In today’s WSJ, a lead article talks about the courts in New York requiring the lenders in foreclosure suits to be honest in the filing of their documents. This follows the Florida cases with "robo signers." Affidavits claiming full knowledge of the facts of each matter were signed by employees of the lenders and the mortgage servicing companies as well as improperly notarized. Lawyers are being blamed for filing defective documents.
Lenders made the loans, their servicing agents prepared the information and signed the affidavits under penalty of perjury. Yet, the focus of attention seems to be falling on the attorneys. Somehow, attorneys are expected to verify that their clients are telling the truth. I thought that was the function of the trier of fact, either the jury or the judge. What am I missing here? Or, is this just one more case of seeking to toss the blame anywhere but where it belongs.
Lawyers in our system of justice are the messenger. Lawyers present the evidence in the light best suited to tell the client’s story … but it is the client’s story … and the only obligation on the part of the attorney is not to allow known perjury to be placed before the trier of fact. How and why is that now being altered?
The mortgage companies are now saying that the cost of foreclosures and loan modifications will increase, hurting consumers! Wow, it is an affront to human intelligence to suggest that the cleanup of their corruption (filing false documents with the court) will cause consumers to pay more!
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The current political mood of the country seems to be that "less is more," at least when it comes to government intervention. A student of American history will note the changes and mood swings between federal/national involvement and states’ action. On reflection, we may be going through one of those swings now.
A similar reaction is being generated by the mere mention of the American Bar Association reviewing the Model Rules of Professional Conduct to determine whether new rules should be created or old rules modified in reaction to the new technology. The problem is that new technology such as social media is merely a distribution method of ideas. Rules already exist that deal with statements to the public, advertising, self-promotion and the creation of attorney-client relationships, just to mention a few.
There is nothing inherently wrong with the ABA reviewing the rules. But, sole and small firm practitioners are fearful that the ABA will not stop at merely a "review." And, as Carolyn Elefant so eloquently pointed out, the members of the task force/commission that are reviewing the impact of the social media are, themselves, devoid of any personal experience with the media. That would be like someone with no newspaper experience at all seeking to create rules of procedure for the newspaper industry. Or someone with no automotive experience trying to design a car.
Here, the case can be made that there are now rules on the books; more are not needed.
Strange how this discussion takes me back to the conversation about the Bar preventing lawyers from taking retainers to do loan modification and loan foreclosure prevention work. Who does the Bar represent anyway? Ah, but that’s another question for another day.
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I’m seeking to connect with lawyer(s) who either did or are currently doing loan refinance work for homeowners. In some states, the bar and/or legislature has created regulations preventing lawyers from taking money from clients for this work in advance of completing the work.
I’ve written about this and now have a major newspaper interested in talking with such lawyers to inquire whether such work is still available and how the lawyer is handling the fee.
Please contact me directly at edpoll@lawbiz.com
Thanks.
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Are you a thought leader? Does a lawyer need to be a thought leader? Only if you want more revenue, only if you want people to recognize your name and seek you out. Lawyers, since the beginnings of our country, have been thought leaders. People like John Adams, Thomas Jefferson, Abraham Lincoln and many other of our founding fathers, were trained in the law.
Until recently, more than 50% of our Congress were trained in the law. Today, less than 25% have such training. Where have all our thought leaders gone? Is it that lawyers no longer see public service as a calling? Is it that lawyers who might otherwise serve earn a disproportionately higher income in the practice than they could in public service and therefore the lure to politics is diminished? Is it that the legal profession no longer focuses on pro bono and community service as a differentiator between practicing law and engaging in other professions? Is it that lawyers have stooped to being ill-tempered and without civility, therefore just not commanding or deserving the respect of the community as in years past?
Far more questions than answers. But, we used to produce statesmen with a legal education and no longer seem to be able to do this.
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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.
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There is a great deal of heat generated thus far over the ABA looking into the issues of internet marketing/advertising/promotion … They have not overtly yet taken a position, only solicited commentary for the ethics commission to consider.
Yet, many bloggers and commentators believe that the ABA is seeking to destroy the marketing advantage gained in the social media by sole and small firm practitioners.
The mood of the country, as seen in the recent election, appears to be that less is more. (Though I believe that that is true only as an electioneering slogan — just wait until "they" get into power.) Translating that feeling, though, into the legal world and we want fewer rules to regulate our conduct.
Yes, there are enough rules already on the books to protect the innocent and govern the "guilty." But, new technology does require a new look … perhaps even a loosening of the current ad hoc rules. Frankly, I’d rather have the ABA review these issues than the many states who tend to take a far more restrictive stance than does the ABA.
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