Lawyers cannot put their thumb on the scale when weighing meat
The rules of professional conduct, when billing by the hour, prevent a lawyer from billing two clients for the same minute. Thus, you cannot bill one client for travel time and another client for reviewing documents, etc., while en route on the plane. Or, you cannot bill one client for the time waiting in court until his/her case is called and bill another client for other work during that same time.
How about billing clients for time not spent at all doing their work? As a young lawyer, when advised by my mentor, to be liberal with my time sheets, I took this to mean "put my thumb on the scale" when weighing meat in the butcher store. The ABA Journal tells us about a lawyer who did something similar.
Lawyers should go where the business is
It's time to stop focusing on real estate, construction, banks, mortgage companies and airlines, according to Larry Bodine. Go where the money is: energy, steel, industrial metals, coal companies and railroads. See the 10 Best Performing Industries on MarketWatch.com.
This reminds me of the book written by Harvey MacKay, Dig Your Well Before You're Thirsty or the phrase "... fish where the bass are..."In other words, provide services that your clients need ... If your skills are no longer in hot demand, modify your practice area to adapt your skills to the needs of the clients. If you're in the larger firms, and are practicing real estate law currently, you might be better advised to learn bankruptcy or workouts to adapt your current skills to the needs of the clients. If you're in a small firm or sole practice, this might be more difficult to accomplish with less personal economic impact, but still possible.
The key is to either provide services the market needs ... or to have the capital to sustain the wait until the market comes back to your skills.
Public Defenders Are Taken to Task - For Shame!
In the op-ed of the Los Angeles Daily Journal, January 29, 2008, R. Konrad Moore suggests that public defenders who choose to strike betray the constitutional rights and liberty of their clients.
Shame on you for thinking that public defenders owe more to society than other lawyers, public officials or average citizen. Mr. Moore seems to believe that becoming a government employee, a public defender, means that one's human and normal rights are checked at the door.
Yes, becoming a lawyer does mean that there are certain rights and responsibilities one takes on that are not required by others. However, I do not hear Mr. Moore suggesting that all lawyers owe a pro bono obligation to society, or that government officials are not entitled to seek increased compensation or that Corporate America has a social responsibility to its customers and a responsibility to its shareholders by keeping CEO compensation within reasonable boundaries or, for that matter, that the State Bar owes a duty to the public to require that all attorneys have malpractice insurance. And, I don't hear that the State Bar owes a duty of any kind to its members, let alone obtaining a program of low cost malpractice insurance so that attorneys could then better protect the public they serve. That would be spreading responsibilities too far. He's concerned only about limiting the compensation of public defenders.
Why then showed public defenders not be entitled to come together as any other group of employees in order to seek better conditions of work. Does Mr. Moore mean that the government can give any compensation, no matter how low, to public defenders and that the public defenders should be grateful to receive it? What about district attorneys? If they were to organize, as some have, does Mr. Moore likewise believe that there is a violation of the constitutional rights of citizens?
His argument is disingenuous and should be placed in its proper context. More to the point, why does Mr. Moore not argue that it is the responsibility of government and its citizens to make sure that defendants receive the best possible representation by compensating public defenders fairly and in accordance with compensation generally received in private law firms?
Retirement: Is this the new four letter word?
According to a recent study by Altman Weil, Inc., the closer to retirement a lawyer gets, the more likely he/she is to oppose mandatory retirement ages. Interviews with a number of aging lawyers suggests that they don’t want to retire, but they do want to work only part-time and they no longer (if they ever did) want to be responsible for rainmaking.
In a recent case involving a firm subsequently merged into Thelen Reid, the law firm argued that the lawyer breached his employment agreement by failing to produce sufficient billable hours. The lawyer argued that he merely had to be available to do work, that he did not have rainmaking responsibilities. In this case, the issues revolved around an employment contract and its interpretation, and the arbitrator found that the lawyer did seek billable work and was available. There was no requirement in the contract that he reach the firm’s billables benchmark; that was outside the contract.
In another case, involving Sidley Austin, the Chicago-based law firm, the EEOC claimed that the firm fired a group of lawyers on the basis of age. The firm alleged that the “de-equitization” of partners was based on decreased productivity. The parties settled and the law firm reportedly paid more than $27 million dollars to the approximately 40 dismissed lawyers. The EEOC alleged that Sidley acted like an employer, that the lawyers in the firm were partners in name only, that they were treated and acted as employees without any real involvement in the management of the law firm, and that their “dismissal” was subjective. The inability to point to benchmarks required by all lawyers of the firm such as hours billed, origination billings, participation in the governance of the firm, etc., coupled with common characteristics of the dismissed group that are contrary to law (such as all the dismissed lawyers being over the age of 40), can give rise to claims of wrongful termination.
Despite the increasing frequency of such claims, and the increasing victories on the part of the lawyers making the claims, I find it absolutely fascinating that firms are not addressing this issue with greater urgency. In fact, the firms I’ve discussed this with are still adamant that their mandatory retirement age will not change. They are still of the mind to de-equitize partners on reaching a given age, usually between 62 and 70.
As law firms take on more characteristics of their corporate clients, they will have to adhere to the same business principles required of their clients and they will have to comply with all the laws applicable to their clients.
In a conversation today with a new managing partner, he suggested that one of his major challenges in his term of office will be the succession issue. When a successful lateral partner departs, he/she normally takes several associates and a big book of business. His challenge will be to find ways to encourage retiring partners to leave gracefully, transitioning their client relationships to other lawyers in the firm, thereby enabling the firm to retain the business as the retiring lawyer steps back.
Perhaps the modern law firm will create an alumni club of retired partners similar to the formal alumni of associates created by some larger firms. Some law firms are finding these groups are good networking and referral sources for future business. With the aging of our population, new standards will emerge. Let’s hope that lawyers transition gracefully into their “second season.”
