In a December issue of the Wall Street Journal, the headline implies that lawyers are making far too much money in a Delaware case. This, despite the unheralded reduction in their fee request. But, it’s easy too trash lawyers, and good headline writers (a special art in writing) are brilliant in getting readers to pick up the paper and keep reading …
But, let’s look at the facts:
First, the judge in the case said that the plaintiffs lawyers did an outstanding job, not just good, and such work should be rewarded. This is the same judge who historically penalizes lawyers when they fail to get results.
Second, the agreement between plaintiffs’ lawyers and plaintiffs permitted counsel to ask the court for 30% and they applied for less, only 15%, not a normally outrageous percentage.
Third, the risk reward element of contingency cases should be evaluated as of the beginning of a matter. And in this case, the risk of no recovery was substantial. Victory was, by no means, assured. Monday morning quarter-backing is always performed by those who have a corporate bias, have no interest in the matter and just want to carp, are jealous or, worse, feelthat lawyers should be heard, not seen. Reminds me of the criticism against lawyers who sued Ronald Reagan, as governor of California. Despite the fact that the lawyers won most, if not all, the lawsuits brought against the abuse by the State, neither the facts nor the victories was much discussed by those with a political agenda.
Last, these arguments that the lawyers’ hourly billing rates were too high fly in the face of value billing, the new wave for corporate America. In other words, the results in this case were based on the value to the clients resulting from the effort and skill of the lawyers. In most cases, hourly billing results in higher legal fees … fees unrelated to the value received by the client … and fees that created certainty in the cost of the legal proceeding, an important factor to clients in most matters.It’s important to know what the legal cost will be before embarking on a matter. Value billing provides this.
Thus, the criticism offered by the writer in the WSJ is off target, to say the least.Most criticisms against legal billings involve the hourly billings … here, value billing was requested by the lawyers and their clients and approved by the court. Hoorays should have been the proffered by the writer, not whining.
Most associates don’t understand the concept of profitability. This week, Ed outlines what it means to be a profitable associate, and why that is important for not just your firm, but your career as a lawyer.
How do we get from here to there? Jim Collins, in his Good to Great, describes CEOs with many different styles, but all successfully leading their companies to the pinnacles of success. How do we do that for ourselves? Is wanting something enough? Is the intention to be great, to be successful, to be rich enough? Is imagining or visualizing the "there" enough?
I suspect not. First, we must identify where we are. Then we must honestly address what our current state or condition is. And finally, we must develop new approaches to deal with the troubling challenges we face. As Dr. Phil might say, in the popular vernacular, "How’s this working for you?" And if what you’re doing now isn’t working for you, you’ve got to change your pattern, your actions … and not merely wanting the change. You’ve first got to think it through and, then as my coach, Alan Weiss, might say, develop the "Resolve" to change.
Are you in a good employment situation, do you have a good law firm partnership, do you have the kind and number of clients you want? If not, what are you going to do to make the change you want? One approach might be to engage a coach to provide you with meaningful feedback.
Corey Stephenson of Lawyers Weekly USA wrote an article about the Oregon Bar’s position about metadata:
"If a lawyer receives a document and knows or reasonably should know that metadata was inadvertently included, the Oregon Rules of Professional Responsibility only require notice to the sender. The receiving lawyer is not required to return the document unread or to comply with a request by the sender to return the document, according to the opinion.
The Bar went on to say that the 2nd lawyer’s client should be consulted about whether the lawyer should read the document. "…. (G)iven that the decision affects a client’s objectives, lawyers should consult with the client about the risks and rewards of returning the document versus retaining and reading the document prior to making such a decision."
It was my understanding that a misguided "hard copy" needed to be returned, unopened, if the lawyer knew the document was mistakenly sent. It seems we are modifying the rules a bit with technology.
But, there was a more fascinating pronouncement. The opinion went on to say that lawyers may not utilize special software to reveal the metadata in a document. “Searching for metadata using special software when it is apparent that the sender has made reasonable efforts to remove the metadata may … constitute ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’" The comparison was made to surreptitiously entering the other lawyer’s office to obtain client information.
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.
Wisconsin is in the news again. A lawyer, who promoted himself as the "king of lemon law," won a judgment for $12,500 against an auto dealership for unauthorized repairs and an award of attorney’s fees of $150,000. The Republican-controlled legislature was so incensed that they adopted a law (and signed by the governor) limiting attorney’s fees at three times the judgment. With such limitations, lawyers will be less likely to tackle consumer abuses, the obvious intent of the legislature.
Wisconsin, the historical bastion of progressive legislation and politicians, has certainly served up a strange mixture of bedfellows in the last couple of years. It makes for interesting reading … unless it’s your ax that is being gored. The real question is whether this is limited to the state of Wisconsin or a harbinger of things to come on the national level.
From Lawyers USA, we learn that the American Bar’s Ethics Commission has recommended that states rules be changed to allow non-lawyers to own up to 25% of law firms.
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.
Target is. How long will it take for a law firm to be considered a "retailer"? Will size matter?
The Court, in the Target case said "… a retailer may be sued if its website is inaccessible to the blind, stating that the Americans with Disabilities Act of 1990 prohibits discrimination in the "enjoyment of goods, services, facilities or privileges… Until this ruling, commercial websites were not considered a place of accommodation and were assumed to not fall under the Americans with Disabilities Act…"
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.
Robert Denney, a well -known and very capable marketing consultant, reports in his monthly newsletter that: "… an outsider … joins DLA Piper as co-chair of the entire 4,200-lawyer firm.This is probably an unprecedented move, at least in BigLaw.Corporations frequently hire senior executives from outside the company – or even from outside their industry – but large law firms almost always elect partners to senior management positions.In most cases this means they have little senior management experience and must climb a steep learning curve…"
Perhaps the legal profession is approaching reality in letting lawyers do what they do best, lawyering, and leave the managing to professionals. Or, at the very least, engage a professional coach who has walked in their shoes (i.e., practiced law) and also has business experience. The idea of having a business professional at your side, or at least available by phone, works in industry and is beginning to work in the legal profession for mid-size firms as well as sole and small firm practitioners.
