For the 2013 academic year, law school admissions were headed for a 30-year low, a decline driven by student worries about rising tuition, debt load and unemployment after graduation. Potential law students increasingly understand that today it is a fool’s gamble to spend many thousands of dollars in the hope of getting a well-paying job at the end of three years, and as they pursue other careers the legal profession will shrink.
Demographics present another way to reduce the supply of lawyers. There are more than 1.2 million lawyers in the United States, at least half of them sole practitioners and some 400,000 poised to retire by the year 2020. To suggest that this latter group should be treated differently from any other group in the organized bar would create allegations of ageism and prohibited discrimination. However, a metric that is applicable to all lawyers, such as “competence in professional skills,” is safer ground. Of course, if this metric also achieves the basic goal of reducing the number of lawyers, by implying that older lawyers are less competent to serve clients, so much the better.
The problem with this metric is that it is never applied uniformly. If we look at new lawyers, those who have been admitted to practice for three years or less, there will undoubtedly be many who are not “competent,” despite the fact that they have passed the bar exam. What is the competence metric for “older” lawyers? Do they have to pass another bar exam? If yes why should age be the factor that determines whether they have to take a new examination? If not, what might it be? There is no examination at anywhere in the time spectrum of a lawyer’s career that requires such an examination.
It is the rare lawyer who has not thought at some point, “My opponent is not very good.” Often this is another way of saying, “My opponent doesn’t seem very competent.” This is impressionistic only, but to be valid it must be applied throughout the entire career life cycle.
It is not accurate to automatically assume that older lawyers are more careless, have too many distractions and make too many errors leading to discipline. Young lawyers are closer to the teaching of the rules of professional conduct than are the older lawyers. But, that does not assure that all younger lawyers are competent to offer the advice they're asked for ... and, with MCLE, older lawyers generally keep their skills up. Regardless of lawyers’ ages, the majority of the complaints against the profession relate to careless dealings with clients... Age is not a determining factor in such a scenario.
At the end of the day, the value of our law practice is based on our success and the many people we have touched over the years. This is a significant legacy we will leave on retiring from the practice.
Most lawyers all around the country with whom I've spoken don't understand this and can't comprehend even the possibility that their many years of effort may actually have produced a monetizeable value of some significance. This value can enhance their retirement. It is a challenge to overcome such deep-seeded beliefs among many Baby-Boomers as they get ready to move on to their second season. This is the difference between personal goodwill and organizational goodwill. There is more of the latter than most people believe.
My conversations have convinced me that the most feared word in the English language is “retirement.” That may contribute to the refusal to consider an alternative to closing the office; we will maintain our office and work until our last breath. It is possible, however, to do both! The sale or merger of your law practice, rather than the closing of the office, should be an alternative that is kept open for your consideration.
Jane's comments about holiday cards vs email cards is are worth noting. It is a tough time of year for many with cards and gifts decisions to make ... But, as my mother used to say, "... if you don't remember me364 days of the year, forget me on my birthday!" In other words, the one day a year remembrance doesn't do much, especially for busy people.
If you haven’t already, I suggest reading “Personal Best” by Atul Gawande on newyorker.com. Dr. Gawande examines the need for and nature of coaching for professionals of all walks of life.
Musicians and singers, he points out, think of their coaches as “outside eyes and ears”. They hear and see things that even the best performers can’t detect about their own performances. In endurance coaching, anyone can design hard workouts. Anyone can make you tired and push you into the darkness. In coaching lawyers, anyone can tell you what to do even if it is beyond your comfort zone.
But a good coach will help you understand where you want to go, devise a plan that is within your comfort zone and that will get you there, and then be your mentor and accountability partner to assure your success.
Who is your coach? Is it your colleague, your spouse or significant other or a professional whose career is devoted to helping others like you to succeed? Whomever it may be, we all succeed sooner and stay on top longer when we have a coach, our "outside eyes and ears."
Have you ever had problems traveling, making connections or finding that weather is a great excuse to be surly to those you serve? If you've ever experienced any of these, or a myriad of other issues facing us when we travel, check out my latest commentary on having been stranded in Manhattan, trying to get home from JFK. While bad weather is a legitimate catalyst for scrambling (as in Chicago), just remember that you're in the business and know these things happen. Be prepared with a good attitude - your customers need all the help and pleasantness they can get.
Thus, as lawyers, you know that your clients will always be in stress. Make sure that you and your staff are pleasant. It will make the relationship go more smoothly ... oh, and yes, they will be far more willing to pay your bills timely! Heed this advice only if you understand that you are in The Business of Law®.
When you read the news, or when you thumb through a catalog, you are exposed to new ideas and suggestions you might not have thought about before. When you shop or read the news on the internet, you are focused on the one item or idea you started with. That is limiting.
Thus, there is a place for both. For example, catalogs create need by suggesting items you weren’t thinking about; the Internet is better at fulfilling the need once it’s identified by allowing you to shop for lower prices and faster delivery.
Don't throw away the baby with the bath water. Newspapers are important. The problem is that if too many people flee the use of the newspaper, they may not be able to pay their investigative reporters. Then, we'll rely on citizen-reporters, a scary thought.
Likewise, use of the internet (social media, etc.) by law firms is only one tool in the marketing arsenal. It may reach more people; it may be less expensive (though I question this); and it may be faster to create. But, traditional methods of creating relationships and reaching your target market should not be abandoned.
The article by David Streitfeld is a good piece. He's the housing reporter for the NY Times and spends most of his time in California. In response to an earlier piece by him on the subject, where he failed to mention California, I contacted him. He knew nothing about the law in California (since 2009) or the State Bar's modification of its Rules of Professional Conduct that made it a crime to take money from clients in advance of completion of the loan modification, not even for deposit into a client's trust account.
I told him about the new law and pointed him to several of my blog posts on this topic where he could learn more.
I'm glad that he's written about it now, in more detail and highlighted California's experience.
As a side note, an officer of Bank of America claims that of the Bank's loan modifications, more than 70% go back into default within 2 years ... a scary statistic. Should the Bank be responsible for maintaining a family in a home which it can't afford, even with a modified loan structure? I'm not sure ... Or, should the government offer some help. They have bailed out the big banks on Wall Street, how about some help for the people on Main Street? I'm not sure what is the right answer. It's clear, however, that if no one helps, we'll have many more foreclosures in 2011 and 2012. Our political spectrum is so polarized today that all we seem to hear is noise, white noise, and more noise.
BTW, it was a politician seeking headlines that started the ball rolling. And, it was the absence of lawyers in the legislature (only about 23% today) that permitted it. And, a non-lawyer governor who signed it. And, it seems, non-profit organizations who lobbied for it (a little competition there, would you say?). Who gets screwed? The people.
Too bad the State Bar president failed to support sole and small firm lawyers who worked in this area. Rather, he seemed hell bent on chastising the whole because of a few bad apples. Rather, the Bar and the District Attorney could have used the many rules (moral turpitude and others) and laws (Penal Code against theft) already on the books to protect the people scammed by lawyers without removing entirely the good lawyers from this process. Provisions on the books already protect against any lawyer taking money from a client under false pretenses (theft) and the rules of professional conduct protects against moral turpitude and for not performing work that was promised. The State Bar didn't have to follow the urging of the bar president to support this effort.
The state bar president, at the very best, gives no more than lip service to solos ... See my open letter.
From Michael Bryant of CTS Consulting in Baltimore comes these gems of phrases to ditch now:
It isn’t fair.
Translated: I didn’t get my way.
I’m too busy.
You’re not “too” busy; you’re as busy as you are. “Too busy” means I over planned, or over promised.
This famous quote from Shakespeare is used by politicians seeking to divert attention from any issue of controversy. Of course, what they fail to quote is the balance of that sentence, “... if we want to control the society.”
Ronald Reagan, while governor of California, used this tactic quite effectively. And, of course, he failed to finish the comment with the fact that many of the lawsuits brought against him in his capacity as governor of the state were successful. Lawyers, both for fee and for free (pro bono), were seeking to redress social wrongs.
Fast forward to 2010. Politicians, mortgage holders and bankers are once again lambasting lawyers. This time, the targets are those lawyers who have the temerity to question foreclosure procedures. In particular, lawyers are finding that mortgage/bank representatives are signing declarations (under penalty of perjury) that they have reviewed the file and know the contents of the loan default to be true. This unexpected discovery of “robo-signers” by an attorney in Florida has thrown the entire foreclosure business (23 states require such signing) into turmoil.
The net result for the plaintiffs is that they get additional time to remain in their homes and, in some cases, the opportunity to renegotiate the terms of their loan or to remove the foreclosure from a credit report in order to refinance the house and start over.
One lawyer, representing the mortgage lending industry, said that people don’t have the right to a “fee house.” This is true. But what is the difference between this and a business filing an answer and using other dilatory tactics in order to delay ultimate payment of a legitimate debt? Using the legal system for personal advantage is common. And, in the case of the housing industry, where bankruptcy proceedings have no authority to discharge the debt, let alone even modify the payment schedule to permit the debtor to retain the house while making “affordable” payments, there may be no other alternative.
Again, the legal profession has come to the aid of those in need. And, what is also common is for monied-interests to seek to limit the effectiveness of the legal profession to help the disadvantaged amongst us.
As a follow up to the success of the Florida lawyer who devised this new tactic for his clients, some states attorneys general are seeking new laws to void “technical problems” as a defense where the foreclosure is “substantially appropriate.” In California, for example, both a new penal code and rule of professional conduct, prevent a lawyer from taking a retainer in a mortgage refinance case. In other words, a lawyer cannot take a retainer from a client if the gravamen of the service will be to negotiate with a lender for the refinance of the house mortgage. Even when the retainer will be placed into the client’s trust account and not removed until the service is delivered. How will a lawyer be able to represent such a person?
A person with admitted financial problems, whose problems will not go away merely by refinancing. This lawyer will then be working pro bono in most cases. California, in effect, has prevented lawyers from helping an endangered class of troubled Americans ... the home owner suffering from the current woes of our economy. The claim was that there were some lawyers who “stole” from this unsophisticated group of people and took advantage of their fears. However, theft is already a crime and moral turpitude violates the rules of professional conduct and subjects a lawyer to disbarment. This new law/rule, adopted “to protect the public,” actually hurts the very people it’s intended to protect by denying them access to counsel.
The battle goes on ... between those lawyers seeking to help needy clients and those monied-interests seeking to control the society.
A recent article in WSJ suggests that "Women in Finance Shrink." It's clear that women up for reelection may not all win their elections, thus reducing the number of women in Congress. And law firms have difficulty retaining women as they become more senior...and, proportionately, women are not advancing in the ranks of management as high or as quickly.
Are we losing gains made in earlier years? Were those gains only superficial? Or have we arrived at the point where gender is irrelevant?
Join us on LawBiz Forum in the discussion about legal education and the current reexamination of its efficacy for teaching management skills for success. Will the law school tumble into the morass of being a trade school (heaven forbib!) by including such skills in its curriculum? Let us know what you think ...
If you're a golf fan, you've just witnessed an outstanding competition. Whether you support Tiger Woods or are turned off by his personal challenges, you have to admit that he causes the sport of golf to be viewed by many more people than when he's not playing.
I just read an article about a study that suggests that other golfers do not play to their potential when Tiger plays because they think he will win the tournament. Rather than the competition bringing out the best of everyone, others seem to do worse, giving up before they begin.
And, the same is true in law firms ... when associates "give up," believing the "star associate" will get the prime assignment. This is counter-intuitive to me. What has been your experience?
Richard Susskind has written a book suggesting that lawyers may become obsolete unless we make some dramatic changes.
I see nothing unusual about his conclusion … that legal work will be unbundled and that the work that is more mundane and routine will be systematized and perhaps even automated. Technology advances provide us with opportunities that didn’t exist before. We can, today, create better product for less money. Technology is only one aspect. Globalization is another. And this isn’t just for the large law firms. A client of mine, in Texas, opened an office in India for the specific purpose of document review and document production – it’s done for less money more quickly … And he can get a faster turnaround because of the time difference.
Law is slow coming to this process. My background is in manufacturing. I’ve owned and operated several companies. In order to retain prices, not to increase prices, we would do everything we could to automate. When automation, reducing the amount of labor costs, would go no further, we reduced the size of the container. For example, we would go from 32 oz to a 22 oz jar or a 10 gal. container to a 5 gal. container.
When we have time of challenge as we do now or changes in our economy and culture, we have the opportunity to innovate for improvements in products and services. We have the opportunity to create new demand. I see this beginning to happen in our parts of our economy. It will have to happen in the legal profession, nay the legal business (The Business of Law®), if we are to continue to serve our public as we know.
In an article I wrote for February 2009 issue of The Bottom Line, the publication for the Law Practice Management & Technology Section of the State Bar of California, I discussed the continuing education requirements for lawyers as contrasted with others such as plumbers, et al. The article was a follow-up to piece to comments I have made here on June 12, 2006 (MCLE whining) and November 22, 2005 (Plumbers get more education than lawyers), all of which focus on the complaints lawyers have made about their education requirements to retain their licenses.
Bruce Crist, a C.P.A. in Northern California, read the article and wrote me a note, suggesting that I was in error about the requirements of other professions and trades. So, I went to check further. He was right ... and wrong. Here’s the skinny:
• Electrical contractors must get 7 hours per year in many states with 10 hours required in Ohio
• CPAs must get 40 hours per year in many states
• Physicians must get 25 hours in California and many other states, with 50 hours required in MA, MI and others
Oh, and lest I forget, plumbers must get 12 hours per year in MA (just a tad under the 12.5 hours required for attorneys in California). While not so many hours are required of plumbers as compared to lawyers, plumbers tend not to hold the fate of one’s very life or economic well-being in their hands, either, not even Joe, the Plumber. Lawyers do.
A primary point of my article, as well as previous blog posts, is that education is essential for both lawyers AND their staff. NAM recommends that its manufacturing members set aside 3% of their revenue for education. Let's take the average billable hours requirement as our metric, rather than dollars, just for the purpose of this discussion. Large law firm associates are expected to bill 1800 hours per year. Three percent of that would be 54 hours per year in education for lawyers ... Just think, how much better skilled would your staff and your lawyers and you be if you actually devoted that much time to formal continuing education ... education in the technical aspects of your profession (tax, labor, etc.) as well as in the management of your practice (client relations, computer skills, organizational behavior, etc.). Wow. We might even become an effective business and serve our clients the way they want to be served! Too bad Bar associations don't see this connection!
A word to the wiser among us: Those who do value the education and do spend the time to enhance their skills will leapfrog over the rest, especially in these challenging times. They will survive. They will thrive!
Failure can be experienced by small firms as well as large firms. In the case of Dreier, the real shame is not that Dreier failed - he committed fraud and there is nothing new about fraudulent conduct causing failure ... and even jail. The sad part of this tale is what happens to other lawyers working in the Dreier firm.
What is to be learned here involves the impact on other lawyers who worked in the firm. Assume for the moment that every lawyer new to Dreier did his/her due diligence to learn about Dreier's practice, his administrative polices (including malpractice coverage), and other factors of the practice in order to decide whether the lawyer wanted to join Dreier as an associate.
Now, these lawyers focus on the practice, leaving all else to Dreier. There was no follow up. For example, the associates didn't know that Dreier let his malpractice insurance coverage lapse ... which now puts all these other lawyers at risk when clients sue the "firm" and its members who worked on their matters.
Bottom line moral: What are you, the associate, doing to make sure your firm's principal is running the practice properly ... sufficiently well that your professional and personal liability will be protected? The fact that you don't "own" the practice does not mean you have the luxury of ignoring the business principles needed to protect yourself and grow your own career.
The economic crises has finally hit home. People I know are talking about October and November as being months when the world stopped! ... and they couldn't get off. No one seems to know what is going to happen next.
I met yesterday with managing partners of several major law firms in my Managing Partners Roundtable.
They all agreed, they have never seen changes as we're currently experiencing. The top most law firms are freezing compensation increases for next year; they are moving away from lock-step bonus systems and even reducing bonuses for this year; and they are hiring smaller "classes."
The previous wisdom was that the economic impact for law firms would not be felt until the second half of 2009. But, these leading law firms are saying the impact is being felt now. This year's revenue will be down by 15% to 25%. There is no standard except this one: Everyone is experiencing change; most are seeing economic results that are less than last year; and everyone is unsure about next year's patterns.
And smaller law firms, and sole practitioners, though more nimble and better able to reduce expenses, are equally unsure about what to do to protect themselves without "cutting the meat" from their law firm and jeopardizing their future recovery.
In this crazy environment, panic attacks are easy to come by. Richard M. Weber has some cogent counsel for these hard times:
“While I don’t give investment advice, I’ll share with you my own reaction to the current crisis. After my “Sell, I tell you, Sell” panic subsides, I look at all my resources for retirement and begin to settle down. My house is nowhere near “paid off,” but the monthly mortgage payment is within my budget and its intrinsic value is still more than the mortgage principal. I have sufficient life, health, and disability insurance to protect our family from the economic damage those kinds of disasters can create. I have a year’s living expenses in cash (and yes, I’ve checked to make sure that FDIC insurance covers those accounts). More important than all of these resources, however, I realize that I have marketable skills, a number of clients who value those skills and actually pay me, and no particular desire to retire next week to “go fishing.” So my investment account statements remain unopened in a desk drawer, I only glance at the bad news at the top of the Business Section of my daily newspaper, and I get back to the task at hand: taking pride in my work and applying myself to it as diligently as I know how.”
Panic attacks come from the "fear of fear." To counteract this fear, look at observable behavior. Look at the facts. Check your reality. What is happening now; review your financial resources. Project financial requirements for the next twelve months. Look at your health. As they say in the airline business, put your oxygen mask on first, before seeking to help your neighbor. You can work through anything so long as you retain good health. Talk to members of your support system, family and others who have the expertise to provide advice to help you.
And, take a deep breath. Things could be worse, we could be living in a war zone. History tells us that life consists of cycles ... though we are in a nasty one now, things will get better.
Unlike Leo Durocher's famous statement that "nice guys finish last," she believes that "nice girls finish first." After all, she asserts, people like to buy from people they like ... And we generally don't like people who are not nice to us. Kaplan says it's easier to be mean and gruff. It takes a special effort to be nice. Paraphrasing a saying my mother used so often, "You get more with honey than with vinegar."
This seems so obvious to me, but obviously is something that our profession finds so difficult to understand. Many Bars have adopted "Lawyer Civility Codes." Why should this even be needed? Quoting an infamous source, "Why can't we all just get along?" Why is it that we need be rude and obnoxious to our adversaries? Do we truly believe that such conduct will win us points or cause our client's position to be moved forward? On the contrary, such behavior often merely entrenches the opposition further. Being nice, courteous and kind requires neither that we be a doormat nor that we cave in to our adversary's position ... we can stand forthright to advocate our client's interest and position, yet still be civil and nice.
Again paraphrasing, "Try it, you might like it." Certainly, there will be reduced stress all around.
P.S. This works with colleagues and staff as well.
"Who’s licensed to practice law in Illinois? None of your business.
That’s what the state Attorney Registration and Disciplinary Commission has told a Seattle company that wants to post the names of lawyers on the Internet and assign grades based on performance, awards, experience and disciplinary records.
Avvo (listen to our podcast interview with Mark Britton, CEO and Founder of Avvo, Inc.) has posted information online about lawyers in more than a dozen states. The company, which started its Web site a year ago, says it has received lists of lawyers from 30 states. Illinois, however, has balked.
How about going to a Vintage Airstream Rally with no Airstream? That’s just what we did! Our vintage (1969) 27' Airstream Overlander was broad-sided on December 30th last year and then totaled by the insurance company earlier this year. Thus, we are bereft. I use that word advisedly. My wife really is bereft at not having our SteSpot at ready!
But, despite that, we went to Albuquerque this week-end to spend time with folks that we’ve gotten to know and like ... and view others’ vintage rigs. Our “new” vintage 1968 28' Airstream Ambassador is currently under construction and we thought that perhaps we'll see things we just must have in the new trailer.
How can I use the two words, vintage and new, in the same context? Well, the skin of the trailer is 1968, but the inside will be all new. We have stripped it to the ground, literally, and started over with brand new equipment. So, my wife’s passion for old will appear to the world as an old skin buffed to a bright sheen and my enjoyment of the new will be inside, which is where I spend my time.
In the meantime, we’ve met more folks and, as my wife said, “networked” with the Airstream world. Or in the context of lawyers’ recent awareness, expanded our “social network.”
Whether you social network in LinkedIn, MyFacebook, or other social networks, or meet people at places you frequent or in activities you love to do, connecting with people is the way to build your law practice. People seek people they like; they do business with people they like; they like to do business with people who have similar interests. What’s yours? What are you doing to extend the reach of your passions and the people who will know to refer business to you when they have challenges you can address?
Railroads, in the early 20th century, considered themselves to be in the railroad industry and therefore ignored both the new car industry and the airplane industry. Here, in the reverse, they mis-calculated. They were in the transportation industry, not the railroad industry ... and the other forms of transportation “ate their lunch.”
In the case of media stars, what is their core competency? Does Oprah know how to evaluate politicians more than the average American voter? Does she risk her high status by moving into the political arena? What would happen to Lance Armstrong, the renowned winner of the Tour de France, and his efforts on behalf of cancer victims, if he were to take sides in politics? Would he have the same moral authority?
What happens to lawyers when they seek to be all things to all people? Do we need to focus on limited areas of practice, to enhance our competencies and our credibility with clients? There is tremendous learning required to be competent in any given area of practice. Can one lawyer maintain his/her competence in many areas at the same time? Can one truly be a general practitioner in today’s world, or must a group of lawyers gather together in one firm or one network to offer multiple skills to clients?
Still, the question I asked earlier in this series has yet to be answered by the Board of Governors! Why is it that shareholders of law professional corporations do not have to disclose that they do not have malpractice insurance? Or, at least meaningful malpractice insurance? All they need to do is sign a piece of paper saying that they will be responsible for the first $50,000 of a malpractice judgment. There is no financial statement required, no verification of financial ability and no insurance policy required under the current rules; nor is there any such requirement under the new proposed rule!
And why is this fair in the minds of the Governors supporting this proposal?
Because of his comments, I began to think about this subject in a way different than I have ever done in the past. I want to share some of my revelations as, perhaps, a catalyst for your further consideration on what clearly is a very important issue.
First, is the billable hour truly a trap? Or is the desire for economic rewards in a society whose cost of living continues to increase the real trap? Lawyers, no different from any other segment of our economy, want to earn a “reasonable” living. In fact, if asked, most lawyers would admit they would like to earn as much as possible. Just look at the many lawyers both in large firms and boutique firms who accept million (multi-million?) dollar annual compensation packages. And consider the many lateral moves by lawyers made primarily for their personal economic betterment.
Second, the assertion that our ethics rules are promulgated to resolve clients’ problems as cheaply and efficiently as possible just is not true. Our rules maintain a certain amount of decorum and boundaries to assure that we fight for our clients within the same sandbox and don’t sneak in an 800 pound gorilla. Nothing more, nothing less. For example, there is no punishment to the lawyer who refuses to discuss settlement ... until the time of trial. In the meantime, both sides have rolled up many thousands of dollars in wasted legal fees ... despite both sides being able to closely predict the outcome of the matter in question. There is no requirement that legal work be outsourced, either to India or to another law firm down the street with less overhead and lower fee structure.
Third, lawyers are not the hardest working folks in our economy. Yes, some are. But, I came from industry. I worked in a family business. I owned and operated several manufacturing ventures. I knew long hours before I ever practiced law. Talk to the CEO of companies and they will regale you with stories of long hours and hard work. Lawyers do not have a monopoly on hard work.
The billable hour is only a method of accounting; it is not the reason we work long hours. We work long hours because we love what we do; we love helping people; and we want to earn more money to better take care of our loved ones. Billable hours merely provide a method of accountability for those clients who may not see the value of what we do. If clients, in fact, fail to understand our value, we have failed to properly communicate with them and we have failed to understand the value to the client of what we do.
If we use a different method of accounting, such as “value billing” or fixed fees or any of a number of other methods, and we fail to have the “value conversation” with our client, they will continue to fail to understand what we do, why we do it, and how we helped them. And, they will then procrastinate or refuse altogether to pay our bills. And, we will continue to work long hours ... if that is our proclivity ... because we want to do more and earn more.
Lawyers wanting to do better for themselves drives much of what they do. President Bleich said the Bar helps lawyers only to better serve the public. So, too, I believe that lawyers will change their billing approach only when they understand how it will benefit them. Protecting the public will not be the motivator, though it may be the sales pitch used to attract more lawyers to a different method of billing. Remember the airline mantra, put your oxygen mask on first and then attend to your children.
Finally, President Bleich suggests that we must act as a profession. Years ago, in focus studies done by the State Bar of California, I learned that people view the profession one lawyer at a time, usually their own rather than the opposing lawyer. So, I ask President Bleich if he is billing his clients still based on hours, or is he billing his clients based on value? Has he followed the example of Patrick Lamb, an attorney in Chicago, who left a well-respected firm in order to open another law firm whose billing goals are based on value? This is one lawyer at a time.
President Bleich raises an important issue. I respectfully disagree, however, with the framing of the issue. I don’t think it’s a matter of the billing method used, but rather of failing to have the discussion about the value of the matter to the client ... and the consequences that would follow from an open and candid conversation with the client about value.
But, President Bleich counters this philosophy, however, in his very next column (April 2008) when he says “The work of the State Bar ultimately is to protect the public and to ensure that the people of California have access to the legal help they need. Although the bar (sic) provides benefits and other services to lawyers, it does this not as an end in itself, but instead to help lawyers better serve the public ...”
It appears quite clear from his comments that he believes the Bar has only one goal, to serve the public. What happened to the Board’s pronouncements two years ago when then President Jim Heiting said the Bar has two, co-equal goals, one to protect the public and the other to protect its members, lawyers, who need help in many different areas in order to be more effective and efficient in delivering legal services to the public? Has one of these two symbiotic, intertwined priorities now been abandoned? Seems to be ... especially if we believe that helping lawyers is only a means to an end, not a co-equal end!
Again, I ask why this group of lawyers have been singled out? California Business & Professions Code 6171 (b) and Law Corporation Rules created thereunder allow professional corporations to escape this requirement!!!! Under Rule IV of the California Rules, shareholders of a professional corporation can sign a simple statement that they will be responsible for paying malpractice judgments. Do this, and you don’t need malpractice insurance! The last time I checked, a sole practitioner is personally liable for any such judgments anyway ... So why do we need to have the current proposal adopted by the Board of Governors? Why is a group of 30,000 sole and small firm practitioners being harassed?
There continues to be no evidence that mandatory disclosure of whether a lawyer has malpractice coverage is necessary to “serve the public.” There is only anecdotal suggestions. But this commentary appears on both sides of the issue as is evident in Letters to the Editor of the California Bar Journal. Continuing to pursue this action infers that sole practitioners without malpractice insurance are “bad” people. Yet, this group of lawyers is not subject to more malpractice claims than others. They are good lawyers, just economically challenged by the cost of malpractice insurance.
There has never been a suggestion that the Board is controlled by the insurance industry. But, it is true that the Bar receives many revenue dollars from the industry. And, contrary to President Bleich’s inference, the current Bar insurance programs do not claim to provide lower cost insurance to California lawyers. In fact, to this date, when asked, those on the insurance committee will admit that there are less expensive programs available elsewhere.
President Bleich says the current proposal doesn’t require the purchase of insurance ... does this serve the public? Does not requiring the insurance, but nevertheless attacking lawyers' economic interests, indicate a sensitivity by the Board for sole practitioners? I think not. What would serve both the interests of the public and the lawyers is to have affordable insurance available. Until then, there should be no meddling with the current status quo.
Lawyers will be hurt; that is, those estimated 30,000 lawyers (without reference to those in professional corporations) who currently do not have malpractice insurance will be hurt. And if they are hurt, their clients, typically the people who cannot afford the large law firms, will be hurt. Here’s the rub: How does this provide greater access to the legal help the public needs?