Most people will agree that there are too many lawyers, an oversupply. (Parenthetically, I disagree; it seems to me that there is a dislocation between the supply and the demand for legal services, a situation that the organized bar has never been able to reconcile with successfully.) But I digress.
Assuming, for the moment, that there is an oversupply of lawyers, why should we care? Would that not mean the fees for legal services would come down? Would it not be best to let the marketplace handle supply and demand?
But, If the Bar wants to reign in the supply, how could they? Of course, get rid of some of the lawyers. (Making admission to the organized bar is another way, longer term. Economics seem to be handling this quite nicely, thank you. Law school admissions are down by 10 to 15%. Applications hit a 30 year low. Potential law students understand that spending many thousands of dollars to take the gamble that they will not be able to get a well-paying job at the end of three years is a fool’s gamble.)
Economics, once again, helps us answer the question of how to reduce the supply. There are more than 1 million lawyers in the United States. Of this group, it has been estimated that at least one half of this group are sole practitioners. Another statistic suggests that at least 400,000 lawyers will retire by the year 2020.
If we look at this latter group, and suggest that we treat it any differently than any other group in the organized bar, we would be accused of ageism, and prohibited discrimination. However, if we come up with a metric that is applicable to all lawyers, such as “competence,” then we are safe. Of course, if this metric also achieves our basic goal of reducing the number of lawyers available to serve clients, so much the better.
But, this metric is never applied uniformly. If we look at new lawyers, those who have been admitted to practice for three years or less, I am sure we will find many who are not “competent,” despite the fact that they have passed the bar exam. How many times have "mature" lawyers said, mostly to themselves, that they were happy that they were not the client "back then," that they didn't know enough to be really competent to handle the matter they did .... that they learned "on the job."
What is the 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? Nowhere in the time spectrum of a lawyer’s career is there a requirement for such an examination.
How many times have you, as an adversary, said to yourself my opponent is not very good? In fact, how many times have you said my opponent is not “competent?” Until the appropriate metric can be accepted and applied throughout the entire career life cycle, it seems to this writer that the real focus should be on meeting the needs of our clients who are not served or who are under-served, making sure that all lawyers, young and old alike, are “competent” and move away from even the appearance of ageism.
The following note is prompted by the comments of Susan Cartier Liebel of Solo Practice University® and her post about Kimberly, a young mother who just gave birth to her third child and was a 3L law student at Stetson. She became ill but failed to go to a doctor to address her own health. She was busy with her family and "stuff."
This is for all of you out there whether lawyer or law student, mother or father, who puts
themselves last. You put off going to the doctor for that chronic cough while you rush your child to the pediatrician for a hang nail. You eat your cold dinner out of a jar standing up and talking on the phone while you make sure your child’s meal is hot and she’s seated lest she choke on her food. You do so because ‘you can handle it’. Well, here’s the truth. You can’t.
You can’t care for your kids or your spouse if you break down physically. You can’t care for your clients if you don’t take time to reinvigorate and refresh. Remember the airline admonition: Put your air mask on first and then help your child and others around you. None of us are superhuman or immortal. There is nothing more important than your health, no final, no brief, no exam, no trial, no event. Remember this the next time you get no sleep or ignore that persistent cough or inexplicable pain in your side because ‘you don’t have time’ to slow down. Remember you can break down, too. No machine and certainly no human can work without stop and without repair from time to time.
Most of us can notice when something “isn’t right” with our bodies, and we often are quick to jump to a conclusion about the cause. Yet what we perceive to be the problem, and the reality behind it, may be much different.
A urologist recently shared an example with me, saying that many people come to him to “fix the problem” of an over-active bladder at night. They typically attribute it to a “plumbing” issue that a pill or even surgery can cure. Yet this doctor suggested that, as people age, they sleep less and they’re likely to be awakened more easily by sounds that didn’t disturb them in earlier years – a dog barking, the house creaking. Once they’re awake, they decide to honor the bladder urge so they can go back to sleep. The perception is that there is a physical medical problem. The real cause is the natural aging process and the best “cure” is to accept it.
Transfer this lesson to a law practice. Most lawyers are quick to perceive a problem when there is less money coming in the door. They immediately jump to a conclusion about “the cure” – do more marketing, or raise rates. The reality is that declining revenue typically began long before as a problem with receivables. Generating new work to cover declining revenue simply isn’t the answer. The strategy is to make sure clients know they must pay their bills within 30 days. And the way to do that is specify clear collection terms in the engagement agreement. Lawyers perceive every client as valuable and hate to cut them loose; the reality is that continuing to do work for overdue clients who don’t pay shows those clients are not worth keeping.
A new study by George Washington Law School showed that realization rates (the amount of money billed that is collected) average 83.6 percent for all law firms, a figure that is a historic low. If you perceive your revenue is down, and the reality is that you only collect 80 cents on the dollar, you’re like the urologist’s patients – you won’t get many good nights of sleep.
Virtual veterinarian faces a legal test in Texas. He moved his practice online and talked to distressed pet owners by email and telephone. He charged a flat fee, generally, and recommended treatment options. The Texas State Board of Veterinary Medical Examiners suspended his license for violating the state law that prevents veterinarians from setting up a medical relationship solely by telephone or electronic means.
The AVMA claims that it is protecting the public's interest. The vet claims that the regulation is intended to protect the brick-and-mortar veterinarian practices.
Does this sound familiar? Every Bar regulation that I've ever reviewed (or testified against) has been sustained on the basis of protecting the public. Where are the interests of the membership, the very professionals who pay dues to keep staff employed? These interests seem to be relegated to the back of the bus, if not ignored completely. In the legal community, this "ship" has sailed. I don't think anyone would claim that a "virtual" law practice is illegal. It will be interesting to see how the Texas court rules in this matter.
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.
Ed speaks about positive and negative changes that affect the way lawyers practice law.
It's no secret - lawyers butt heads. But, when it happens, do you keep your clients' best interests in mind, or do you seek dominance instead?
In today’s Wall Street Journal, staff writer, Jacqueline Palank discusses the Justice Department’s attempt to control fees that bankruptcy lawyers seek. Creditors and employees may, at times, be a bit disgruntled by such fees. So, now, the U.S. Trustee Program appears to be entering the fray.
Before going further, it should be noted that i) any fee sought by an attorney must first be approved by the client going into bankruptcy; ii) the fee cannot be paid before a Bankruptcy Court Judge approves the fee request; iii) the legal fees most often are a pittance compared to the debts of the company and thus have little or no impact on either the creditors or the employees. In fact, the current proposal is limited to companies whose assets and debts exceed $50 million, hardly your "normal" bankruptcy.
The only reason for focusing on the legal fees is that this is a topic that makes good reading in the tabloids, including the WSJ. While the quoted hourly rate received by some attorneys seems high, by comparing this to the compensation received by incompetent CEOs and others in the C-suite offices, it is insignificant. Why don’t the tabloids focus on the cause of the bankruptcy? Why not focus on the compensation of the management team, oftentimes earning historically astronomically higher multiples compared the lowest paid employees of the company? Why not seek redress against the management that is responsible for bringing the company to its knees? Although this focus may be more important for us to understand how our economic system works, it clearly is not sexy enough to sell many papers.
The U.S. Trustee is proposing, according to the writer, several new approaches to control lawyers’ fees, including:
• Though the lawyer applicant must disclose his/her hourly rate now, the Department wants the lawyer to disclose the lowest, highest and average hourly rates the law firm charges in all its matters.
• The Department wants the lawyer applicant to create and disclose to the Court a budget for legal expenses. This budget would, necessarily, disclose to all involved, including the creditors who are adversaries of the bankrupt, the legal strategy to be engaged in by the client.
In the 1960s, the Supreme Court ruled that it was anti-competitive for bar associations to maintain a listing of suggested fees for different types of work. This listing, in particular, helped younger and newer lawyers set their fees at rates that were more in line with more senior lawyers. Not having such a list would compel lawyers to set their own fees, the theory being that lawyers would then be more competitive with one another to the consumers’ benefit. The Trustee by its first proposal ignores this. The existing disclosure already provides information that tends to be anti-competitive. Law firms can see what others are charging and price their services accordingly, causing rates to slowly increase over the years.
Intruding into practice areas, such as general business matters, estate planning, tax work, and other areas of work performed by the firms who also do bankruptcy work has no bearing on the special expertise of large company bankruptcy lawyers. No area of law other than bankruptcy requires such disclosure for court approval. Fees are left to be negotiated between attorney and client. Other than precedent, there is no reason disclosure should be made here either. But, the process should not be extended. “Transparency” is a bogus issue. This is not some backroom conspiracy. All the proceedings are public and must be approved by the Court before attorneys are paid anything.
Budgets are good. I recommend them to my attorney-clients with whom I consult. This is a process, however, between the client and the attorney. By requiring that these budgets, which reveal legal strategy, be made public, the U.S. Trustee is saying that bankrupt companies have no rights. They have no right to advocacy; they have no right to develop a strategy that might affect creditors' claims; and they have no right of privacy. This is clearly contrary to the U.S. Constitution and our entire judicial system. While the bankrupts, and their inept management, may have proceeded down an economically unwise path, they still have rights to seek the best of what is left to them in their economic environment.
Don’t worry about the lawyers hourly rates once the bankruptcy petition is filed. They are regulated first, by the client, and second, by the Court. Who is watching the compensation of the management team before they enter bankruptcy? Why are they not punished with fines, or worse, for malfeasance and negligent management tactics? Why are they allowed to benefit so expansively at the expense of their workers? Why don’t the tabloids focus their sharp light there?
Oh, I forgot, the tabloids need to sell papers, they are part of the industrial complex that both Presidents Washington and Eisenhower warned us about as they left office.
Rules against lawyers sharing fees with non-lawyers might need to be loosened to allow U.S. firms to compete globally. The proposal says that any firm with non-lawyer owners must have “as its sole purpose providing legal services to clients.”
This is the foot in the door.The next thing you'll see is Latham & Watkins, or other billion dollar law firm opening offices in Wal-Mart or Target stores for curbside service. This is not necessarily a bad thing. It will certainly bring the law to the people ... And it will certainly change the perception of the law.
I've always maintained that the rules of professional conduct are controlled by the large firms, AmLaw 100 and 250. When their economic needs change, the rules get changed and the sole and small firm practitioners have to adapt accordingly. In other words, the rules are not made in a vacuum, not made because of their inherent righteousness or goodness. They change and are made to serve the economic interests of the few ... oh, if the public is served, so much the better.
But if you're a solo, watch out ... your interests may not matter. Such has been the case in recent times when solos' interests were not protected, in fact hurt, by changes in the rules .. But, here, to allow the larger firms to complete on a global scale, we see the rules begin to change and allow allied professions to join in the ownership of law firms, not merely as allied professionals independently serving the same client.
Economics control .. as always ... even here in the rules of professional conduct.
Today's law firms are struggling to pay for their 3 most importance expenses: labor, rent, and insurance. This week, Ed offers tips to help you manage your cash flow so that paying the bills doesn't break the bank.
Ed recognizes that raising your legal fees just doesn't "fly". This week, he offers some tips to raise the revenue of your firm without necessarily raising your fees.
More than 23% of the Washington State Bar Association, a mandatory bar, are 60 years or older. Several years ago, the American Bar Association, a voluntary bar, estimated that 400,000 lawyers would retire in the next 10 years. For the ABA, that’s equal to its entire membership. And that's equal to about 40% of all lawyers and a majority of private practitioners.
How will the ABA, in effect, replace itself? Will the WSBA replace these 23% as they leave the practice? Law school admissions are down by more than 10%. Will our recent economic turmoil be played out in the supply and demand of legal services? This is the 50,000 foot, or macro, perspective.
At the ground level, lawyers in the Baby Boomer generation will need to look at their “second season.” What plans do they have for their future? Or, as I ask myself each day, “What do I want to be when I grow up?” What is it that “turns me on?” What do I enjoy doing? How is it that I want to make a contribution?
One-third of the 23% in Washington have said, their “exit strategy” from the practice of law is to “die at their desk.” In cowboy literature, it’s the equivalent of “dying in one’s boots.” In other words, doing what they're doing is what they love doing and that is how they want to be remembered, not as a faded shadow of themselves in retirement. Some might say that it is a shame that that is all they have, their law practice. On the other hand, think of the valuable contribution they're making to the lives of all their clients. Better that than nothing. Better that than feeling useless. Better that than aging overnight because your hobby and profession, one and the same, were removed from you.
A friend, and former trial court judge in California, Ellen Peck developed the idea of an “Estate Plan for the law practice.” She says it’s equivalent to malpractice not to plan for how one’s clients will be served in the event of death or disability of the lawyer.
Recently, I was engaged by the family of a deceased lawyer to value the practice and assist in its sale. On inspection, we found that there were inadequate time records; a trust account that was in shambles and needed an audit to reconstruct and reconciled; and inadequate client records to know precisely what had been done and yet needed to be done. This is a perfect example of where an “estate plan” for the law practice would have served everyone’s interests, the family, the clients and the judicial system.
Those lawyers who fail to address this issue put their families and loved ones at risk. Not only will the family have to deal with the emotional trauma of a sudden death, they will also have to deal with the economic turmoil left by the lawyer. If negligence is found after the lawyer’s death, or if the lawyer failed to balance the clients’ trust account (to the penny!), the family could be responsible.
In the case of a famous actor, who was educated as a lawyer, he failed to have an estate plan ... and his family paid the consequences (estate taxes). This left quite a hole in the wealth of the family. Fortunately in this case, there were no other repercussions. But, this result is not necessary.
Do all lawyers need to have a succession plan was one question raised in my recent WSBA presentation. Yes, and no. No, in the sense that some lawyers … those lawyers in firms … will have other lawyers in their immediate environment to take on his/her practice and files. Thus, the lawyers will be protected. The interests of the lawyers will be protected and the heirs will receive their appropriate due. This assumes, of course, that the firm has addressed the issue of how to compensate the lawyer for the value of his practice. That, unfortunately, is not always the case. But at least, the files will be parsed out and the clients protected.
One-third of the lawyers in WSBA … and more in the ABA … are sole practitioners. They must have a plan or force their heirs and loved ones to close their office and transition their clients to other lawyers who can serve their interests.
And Yes in the sense that all lawyers need to decide when to retire … to leave the practice … how they will do that, whether by merely closing the doors (a tragedy in my opinion) or selling the practice … and what they will do in their “second season.”
One WSBA member said we’ve always gone TO somewhere. We went to grade school, went to high school, went to college, went to law school … became a lawyer … and now, what will we do … where will we be going TO? That is a question that all lawyers must address … or “die at their desk.”
Yes, say some.
Only a short time ago, we believed that non-lawyers would be able to participate in the ownership of American law firms. The pressure, so we believed, would come from the British Empire. Australia already allows this and it will soon be permitted in England. But, not the U.S. ... until now.
The District of Columbia permits non-lawyer ownership to the extent of 25% interest in a law firm. And, now, North Carolina has a bill before its Senate that would allow 49% non-lawyer ownership.
One argument is that law firms have expanded and are now very large organizations. In order to grow, they need additional capital ... and capital is best raised in the capital markets, not from individual partners of law firms ... and that means non-lawyer ownership. While large law firms are looking more and more like their corporate clients, it is still a stretch to suggest that law firms should raise outside capital.
Do law firms need to grow? Why can't corporate clients' interests be served well by smaller regional law firms? Why does the corporate law firm have to be as large as the client? We saw unions grow in both size and power in response to corporate and management growth and power. And we now see unions fighting to stay alive. Will that also happen to large law firms of the future? Will technology enable small groups of lawyers to be effective in large corporate representation?
Some argue that the rules of professional conduct wouldn't bind non-lawyers in matters of confidentiality and charging reasonable fees. Further, the very independence of lawyer's judgment might come into question. But, the rules have been bent, if not changed or discarded entirely, when large firms' economic interests were at stake. So, it will be fascinating to see who argues on which side and how this issue develops.
Is it possible that this issue will finally cause the break up of the mandatory (integrated) bar association into State licensing agencies on the one hand and voluntary bar associations on the other hand ... with the latter being the home of sole and small firm practitioners banding together to serve their own economic interests?
(Note: The California State Bar President asked California lawyers to contribute to the State Bar's efforts to provide legal services to those in need. Following is an open letter to the President; his letter is set forth below.
I agree with you completely. There is a tremendous "justice gap." I'm glad the State Bar is seeking to do something about this. I wonder, however, why the State Bar doesn't expend the same energy on helping its own members, lawyers. One study reported by the State Bar several years ago indicated that 50% of lawyers in this state earn less than $100,000. Just think, if the State Bar would actually help its members be more effective with their clients, be more efficient in the delivery of their services and, yes, be more profitable, members of the Bar would then i) be less tempted to invade client trust accounts (a public service issue) and ii) have money to contribute to narrow the "justice gap."
Instead, however, the Bar does things that are perceived by our members to be antithetical to the interests of lawyers … The list is rather long and I won't bore you here with issues on which I've spoken before. But, until you (the organized, mandatory Bar) works with its members … until you (the organized, mandatory Bar) has as at least one of its primary goals the interests of its members, you have a great deal of courage (some might say gall) to ask struggling lawyers to contribute more than they already do.
If our Bar were a voluntary Bar, I suspect less than 50% would join … Then we would not have governance issues imposed on us by the legislature. Of course, we would also be far more interested in the thoughts and concerns of our members than is currently the case.
Clearly, these are my own thoughts, not those of any Section or other body of the State Bar … but these thoughts were clearly expressed to me just this morning by another attorney. I thought you should know, considering you're asking us for money.
And let me take this opportunity to wish you and your family the best of the holiday season. You've taken on a very tough job, some would say a thankless job, and I wish you great courage and strength.
FROM THE PRESIDENT OF THE STATE BAR OF CALIFORNIA
As you renew your State Bar membership, I am writing to make sure you are aware that one of the most vital roles of the State Bar is to distribute funds to support legal aid to low income people. Please join these efforts by supporting the Justice Gap Fund. I am asking you to join me in two ways:
- When you pay your 2011 State Bar dues, please donate $100 or more to support legal aid for low income people. All gifts are tax deductible; and every dollar goes to help those in need. You can even make a gift online at http://calbar.org/justicegapfund. Donors of $1,000 or more will be recognized as “benefactors” of The Justice Gap Fund.
- Share this email with your colleagues and friends and urge them to contribute. Last year, only about 4% of California lawyers contributed. If every member of the Bar were to donate the recommended $100 amount, more than $20 million would be raised for the Justice Gap Fund. Even if every attorney were to donate only $25, there still would be over $5.4 million available to provide services to vulnerable Californians.
The “justice gap” is the gap between the number of people who need legal services and the resources available to provide those services. There simply aren’t enough resources to provide legal services to all of those in need. Every day legal aid intake workers have to turn away people who are struggling with heartbreaking legal issues. The Justice Gap Fund is one way that we, as lawyers, can help to close this “justice gap.”
According to the California Budget Project, in 2009 more than 5.6 million Californians were living below the federal poverty line -- $21,756 for a family of four. (A full-time minimum wage worker makes about $5,000 less than that.) If working a full-time job is not enough to ensure that your family has enough to eat, how do you cope when your sick child is wrongfully refused insurance coverage, when your husband begins to show the strain of unemployment by abusing your children, or when your elderly mother is evicted because her landlord’s house was lost in a foreclosure? When low-income people cannot afford an attorney to help them claim what is right and fair, legal aid is there to help. But the system is so overburdened by the sheer number of people who need help, many of those people now have nowhere to turn.
Closing this gap is one of the most important things that the State Bar does, and we’ve never needed your help more to ensure that access to justice, the very underpinning of our society, is truly available to all.
I met with an attorney today ... he's 61 ... who is terrified that he now is solo and has never had to do anything in his career to attract clients. He was always part of a firm that delivered litigation clients to his doorstep. Now, he doesn't have that ... What can/should he do?
No matter what he does, the ultimate challenge for him will be on retirement, not that far away. Will he have developed any goodwill to be able to add more wealth to his capital for his heirs? The answer is: Maybe, but more likely not. That will be a crime after having been a very good lawyer for his entire career.
What are you doing to enhance the value of your practice? Do you have a succession plan? Does your law practice have an "estate plan?"
As quoted by Alan Weiss, citing an IBM survey, CEO's focus on three elements:
1. Embody creative leadership (take prudent risk, invite disruptive innovation)
2. Reinvent customer relationships (set priority of customer intimacy)
3. Operating dexterity (flexible cost structures and opportunistic capabilities)
Shouldn't this be what law firms do? Take prudent risk to grow the practice and enhance the well-being of its members and staff; focus their energies outward, to benefit their clients, which would include both pricing and costing flexibility.
Too often, law firms are all about their lawyers, and they forget the well-being (intimacy) of their customers/clients.
I've just talked with two legal industry "executive search" recruiters. They have never been busier in the last 5 years! And quality laterals are being sought!
That tells me that the economy is in recovery mode; that lateral partners are still being pruned from large law firms; that partners are getting tired of the politics in larger law firms where they see no rational basis for decisions being made that may very well impact their economic future; and that most law firms have yet to act as enterprises rather than as hotels for sole practitioners. Laterals with good books of business can just as easily move to another firm that will provide them with a larger umbrella and greater opportunity ... or even start their own boutique law firm.
This further suggests that while the economy has forced changes in law firms, the sea change some discuss hasn't yet taken place ... and may never. As I've said before, we're in an evolutionary, not revolutionary, mode. Write me with your thoughts and experiences on this.
Can you imagine that Twitter, WITHOUT any revenue stream, is valued at $1Billion! Wow. Not many employees and no revenue stream ... and no prospects in sight to get revenue.
Just think what your law firm, with a decent revenue stream, might be worth? What is the difference? And why isn't your firm worth $1B?