Category: Management
The President said that “the State Bar shouldn’t base policies upon what will or won’t be popular … Ultimately, our responsibility is to do the right thing." With this remark, the President of the State Bar of California justifies requiring 30,000 mostly small firm and sole practitioners to disclose to clients when they do not have malpractice insurance.
I find this remark of particular interest because it is usually said by one who wants to justify an act that is opposed by the vast majority of his very own organization. It is also offensive because it fails to address the very issue at hand. This statement is like Mom’s or Dad’s "…just because …" response to a kid’s inquiry as to why he should or shouldn’t do something.
In this case, the statement is used to justify an action that will prejudice an isolated group of lawyers who practice in the small firm environment. They need assistance from the Bar … and they don’t get it. Instead, they get slapped in the face. We might just as well place yellow arm bands around these folks and say they are "bad" people. There is no empirical evidence that this group of lawyers is subject to more malpractice claims than others. There is no empirical evidence yet set forth that suggests any reason to isolate this group of lawyers and identify or punish them in this fashion.
Yet, this very same organization has not, to date, honored its earlier (2005 Board of Governors Retreat) stated commitment to its members to provide them with help in their businesses (The Business of Law®) because it might antagonize a few legislators or other special interest groups or cost a few dollars or place additional demands on the staff. Where is the Board when they’re needed?
This attitude explains why members of the legal community, generally, have lost confidence in its governing body. Why the Board of Governors would anticipate that lawyers in this State would support it in any future disagreement with the State Legislature or with the Governor is beyond understanding. One can “turn one’s cheek” only so many times before the resentment rises to the point of action.
The perception amongst small firm attorneys that the State Bar is the enemy and not the friend clearly gains traction with actions such as taken now by this Board. John Dutton of the Board of Governors perhaps said it best. “Dutton argued that some county bar associations, a few State Bar committees and most of the members of the Conference of Delegates of California Bar Associations have joined critics in opposing disclosure. ‘And here we are,’ he said, ‘saying, ‘We’re going to jam it down your throat. We don’t care what you think.’”
Of course, the very Governors voting on this issue also fail to disclose any personal financial interest they may have in this issue, and several do. They also fail to address more important issues for disclosure if we were truly interested in client protection. And, most importantly, they fail to create an affordable insurance program that would allow economically marginal (but very good) lawyers to buy the very product the Board is promoting! (Dare we remember that the State Bar obtains several million dollars each year from the insurance program it promotes?)
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Q: Ed, can Outsourcing really make a firm more productive and profitable?
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Where courts have refused to uphold a covenant not to compete given by one lawyer to another in the sale of a law practice, one of the primary arguments against validating the covenant is that clients have a right to counsel of their own choosing. And, the argument continues, saying that a lawyer cannot practice law in a given area for a reasonable period of time restricts that right.
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“J. A. Barnes in the 1950s defined a social network as ‘an association of people drawn together by family, work or hobby.’ In the digital age, social networking websites amplify opportunities to associate and grow our social (personal and/or professional) capital.” (more…)
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Did you see the Tuesday edition of Wall Street Journal, Health section? David Armstrong discusses the business interests of doctors — and their ethical responsibility to disclose their personal financial interests in any business that benefits from their prescribed medical treatment, whether that treatment be medicine, equipment or otherwise.
The bottom line is that it is the patient’s responsibility to ask the doctor if he/she has any financial connection to the recommended treatment. The suggestion is that if the answer is "yes," the patient should get a second opinion. Not bad advice, but still a matter of personal trust and interaction between the doctor and the patient.
If the doctor has a financial interest in a treatment modality, this may influence the doctor’s prescribed treatment. Note that there is no movement here to demand that doctors disclose whether they have malpractice insurance. Perhaps because the existence of insurance is not likely to influence the treatment modality to be prescribed.
Why is it that some lawyers misguidedly believe it is important for lawyers? It’s existence or absence does not affect the legal strategy advised or vigor or competence of legal representation. As a side note, however, it is interesting to note that most of the lawyers advocating that other lawyers make disclosure DO have a personal financial stake in the outcome of this discussion. Most represent insurance carriers who whose premium income might increase. Yet, there is no disclosure required by them in their discussions of this topic. Interesting, eh?
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My wife would probably agree and say "yes." I have always said that she would have made a great law school professor because she can see every negative possibility, some I couldn’t even imagine, in every situation! The "parade of horribles," as it was called in law school.
Her response is that by envisioning what could go wrong, she can prepare for it happening and be ready to overcome it if it does happen. Perhaps her attitude is where i got the title for my book Disaster Preparedness & Recovery Planning for Law Firms.
In today’s ABA email, there seems to be some vindication for her approach. An article by Debra Cassens Weiss said:
"… Martin Seligman of the University of Pennsylvania, who studies positive psychology, says most optimists do better in life than merited by their talents alone.
But with lawyers, the opposite is true.
Seligman’s survey of law students at the University of Virginia found that pessimists got better grades, were more likely to make law review and got better job offers.
"In law," he told the newspaper, ‘pessimism is considered prudence.’ "
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In October, managing partners from across the country gathered at the Canadian Bar Association’s third annual high level conference created to focus specifically on their issues. They came together in Montreal to exchange ideas and discuss best practices. The Lawyers Weekly wrote about the conference and, particularly, my remarks.
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Rees Morrison observed, "Certainly no law firm can hazard more than a guess on the worth to a particular client at a particular time of its 10 paralegal hours, 20 associate hours, and 8 partner hours on a revision of a major sublease. For much that law firms do, value and cost are incommensurable."
I agree with Rees when one looks backwards. However, if one reviews the matter with the client before the engagement actually begins, the client generally will be able to assess the value to him/her/it. At that point, the law firm and client, together, should evaluate whether the anticipated service can be delivered for a fee that is commensurate with the value delivered as perceived by the client.
Budgeting for the matter, with the involvement and concurrence of the client, will go a long way to establish both the value to the client and likely fees the law firm will charge.
In this discussion, we must be careful not to equate the result for the client with the value because no law firm can guarantee the outcome.
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The State Bar of California’s Board of Governors narrowly voted to amend the current proposal to require lawyers who don’t carry malpractice insurance to disclose this fact to their clients. The amendment would require such disclosure only in those situations where a lawyer is required to have a written engagement agreement pursuant to Business & Professions Code §6147 & 6148.
That amended proposal, then, was defeated; a subsequent sense of the Board was to send this issue to its own committee (Regulations, Admissions & Discipline Committee, not the original task force that was submitting the proposal) for further study. Two issues were uppermost in the Board’s mind. One was whether the amended proposal could be adopted by the Board without further public comment and, second, whether the full ramifications of the original proposal were completely understood by the Board.
It is hoped that the RAD committee will be successful in addressing the issues that face all of the stakeholders involved, the public and members of the Bar, without the perception of self-interest or financial gain for the Bar … and with the interest of all lawyers in mind (including the 30,000 not currently insured). (more…)
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In his latest post, Peter Darling pays me the ultimate compliment: "… in his usual elegant, lucid way, Ed is making an incredibly important point (about thinking "beyond the norm"). As marketers, our whole job is to innovate.
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