Category: Personal Thoughts
Those who are worried about there being too many lawyers may have their wish come true. The reports (LA Times, Dec 8) are that, for the first time in nearly a decade, the pass rate of the bar examination is less than 50%. And, there are fewer candidates. And law school enrollment is declining. This certainly will decrease the number of lawyers in the future … especially with the Baby Boomers retiring in greater numbers as each year passes.
However, as noted before on the LawBiz Blog, this is the wrong issue to focus on. Rather, we need to look at how to get our law school graduates and lawyers positioned to earn a living by serving the currently under-served population.
With the turmoil escalating in California by the firing of the Bar’s Executive Director and charges/counter-charges flying all over, the image, reputation and credibility of the bar and its constituent members continues to decline. No wonder people find it difficult to trust lawyers. As an aside, I was in a store yesterday and overheard a customer say to the employee, “I’m a lawyer, be careful what you say.” How arrogant! I felt the need to later apologize to the employee for his comment. She apparently is accustomed to that behavior.
When an organization is arrogant and ignores the best interests of its members or customers, there will be no support for the organization in challenging times. The State Bar of California finds itself, once again, in a time of challenge with little support from its members, the attorneys of the state pay dues to keep the organization afloat. This time around, however, should there be a move by the State legislature to abolish the State Bar and convert it to a licensing agency only, there will be little or no opposition from members of the bar.
In what is the scandal of all time, the Board of Trustees summarily fired its executive director, Joe Dunn. This followed an internal personnel complaint filed by the bar’s chief trial counsel, Jayne Kim. The exact nature of the charges and counter-charges are yet to be disclosed, though the Board said they were reacting to “… serious, wide-ranging allegations … ” of mis-deeds.
Dunn, a former state senator, was hired four years ago to shepherd the transition from a bar governing board comprising mainly of lawyers elected by other lawyers to one with members primarily appointed by the Supreme Court of the state and state officials. While a primary goal of the bar was to protect the public, a secondary goal of earlier boards was to help lawyers become more effective and more efficient in relating to clients. The bar never achieved this secondary goal because 75 to 80 percent of the State Bar’s budget was and still is directed to the disciplinary system.
The current scandal is now not only an internal matter within the bar, it is in the court system, Dunn having sued on being terminated. High-powered lawyers have been retained by all principles involved. It is clear we have not seen the last of this. It is also clear, however, that lawyers should expect no help, education or sympathy from the governing body they must join on entry to the bar.
Jeffrey Toobin, legal writer for the New Yorker Magazine, notes the following in this week’s edition:
“… As with law firms, the top law schools are doing fine. Graduates of the most highly regarded institutions may not have the cornucopia of options that their predecessors enjoyed a few years ago, but few, if any, will go jobless. These students have large loans, too, but they’ll be able to repay them. As in days past, they will migrate to the big firms, where, by and large, their prospects are bright. And the cycle will continue: the rich (in credentials, at least initially) prospering, and the poor struggling. So it goes for lawyers—and, it seems, for everyone else…”
But even the top law schools are reporting that their graduates are not getting placed as quickly or as high on the totem pole as in past years. Yet, the law school still seems to be a mecca for many students. Perhaps it is the image of being a law school graduate (a lawyer); perhaps it’s the Socratic method of learning that enhances performance in even non-legal endeavors.
But, the economics of legal education, its ups and downs with the rest of the economy, suggests one more piece of evidence that The Business of Law® is no different than other areas of economic endeavor.
A customer challenge and how to create customer ill will:
I sent two framed pieces of art, one of them a print by Salvador Dali, to my son in New York. I’m in Los Angeles. The representative at the counter of the Marina del Rey FedEx store assured me that FedEx packaging the prints would guarantee a) that they would be packaged well, b) if there were any damage, FedEx would not assert a claim of improper packaging. I paid extra for this service and was given a $1,000 insurance policy at no extra charge.
The prints arrived in New York … with the cover glass broken and the outside packaging ripped. I filed a claim with the company as requested, with photos and a claim estimate from a frame company. After what seemed like more time than it should have taken, I received a letter denying the claim…. because the prints were improperly packaged. I called to inquire further but was told that the person who denied the claim, the person whose name is on the letter of denial, had to be the person to talk with me. I called several times, leaving my name and number, requesting a return call. Still …. no response.
I called the local (point of shipment) office. They again assured me that they were responsible for packaging … and proof of FedEx packaging is both in the pictures (they used blue packaging tape) and on the invoice issued by FedEx. But, I was told, they have no authority to settle a claim. Apparently, neither does the New York (locus of delivery) office.
Several calls to the claims department of FedEx in the East have not been returned. Yet, another department of the company is now threatening me with a collection letter.
This denial and silence breeds ill-will among customers/clients. I read a marketing statistic that suggests that for every good service experience, you tell one person; for every bad service experience, you tell 20 people. This amplification is not what any responsible company wants to experience.
Moral to my audience: Make it easy to reach you; don’t hide behind complex web site walls. Return calls and resolve disputes … that’s how you create goodwill.
A day of college football upsets … and UCLA was no exception …. My wife and I were guests on the field before the game.
As in football, lawyers must bring their best game to court and to the office every day if they want to succeed and satisfy client needs …
Recently, a lawyer sent a collection letter to his client. The letter allegedly included implied threats to sue. The court said that, despite the lawyer’s right to sue, the manner in which the letter was written might have confused the debtor as to the statutory right to dispute the debt. The court further stated that the FDCPA was not intended to protect lawyers, but rather to protect “regular people.”
The defendant-lawyer said that if he has the right to sue (which he does); how does his mentioning that fact violate the Act by saying so? Reading the opinion does not give a clear answer to this question.
However, the moral of the saga, is that a lawyer’s writing must be very clear. The underlying message of the case, it seems to me, supports my lifelong premise: do not threaten. Mean what you say and say what you mean. In other words, if you are not sure whether you are going to sue, do not say so. And when you say you will sue, mean it and follow through by filing an action.
This becomes particularly important in dealing with clients and former clients, and especially those that are governed by a federal act such as the FDCPA.
In this month’s issue of the American Bar Journal, an article was written about the CEO of the U.S. Anti-Doping Agency, Travis Tygart, and his efforts to prove that Lance Armstrong “cheated” in his bike racing. In the article, reference was made to his being a Christian and Lance Armstrong to being an atheist.
Such reference was gratuitous and does not make one a good person and the other a bad person. Religion does not make the accused guilty or the accuser innocent. Religion detracts from the message of the article.
Also, two issues of significant importance were not addressed. One was why a U.S. agency was so “hot to trot” over a French event, the Tour de France? It devolved into what was seemingly a personal vendetta between two opinionated and arrogant personalities.
What was not mentioned is more important to the issue. Technology has improved the performance on the bike by make the bike lighter and more aerodynamic; nutrition has improved the performance of the athletes by making them healthier; and psychology has improved the focus of athletes. Why should not science also be able to improve the performance of the athlete by using his own blood? We allow training at high elevation. How different is this?
“Doping” has been an element of racing in the Tour for decades. Just check out wikipedia for details.
In the free speech movement in the 1960s, in prison reform and in civil rights, we have made many changes over the years. If one were arrested before such changes, were they considered unethical? They were chastised and even arrested, and some killed.
Perhaps the more important issue in this case should be whether the rule should be changed, whether people ought to
use the latest and best technology for both their equipment and their bodies? In this discussion, that the rule may wrong does not get reviewed.
Should lawyers care about this issue? Isn’t it “old hat” at this point? We are being urged to be creative, to use new technologies and new or at least not previously test modalities of management and client services. At what point will the Bar say lawyers overstepped the boundaries of propriety? While being created and assertive (perhaps “aggressive” or “uncivil”), some might say we/you have crossed the line of propriety.
When I first heard the news, I was surprised that Baker Hostleter accepted the assignment from the Republican Party to sue President Obama for allegedly overstepping the boundaries of Executive Power. Why? The first reason that came to mind was that such a high profile assignment would identify them as a Republican oriented law firm. This likely would alienate half the population. Why would one willingly toss away one-half of your prospective market?
Of course, some believe that any publicity is good publicity. For example, Baker Hostetler was lampooned earlier this month when Jimmy Fallon on the Tonight Show ran a fake commercial for the law firm. “At Baker Hostetler, we specialize in one thing: suing the president,” the parody ad said. “For instance, have you ever been forced to pass Obamacare, even though you didn’t like it? We can help you waste thousands of dollars in taxpayer money to fight for what you sort of believe in.” For their target market, the business world, I do not think this is the image they want.
The second reason is that, at least in my mind, the case to limit Executive Power is likely not to be won despite a Republican-oriented Court. This essentially is a political issue that can be addressed in the political arena of electioneering. Elections will be held in the near future. Executive Power has expanded with each President, including Republicans. Any curtailment would apply to future Presidents, including Republicans. Why, as a Party, would they want to do this?
Of course, this is a suit against the Executive being brought by the Congress … and therein may lie the answer for the suit. That does not answer the question, though, as to why a law firm would want to be so identified. Baker understood its business base and perhaps had second thoughts. Quinn Emanuel, having recently won some big lawsuits, may be feeling its oats and believe they are impervious to such considerations … or perhaps they want to be so identified.
Congratulations to Craig E. Holden, the new president of the State Bar of California. Among other attributes, Mr. Holden is a partner in the major law firm of Lewis Brisbois Bisgaard & Smith LLP, a person of color, a former member of the executive committee of the CalBar Law Practice Management & Technology Section, and the youngest person to be elected president of the California State Bar. Each of these attributes is sufficient to give Mr. Holden a sensitivity to the needs of the average lawyer. However, taken together, they provide an appropriate backdrop for one of his major goals during his tenure: to help lawyers succeed. Success in this context means helping lawyers be more effective in dealing with their clients, be more efficient and encounter less stress in their practice.
Not since Jim Heiting was president years ago as any California State Bar president suggested anything but a regulatory and enforcement goal for the State Bar. Mr. Holden is even suggesting that State Bar funds might be used to support this goal. He seeks to expand his concept by creating a system of mentorship for young lawyers. Personally, my hope is that he expands this idea to include all lawyers in the state of California.
Adopting Mr. Holden’s perspective can also be financially rewarding for the State Bar as well as its lawyer members. The current budget for the State Bar includes approximately 80%, or $32 million for disciplinary activities. If the education that Mr. Holden envisions enables lawyers to avoid future discipline, even if only to the extent of 50%, the State Bar will save $16 million. These funds could then be used to meet other goals of the State Bar.
“The proposed initiative is part of Holden’s broader goal to re-examine the State Bar’s mission of public protection. Ever since the Bar radically reformed its governance structure four years ago (in response to legislative mandate), many lawyers have come to believe that ‘all we do is regulate,’ he said…. ‘That is the core function… But I don’t agree that that’s all we do.’” He continued by saying that “‘… My ultimate goal is to broadly define our mission and what it means to protect the public… Our mission should be retooled… To ensure that public protection is not viewed myopically… As a punitive machine.’”
Mr. Holden clearly has his work cut out for him. As noted in my recent writings, the State Bar has wrapped itself in the cloak of regulation and punitive enforcement. While the recent vote in Scotland was to remain part of the United Kingdom, I am sure that a similar vote among California lawyers would not be so favorable; based on recent actions and non-actions of the State Bar, I am convinced the overwhelming vote of California lawyers would be to separate public protection activities from lawyer education and improvement. Perhaps Mr. Holden will persuade a sufficient number of Board members to see the world as he does. This will be a tough challenge and one that I heartily endorse.
I attended the CALBar annual conference this past weekend in San Diego. Great learning and networking all in one place. I was there for a meeting of the Law Practice Management & Technology Section of the CalBar, and since this was my last meeting with them, I was honored with kudos for my many years of service to the group.
Over the years of my involvement with this group, we have provided many education programs for the benefit of the lawyer in his/her client relations and law firm operations. The section was responsible for a major writing effort and has thus far contributed significantly to two books, one on starting law practice and one on law firm operations. Much has been accomplished and I am proud to have had a share. A special cake was brought in with much hoopla ….