Legal Ethics & Client’s Rights
- below you will find links to our writings on legal ethics, client rights and related reform issues –
- additional posting on related topics can also be found on Prof. Yabut’s Favorites Page -
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search: you can also search this site using the Search Box in our Sidebar.
Note: We apologize for the formatting errors that appear on many of these pages (e.g., strange linebreaks or spacing, and missing images). A switch to a new webserver and weblog software in June 2006, and again in 2008 and 2009, created most of the problems. Although the pages are still legible, we appreciate your forbearance. If you run across a broken link, please try the Search Box to find the desired post or page.
___ Class Actions
___ Fees
___ Organizations, Groups, Agencies
___ Professionalism, Competence, Zeal, etc.
___ WEAKLY Specials
at the bottom of this page, we have re-produced the Original About page for ethicalEsq
Organizations & Agencies
HALT – An Organization of Americans for Legal Reform. Founded in 1978, HALT is a nonprofit, nonpartisan, public interest group of more than 50,000 members, and proudly states that it is “the nation’s largest and oldest legal reform organization. Dedicated to the principle that all Americans should be able to handle their legal affairs simply, affordably and equitably, HALT’s Reform Projects challenge the legal establishment to improve access and reduce costs in our civil justice system at both the state and federal levels.
The Legal Reformer: HALT’s Membership Newsletter This publication is available for free online, and is mailed to all HALT members. It includes articles on HALT projects and publications, as well as a roundup of legal reform news from across the nation
Nolo.com Democracy Corner: With the rally cry of “Let’s Fix America’s Dysfunctional Legal System,” the self-help-law publisher Nolo.com presents its wish list of changes to the legal system and legal ethics. See the Nolo Contends webpage, which describes the Nolo philosophy of legal reform: Law for All, Remove Barriers to Access, Stimulate Reform of Law. Topics covered in essays on the site include expanding small claims court jurisdicition, combating excessive contingency fees, preventing the use of rules against the Unauthorized Practice of Law to ban self-help books and software and the use of nonlawyer advisors, ending probate laws.
Federal Trade Commission This is one government agency that understands the importance of information and competition to consumer welfare — and refuses to let professions get off the hook with their pious paternal instincts and dubious self-regulation.
American Antitrust Institute This nonprofit thinktank has produced a Guide to Antitrust Resources on the Web that includes a major section on Lawyers and Legal Services, including sections on Applying the Antitrust Laws to the Legal Profession, Defining the Practice of Law, Protecting Clients through Competition, Information and Fair Ethical Rules, and Multi-Disciplinary Practice (MDP).
Common Good This social action group has its sights on the broader issues of an overly-litigious society. However, its Early-Offer Settlement proposal (click the Contingency Fees link in the Navigation Menu) is aimed at the unfairness of using a standard contingency fee in cases that settle early.
Overlawyered.com: Legal Ethics in Crisis Edited by Walter Olson, Overlawyered.com covers many aspects of the legal profession’s effects on society, politics, and clients, with an emphasis on the problem of excessive litigation. Overlawyer’s ethics page includes sections on excessive fees, faulty disciplinary systems, the failure to fully inform clients, and more, with links to relevant articles, sites and reports.
SPECIFIC TOPICS in LEGAL ETHICS REFORM
- Ensuring Well-Informed Clients
Need a Lawyer? Judge for Yourself The Federal Trade Commission has issued this consumer guide to choosing a lawyer, including advice about keeping fees low and choosing between price and quality.
Before You Hire a Lawyer Know Your Rights This is a helpful e-pamplet from HALT (also available in print).
Legal Consumer’s Bill of Rights. HALT’s Legal Consumer Bill of Rights Project was launched to educate policy makers, the media and the public about the rights of legal consumers. This project seeks to promote increased accountability in the legal profession. HALT has developed model legislation that requires attorneys to include a Legal Consumers Bill of Rights in their contracts and retainer agreements. Similar protections have already been adopted in Illinois (for matrimonial cases) and in New York. HALT’s Legal Consumers Bill of Rights spells out four basic rights that every American citizen should expect from the civil justice system – the right to control your own legal affairs; the right to affordable legal services; the right to competent legal representation; and emthe right to an accessible and accountable legal system
Counselors Oughtta Counsel (Not Conceal) This column, by ethicalEsq?’s Editor, was published by Prairielaw.com in 2001, and shows the failure of the American Bar Association’s new model rules of professional responsibility, proposed by the ABA Ethics 2000 Commission, to ensure that legal clients are fully-informed consumers who have the benefits of competition and innovation (meaningful information and meaningful choices). [Ethics 1000 would have been a better name for the ABA project. It rejected pro-client recommendations and instead spawned ethical rules that are, in many ways, more appropriate for a medieval guild than for a group of "responsible" professionals in the Third Millennium.]
FTC Letter to Ala. Supreme Court on Lawyer Advertising In this detailed Press Release, which links to the fully-footnoted, 16-page Letter (Sept.30, 2002), the FTC staff addresses several proposed restrictions on lawyer advertising, concluding that they would restrict truthful and nonmisleading information, and rejecting a “dignity of the profession” argument.
Public Citizen Comments on Ky Bar’s Proposed Advertising Rules This press release (June 2, 2003) describes PC’s Comments, with links to the full document (a comprehensive, fully-footnoted, 29-page-pdf. submission), and to letters sent to FTC and DOJ requesting an antitrust investigation. PC concludes that the Rules would go too far, violating the First Amendment and raising antitrust concerns.
- Contingency Fees
Brickman Testimony on Contingency Fees Cardozo Law professor Lester Brickman presented these comments to Ethics 2000 on the need for explicit rules that would help prevent excessive contingency fees by linking fees to risk and informing clients of their right to choose other fee options, such as hourly or flat fees, and to negotiate the level of a contingency fee.
FTC and class action fees In a Washington Post article (9/30/02), staff writer Caroline Mayer describes steps taken by the FTC to keep class action fees in line with the risk taken by the lawyers involved.
Florida Statement of Client’s Rights for Contingency Fees Among other information, clients in Florida must be told that there is no set percentage for a contingency fee and they are free to negotiate the fee level with their lawyer.
Sue City: The Case Against the Contingency Fee (Policy Review, Winter 1991) . This article by Walter Olson is excerpted from “The Litigation Explosion: What Happened When America Unleashed the Lawsuit,” with some new material added.
Pricey Contingency Fees In this June 2000 article from Prairielaw.com, David Giacalone, ethicalEsq’s Editor, shows (quite persuasively) how the use of a “standard” contingency fee violates existing codes of ethics and ethical opinions, while enriching lawyers at the expense of their clients.
Common Good: Early-Offer Settlement Proposal A national coalition led by Common Good filed legal petitions in 13 states proposing to change the rules governing the contingency fees charged by lawyers in “early offer” settlements in personal injury cases. In addition to reducing the fees received by lawyers in these situations, Common Good believes the proposed change would reduce court congestion, and increase the incentive to settle rather than litigate certain liability claims. “Most importantly, the change will increase the settlement proceeds going directly to accident victims.” See related ethicalEsq? postings from May 30, 2003, June 3, 2003.
The ABA and the Standard Contingency Fee In this Open Letter to the FTC on the ABA and Contingency Fees (dated April 11, 2002), your Editor, David Giacalone, details bar association actions to prevent competition over personal injury fees, by removing existing (although ignored) ethical restrictions on the use of the “standard contingency fee.”
- Unauthorized Practice of Law
Lawyers Try to Reestablish Their Monopoly This article, by attorneys Stephen R. Elias and Ralph Warner, describes and decries current efforts before the ABA to define “the practice of law,” and gives a brief history of the organized bar’s efforts to keep nonlawyers from performing law-related tasks.
FTC and DOJ on Defining “Practice of Law” The Federal Trade Comm’n and Dept. of Justice presented joint comments (12/20/02) on the ABA’s draft Model Definition of the Practice of Law. The federal antitrust agencies concluded that the proposed definition was overly broad and would injure consumers and competition. The agencies urged the Task Force to permit lay competition that is in the public interest and craft an appropriate definition after careful review of the harms and benefits of lay participation in providing law-related services.
ABA Task Force on the Model Definition of the Practice of Law The Task Force made its Recommendation and Report in March ‘03. An appendix included State Definitions of the Practice of Law .
Lawyer vs. NonLawyer In an article appearing in Legal Times (02-03-2003), James C. Turner, Executive Director of the legal reform group HALT, argues against the ABA’s proposed model rule defining “practice of law” and its corollary of “unauthorized practice.” Turner says the proposed model rule “poses a major threat to the rights of millions of American consumers who choose to handle their routine legal tasks with the help of nonlawyer resources.” In 2002, HALT opposed attempts by Arizona attorneys to curb competition from non-lawyers by expanding the definition of the “unauthorized practice of law.”
Scriveners in Cyberspace In this Hofstra law review article (44 pp., pdf), Prof. Catherine J. Lanctot takes a close look at the issues raised by online document preparation (especially interactive programs that present solutions to a consumer’s individual fact situation) and the regulation of the unauthorized practice of law. Included is a detailed history of the organized bar’s attempts to prohibit nonlawyers from providing consumers with law-related information and services. Also, see Prof. Lanctot’s article in the Duke Law Journal, (Cited: 49 Duke L. J. 147) Attorney-Client Relationships in Cyberspace: The Peril & the Promise.
Nolo v. Texas This article contains a brief summary of the battle between Nolo.com and the Texas bar — when Texas lawyers tried unsuccesfully a few years back to ban Nolo’s publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law.
- Small Claims Court ReformHALT’s Small Claims Reform Project. HALT believes that one key method of improving citizen access to the civil justice system is through small claims courts — which use simplified procedures, require plain English, provide consumer aids and often prohibit lawyers — because they can help empower ordinary people to take charge of their own routine legal needs. HALT is seeking a number of reforms that would make small claims courts fulfill their promise, including increasing significantly their award limits.
Supersize Small Claims This article, written by David Giacalone for Prairielaw.com (August 2000), advocates raising the limit on small claims awards to $20,000, to improve access to justice for the average consumer. It notes: “In a nation that loves lawyer-bashing and lawyer jokes, the lack of political support for court reform can be understood only in the context of the immense power of the legal establishment and its mighty efforts to preserve control of our justice system.”
- Disciplinary Systems
HALT’s Lawyer Accountability Project is a major reform effort to strengthen consumer protections that apply to lawyers and the attorney discipline system. http://www.halt.org/lap/ldreportcard02.p… The Lawyer Discipline Report Card issued in October, 2002, was a major study conducted under this project.
ABA Survey on Lawyer Discipline Systems The ABA Survey on Lawyer Discipline Systems consists of eight charts arranged alphabetically by jurisdiction, with footnotes if clarification of data is necessary. SOLD Survey Results: 2000: Seven Charts: (1) Lawyer Population and Agency Caseload Volume; (2) Sanctions Imposed; (3) Reinstatement and Readmission Statistics; (4) Disciplinary Agency Caseload Statistics; (5) Case Processing Time Guidelines; (6) Budget Information and Sources of Funding; (7) Allocation of Dues and Fees in State Disciplinary Systems; (8) Staffing of Disciplinary Agencies.
Lawyer Regulation for A New Century Report of the ABA Commission on Evaluation of Disciplinary Enforcement (February 1992) This American Bar Association study and report, called The McKay Report, found a continued crisis in lawyer discipline and called for many reforms.
The Sham of Client Compensation Funds By HALT Staffer, Steven Serdikoff, this article summarizes a HALT of client compensation funds. The Report concluded: “Created by states to reimburse people cheated by their lawyers, the sad truth is that most so-called ‘client compensation’ funds are a sham. These funds pay almost nothing to victimized clients, regardless of whether the fund is in a state with over 40,000 lawyers or a state with fewer than 2,000.”
Sustained Objection – Lawyer Disciplinary System Still Woefully Inadequate – this op/ed piece by the Editor of this weblog calls for several reforms of America’s “scandalous” system of lawyer self-regulation.
Regulation of the Legal Profession Written by Frank H. Stevens and James H. Love (1999, 31 pp., pdf), this monograph from the Encyclopedia of Law and Economics reviews the economic literature, focusing primarly on self-regulation by the legal profession, and includes a full bibliography. Summing up: The justification for self-regulation seems to be reducing the costs of government regulation. However, much of the literature on self-regulation concludes that it operates in favor of the profession over the interests of the client — limiting competition and raising fees and professional income. Economic Impact of Regulating Professions (scroll down to the Other Documents and Studies Section of the page) Entitled “Economic impact of regulation in the field of liberal professions in different Member States,” this EU report (2003) was produced by the Institute for Advanced Studies, Vienna, for the Competition Directorate-General of the European Commission. It is a comprehensive comparison of the various levels of regulation and their effects in the highly diverse European nations, covering lawyers, accountants, architects/engineers, and pharmacists. An Executive Summary of the lengthy report is available. The related Monti Speech, Competition in Professional Services: New Light and New Challenges, by Mario Monti, Commissioner for Competition, European Community, was delivered on the day the Report was issued (March 21, 2003). Com’r Monti discusses the issues raised in the Report, and summarizes the results, while explaining that the EU is attempting to level the competition playing field among professions in its member states, and must deal with the diverse levels of regulation. The study appears to show that lower levels of regulation result in increased competition and wealth creation (e.g., lower income per professional, more competitors in the marketplace, and more efficient units).
- Lawyer Competence (also, see “Professionalism/Zeal” resources page)
Restrict Lawyers’ Licenses Authored by attorney Ralph Warner, this Nolo.com Soap Box Column states that “A license to practice law is no guarantee of legal knowledge, skill or experience. Incompetent lawyers regularly mislead and defraud clients who rely on the promise of expertise that the lawyer label brings.” Warner concludes:
“When it comes to lawyers who sell personal legal services, a lawyer’s license should be limited to specific subject areas — for example, family law, criminal law, tax or probate. A separate exam should be given for each specialty. That way, an exam could test the skills and knowledge needed by a lawyer who wants to represent clients in a particular legal subject area.”
Protecting lawyers, not clients In this article by George C. Leef (for the Cato Institute), the author argues that “The best means of delivering affordable legal services to the public with minimal risk of harm is through a competitive marketplace, backed up with remedies for fraud and incompetence. Professionals want to do competent work for their clients. Fear of failure and financial loss is a stronger deterrent to incompetent work than any licensing scheme” and concludes that “Competition works as well in legal services as in other markets. But we’ll have to get rid of the UPL statutes to enjoy the benefits.
- Multijurisdictional Practice (MJP)
ABA Multijurisdictional Practice Task Force Web Pages: contain a significant amount of information and analysis on the many issues raised by MJP — issues of legal ethics, bar admission, regulation of lawyers and the unauthorized practice of law. The Commission appears to have undertaken an objective and comprehensive national study, and its proprosals were adopted by the ABA House of Delegates in August, 2002.
Task Force Final Report: Introduction and Overview – gives a useful summary of the history of the problems, issues presented, principles applied, and proposals made and adopted.
New Model Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law. And, the Comment on Rule 5.5.
Unauthorized Practice of Law; Multijurisdictional Practice of Law. And, the on Rule 5.5.State Adoption of MJP Rules This Chart compares each state on a number of factors related to MJP (May, 2003).
Lessons from the Multijurisdictional Practice Commission: The Art of Making Change, by Stephen Gillers, 44 Ariz.L.Rev. 685 (Fall/Winter 2002)
- The Image of the Legal Profession
Can the Legal Profession Improve its Image? Columbia Law School Vice Dean and Professor of Law, Michael C. Dorf, reports in this article (Apr. 17, 2002), on a nationwide survey commission by the Law School, which contains some disheartening news for lawyers. “Americans think lawyers are dishonest and overpaid. Moreover, although roughly half of the people asked thought that lawyers perform a useful function, almost as many said that lawyers do more harm than good.”
- [Editor's "Editorial" Note: Yes, this list of Ethics Reform resources is too short. Please send ethicalEsq? any "Suggestions" you might have about websites or web resources that deserve to be listed here. I'm afraid this short list mirrors the sad fate of law consumers in our society and political system: On the whole, politicians on the right don't care much about consumer concerns and politicians on the left are too addicted to campaign contributions from lawyers to confront the organized bar. In addition, not-for-profit organizations that might otherwise by expected to take up the cause of the consumer of legal services also count heavily on donations from monied lawyers, and do not have the grants, nor the incentives, to take up reform of the legal profession.]
- eLawyering
ABA eLawyering Project Has collected numerous materials relating to ethical issues raised by eLawyering. Included is an annotated list of related resources and a concise Summary of Ethical Issues.
Some Call It eLawyering Author Erin Walsh asks, “Is It a Brave New World or an Ethical Quagmire?”
The Blogbook is “a self-dubbed ‘Open Source Law Project.’ These postings are intended to facilitate discussions around the technical, stylistic and ethical components of legal blogging. If you are a legal blogger (or would like to become one), please consider and weigh in on some of these issues.” Find its Ethics Page here.
sunEthics Article “Advertising and Marketing on the Internet: A Brief Overview of the Rules in Florida” (by Joe Corsmeier). Raises issues for any lawyer using a web presence to generate clients.
General Legal Ethics Resources
Top Sites: In Search of Ethics on the Internet Author and blawger Robert J. Ambrogi, has compiled a fine collection of the best web resources on legal ethics in this article for an ABA magazine. You can also find Ambrogi’s website reviews at LawSites.com.
Virtual Chase Legal Research — Ethics As usual, TVC’s Genie Tyburski has gathered an extensive list of the most practical and thoughtful research resources.
A Web of Legal Ethics: Rules of Professional Conduct This column from LLRX.com’s Research Wire is written by Diana Botluk & James P. Botluk (1999), and contains an extensive list of resources on the web concerning legal ethics. And, see Zimmerman’s Guide to Legal Research – Legal Ethics, which is also hosted at LLRX.com, and is a good place to look if you want to find legal ethics opinions or legal ethics codes and rules.
American Legal Ethics Library The American Legal Ethics Library is maintained by the Legal Information Institute at Cornell, and contains both the codes or rules setting standards for the professional conduct of lawyers and commentary on the law governing lawyers, organized on a state by state basis. In addition, eighteen law firms have provided commentary on the ethics laws of their particular state. For each state, you can find links to disciplinary rules of conduct, judicial conduct, ethics opinions, and bar admission information. Tom Mighell of the legal research weblog Inter Alia says “This is a terrific site.”
LegalEthics.com As Genie Tyburski opined on her Virtual Chase ethics research page, “This is one of the best sites on the Internet for legal commentary.” It has a comprehensive collection of links to state ethics opinions, government agencies dealing with professional ethics issues, and many other Web resources dealing with professional ethics.” The LegalEthics.com Ethics Resources search box is an especially useful research tool.
ABA Center for Professional Responsibility You can find information at this site on many of the most pressing issues in legal ethics. A full-text version of the Model Rules of Professional Conduct is available, along with comparisons to the Model Code. You’ll also find a full record of the activities of the Ethics2000 Commission, including submitted papers and comments. In addition:
ABA Directory of Lawyer Disciplinary Agencies The official committees and boards that oversee professional responsibility requirements for lawyers in each state are listed at this page.
Joint Committee on Lawyer Regulation This Committee “focuses on implementation of the recommendations of the Commission on Evaluation of the Rules of Professional Conduct (Ethics 2000), the Multijurisdictional Practice Commission, the Commission on Evaluation of Disciplinary Enforcement (McKay Commission) and the Conference of Chief Justices’ National Action Plan on Lawyer Conduct and Professionalism.”
ABA Task Force on the Model Definition of the Practice of Law The Task Force made its Recommendation and Report in March ‘03. An appendix included State Definitions of the Practice of Law .
ABA Links to State Rules on Lawyer Advertising “Lawyer advertising, solicitation and marketing are governed by state-based ethics rules. The rules of the states vary considerable from one jurisdiction to another. This site links visitors directly to the applicable information and rules for each state that has information available on the Internet.”
FAQs from NOBA Brief answers to frequently asked questions from the public about Legal Ethics and the Attorney Discipline System. The questions addressed are: What are “Legal Ethics? What conduct is covered? What conduct is not covered? Who makes the rules? Who determines if the rules have been broken? How do I file a charge of unethical conduct against a lawyer? Will the Disciplinary Agency reimburse money that a dishonest attorney stole from me? What is Fee Arbitration
Ethics and Lawyering Today This nearly-monthly e-newsletter is an excellent resource, covering important cases, opinions and other development in legal ethics. It is edited by attorneys William Freivogel and Lucian Pera.
Rules and Ethics Opinions. Compiled by Professor Barbara Glesner Fines, University of Missouri – Kansas City School of Law (1996).
Summaries of Legal Ethics Opinions (ABA & Virginia). Virginia attorney Thomas E. Spahn has summarized and categorized more than 1,500 ethics opinions from Virginia and the ABA. He has made them available to the public in a database searchable by keywords and also organized under topic headings.
FindLaw Ethics Page Varied list of ethics resources.
FindLaw Ethics Publications List An extensive list of journals and articles.
sunEthics This website, edited by Tim Chinaris, offers thorough and timely information on professional responsibility cases and developments in Florida. It also contains links to ethics resources in the other states.
ABOUT ethicalEsq
This Site: ethicalEsq portion of this weblog is focused on news and developments relating to lawyer ethics, stressing the interests of the average consumer-client. It will report and comment — often at length — on efforts to reform (or maintain) the current rules and disciplinary system, and will collect and link to relevant web resources. The underlying question will always be whether a proposal, rule or action puts the client’s interests first. Appearances to the contrary in the real world, the “special” relationship between lawyers and clients is meant to protect clients not lawyers. The emphasis here will be the concerns of the average consumer in need of law-related services, rather than “sophisticated” clients, such as large businesses, who already have plenty of advisors and advocates. Here are some of the topics that will be covered:
- making the disciplinary process more responsive to the needs of clients
- avoiding needless costs and litigation, through the provision of unbiased information about alternative methods of dispute resolution and alternative sources of service
- giving all consumers access to the legal system and law-related services at a fair, affordable price
- protecting clients from excessive fees
A basic premise of this weblog is that being an ethical lawyer means far more than obeying the disciplinary codes. The three primary components to practicing law ethically are explained by Professor Patrick J. Schiltz, in a classic law review article., ”On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 Vand. L. Rev. 871. In brief, as described by Prof. Schiltz, those components are [emphases added]:
First, a lawyer has to comply with the formal disciplinary rules . . . . . But you should also understand that the formal rules represent nothing more than ‘the lowest common denominator of conduct that a highly self-interested group will tolerate.‘ . . . But complying with the formal rules will not make you an ethical lawyer, any more than complying with the criminal law will make you an ethical person.
Second, a lawyer must act ethically in his work, even when he isn’t required to do so by any rule. . . . For the most part, this is not complicated. Treat others as you wish to be treated. Be honest and fair. Show respect and compassion. Keep promises. . . .
Third, a lawyer must live an ethical life outside of work. . . . But being admitted to the bar does not absolve a lawyer of his responsibilities outside of work — to his family, friends, community and, if he is a person of faith, to his god. To practice law ethically, he must meet those responsibilities, which means he must live a balanced life.
Because a lawyer’s life needs to be balanced, there will occasionally be postings here that are not — or do not at first impression appear to be — directly related to Legal Ethics.
This website is not a forum for airing complaints against individual lawyers, law firms, or judges. It cannot attempt to resolve the grievances of individual clients or consumers. [* See below for help with individual complaints.]
Because the world of legal ethics and discipline mostly takes place behind closed doors and on private web pages, ethicalEsq needs the help of like-minded (or even apathetic or rabidly-opposed) folks to keep atuned to significant proposals, progress and setbacks in innumerable jurisdictions across the nation. Visitor comments and feedback will be an important part of making this little project work. Please send tips or ideas using our “Suggestions” box, or reach the Editor by e-mail at: dag(dot)law76(at)post(dot)harvard(dot)edu.
- ethicalEsq is a weblog with no commerical ties or aspirations. The Editor is active in no political movements or parties. Although the Editor believes that some personal injury awards have been outlandishly high, and that contingency fees are often unreasonable and unethical (because the attorney takes too little risk and does too little work), he is not a participant in the “Tort Reform Movement”. Also, the Editor would be shocked and unhappy to find out that he is the puppet or tool of Big Business or any particular industry.
The Editor: This weblog is edited by David Giacalone, who is affectionately known around here as both “I” and “We” (as well as Mr. Editor). I’m a retired attorney and mediator, living in Upstate New York. Because ethicalEsq has a point of view and does not pretend to be neutral, you deserve to know where I’m coming from, or at least where I’ve been. (As I explain in Ethics for the Web? Lean Don’t Lie, having a point of view, and leaning toward a particular philosophy or constituency, is not a license to mislead. I will never knowingly or recklessly ignore or hide important facts or factors in my advocacy for consumer rights.)
After graduating from Harvard Law School in 1976, I spent a dozen years emersed in antitrust law and competition policy at the Federal Trade Commission. That period left me with two beliefs that are basic to the viewpoint of ethicalEsq.
- First, professional organizations, and the ethical codes they write and purport to enforce, often needlessly stifle competition under the guise of protecting clients. And,
- Second, as with any other product or services, the consumers of law-related services are best served when there is healthy competition among providers, a broad array of options and prices, and sufficient information to permit intelligent choices. There needs to be a very good reason for depriving law clients the benefits of competition, and increasing the wealth of lawyers doesn’t quite make the grade.
[My belief in competition as consumer protection is reflected, for example, in two postings on this site, here and here.]
In 1988, my first mid-life crisis took me from Washington, D.C., to a small city in Upstate New York, where I began a decade of practice centered in family court, mostly representing children and developing a divorce mediation practice. Seeing how law is practiced on Main Street, confirmed the beliefs that I had gained about competition as consumer protection at the FTC. More important, it left me with the lasting impression that the average consumer of legal services is often both shortchanged and overbilled — with too little respect, information and choice offered by the legal profession, and too little protection from those running the disciplinary systems that oversee lawyers.
Of course, I have known and seen many highly ethical and competent attorneys practicing in firms that cater to the American consumer, just not enough of them. Instead, I have noticed a surprising lack of competence and/or diligence, and have learned that failures to abide by the profession’s highest ideals and principles are almost always related to pocketbook issues. Primarily, no matter how an individual lawyer might prefer to operate, money (not the client) comes first in many law firms.
Although a sense of frustration over the current state of legal ethics fuels much of what appears in ethicalEsq, I intend to remain cautiously optimistic, while maintaining civility, humor, and a respectful willingness to listen with an open mind.
You can find a representative sample of my writing and thinking on topics relating to legal ethics on the “Articles” page. [Confession: That Prairielaw.com photo was taken circa 1993.]
Finally, I need to make clear that the opinions expressed here are not necessarily those of my twin brother, attorney Arthur J. Giacalone, who often worries just what I might say next in print. In my opinion, he’s a prime example that a lawyer in private practice can be diligent and honest (brilliant, too), while always putting the client’s interests first.
Let’s keep in touch. s/dag
* The ABA Directory of Lawyer Disciplinary Agencies and the LegalEthics.com website are good places to start to locate resources for filing a grievance in your state. If, as unfortunately often happens, you don’t get satisfaction from your local ethics watchdogs, you can find help with such problems by calling the Toll-free Hotline maintained by HALT – An Organization of Americans for Legal Reform, at 1-888-FOR-HALT or (202) 887-8255, or by visiting the HALT website.