rochester region of Upstate New York, the firm of Alexander & Catalano has the Heavy Hitters franchise.  In a recent article, in the Central New York Business Journal (“State Bar Association tackles attorney advertising practices,” March 18, 2006),  James Alexander responds to the crackdown on lawyer advertising proposed by the NYS Bar Association (NYSBA Press Release, Feb. 1, 2006):

“I think lawyers are very sensitized to advertising by other lawyers,” he says, estimating that about two-thirds of complaints about advertising are lodged by lawyers. “There are many lawyers who don’t approve of advertising and think it should only be done in their idea of a dignified manner.” The problem arises when different lawyers have different opinions of what constitutes a dignified manner.

“Our avertising tends to be friendly and entertaining, for the most part, and informative,” Alexander says of the television spots that appear on all major network affiliates and cable stations in Central New York. (Alexander and his partner Catalano are often shown with baseball bats to illustrate their slogan.) Other may not agree, but it doesn’t mean the advertising is inappropriate or misleading, he says.

roses on the casket

shaking

at the lowering

wedding reception —

the weight of her bottle

on the lip of my cup

michael dylan welch

frogpond (XXIX: 1, Winter 2006)

bonus: one by michael from the newest edition of The Heron’s Nest:

beached kelp –

we examine

each other?s life lines

The Heron’s Nest (VIII: 1, March 2006)

turn, turn, turn . . . .

This is the last posting for my ethicalEsq web journal.   So, I’m going to get sentimental and reflective.

[NOTE: we couldn’t stay away from weblogging and returned on December 13, 2003; click on our About page to read more about our convoluted history — which continued until March 1, 2009, when we stopped production and “archivized” f/k/a]

It’s hard to believe it was only 19 weeks ago, when I made my first news post, “P/I Lawyers v. Common Good” and went public with ethicalEsq. (I mean, Denise is still pregnant with the same Baby!)  Nevertheless, it’s time to follow my own advice to other lawyers:

Don’t take on a client or a project if your services won’t be “diligent (attentive, prompt) and competent (thorough, knowledgeable, well-prepared).”

In the Ethics Nanny business, you know it’s time to stop tilting at windmills and hang up your lance, when you can’t find the energy to write with relish about this story (“State [Ethics] attorney fined for writing on job”). For the past two months, it’s been rather difficult to keep a sharp eye or brain  focused on developments in the world of legal ethics.   My body keeps wanting naps, and my brain-ego keeps wanting to chase down just one more source and link.  It seems that the need to feel productive is a curse for Type A’s who happen to contract Chronic Fatigue Syndrome (CFS), and finding the right pace can be nearly impossible — at least for me, since becoming addicted to editing my weblog.

.

Yes, Lauren Hillenbrand was able to write Seabiscuit, despite having CFS, and her personal story is inspiring, but:

[H]er success came at a price. “The day after I turned in my manuscript, my health collapsed,” says Hillenbrand. “You want so much to defy this illness and live on your own terms. I hoped I could get away with it, but I couldn’t.” Debilitating symptoms of chronic fatigue, and the devastating vertigo that accompanied them, had returned with a vengeance. (from “Betting on Seabisquit,” Smithsonian Magazine, by Larry Katzenstein, Dec. ’02)

Not to make excuses for myself, but writing a bestseller like Seabiscuit is just one discrete project (although a big one).  On the other hand, riding ethical herd on the legal profession is an endless, thankless, almost infinite, and — let’s be honest — rather futile job.  Don Corleone could certainly do the job a lot better than Don Quixote, but he’d need a very big gang of enforcers.

• A consigliere’s last bit of advice for the Godfather:  Make sure the consumer of legal services gets lots more information, competition, and options.   Then, maybe give the legal profession and its Watchdogs an offer or two they can’t refuse.  (Unbundle This!)
• The need for a voice/conscience like ethicalEsq? within the legal profession obviously still exists.  And this web log has demonstrated that there is an audience for its message.   Where are the legal ethics professors, law students, bar counsel, or bar leaders who care deeply about client-oriented reforms? The web-log-osphere awaits them.
• Meanwhile, readers who want updated information about reforms in the provision of legal services, should check out the newly-revised homepage of HALT for its Breaking News and Press Releases.  Like ethicalEsq?, HALT is “dedicated to helping all Americans handle their legal affairs simply, affordably and equitably.”

I know that some of the new friends I’ve made out there in Web Log Land are a little worried about me and my health, but they shouldn’t be.  I’m not seeking sympathy by telling personal details in this public place.   I’ve learned some very important lessons while dealing with a serious health condition over the past decade, and I’m glad to have learned them and lived them.   Besides discovering my own inner strength, I found out that there are things far more valuable to me than the typical American symbols of “success” — power, influence, recognition, wealth.  Being able to remove myself from ethicalEsq?‘s heady loop of positive feedback is a very good sign that I’m not forgetting those lessons.

Doing ethicalEsq has been a very rewarding experience, whether the correspondents agreed with me or not.  Until I started a web journal, I thought the internet (mostly e-mail) could be used to sustain established friendships and relationships, but couldn’t possibly create new ones of any significant value.  Well, I was wrong!

Comments and e-correspondence sparked by this website have put me in touch with some very good human beings (who can scarcely be blamed for being lawyers).   Although they are a lot busier than I, I hope to continue to connect with them across cyberspace.

• At the end of this posting, I have listed (alphabetically) a number of the web-log related folks who have become more than just pixelated names to me, due to the quality and/or quantity of their communications, insights, inspiration, or assistance.

For now, ethicalEsq will be right here, with a rather large amount of content, and a pretty good set of links to other resources relating to legal ethics.  This whole weblog experience-experiment has been far too positive for me to forsake web-journaling altogether.

Although I could never be as cultured as George’s Fool, nor as interesting as storyteller Sherry Fowler, I certainly have opinions and observations, and some day soon hope to start a personal web diary/scratch pad.  It will deal with topics that require neither monitoring nor research.   Until then, I’ll be dropping comments here and there, and making a general nuisance of myself.   Do you think I can write an entire paragraph without a hyperlink?
.
Be well, do well (but have some fun).

Now that Mr. Editor has stopped posting, I’m unemployed and have time to leave Comments. So, you get my Two Cents for free, Ernie:

Don’t send e-flowers to honor ethicalEsq?, but actively work for the consumer of legal services both out in the real world, and through the power of weblogs:

(1) help make bar associations at the local and state level client-oriented, instead of guild-oriented (e.g., improving the Discipline System would be a great place to start);
(2) harness the power of the web to make the self-help-law revolution a reality, and
(3) with or without new laws or ethical rules, get more information to consumers about their rights and options — with enough information, consumers can create their own powerful competitive forces for innovation, improved services, lower prices.

For ideas, see the Editor’s article Counselors Oughtta Counsel (Not Conceal), and the ethicalEsq? resources on Informing Consumers, Access and Affordability , Discipline System , and — don’t forget — Fees.

Lester Brickman, ethics professor at Cardozo Law School, has taken his fight to improve New Model Rule 1.5 and its treatment of contingency fees to the Rule-making authority of each State.  Over the past few months, Prof. Brickman has sent a Letter to each presiding justice urging “you and your fellow justices to decline to adopt the proposed changes to Model Rule 1.5.” (Letter posted at ethicalEsq? by permission of the author)

Brickman is a longtime foe of the use of “standard” contingency fees — because they are frequently unrelated to the risk taken and work performed by an attorney in a particular case, and therefore often overcompensate the lawyer at the expense of the injured client.  In his Testimony to the ABA Ethics 2000, Brickman argued that current ethical standards and ethics opinions concerning the use of contingency fees were universally ignored, and that the new model rule on fees must explicitly require that contingency fees be linked to the lawyer’s risk and must inform clients of their right to be fully informed, so that they could make informed choices among fee options (such as hourly, flat or mixed fees), and negotiate the level of a contingency fee.

Brickman and other consumer advocates (such as your Editor) lost this fight before Ethics 2000.  The Commission instead proposed a Rule 1.5, later adopted by the ABA in its New Model Rules, that — according to Brickman — “trashed fiducial rights in favor of simple self-interest.”   (emphasis added)

To explain his argument in detail, Prof. Brickman enclosed with each Letter a copy of the page proofs of his soon-to-be published law review article, The Continuing Assault on the Citadel of Fiduciary Protection: Ethics 2000’s Revision of Model Rule 1.5, by Lester Brickman, 2003 Univ. Ill.L.Rev. No. 5 (forthcoming).  Brickman notes in the Letter that:

[The Article spells] out in sad detail how the ABA has abused the bar’s self-regulatory status by urging upon courts the elimination of one of the few remaining fiducial fee protections in the codes of ethics. (underscore added)

The battle over the new model rule governing contingency fees is being fought right now across the country, on the state level.  As reported in our Posting 6/30/03, Arizona recently adopted a version of Rule 1.5 that considerably improves upon the Ethics 2000 proposal, while North Carolina became the first state to adopt the new rule without changes.   Your Editor gave his version of the problems with New Model Rule 1.5 in an Open Letter to the FTC (HALT Forum, “Protecting Fees Rather than Injured Clients: The ‘Standard’ Contingency Fee and the ABA,” April 11, 2002).