Previous month:
February 2005
Next month:
April 2005

March 2005

BlawgConnect.2005! Get's Things Rolling

The BlawgConnect.2005! dinner is now behind us.  We had our first chance to see the Catalyst Ranch and meet some of the people behind the faces behind the keystrokes. All these people are connected by the concepts of blogs.  What a strange ad hoc way to create a group of people.  But yet perfect as well.  You can read each attendee's blog and know each is committed to making a difference in the profession.  I suspect there is tremendous diversity within specific goals to achieve and how to go about achieving those goals.  Sunday's LexThink will be far more focused, challenging and engaging.

As I looked around the room and tried to gage every ones motive and interest, I was struck by the commonality in the group.  The group affinity was palpable.  Here are my observations, not of the event itself, but of the people attending. 

  • There is tremendous diversity among the bloggers, their stories, their situations and the paths which brought them to this point in their careers.
  • Within that diversity there is passion and excitement about having an impact on the practice of law and delivery of legal services.
  • This group is neither naive nor diluted about the reality and hurdles which we face in our individual and collective efforts to make a difference within the profession.
  • These people are prone to action which is probably why they started blogging in the first place.  They got tired of sitting on the side-lines.
  • This group is far more open-minded than the average joe/jane. They are ready for change and innovation.  They won't be deterred by the magnitude of the problems, or the relatively small size of the group leading the charge.
  • These people have a fundamental faith that blogging, which is little more than the sharing and discussion of ideas, can be the fuel which drives the change. Blogs and the ideas expressed on them, can draw large audiences quickly and inexpensively.  As those audiences grow, those ideas become more powerful tools of change.

It will be interesting to see if the diversity becomes a  strength or weakness within the group.  While I strongly suspect the former, this is truly uncharted territory for everyone. 

Response By Opposing Counsel to Professionalism Letter

It works!  Below is the response to my professionalism letter I sent to opposing counsel last week.  No offense was taken to my observations about the need to question our approaches to confirming letters.  Linking to LexThink gave my note legitimacy.  By reminding our brother and sister counsel that we can restore professionalism to our profession, we advance the ball.

Thanks for you note.  I agree that we must restore professionalism to our profession, and apologize if you took offense at my email.  My client feels very strongly about this matter, and I try to be zealous, but professional, in representing my client’s interest.

We would like to resolve this matter amicably, professionally, and expeditiously.  .... Again, thanks for your note, and I hope that we can maintain a professional, cordial, and open relationship.  We may even cross paths or work together on future matters.

Legal Budgets: Why Lawyers Hate The Concept

I stumbled across a thoughtful analysis of negative law firm attitudes towards working within budgets for their clients.  LexThink Attendee Patrick Lamb, a partner with Butler Rubin Saltarelli & Boyd, LLP, a  32 lawyer Chicago litigation firm, asks "Why Is Budgeting The Hardest Part Of Litigation?" Some of his explanations include:

  • Lawyers have never learned to be accountable for how they spend their client’s money.
  • Lawyers don’t run their practices as businesses.
  • The billable hour.

Another great quote:

The lawyer’s continued devotion to an economic model that causes their economic well being to be diametrically opposed to their client’s deserves special comment. No one would ever dream of a contingency fee agreement that rewarded a bad result. Yet the hourly rate frequently generates more make-work and more "creative timekeeping"
than any other economic model. More tangents and issues are explored, regardless of real relevance, because of the billable hour than would ever be pursued under any other economic model. All of these flaws in the system would be sufferable if the system produced superior results. Few really believe it does, however.

LexThinking: Do we have to play by the rules ....

I have been positng recently about how to proactively have an impact on the legal system. Setting a good example is great, but it is not near enough.  We need to change the rules of the game.  The question is how.  I am a trial attorney. I work hard to change the system, and develop strategies to achieve client goals.  But I do so with eyes wide open.

A good lawyer can never bury their head in the sand concerning unprofessional tactics by opponents. It does no good, especially for the client, to pretend the litigation game is something different than it is. The rules of the legal game are certainly not what our forefathers designed or intended. They have evolved and through many influences simply become what lawyers, clients and judge's now see around us every day.

I have often been challenged by the question of whether to 'fight fire with fire' or to 'stay above the frey.' We have all been baited into fights we wish we never waged, and into approaches which probably did not serve our clients in the end. In this audio blog, I talk about why it is critical to avoid being baited or using the same means used by your opponent rationalized by 'what's good for the goose.'

Our duty to help other lawyers be professional ..

How many times have you received a letter from opposing counsel saying you said something you did not say?  I receive several letters each week from opposing counsel which either tortures our conversation or outright misrepresents what was said altogether.  This usually starts a letter war which wastes attorney time and client money.  Of course the goal is to be able to waive the letter in court and convince a judge and gain unfair advantage in the case.

I have struggled with this issue for years.  I have tried fighting fire with fire.  I have engaged in the CYA letter war fighting furiously over what was said and what was not.  I wonder what would happen if we dedicated ourselves to counseling other attorneys on professionalism in a non-threatening manner.  Today, I dedicated myself to sending a private response an an example of which follows:

Greg:  I have passed your email onto my client for review.  However, I did want to send you this personal note.  You included in your email the following statement:

“In our telephone conversation of yesterday, you represented to me that if we could document to you that [my client] had requested that your client register these domain names as an agent and paid for them, that you would advise your client to transfer the domain names immediately to [my client] .”

Obviously, I did not say this at all, although I agreed that it would be relevant information to know so I could advise my client. Creating the impression of non-existent agreements for the purpose of leverage is a common tactic in our profession. I receive slight exaggerations and overreaching quotes attributed to me each day. I’m certain you do as well.  And to each of them, I am now responding privately and would encourage you to do the same in a non-demeaning, non-threatening way. I think we all tend to simply play by the rules which everyone else plays by after a while.  We give up questioning whether the rules are appropriate or even helpful.

I also have come to believe that these tactics (perhaps they are not even tactics any more since no one pays much attention to them) have never really provided any real value to my client in my experience.  I have come to believe that such ‘tools of the trade’ really do work to undermine the level of professionalism which we must all come again to expect from each other as lawyers and the profession as a whole.  I have committed not to do it moving forward in my career.  I won’t say I have never done it myself since that would be untrue.  I spent years fighting fire with fire.

I have also come to believe that such habits also work against the interest of my client since they more often than not undermine the prospect of resolution, rather than further my client’s goals.  To the extent such overreaching undermines the attorney client relationship of the opponent; the client is again disadvantaged in most instances.  An exception might be when you know the opponent is being lied to by their own lawyer.

I look forward to working with you on this matter towards a resolution. I am recommitting (since at this point in the legal profession I’m sure this email sounds downright stupid) that the client’s goals must remain secondary to the legal profession itself which makes those goals possible.  Granted, our profession has gone in directions which none of us should be proud (I’m sure you have your list as well).

Why this email?  I am working with a group of top attorneys and other professionals nationally to reclaim the professional aspect of the legal business.  Each of us has committed to creatively and constructively attempt get involved ‘on the ground’ in order to shift the system back towards its ideals (which I know we all would appreciate).

You can view the link here if it sounds interesting

If I received an email like a year ago, I’m sure my initial reaction would have been “F__ Off.”   I hope you receive this email in the spirit in which it is offered.  I have not copied my client or yours. 

We must be proactive with our colleagues on the issue of professionalism if we are to restore professionalism to the practice of law.  But we must find ways which have some prospect of obtaining results.  I propose we all take responsibility to help our brother and sister professionals remember what the practice of law was supposed be.  Too often, they are just playing by the wrong rules that others before them established.  Click this link to hear my audio blog comments about this issue.

It Gets Ugly .... Big Boss Sucks

BIG BOSS SUCKS! (I hereby recant the Big Boss Rocks far post from weeks ago but will leave it posted consistent with good Blog form). 

As you read in this previous post, Big Boss actually took the position that my hourly time should be valued the same as a paralegal and associates for the purposes of splitting quantum meruit fees.  Such an approach would have potentially netted them hundreds of thousands of dollars in excessive unearned fees on our case splits.  They maneuvered the entire day to make me agree with their position.  They leveraged (from their misinformed point of view) their belief that I would be desperate for money to help my practice survive (did I mention I am thriving and have hired virtual two law clerks and a virtual paralegal). They leveraged the word of the partner I had negotiated with stating repeatedly that he agreed with their position. 

The day with filled with lies, demeaning comments and ethical breaches.  Those bastards actually suggested that I must be desperate for money to try to avoid the plain language of our one sentence 'good faith' agreement which only mentioned 'hours,' not billing rates.  They then had the gall to offer to loan me the disputed money which they would take out of the next settlement money because they were concerned about me and my families well being!  Un_F_in_Believable!

They continue to reject the basic ethical principle that fees between lawyers must be disclosed and agreed to by the client.  They actually told the client that the contract was between the firms, not her.  They reject the principle that fees must always be reasonable (there is no plausible argument that two paralegals and two new associates should be billed at the partner rate), fully disclosed to the client and approved up front.

One great quote by Big Boss before I stormed out of the their offices was that there will be no discussions of ethics (which stupid me thought controlled the issues we were talking about).  The other was that Big Boss proudly stated that he specifically drafted the fee split contract so that that the fee split ratio said "attorney/paralegal hours" not attorney/paralegal hours multiplied by billing rate" or quantum meruit!  In my opinion, the whole thing was a set up by big boss to allow himself the argument he made today.  Cold, calculated , premeditated, no question.  Just his style ... [One point for Big Boss on the rough and tumble playground of capitalism].

After I stormed out of Big Bosses office, the partner who I had negotiated the entire deal with came back from a trip at the end of the day and agreed with my version of the negotiations and the quantum meruit meaning of "attorney/paralegal hours."  It is possible his decision to support my position  (which Big Boss now attributes to a misunderstanding) was driven by a desire to avoid conflict or that he knew the Big Boss and I were thinking two different things and simply never mentioned it to either of us.  He certainly knew that the deal being shoved down my throat had never been mentioned in all of our discussions about quantum meruit fee splitting. Did he think I would simply roll over like so I did all too often while I worked for Big Boss ....

Regardless how today happened, the real problem is that Big Boss could even take the position in the first instance or craft a contract which aspired to such a result.  The problem is using client money as leverage in negotiations.  The real problem is attempting to leverage my firms cash flow to obtain unearned money.  The real problem is failing to spend one second reviewing the ethics rules or thinking of the client's interest during the entirety of the process.  The problem is another partner telling one client she had no choice between counsel because the they signed a retainer contract with his firm.  The problem is telling telling staff to stop working on cases during representation because Big Boss thinks the cases might be leaving with me or knows they are not leaving and does not want to risk any more hours or money on the case.  The problem is telling attorneys and paralegals to start billing on hourly fee cases because they are about to settle.  The problem is demanding huge trial retainers from clients one week before stepping into court for trial under threat of withdrawal.  The problem is that these men who run our proefesion somehow have convinced themselves that they always deserve the windfall they claimed from others whose work made it possible.  The problem is that they see clients, associates and partners only as money and profit.  The problem is that their egos preclude them from ever seeing anything except their own interest...   

The problem ... will never be resolved if someone does not step up and do something to stop it.

Now the question must be posed which I hope you expected to be posed ...  Do I have an ethical obligation to report this conduct to the bar association? 

Now there is a LexThink question which gets at the heart of the bigger issue ... Here is another.  How will we change the system if we continue to do nothing?

My LexThink Outline

LexThink has asked me to comment on the following issue:  "How would you build the perfect professional service firm?"  I have prepared a PowerPoint presentation (please allow for download time) which captures my baseline thoughts on the issue.  I prepared it last night and this morning just before ....

Well, if you read this far, you have likely also read the above post.  You already know I had answered the question of the day before the question had even been presented.

Perhaps the question for LexThink should be one step further back from the one asked.  Maybe the question should be how could anyone build a service centered firm under the current system of  law?  How could anyone solve their client's problems with assholes on the other side of the 'v' obtaining retention contracts, placing barriers to resolution and perpetuating legal matters to line their own pockets with hourly fees?  How can we win this war if we don't attack, fight and risk it all to reclaim a justice system closer to its ideals? 

And even one step further back ... Isn't society right about the law and lawyers in general?  Can we blame citizens for their frustration with lawyers and the legal system?

Our First Fee Split / Our First Disagreement

Well.  The wheels have fallen off the relationship with the old firm (they have been wobbling as of late).  They view quantum meruit as all hours worked by paralegals, associates and partners at the same billing rate.  My view is captured by the following post which I made at the time.  Thus, the ratio of fee split on settlement money is 'in dispute.' 

It appears they pulled  a fast one on my way out the door when they drafted the agreement on split in terms of "lawyer / paralegal hours." They say this means raw hours rather than hours multiplied by billing rate.  Of course, this pays them more than the quantum meruit they would have been entitled to  under law, and drags my fee down towards a paralegal rate.

...  Despite the fact that all discussions and number crunching dealt with quantum meruit ...

...  Despite the fact that no one ever proposed or discussed valuing all hours the same (which would have been ridiculous of course)...

...  Despite the fact that there would be no reason for me to agree to such an absurd formula ...

Be careful who you play with on the playground of capitalism.  You are the company you keep.  Karma can be a major pain in the ass.